ADMINISTRATIVE LAW BAR ASSOCIATION - ANNUAL LECTURE - LORD JUSTICE SIMON BROWN - "HABEAS CORPUS - A NEW CHAPTER" - TUESDAY 23rd NOVEMBER 1999

• At http://www.adminlaw.org.uk/publications/habeas-corpus.htm

• Just over a hundred years ago, on 3 December 1892, a young woman called Daisy Hopkins was convicted by the Vice-Chancellor of Cambridge University and sentenced to fourteen days in the Spinning-House, the University's house of correction. The offence charged against her was that of "walking with a member of the University" - that was the form of words invariably then used in the Vice-Chancellor's Court as a genteel shorthand for Daisy's true offence. What in fact she was guilty of was prostitution with an undergraduate. She brought proceedings by certiorari and habeas corpus and just eight days later came before the Divisional Court. That consisted of the Lord Chief Justice (Lord Coleridge) and Smith J. The University was represented by the Attorney General, a second silk and a junior; Miss Hopkins also had a silk. These were serious matters. Her challenge succeeded; the proceedings against her were quashed and she was set free. As the Lord Chief Justice perspicaciously observed:
  "Nobody would suppose that a person simply walking with a member of the University, who might be that member's mother, or sister, or wife, or friend, was guilty of an offence against the law which would justify the Vice Chancellor in imprisoning him or her".
  Even though everyone recognised that in reality Daisy Hopkins was being tried for what Lord Coleridge called "the far graver charge of her being a person of immoral character and for having been guilty of immoral conduct", that could not sustain the conviction. That charge had never been made.
  Those were great days for habeas corpus. Contrast the position now. The present Lord Chief Justice, Lord Bingham, giving judgement a year ago in a group of cases involving challenges to a number of custody time limit extensions - ex parte MacDonald - said, in respect of one of them:
  "We dismiss these applications. The concurrent application for habeas corpus was wholly unnecessary and served only to increase costs unnecessarily. It should not have been made."

• First, however, it is worth glancing at the history of the writ if only to destroy the myth that from time immemorial (or at any rate, as many suppose, since Magna Carta) habeas corpus has been the central foundation of all our liberties. It is not so. First a couple of jury points. The writ had its origins not in securing freedom from detention at all, but rather in ensuring a person's attendance before a court of law so that justice (whether civil or criminal) might be administered in his presence. Later on, hardly its finest flowering, the writ became a weapon in the armoury of the common-law courts in their jurisdictional war with the courts of equity. Injunctions would be granted in chancery to prevent litigants from suing at common law or to restrain them from enforcing common-law judgements which violated equitable principle. The King's Bench would then release by habeas corpus whoever was committed for having breached these injunctions. Thus was the battle fought.
  Only gradually did the writ emerge as a means of testing the legality of detention. A turning point came with the Habeas Corpus Act 1679 which, in language today almost incomprehensible, although the Act is still in force, sought to strengthen the procedure's safeguards. It provided that writs should be available at any time of the year (remarkably it provides that a judge who unduly refuses the writ in vacation is liable for up to £500 punitive damages, a sum it has not been found necessary to increase down the centuries!), that the jailer must obey the writ immediately, that the judge must come to a speedy determination upon it and that, if released, the prisoner should not then immediately be reincarcerated. "The Act of 1679", observed Professor Sharpe in his monograph on the law of habeas corpus (2nd Edition 1989) - the only such work on the topic and invaluable to anyone concerned to explore this somewhat arcane branch of jurisprudence - "marks the point at which the writ took its modern form." By 1794 Blackstone, in his Commentaries, was describing it as a high prerogative writ. As he put it:
  "The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted."
  And that, of course, is what the writ does: it commands the jailer to bring the applicant before the court on the day and at the time specified "together with the day and cause of his being taken and detained ... [so that the court] may then and there examine and determine whether such cause is legal."
  Before I pass from this lightning history of habeas corpus, there are two broad points to be made. First, the writ of habeas corpus has never been an all-purpose remedy for securing the freedom of those claiming to have been wrongly detained. As Lawton LJ observed in 1987 in Linnett v Coles :
  "A writ of habeas corpus is probably the most cherished sacred cow in the British constitution; but the law has never allowed it to graze in all legal pastures."

  Secondly, it should be noted that historically habeas corpus allowed only the most limited review. So it was that in many cases, the scope of review came to be extended by a linked application for certiorari - certiorari-in-aid of habeas corpus as it was known. Daisy Hopkins was just such a case. By bringing up the whole record, the court could be satisfied that there was real substance in the complaint and not merely some technical procedural flaw.
  The real point to be made is that strictly speaking the only form of review available on habeas corpus is as to the soundness of the reason given for detention. As Lord Mansfield observed in Sommersett's Case : "The only question before us is whether the cause on the return is sufficient." True, as the law developed, there were cases where the court was prepared to go behind the return and to review some prior determination upon which it rested. But that was because the courts chose to act just as if certiorari-in-aid had in fact been used.
  The essential point I make is that it is no heresy to contemplate, as I do, subsuming habeas corpus within the wider scope of judicial review. That rather would be to re-unite it with certiorari as so often in the past it was, or at any rate was assumed to be, united.

• I began a hundred years ago with Daisy Hopkins. I end, still further back in history, with Sommersett's case of 1778. You will need no reminding of its facts. Sommersett was a negro slave brought by his master from Virginia to England. Having refused to continue in service, he was captured and confined in irons on a ship lying in the Thames bound for Jamaica. A writ of habeas corpus was issued directed to the ship's captain requiring him to produce the applicant's body before the Court together with the cause of his detention. The return to the writ stated that slaves were authorised by the laws of Virginia and Jamaica and that Sommersett had been committed to custody to be taken to Jamaica and sold there. Lord Mansfield's historic holding was that slavery is so odious that only positive law could support it, and that in England there was none. He concluded with the famous words "the black must be discharged." I always thought, however, that counsel had the best line:

  "The air of England is too pure for a slave to breathe in".

  I mention the case not just because no habeas corpus lecture would be complete without it, but also to make three short final points. First this: Sommersett's case took six months to decide; judicial review, I assure you, can do much better! Second, great though the issue there was, that was not a public law case at all. Rather it was a dispute between the slave and his owner, although of course the writ had to be directed towards the ship's captain. I can see no purpose whatever in retaining habeas corpus as a private law remedy. If anyone today is wrongly detained by a private citizen, his remedy surely would be to obtain an immediate injunction. Third and finally this. Tempting though it is to glory nostalgically in our proud past, we should instead have the courage to recognise and build on our present success. Remedies and processes are only ever as good as the judges who administer them. Bring habeas corpus into the evolving process of judicial review and I do not think the judges will fail you.

HABEAS CORPUS. Give me a body!

• At http://www.holysmoke.org/sdhok/habeus.htm

• "HABEAS CORPUS ( Lat., "[that] you have the body"), a writ or order issued by a court to a person having custody of another, commanding him or her to produce the detained person in order to determine the legality of the detention. The writ of habeas corpus is of English origin; its original purpose was to liberate illegally detained persons, and it is still a protection against arbitrary imprisonment."

• History.
  The earliest use of the writ as a constitutional remedy against the tyranny of the Crown took place in the latter part of the 16th century, when it was applied in behalf of persons committed to prison by the Privy Council. Many ways of avoiding the effectiveness of the writ were subsequently developed. In a case in 1627 the judges decided that a sufficient answer to a writ of habeas corpus was that the prisoner was detained by warrant of the Privy Council. In 1641 Parliament, by legislation that abolished the Star Chamber, tried to increase the effectiveness of the writ. This law provided that persons who were imprisoned by a court exercising jurisdiction similar to the Star Chamber, or by command of the sovereign or of the Privy Council, should be granted a writ of habeas corpus without delay; and that the court was to determine within three days after the return of the writ the legality of such imprisonment.
  The subsequent refusal of judges to issue writs of habeas corpus during vacation periods resulted in the passage by Parliament of the Habeas Corpus Act of 1679. That statute imposed severe penalties on any judge who refused without good cause to issue the writ and on any officer or other person who failed to comply with it. After that date the authority of the court was paramount to any order of the sovereign, and the writ became a powerful weapon for the protection of the liberty of the monarch's subjects. The statute, however, dealt only with imprisonment for criminal offenses, and it was not until 1816 that its benefits were extended to persons detained for other reasons.

• Modern Use.
  Protection against arbitrary imprisonment by the right of habeas corpus is not found in continental Europe. In the democratic countries of Western Europe, however, the codes of criminal procedure require that an arrested person be informed with reasonable promptness of the charges and be allowed to seek legal counsel. In many other countries, persons are subjected at times to lengthy periods of imprisonment without being informed of the charges. The writ of habeas corpus has been adopted in many Latin American countries, either by constitutional provision or statutory enactment, but has frequently been nullified in practice during times of political or social upheaval.

Habeas Corpus : History and Definition

• At http://www.chrononhotonthologos.com/lawnotes/hc.htm

• There are two definitions for habeas corpus: one formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.

  In the early days (before Magna Carta), the king had many court systems operating: e.g. courts of Common Pleas, Exchequer, King's Bench, Chancery, etc. Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court. The phrase, "habeas corpus," meaning, "you have the body" was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held. In its most common form, the full formal phrase for habeas corpus was "habeas corpus ad subjiciendum." Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court's way of telling the first court that it didn't know what it was doing and had strayed from it's original jurisdiction (i.e. exceeded jurisdiction). The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the "Great Writ of Liberty." It was the only known privilege or right that became stronger with the passage of time.

  In summary, habeas corpus is the process of one court sitting in judgment of another court's jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious: Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.

  In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court.

HABEAS CORPUS

• At http://law.about.com/newsissues/law/library/forum/uc-habeas_corpus.htm

• "Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus. "

• ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to 'the law of the land'. From Magna Carta the exact quote is: '...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.' The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common 'law of the land' as was expressly recognized by Magna Carta.

• CIVIL LAW VS. COMMON LAW: However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the 'Norman intruders' intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640’s when, following the English Civil War, and the beheading of King Charles I in 1649, the people’s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient 'good old' common law of the land. In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest. Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the state’s awesome power to restrain liberty.
  The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King’s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated 'star chamber court' at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King’s courts. It was the King’s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William’s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

• THE HABEAS CORPUS ACT: The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

• AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.' It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The 'afterthought', that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.
• CIVIL WAR & HABEAS CORPUS: The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a 'person' as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

Habeas Corpus Act - From Thompson's compilation of English Statutes in force in the State of Florida

• http://home.earthlink.net/~walterk1/Patr/CL/Habeas.html

• WAGER OF LAW. - Black's 3rd
  In old practice. The giving of gage or sureties by a defendant in an action of debt that at a certain day assigned he would make his law; that is, would take an oath in open court that he did not owe the debt, and at the same time bring with him eleven neighbors, (called "compurgators,") who should avow upon their oaths that they believe in their consciences that he said the truth. Glanv. lib. 1, c. 9, 12; Bract. fol. 156b; Britt. c. 27; 2 Bl. Comm. 343; Cro. Eliz. 818.
  • Contents of the compilation of British Statutes in Force in the State of Florida Compiled by Leslie A. Thompson, 1853
    • http://home.earthlink.net/~walterk1/Patr/CL/Habeas.html

Habeas Corpus: History and Definition

• http://www.chrononhotonthologos.com/lawnotes/hc.htm

• "There are two definitions for habeas corpus: one formal and the other substantive. The formal definition may be found in any law dictionary. This essay is about the substantive definition. The substantive definiton of habeas corpus is not found in the dictionaries, but rather, in the history books.

  In the early days (before Magna Carta), the king had many court systems operating: e.g. courts of Common Pleas, Exchequer, King's Bench, Chancery, etc. Each court had its jurisdiction defined. Of course, as an arm of government, courts are simply another form of bureaucracy with assigned functions. Like any bureaucracy, they always want to expand their jurisdictions. If a court exceeded its jurisdiction, a person could go to the proper court that should have had jurisdiction, and ask for an order directing the errant court stop its proceedings and release jurisdiction to the proper court. The phrase, "habeas corpus," meaning, "you have the body" was put at the end of pleadings to the second court asking that the first court be required to produce the body if it was being held. In its most common form, the full formal phrase for habeas corpus was "habeas corpus ad subjiciendum." Of course, as you might surmise, that would pit one court bureaucracy against another. The Habeas Corpus worked quite well because, as long as the defendant was not a common enemy to both bureaucracies, one bureaucracy would not miss any opportunity to put down a competing bureacracy. The practical result of all this is that the defendant would often be ordered released, which was the second court's way of telling the first court that it didn't know what it was doing and had strayed from it's original jurisdiction (i.e. exceeded jurisdiction). The habeas corpus, as a by-product of bureaucratic turf protection, tended to serve personal liberty well. Over the centuries it became known as the "Great Writ of Liberty." It was the only known privilege or right that became stronger with the passage of time.

  In summary, habeas corpus is the process of one court sitting in judgment of another court's jurisdiction. It is NOT a civil or criminal proceeding, but rather it is a family fight between courts. That is why, even though you find habeas corpus rules in the civil procedure books ( FRCP and Calif CCP) the procedures stand somewhat alone, independent of the rest of the procedures in those codes. The reason is obvious: Why would a court burden itself with procedural requirements? That stuff is ok for outsiders not part of the court system (i.e. plaintiffs, defendants, and attorneys) but not ok for judges themselves.

  In America, everyone can be sovereign. When you move for habeas corpus, you are activating your own court, which is separate and distinct from their court. You sit in judgment of the jurisdiction of their court. When you order them to produce the injured party and to demonstrate the injury, and when they fail to produce, then your court can issue an order to dismiss the case for lack of jurisdiction. Your court is a court of record and takes precedence over the statutory court."

Habeas Corpus Act of Parliament, 1679

• http://www.spartacus.schoolnet.co.uk/PRgagging.htm
• Text of Habeas Corpus Act, 1679: http://www.fordham.edu/halsall/mod/1679habeascorp.html | http://www.constitution.org/eng/habcorpa.htm

Habeas Corpus: Ambrose Bierce: The Devil’s Dictionary - H

• http://www.users.bigpond.com/burnside/bierce-H.htm

• HABEAS CORPUS. A writ by which a man may be taken out of jail when confined for the wrong crime.

Federal (USA) Habeas Corpus Review: A Brief Overview

• http://profs.lp.findlaw.com/habeas/

Whigs and Tories : The Habeas Corpus Act

• http://www.saburchill.com/history/chapters/chap4011ft.html

• Whigs and Tories

  Gradually there emerged a group of MP's and Lords who wanted Parliament to be stronger than the king. They hated and feared Catholics and sympathised with Puritan Non-conformists. They began to call themselves the Country Party (opposed to the Court Party). Their enemies nicknamed them "Whigs" after some Scottish Puritan outlaws.

  The other political group, the Court Party, were for the king and believed in Divine Rights. They were also in favour of the Church of England with all its ceremonies and bishops. They hated Non conformists. The Whigs suspected that they were pro-Catholic and nicknamed them after Irish Catholic outlaws : the "Tories".

  The Whigs and Tories were the world's first political parties and over the years to come they were to share government and opposition in a dual party system. The Whigs became the Liberal Party in the 19th century and the Tories became the Conservative Party. Both still exist today, although the Liberal Party is now called the Liberal Democratic Party.

  The Habeas Corpus Act

  This Act, passed in May 1679, allowed a prisoner to demand that he should be brought before a court and have his case examined. It was passed during the reign of Charles II and meant that even a political prisoner, an opponent of the king, as well as a common criminal, could have a fair trial and not just be thrown into prison to be forgotten about. It provided a dramatic contrast to the notorious "lettres de cachet" of Louis XIV which existed in France at the same time and allowed the French king to imprison someone indefinitely, without any legal redress.

  Habeas Corpus literally means "bringing the body of an individual before a court of justice". This right had existed in England in early Norman times. (Article 36 of the Magna Carta of 1215 says that this right should "not be refused". At that time it meant that an accused person could avoid a terrible trial by ordeal.) Once before a court, an accused person has his case examined and is then allowed bail (is freed on condition that he leaves a sum of money and promises to return for further hearings), or he is imprisoned again because the evidence against him is so great.

  By the time of Charles I kings were saying that a simple royal order was sufficient to overrule a writ of Habeas Corpus. It was for this reason that, in the late 17th century, Parliament wanted the law clearly and irrevocably written down.

  The Habeas Corpus Act of 1679 was largely the work of Lord Shaftesbury, after whom it was named. Occasionally, it is suspended, for example in time of war or when there is a terrorist threat, but suspension of Habeas Corpus has to be voted by Parliament and for a limited period only.

  All modern democracies have a law equivalent to Habeas Corpus written into their constitutions.

• The Act of Habeas Corpus was only just passed in the House of Lords in May 1679. When the votes were counted, there were not enough Lords in favour, so it was decided that one of the Lords, because he happened to be fat, was worth ten votes. It started as a joke, but in fact remained on the statutes.

  The Earl of Shaftesbury (1621-1683)

  Anthony Ashley Cooper, the Earl of Shaftesbury, was a Puritan landowner. He was opposed to absolute monarchy, yet, at the same time, he was afraid of the idea of democracy. During the Civil War, he kept changing sides, which earned him the nickname the "Dorsetshire Eel".

  At first, Shaftesbury was one of King Charles II's ministers and became Lord Chancellor in 1672. He turned against the king when he learnt of the existence of the Treaty of Dover. This was the secret treaty which Charles II had signed with Louis XIV of France. It was an arrangement by which King Charles II was paid a "pension" to, amongst other things, restore Catholicism as the state religion in England.

  Shaftesbury was one of the MPs who voted for the Exclusion Bill during the Exclusion Crisis (1678-1681). This was an attempt to keep the Catholic Duke of York, later James II, from ascending the throne. At the same time, another MP, called Titus Oates, had started a rumour that the Duke of York was secretly plotting with other Catholics to organize a Catholic take-over of both the monarchy and the government. This was to become known as the Popish Plot, and Shaftesbury made full use of the story. Many Catholics were arrested and killed because of this rumour.

  Shaftesbury established the Whig Party in 1681. The Whigs backed the Duke of Monmouth, Charles II's illegitimate son, as the heir to the throne. In 1681, he was arrested for a second time on a charge of high treason. Fortunately, he was acquitted by a Whig jury, and the charges were dropped. However, the king was busy replacing Whigs by Tories in influential positions, and Shaftesbury was forced to leave the country. He went into hiding in Amsterdam, where he died, in 1683, from the effects of a liver disease.

habeas corpus: The Columbia Encyclopedia, Sixth Edition. 2001.

• http://www.bartleby.com/65/ha/habeasco.html

• [Lat.,=you should have the body], writ directed by a judge to some person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. The writ’s sole function is to release an individual from unlawful imprisonment; through this use it has come to be regarded as the great writ of liberty. The writ tests only whether a prisoner has been accorded due process, not whether he is guilty. The most common present-day usage of the writ is to appeal state criminal convictions to the federal courts when the petitioner believes his constitutional rights were violated by state procedure. An individual incarcerated in a state prison is expected to exhaust all possible routes available before applying to a federal judge for habeas corpus. The term is mentioned as early as the 14th cent. in England, and was formalized in the Habeas Corpus Act of 1679. The privilege of the use of this writ as a safeguard against illegal imprisonment was highly regarded by the British colonists in America, and wrongful refusals to issue the writ were one of the grievances before the American Revolution. As a result, the Constitution of the United States provides that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Article 1, Section 9). President Lincoln suspended habeas corpus in 1861 at the beginning of the Civil War, and his decision was upheld by Congress - despite protests by Chief Justice Roger Taney that such suspension was not within the powers of the President. The Supreme Court’s liberal decisions in the 1950s and 1960s in the area of prisoners’ rights encouraged many incarcerated persons to file writs challenging their convictions. In recent years, the Court under William Rehnquist has limited multiple habeas corpus filings, particularly from prisoners on death row.

HABEAS CORPUS

• http://www.univ-nancy2.fr/CEAA/CRESAB/habeascorpus.htm

• An ancient common-law writ, issued by a court or judge directing one who holds another in his custody to produce the body of the person before the court for some specified purpose. Although there have been and are many varieties of the writ, the most important is that used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. The habeas corpus remedy is recognized in the countries of the Anglo-American legal system but is generally not found in civil-law countries, although some of the latter have adopted comparable procedures.

  The origins of the writ cannot be stated with certainty. Before the Magna Carta (1215), a variety of writs performed some of the functions of habeas corpus. During the Middle Ages habeas corpus was employed to bring cases from inferior tribunals into the king's courts. The modern history of the writ as a device for the protection of personal liberty against official authority may be said to date from the reign of Henry VII (1485-1509), when efforts were made to employ it on behalf of persons imprisoned by the Privy Council. By the reign of Charles I, in the 17th century, the writ was fully established as the appropriate process for checking the illegal imprisonment of people by inferior courts or public officials.

  Many of the procedures that made for effective assertion of these rights were provided by the Habeas Corpus Act of 1679, which authorized judges to issue the writ when courts were on vacation and provided severe penalties for any judge who refused to comply with it. Its use was expanded during the 19th century to cover those held under private authority. In 1960 legislation was enacted limiting the instances in which habeas corpuscould be denied and establishing new lines of appeal.

  In the British colonies in North America, by the time of the American Revolution, the rights to habeas corpus were popularly regarded as among the basic protections of individual liberty. The U.S. Constitution guarantees that the privilege "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." In England such suspension had occurred during the wars with France at the time of the French Revolution. In the United States, Pres. Abraham Lincoln suspended the writ by executive proclamation at the outbreak of the Civil War in 1861. The presidential act was challenged by Chief Justice Roger Taney who, in the case of Ex parte Merryman, vigorously contended that the power of suspension resided only in Congress. Lincoln ignored the order of the court, but the weight of modern opinion appears to support the view that suspension of the writ requires the consent of Congress.

  The current uses of habeas corpus in the United States are quite varied. The Supreme Court's liberal interpretation of the constitutional rights of those accused of crime led in the mid-20th century to the filing of many habeas corpus petitions by prisoners, challenging their convictions. A writ frequently is requested on behalf of one in police custody for the purpose of requiring the police to either charge the arrested person with an offense or release him. Habeas corpus proceedings may be employed to obtain release of the accused prior to trial on the ground that the bail set is excessive. On occasion habeas corpus relief has been granted a prisoner who is unlawfully detained after expiration of his sentence. In cases of one arrested on a warrant of extradition, a proceeding in habeas corpus may be instituted to challenge the validity of the warrant.

  The writ may also be employed in a wide variety of situations not involving criminal proceedings. Thus competing claims to the custody of a minor may be adjudicated in habeas corpus. One confined to a mental hospital may in some jurisdictions bring about his release by showing at a habeas corpus hearing that he has recovered his sanity.

  Encyclopædia Britannica, 1999 (CD-ROM)

Article 1, Section 9, Clause 2: William Blackstone, Commentaries 3:129--37 - including on habeas corpus

• At http://www.cyber-nation.com/victory/quotations/authors/quotes_parkinson_cnorthcote.html

• And yet, early in the reign of Charles I, the court of king's bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. This drew on a parliamentary enquiry, and produced the petition of right, 3 Car. I. which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of "notable contempts and stirring up sedition against the king and government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment; the chief justice, sir Nicholas Hyde, at the same time declaring, that "if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indignation and astonishment by every lawyer present; according to Mr Selden's own account of the matter, whose resentment was not cooled at the distance of four and twenty years.

  These pitiful evasions gave rise to the statute 16 Car. I. c. 10. §. 8. whereby it was enacted, that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still in the case of Jenks, before alluded to, who in 1676 was committed by the king in council for a turbulent speech at Guildhall, new shifts and devices were made use of to prevent his enlargement by law; the chief justice (as well as the chancellor) declining to award a writ of habeas corpus ad subjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum, &c, whereby the prisoner was discharged at the Old Bailey. Other abuses had also crept into daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second and a third, called an alias and a pluries, were issued, before he produced the party: and many other vexatious shifts were practiced to detain state-prisoners in custody. But whoever will attentively consider the English history may observe, that the flagrant abuse of any power, by the crown or it's ministers, has always been productive of a struggle; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which is frequently considered as another magna carta of the kingdom; and by consequence has also in subsequent times reduced the method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.

Understandings of the Rule of Law in Britain

• At http://web2.uvcs.uvic.ca/courses/lawdemo/MOD2/MOD2O.HTM

• Elsewhere there might be the sultan's caprice, the lit de justice, judicial torture, the slow-grinding mills of the canon law's bureaucracy, and the auto-da-fe of the Inquisition. In England, by contrast, king and magistrates were beneath the law, which was the even-handed guardian of every Englishman's life, liberties, and property. Blindfolded Justice weighed all equitably in her scales. The courts were open, and worked by known and due process. Eupeptic fanfares such as those on the unique blessings of being a free-born Englishman under the Anglo-Saxon-derived common law were omnipresent background music. Anyone, from Lord Chancellors to rioters, could be heard piping them (though for very different purposes).
  from Roy Porter, English Society in the Eighteenth Century (Harmondsworth, Penguin, 1982) p. 149.

Sir William Blackstone (1723-1780)

• At http://web2.uvcs.uvic.ca/courses/lawdemo/BIOGRAPH.HTM#BLACKST

• Blackstone's most remarkable contribution to English was his publication of his lectures given at Oxford University in the 1750s to "Gentlemen of Rank and Fortune." His Commentaries on the Laws of England (1765) in four volumes is in the words of Brian Simpson "a great, readable book about English law as a whole." This was the first serious attempt to reduce the morass of the laws of England to rational statement, and was immensely influential as a statement of that law, not only in England but also in the colonies and in the United States. His contribution to scholarship was recognized at Oxford by his appointment to the Vinerian Chair of Law.

  Blackstone was not a success at the Bar, nor as a judge of the Court of Common Pleas to which he was appointed in 1770. He was elected to Parliament in 1761 as a Tory supporting the Earl of Bute. His record in the Commons was undistinguished, as befitted a placeman who supported the aristocratic Whig establishment. He spoke out against the American colonists and was active in securing the expulsion from the Commons of the populist, John Wilkes. The Commentaries were criticized, not least by Jeremy Bentham, for their complacency about the genius of the common law and in their adulation of the British Constitution as the epitome of perfection in balancing the interests of King, Lords and Commons. While Blackstone's philosophy was borrowed and shallow, his sense of history as reflected in his statement of the law was generally strong. Politically, suggests Brian Simpson, he was "an old Whig for whom the Glorious Revolution was a living reality, a Revolution which had produced a constitution with perfect checks and balances." (See A.W.B. Simpson, Dictionary of Legal Biography, pp. 57-61).

Selections from Habeas Corpus Act: An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas (1679) 30 Car. II, c. 2, ss.

• At http://web2.uvcs.uvic.ca/courses/lawdemo/DOCS/WRITHC.HTM

Defend Habeas Corpus, The "Great Writ of Liberty"!

• At http://www.refuseandresist.org/resist96/habeascorpus.html

The Unconstitutionality of Time Limits Placed on The "Great Writ" by by Buck Garrett , Prisoner of War in America

• At http://www.november.org/0413.html

• The Constitution of the United States in certain instances, grants power to the Congress to enact laws. An example of one of those instances is the power to make laws to control the Commerce between the States. In short, in order for Congress to enact a law, the Constitution must grant the power to Congress that law.

  The Constitution does not put a time limit on this right to redress a grievance. The Constitution grants to each citizen, the right to petition the court at any time that citizen believes a grievance exists. Nowhere in the Constitution is Congress granted the power to set time limits on the Constitutional right to redress a grievance or any other Constitutional right. Even the Supreme Court would be hesitant in allowing Congress to pass a law that limited the 4th Amendment rights to certain hours of the day, or until a citizen attains the age of 35, or even until April 24, 1996.

  The founders never intended that Congress be empowered to chip away at rights specifically granted to the citizens by the Constitution. Of course, the Founders never intended that the United States to become a Police State either!

  "The Great Writ is Alive and Well!"

  Congress hasn't placed a time limit on the Petition for a Writ of Habeas Corpus, what they did was amend the second clause of Title 28 USC § 2255. That clause did state that a § 2255 motion may be made at any time. After the amendment, the clause sets a time limit of one year to file the § 2255 motion, relying on the latest of four possible times.

  When Congress passed 28 USC §2255 almost fifty years ago, they intended for 28 USC § 2255 to replace their Petition for a Writ of Habeus Corpus. Title 28 USC § 2255 appears to have worked pretty well over the last half century. Keep in mind here that Congress did not and has not attempted to amend the United States Constitution. Congress knows full well the process of amending the Constitution.

  The Suspension Clause of Article 1, Section 9, Clause 2 of the constitution, specifically prohibits the suspension of Habeas Corpus relief. You can bet that at least one of the idiots who profess to be a professional politician knows about the Suspension Clause. Since Congress passed 28 USC § 2255, they have every right to amend it, however, any amendment to 28 USC § 2255 is certainly not an amendment to the Constitution.

  I suggest the citizens file a Petition for a Writ of Habeus Corpus, pursuant to the Constitution and make it clear in their petition that they are not seeking any relief pursuant to 28 USC § 2255. The catch is, if you ask for relief under 28 USC § 2255, then 28 USC § 2255 with any amendments is all you can expect.

  Your caption should read:

  Petition for a Writ of Habeas Corpus pursuant to the Constitution of the United States of America.

Attacks on Habeas Corpus: The System's Rush to Execute

• http://www.rwor.org/a/firstvol/885/habeas.htm

• "Revolutionary Worker #885, December 8, 1996

  In April, the "Counter-Terrorism and Effective Death Penalty Act" was passed by Congress and signed into law by President Clinton. Under the excuse of "fighting terrorism," the law gives the government, courts and police authorities widely expanded powers of repression.

  One of the centerpieces of the new law is a measure calling for historic restrictions on habeas corpus--the right of prisoners to appeal their convictions and sentences in the federal courts. These restrictions will allow the government to execute more people and keep more prisoners under unjust incarceration. In the twisted language of the oppressors, these restrictions are known as habeas corpus "reforms"!

  In June, the U.S. Supreme Court upheld a part of the new habeas corpus restrictions with a unanimous decision in the Felker case. Other provisions are expected to be considered by the Supreme Court--and upheld.

  Under the new law, state prisoners will be limited to only one federal court appeal. And the appeal would have to be filed within one year--in some cases within six months--after the state conviction becomes final. Often, it is years before new evidence comes to light or new witnesses appear, giving prisoners legal ammunition to challenge their convictions.

  The law also severely limits the authority of the federal court to review state court convictions. It would not be enough for a prisoner to show that he or she was convicted in a state court on false evidence, coerced confession or other outrages. The prisoner would have to provide "clear and convincing" evidence of innocence and show that the state judge acted in an "unreasonable" way. These are very strict standards that make it virtually impossible for state prisoners to have their cases overturned in federal court.

  What effect will the gutting of habeas corpus have on prisoners, especially those on death row? Since 1970, almost half of the state court death sentences reviewed by the federal courts have been reversed. If the "counter-terrorism" law had been in effect, most of those people would not be alive today.

  The restrictions on habeas corpus bring added urgency to the fight to stop the execution of political prisoner Mumia Abu-Jamal. At a July press conference in Philadelphia, Leonard Weinglass--Mumia's lead attorney--said: "[The new law] is going to affect Mumia's case very dramatically because, up until now, we all thought that it would be a federal court looking at what the state courts of Pennsylvania had done that would order a new trial for Mumia. Now that issue is very, very clouded and the prospects are very ominous. So it's very important that the outside support be maintained."

  During the October Month of Resistance, the RW talked to Steve Hawkins, a Black criminal defense attorney with the National Coalition Against the Death Penalty, about the new habeas corpus restrictions. Here are excerpts from that conversation.

  ****

  On the history of habeas corpus in the U.S.:

  It's important for people to really see the connection with habeas corpus and Reconstruction. When slavery ended in this country, there was a concern that southern states would use the power of criminal law to put people back on the same plantations they had just gotten off of. Because the 13th Amendment only outlaws slavery--involuntary servitude--as long as you're a free citizen, you can be forced to work for free in prison.

  It's quite similar to the chain gangs we see now happening in the south. As the capitalist economy forces a lot of people out of work, the prison industrial complex is being used to have workers doing road work, painting, etc. I was just in a county recently where a number of buildings have been newly designated as historic buildings. Because of that, they can get the inmate crews to paint them, refurbish them and everything else. In Georgia they're using inmate labor to fight fires. People who are considered lifers too dangerous to be out on the streets are now being recruited to go save people's lives and be the point people in dangerous fires.

  Habeas corpus came about because the Reconstruction Congress knew that there had to be some way that when the southern states tried to force newly freed Blacks back to the plantation through imposing long prison sentences (and in those days, the warden could farm out inmates to work on people's property), the people could use the federal courts as a sanctuary, to be able to go in and press their rights. The Habeas Corpus Act of 1867 was passed right at the same time as the 14th Amendment. The 14th Amendment was to make sure people had equal rights in the civil context. And the Habeas Corpus Act was to make sure that people's rights as citizens of the United States were protected in the criminal context.

  About the effect of the new habeas corpus law on the Mumia case:

  The federal court, even if they disagreed with Judge Sabo, would now have to defer to his opinion. [They would have to defer] to the word of Judge Sabo, a former member of the Fraternal Order of Police, a former sheriff in Philadelphia county, with respect to whether Mumia received effective representation and counsel, whether Mumia's sentence was cruel and unusual punishment, whether his First Amendment freedoms--his political affiliation with the Black Panther Party--was used wrongfully to argue to the jury that he should be sentenced to death because of his political beliefs. And that has not been the standard in this country since habeas corpus was first passed back in 1867.

  How the gutting of habeas corpus will affect the masses of people:

  What it means is that if someone ends up in jail through a trial in which there were mistakes made--whether it was evidence that never should have been entered, whether the prosecutor made a comment to the jury which prejudiced the whole trial, whether there were questionable dealings in terms of information that should have been handed over to the defense attorney that wasn't--the prosecutor now gets a free-for-all. Because at the local-state level, where the judges work much more closely with the prosecutors, the judge is going to allow the prosecutor to get away with a lot more. And you as a citizen aren't going to have any power, really, to correct that.

  This is part of the growth of fascism in this country. Ultimately with the destruction of habeas corpus, the chances of innocent people being executed (and I believe some have already been executed in the last 20 years) is now much more real, and just waiting to happen. When they talk about speeding up the process, and at the same time cutting the level of review, they're bound to make critical mistakes.

  As I'm sure you know, four African American men out of Chicago, the Ford Heights 4, spent a number of years on death row. Under this new statute, someone like Dennis Williams, who spent 18 years on death row, would've been executed. I've talked on some of these right-wing talk shows on radio, and when I raise this point they take the attitude that they see the death penalty as something like skiing. People ski and there are accidents on the slopes, but we don't pull the slopes down. Whenever I hear that, I think of Mussolini's quote, "What is one life in the affairs of the state?"

  Even if someone is innocent--this has been my experience, and we see it with Mumia--this is a system that does not admit its mistakes and does everything it can possibly do to cover them up. And the only difference now will be, you won't have the ability to expose the police or expose what happened at a trial. It'll be concealed.

  --------------------------------------------------------------------------------
  This article is posted in English and Spanish on Revolutionary Worker Online
  http://rwor.org
  Write: Box 3486, Merchandise Mart, Chicago, IL 60654
  Phone: 773-227-4066 Fax: 773-227-4497
  (The RW Online does not currently communicate via email.)"

Capital Cases: Does the Bill of Rights Apply Here Any More? Evisceration of Habeas Corpus and Denial of Counsel to Those Under Sentence of Death By Stephen B. Bright

• http://www.criminaljustice.org/CHAMPION/ARTICLES/96nov02.htm

Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA. An NACDL Director, he has served people facing the death penalty at trials, on appeals and in post-conviction proceedings since 1979. He has taught courses on capital punishment, criminal procedure and international human rights at Yale, Harvard, Georgetown, Northeastern, Florida State and St. Mary's law schools; and has testified extensively before the U.S. Congress and many state legislatures.

MUMIA ABU-JAMAL, Petitioner, v. Case No. 99 Civ. 5089 (Yohn): AMICUS CURIAE BRIEF IN SUPPORT OF : PETITION FOR WRIT OF HABEAS CORPUS : (THIS IS A CAPITAL CASE)

• At http://www.nlg.org/news/mumia/brief_insupportof_habeas.htm

• IN THE UNITED STATES DISTRICT COURT
  
  FOR THE EASTERN DISTRICT OF PENNSYLVANIA
  
  
  
  MUMIA ABU-JAMAL,
  
  Petitioner,
  
  v. Case No. 99 Civ. 5089 (Yohn)
  
  
  MARTIN HORN, Commissioner,
  Pennsylvania Department of Corrections,
  and CONNER BLAINE, Superintendent
  of the State Correctional Institute at
  Greene,
  
  Respondents.
  ___________________________________________/
  
  
  
  
  AMICUS CURIAE BRIEF IN SUPPORT OF
  PETITION FOR WRIT OF HABEAS CORPUS
  
  
  (THIS IS A CAPITAL CASE)
  
  
  Center for Human Rights and Constitutional Law
  International Association of Democratic Lawyers
  National Lawyers Guild
  Southern Poverty Law Center
  National Conference of Black Lawyers
  Prisoners Self Help Legal Clinic
  
  
  By: JOSEPH Z. TRAUB, ESQUIRE
  1204 Walnut St., #4
  Philadelphia, PA 19107
  (215) 893-9051
  

Book Review: Civil Liberties in wartime --- ALL THE LAWS BUT ONE : Written by Supreme Court Chief Justice, William H. Rehnquist

• http://hometown.aol.com/gordonkwok/rehnquist.html

• Book Review: ALL THE LAWS BUT ONE, Civil Liberties in wartime

  Written by Supreme Court Chief Justice, William H. Rehnquist

  Published by Alfred A. Knopf, Inc., 1998.

  "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" President Lincoln addressed to a special session of Congress, July 4, 1861. The author, our current U. S. Supreme Court Chief Justice, William H. Rehnquist, used Lincoln's quote as the title of his new book, to discuss the civil liberties in wartime, especially on the issue of habeas corpus (meaning, to get the body). The book was published around November 1998.

  In writing this book, Rehnquist avoided legalistic jargon and used plain English. He told interesting stories with some little known episodes, explaining the background and motive of certain action. His writing could be easily understood. Three quarter of the work covered the history of jurisprudence of Civil Liberties of the Civil War period. In the remaining one quarter of the book, he continued to the WWI, WWII and the Korean War periods. He told stories on Lincoln's people: Seward, Chase, Bates, Cameron, Stanton and Scott etc.;on Lincoln's appointed Supreme Court Justices, David Davis, Noah Swayne, Samuel Miller, Stephen Field and Salmon Chase; on important legal precedents: Dred Scott, Ex Parte Merryman, Ex Parte Milligan (Ex Parte means, for the benefit of) plus the trials of (Lincoln's assasin) Booth's accomplices.

  On the topic of habeas corpus, please refer to my article in the 2/98 Newsletter (or, the article in "My Civil War Essays.") On the origin and meaning on habeas corpus, please refer to Dave J. Kenney's 3/98 NL. Also please refer to Joe H. Geden's presentation, 3/98 NL, and my response in the 4/98 NL.

  Rehnquist presented both views. It was (U.S. Supreme Court Chief Justice) Roger B. Taney's view that Lincoln had no power to suspend habeas corpus for he believed that only Congress had such power. Taney relied on the fact that the clause was written on Article 1, which exclusively described the power of the Congress. This is a restrictive view that interprets the Constitution narrowly and literally. Appointed by President Andrew Jackson more than a generation ago, Taney's perspective reflected archaic, conservative and narrow viewpoint. Just look at his decision (7 to 2) on Dred Scott case. He held Dred Scott, slave and Negro, could not be "citizen" nor "person", and slaves were merely "property" and therefore Scott lacked Jurisdiction or standing to pursue his case for freedom in Wisconsin, a free State. Of course, Taney's decision was later overruled by the passing of the 13th Amendment, the abolition of slavery. Roger B. Taney is a Marylander. Would you be surprised to learn that he ruled for the Marylanders, included many Legislators, who were jailed by Lincoln's military district commander, or military tribunal, in Fort McHenry (MD), Fort Lafayette (NY) and Fort Warren (MA), when Lincoln suppressed habeas corpus? Roger delivered his decision on Merryman, rebuking Lincoln's act. Lincoln simply ignored Taney, and did what he had to do ---------- to prevent Maryland from voting for secession in the Assembly. If Lincon did nothing, Maryland probably would secede. Could you imagine that Washington, DC, would be surrounded by 2 seceded States, Virginia and Maryland? The Capital of the United States would be in grave peril. Lincoln had to be pro-active and defended the Capital from ruin.

  "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." U.S. Constitution, Article 1, section 9, paragraphs 2.

  Lincoln also pointed out that the Constitution was silent as to which branch of government might exercise the authority to suspend the writ of habeas corpus and asserted that in an emergency when Congress was not in session the President had the authority to do so. In fact, Lincoln was very reluctant to order the suspension, and only on the constant urging of his Secretary of State Seward, that he finally relented. I guess it is a sense of self-preservation that Lincoln was forced to do this. For if Maryland went, the city of Washington, the White House and the Capitol would be completely surrounded by the Rebels. In examining the expressed and implied interpretation, and the intent of the Legislation, the Executive Branch of the Government certainly has the power to execute the existing Constitutional Law. Later, in 1863, the Congress authorized the President to suspend the writ under national emergency. This is the predominant view.

  Chief Justice Rehnquist utilized two chapters to discuss Milligan, which I had discussed with one page of writing (3/98 NL).

  I am excited when I found out Rehnquist used the same source as I did in the (3/98 NL), to show that the Judiciary did not interfere President Andrew Johnson's suspension of habeas corpus on Mary Surratt's case (p. 165). Judge Andrew Wylie of the Circuit Court for the District of Columbia acquiesced to the order of Pres. Johnson, brought to the court by district commander Winfield Scott Hancock. This is a case law demonstrating the President has the authority to suspend habeas corpus.

  Chief Justice Rehnquist concluded his thinking by citing the Roman dictum, in Latin, inter arma silent leges, which means, in time of war the laws are silent. His thinking superimposed my writing (3/98 NL), which stated,"In war, the civil laws remain silent." Again it confirms the view that Lincoln has the power to suspense habeas corpus. I am thrilled that my view synchronized with that of the Chief Justice. Rehnquist also described the defense of Civil Liberty on different cases in different wartime. The nature of each war determines the degree of the National Security's risk, which affected the Court to treat the defense of Civil Liberty on a case by case basis. I highly recommend the book. (1998)

  --------------------------------------------------------------------------------

  Copyright (C), all rights reserved.

  Author and Webmaster, Gordon Kwok (gordonkwok@aol.com)

  March 2, 2001

Unconstitutionality Of Slavery by Lysander Spooner (originally published in 1845)

• At http://www.lawcasella.com/spooner/UnconstitutionalityOfSlavery.htm
• At http://www.lawcasella.com/spooner/UnconstitutionalityOfSlavery.pdf

• "The authority of these charters, during their continuance, and the general authority of the common law, prior to the revolution, have been recognized by the Supreme Court of the United States. No one of all these charters that I have examined -- and I have examined nearly all of them -- contained the least intimation that slavery had, or could have any legal existence under them. Slavery was therefore as much unconstitutional in the colonies, as it was in England.
  It was decided by the Court of King's Bench in England -- Lord Mansfield being Chief Justice -- before our revolution, and while the English Charters were the fundamental law of the colonies -- that the principles of English liberty were so plainly incompatible with slavery, that even if a slaveholder, from another part of the world, brought his slave into England -- though only for a temporary purpose, and with no intention of remaining -- he nevertheless thereby gave the slave his liberty. Previous to this decision, the privilege of bringing slaves into England, for temporary purposes, and of carrying them away, had long been tolerated.
  This decision was given in the year 1772. And for aught I see, it was equally obligatory in this country as in England, and must have freed every slave in this country, if the question had then been raised here. But the slave knew not his rights, and had no one to raise the question lot him.
  The fact, that slavery was tolerated in the colonies, is no evidence of its legality; for slavery was tolerated, to a certain extent, in England, (as we have already seen,) for many years previous to the decision just cited -- that is, the holders of slaves from abroad were allowed to bring their slaves into England, hold them during their stay there, and carry them away when they went. But the toleration of this practice did not make it lawful, notwithstanding all customs, not palpably and grossly contrary to the principles of English liberty, have great weight, in England, in establishing law.
  The fact, that England tolerated, (i. e. did not punish criminally,) the African slave-trade at that time, could not legally establish slavery in the colonies, any more than it did in England -- especially in defiance of the positive requirements of the charters, that the colonial legislation should be consonant to reason, and not repugnant to the laws of England."
• Slavery, if it can be legalized at all, can he legalized only by positive legislation. Natural law gives it no aid. Custom imparts to it no legal sanction. This was the doctrine of the King's Bench in Somerset's case, as it is the doctrine of common sense. Lord Mansfield said, "So high an act of dominion must be recognized by the law of the country where it is used. * * * The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from the memory. It is so odious that nothing can be suffered to support it but positive law."
  Slavery, then, being the creature of positive legislation alone, can be created only by legislation that shall so particularly describe the persons to be made slaves, that they may be distinguished from all others. If there be any doubt left by the letter of the law, as to the persons to be made slaves, the efficacy of all other slave legislation is defeated simply by that uncertainty.
  In several of the colonies, including some of those where slaves were most numerous, there were either no laws at all defining the persons who might be made slaves, or the laws, which attempted to define them, were so loosely framed that it cannot now be known who are the descendants of those designated as slaves, and who of those held in slavery without any color of law. As the presumption must under the United States constitution and indeed under the state constitutions also be always in favor of liberty, it would probably now be impossible for a slaveholder to prove, in one case in an hundred, that his slave was descended, (through the maternal line, according to the slave code,) from any one who was originally a slave within the description given by the statutes. [*33]
• Footnote to reference: 6. [*23] Somerset v. Stewart.--Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin edition, the case is not entered in the Index.
• Footnote to reference: 7. [*24] Have Parliament the constitutional prerogative of abolishing the writ of habeas corpus? the trial by jury? or the freedom of speech and the press? If not, have they the prerogative of abolishing a man’s right of property in his own person?

Habeas Corpus - The Most Extraordinary Writ - By: JOSEPH DALE ROBERTSON

• http://law.about.com/library/forum/uc-habeas_corpus.htm

• JOSEPH DALE ROBERTSON
  Box 724
  Pinehurst, Texas 77362

  Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty’s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.

  ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to “the law of the land”. From Magna Carta the exact quote is: “...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common “law of the land” as was expressly recognized by Magna Carta.

  CIVIL LAW VS. COMMON LAW: However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the “Norman intruders” intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640’s when, following the English Civil War, and the beheading of King Charles I in 1649, the people’s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient “good old” common law of the land. In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest. Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the state’s awesome power to restrain liberty.

  The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King’s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated “star chamber court” at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King’s courts. It was the King’s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William’s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

  THE HABEAS CORPUS ACT: The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

  AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.” It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The “afterthought”, that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

  CIVIL WAR & HABEAS CORPUS: The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a “person” as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

  As is generally known, the Writ of Habeas Corpus was suspended by President Lincoln during the civil war. Chief Justice Roger Tanney, in the case of Ex parte Merryman (See: Ex parte Merryman, 17 Fed. Cas. No.9, 487, p.144 (1861)) strongly excepted suspension of Habeas Corpus by a sitting president and concluded that only the congress had the power of suspension under Article I Section 9 of the constitution. The ruling of the Supreme Court was apparently ignored by the President and the military during the civil war. Congress later authorized the already presidential suspension of the writ in 1863. After 1863, and acting on congressional authorization, the military was permitted to temporarily hold people who were to be turned over to and adjudicated by the civil courts. After the assassination of President Lincoln, and in the case of Ex parte Milligan (See: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)) the United States Supreme Court granted the writ and once again established that only Congress had the power to suspend the Writ of Habeas Corpus and that the military had no jurisdiction over the trial of civilians in the post civil war South.

  THE MODERN WRIT OF HABEAS CORPUS: Today the Writ of Habeas Corpus is used in many different ways. It applies to post conviction relief in criminal matters even where the judgment of judge and jury is final. It applies to those who are in police custody but who are not charged with a crime. It applies to those who are awaiting trial but who have not been able to make an excessive bail. It applies to death row prisoners who challenge their death sentence. It applies to prisoners who remain in custody after the expiration of their lawful sentence. Additionally, Habeas Corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority. For example, Writs of Habeas Corpus have been issued in civil cases on application of a parent where a child’s custody is being sought against the wishes of the other parent who allegedly “restrains” the child. It applies equally to those who have been held because of their mental condition. And the writ applies equally for any other fact or circumstance, civil or criminal, in which the liberty of someone is restrained in any meaningful manner. Habeas Corpus extends even to those who are already released from actual custody on bail and who are contesting the manner and/or authority of the restrictions which bail places on their liberty or the charge for which they have been required to make bail. And although, research by this writer has failed to reveal any cases to date, home schooling contest are subject to the writ of Habeas Corpus. Parents whose authority to home school their own children and who are challenged by the state or other authority may properly file a Writ of Habeas Corpus to adjudicate the dispute as in any other child custody case. And, the writ may properly be signed and filed by an attorney - or - by “any other person” (See: Texas Code of Criminal Procedure, Article 11.12 and 11.13.) who has knowledge of the improvident restraint of liberty. In fact, there is legal precedent recognizing the duty of any citizen to proceed by Writ of Habeas Corpus to notice a court and to invoke the duty of the court as to Habeas Corpus when any illegal restraint of any other citizen is observed.

  CAVEAT & SUMMARY: On a more ominous note, the Writ of Habeas Corpus is not without its detractors today. Movement is underway throughout the United States and each of the states to curtail the employment and exercise of Habeas Corpus. This questionable, if not highly suspicious, exercise can be divided generally into two camps. Congressional restrictions on the writ; and judicial restrictions on the writ. For example, the United States Congress enacted the anti terrorism act in April of 1996 which effectively stripped the Supreme Court of its power to review lower federal court rulings in Habeas Corpus cases. However, the Supreme Court retained its power to review petitions for Habeas Corpus which are directly submitted to the court. Additionally, and more disturbingly, there is evidence that the Writ of Habeas Corpus has in some jurisdictions been selectively suspended in certain types of cases.

  For example, frequently State courts selectively ignore, as a practical matter, the effect of the writ in cases where citizens are charged with the “unauthorized practice of law”. In most of these jurisdictions, it is disturbing to note that it is an agency of the state Supreme Court itself which makes the complaint and then prosecutes the charge. In these cases the supreme court is making the charge, prosecuting the charge only to later sit in final adjudication of the charge before their own court. The consolidation of power as reflected in this practice against the liberty of individual citizens smacks of star chamber practice and should be condemned by state legislators as was the star chamber itself condemned by the English Parliament in 1641. Additionally, many of these cases result in imprisonment of the defendant in a purely civil case only to thereafter be effectively denied review by the Writ of Habeas Corpus. Tragically, in these cases the ordinary review by appeal is also denied leaving the defendant with no adequate remedy under law. The Writ of Habeas Corpus in such cases is simply “overruled” without comment or findings or supporting law. It is precisely this practice which was sought to be avoided by those constitutional provisions pertaining to the separation of powers as well as the constitutional provisions that the Writ of Habeas Corpus is never to be suspended. While all states have constitutional provisions pertaining to the separation of powers only a few states have provisions prohibiting the suspension of Habeas Corpus. Nevertheless, the Extraordinary Writ of Habeas Corpus remains as the final and most fundamental process by which one may test the propriety of a restraint on individual liberty.

  Joseph Dale Robertson
  25 August 2000 @ 14:47 Hours CDT

Early anti-slavery cases in England

• At http://downloads.members.tripod.com/medicolegal/slaveryillegal.htm#2.

• In "1102 a council held in London saw fit to decree: 'Let no one hereafter presume to engage in that nefarious trade in which hitherto in England men were usually sold like brute animals.'" See New Catholic Encyclopedia, Vol 13 (New York: McGraw-Hill Book Co, 1967), p 284. (More Details.) For centuries, there is no record of noncompliance. Then in 1569, an enslaving incident was attempted.

  A lawsuit resulted. In that case, Matter of Cartwright, 11 Elizabeth; 2 Rushworth's Coll 468 (1569), a court found slavery unconstitutional, saying, "England was too pure an air for slaves to breathe in," Goodell, supra, p 50.

  This precedent was confirmed two centuries later. In Shanley v Hervey, 2 Eden 126 (Chancery, March 1762), a court said that "As soon as a man puts foot on English ground, he is free: a Negro may maintain an action against his master for ill usage [modern term, reparations], and may have a Habeas Corpus, if restrained of his liberty."

  In Smith v Brown and Cooper, 2 Ld Raym 1274; 2 Salk 666; 91 Eng Rep 566 (1765), Chief Justice Holt said "that as soon as a negro comes into England, he becomes free: one may be a villein in England, but not a slave." Goodell, supra, p 48.

  But since slavery was occurring, just as civil rights violations did in the U.S. despite the Constitution, a "class action" case came about, on a writ of habeas corpus. An alien (James Somerset) taken from the colonies to England, 7 Mass Hist Soc Proc 322-326, used that ancient English common law writ to challenge his enslavement.

• At http://downloads.members.tripod.com/medicolegal/slaveryillegal.htm#2.

• In the course of the argument a precedent was adduced in favor of freedom. "This was the case of Cartwright, who brought a slave from Russia, and would scourge him. For this he was questioned, and it was resolved, that England was too pure an air for slaves to breathe in."—See Rushworth's Collections, p. 468. This was in the llth of Queen Elizabeth.—Ib. Lord Mansfield was evidently beginning to waver.

  "In order that time might be given for ascertaining the law fully on this head, the case was argued at three different sittings. First in January, secondly in February, and thirdly in May, 1772. And that no decision otherwise than what the law warranted, might be given, the opinion of the judges were taken on the pleadings."-Clarkson's Hist. p. 43.

  "Granville Sharp availed himself, with his usual zeal, of this interval, and, among the other measures by which he sought to obtain an equitable decision, he addressed a Letter to Lord North, dated Feb. 18th, 1772."-Stuart's Memoir, p. 12.

  In this Letter Mr. Sharp anticipates a decision of the courts against slavery, and says-"We must judge by law, not by precedent."-He further intimates the illegality of slavery in the American Colonies, in the following paragraph:

  "I might indeed allege that many of the plantation laws (like every other act that contains anything which is malum in se, evil in its own nature,) are already null and void in themselves; because they want every necessary foundation to render them valid, being absolutely contradictory to the laws of reason and equity, as well as the laws of God."-Ib. p. 13.

  By this time the eyes of the British public, from the members of the administration down to the mass of the intelligent inhabitants, were fixed upon Lord Mansfield and the Court of King's Bench, awaiting, with deep interest and anxious suspense, their decision. It was a healthful scrutiny, not unfelt by the Lord Chief Justice and his associates. New and enlarged views of the nature and character of LAW had been impressed upon the nation and upon the national judiciary, by the tireless labors and profound investigations of Granville Sharp. And yet it required a desperate struggle to

  break away from the meshes of precedent and opinion, and restore the ascendancy of impartial and equitable law.

  "Lord Mansfield delayed judgment, and twice threw out the suggestion 'that the master might put an end to the present litigation, by manumitting the slave.' But the base suggestion was, providentially, not attended to. The judgment was demanded; and the judgment was given on Monday, 22d of June, 1772. After much lawyer-like circumlocution, Lord Mansfield decided as follows:

  "Immemorial usage preserves the memory of positive law, long after all traces of the occasion, reason, authority, and time of its introduction are lost, and in a case so odious as the condition of slaves, must be taken strictly: (tracing the subject to natural principles, the claim of slavery can never be supported.) The power claimed by this return never was in use here. We cannot say the cause set forth in this return is allowed or approved of by the laws of this kingdom, and therefore the man must be discharged."-Stuart's Memoir, p. 17.

  "Mr. Sharp felt it his duty, immediately after this trial, to write" (again) "to Lord North, then principal minister of State, warning him, in the most earnest manner, to abolish, immediately, both the slave trade and the slavery of the human species, 11 ALL THE BRITISH DOMINIONS, as utterly irreconcilable with the principles of the BRITISH CONSTITUTION, and the established religion of the land."-Clarkson's Hist., p. 44.

  The measure here insisted on by Granville Sharp, was evidently required by the decision of the Somerset case, and had it been carried into effect, at that time, there would have been no slavery now in the United States.

  Mr. Clarkson awards much credit to the counsel employed on this trial, Davy, Glynn, Hargrave, Mansfield, and Alleyne, but chiefly to Granville Sharp, "who became the first great actor in it, who devoted his time, his talents, and his substance to this Christian undertaking, and by whose laborious researches the very pleaders themselves were instructed and benefited."-p. 44.

Dred Scott v. Sandford, McClean, J

• "No case in England appears to have been more thoroughly examined than that of Somersett. The judgment pronounced *535 by Lord Mansfield was the judgment of the Court of King's Bench. The cause was argued at great length, and with great ability, by Hargrave and others, who stood among the most eminent counsel in England. It was held under advisement from term to term, and a due sense of its importance was felt and expressed by the Bench.
  In giving the opinion of the court, Lord Mansfield said:
  'The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, is erased from the memory; it is of a nature that nothing can be suffered to support it but positive law.'
  He referred to the contrary opinion of Lord Hardwicke, in October, 1749, as Chancellor: 'That he and Lord Talbot, when Attorney and Solicitor General, were of opinion that no such claim, as here presented, for freedom, was valid.'
  The weight of this decision is sought to be impaired, from the terms in which it was described by the exuberant imagination of Curran. The words of Lord Mansfield, in giving the opinion of the court, were such as were fit to be used by a great judge, in a most important case. It is a sufficient answer to all objections to that judgment, that it was pronounced before the Revolution, and that it was considered by this court as the highest authority. For near a century, the decision in Somersett's case has remained the law of England. The case of the slave Grace, decided by Lord Stowell in 1827, does not, as has been supposed, overrule the judgment of Lord Mansfield. Lord Stowell held that, during the residence of the slave in England, 'No dominion, authority, or coercion, can be exercised over him.' Under another head, I shall have occasion to examine the opinion in the case of Grace.
  To the position, that slavery can only exist except under the authority of law, it is objected, that in few if in any instances has it been established by statutory enactment. This is no answer to the doctrine laid down by the court. Almost all the principles of the common law had their foundation in usage. Slavery was introduced into the colonies of this country by Great Britain at an early period of their history, and it was protected and cherished, until it became incorporated into the colonial policy. It is immaterial whether a system of slavery was introduced by express law, or otherwise, if it have the authority of law. There is no slave State where the institution is not recognized and protected by statutory enactments and judicial decisions. Slaves are made property by the laws of the slave States, and as such are liable to the claims of creditors; *536 they descend to heirs, are taxed, and in the South they are a subject of commerce."

• At http://www.soc.umn.edu/~samaha/cases/dred%20scott,%20mclean,%20j.htm