Habeas Corpus
History and Definition
By Bill ThorntonThere 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 definition 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
bureaucracy. 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 |
