Habeas Corpus

• Author: Paul J. Mishkin
• Pages: 1245-1252

Page 1245

(Latin: "You shall have the body.") Habeas corpus is the most celebrated of Anglo-American judicial procedures. It has been called the "Great Writ of Liberty" and hailed as a crucial bulwark of a free society. Compared to many encomia, Justice FELIX FRANKFURTER'S praise in BROWN V. ALLEN (1953) is measured:

The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person's restraint and to require justification for such detention. Of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defence of personal freedom." Mr. Chief Justice [ SALMON P. ] CHASE, writing for the Court, in Ex parte Yerger, 8 Wall. 85, 95. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.

Though even this rhetoric may be a bit overdone, it nonetheless reflects the importance that has come to be attached to habeas corpus. It is a symbol of freedom, as well as an instrument. What is significant in the rhetoric is not the degree of exaggeration but rather the extent of truth.

Habeas corpus is accorded a special place in the Constitution. Article I, section 9, of the basic document, included even before the BILL OF RIGHTS was appended, contains the following provision: "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."

This text of course presumes an understanding of what habeas corpus is. Technically, it is simply a writ, or court order, commanding a person who holds another in custody to demonstrate to the court legal justification for that restraint of personal liberty. The name "habeas corpus" derives from the opening words of the ancient COMMON LAW writ that commanded the recipient to "have the body" of the prisoner present at the court, there to be subject to such disposition as the court should order. A writ of habeas corpus, even one directed to an official custodian, can be obtained routinely by the prisoner or by someone on his behalf. As at common law, the writ that starts proceedings also defines the nature of those proceedings (and lends its name to them and, sometimes, to the final order granting relief). Thus, habeas corpus not only requires the custodian promptly to produce the prisoner in court but also precipitates an inquiry into the justification for the restraint and may result in an order commanding release.

The writ itself is no more than a procedural device that sets in motion a judicial inquiry. Yet the importance attached to habeas corpus necessarily posits that a court will not accept a simple showing of official authority as sufficient justification for imprisonment. Otherwise, the constitutional provision would indeed be much ado about nothing. "The privilege of the Writ" would hardly be worth guaranteeing if it did not invoke substantial criteria for what are sufficient legal grounds for depriving a person of liberty.

Page 1246

The principle that even an order of the king was not itself sufficient basis had been established in England before the time of our Constitution. In Darnel's Case (1627), during the struggle for parliamentary supremacy, a custodian's return to a writ of habeas corpus asserted that the prisoner was held by "special command" of the king, and the court accepted this as sufficient justification. This case precipitated three House of Commons resolutions and a PETITION OF RIGHT, assented to by the king, declaring habeas corpus available to examine the underlying cause of a detention and, if no legitimate cause be shown, to order the prisoner released. But even these actions did not resolve the matter. Finally, two HABEAS CORPUS ACTS, of 1641 and 1679, together established habeas corpus as an effective remedy looking beyond formal authority to examine the sufficiency of the actual cause for holding a prisoner.

Although the Habeas Corpus Acts did not extend to the American colonies, the principle that the sovereign had to show just cause for imprisoning an individual was carried over to the colonies. After the Revolution, the underlying principle was implicitly incorporated in the constitutional provision guaranteeing the regular availability of habeas corpus against suspension by the new central national government.

The broad assumptions underlying the Great Writ have been well articulated by HENRY HART. Speaking in the particular context of PROCEDURAL DUE PROCESS for ALIENS, but with general implications, he wrote of:

the great and generating principle ? that the Constitution always applies when a court is sitting with JURISDIC -TION in habeas corpus. For then the Court has always to inquire, not only whether the statutes have observed, but whether the petitioner before it has been "deprived of life, liberty, or property, without due process of law," or injured in any other way in violation of the FUNDAMENTAL LAW. ?

That principle forbids a CONSTITUTIONAL COURT with JU -RISDICTION in habeas corpus from ever accepting as an adequate return to the writ the mere statement that what has been done is authorized by act of Congress. The inquiry remains, if MARBURY V. MADISON still stands, whether the act of Congress is consistent with the fundamental law. Only upon such a principle could the Court reject, as it surely would, a return to the writ which informed it that the applicant for admission [to the United States] lay stretched upon a rack with pins driven in behind his fingernails pursuant to authority duly conferred by statute in order to secure the information necessary to determine his admissibility. The same principle which would justify rejection of this return imposes responsibility to inquire into the adequacy of other returns [Hart, 1953: 1393?1394].

It hardly requires demonstration that an executive directive can provide no more justification than an act of Congress. In fact the Supreme Court very early held in Ex parte Bollman and Swartwout (1807) that a President's order was not itself a sufficient basis for a return to a writ of habeas corpus.

The purpose of the habeas corpus clause of Article I, section 9, is to assure availability of the writ, but the provision clearly allows its suspension when necessary in the event of rebellion or invasion. The power to suspend the writ has been rarely invoked. Suspensions were proclaimed during the CIVIL WAR; in 1871, to combat the Ku Klux Klan in North Carolina; in 1905, in the Philippines; and in Hawaii during WORLD WAR II. Furthermore, two of these suspensions were limited by the Supreme Court. In the first case, EX PARTE MILLIGAN (1866), the Supreme Court held that the writ was not suspended in states (e.g., Indiana) where the public safety was not threatened by the Civil War. In the last case, DUNCAN V. KAHANAMOKU (1946), the Supreme Court held that the writ was not suspended in Hawaii eight months after the attack on Pearl Harbor because the public safety was no longer threatened by invasion.

The point is not the rarity with which the power to suspend the writ of habeas corpus has been invoked in this country's history. That can be seen as a function of the relative stability and insulation that the nation has enjoyed. Rather, the significant point is the basic acceptance of the proposition that the courts remain open in habeas corpus proceedings to consider the validity of an attempted suspension of the writ and, if they find it invalid, to examine the validity of the detention. This position has not always been respected by the immediately affected executive or military authorities, and such holdings by the Supreme Court have been handed down after immediate hostilities have ended. Nevertheless, the ultimate verdict of history has upheld the courts' position. The existence of those Supreme Court precedents, and their acceptance and perceived vindication by history, help bolster the likelihood of similar judicial action in response to future emergencies.

The habeas corpus writ described by Article I is not necessarily one issued by a federal court. The Constitution posits the existence of state courts as the basic courts of the nation; it does not require the creation of lower federal courts at all. Thus, the suspension clause was designed to protect habeas corpus in state courts from impairment by the new national government.

The clause may nonetheless have reflected a wider sense of moral duty. The first Congress, in establishing a system of lower federal courts, gave federal judges the power to issue the writ on behalf of prisoners held "under or by colour of the authority of the United States." The federal courts have always retained that habeas corpus jurisdiction, and it has since been much expanded.

Perhaps the most dramatic example of the use of habeas

Page 1247

corpus occurred in Ex parte Milligan. Milligan, a civilian living in Indiana, was sentenced to death by a court-martial during the Civil War though the local GRAND JURY had refused to indict him. The Supreme...