The History of Habeas Corpus (an English Invention)

From the Oxford Dictionary
At: http://www.oed.com

a) Habeas Corpus: A writ issuing out of a court of justice, or awarded by a judge in vacation, requiring the body of a person to be brought before the judge or into the court for the purpose specified in the writ; spec. the prerogative writ habeas corpus ad subjiciendum, requiring the body of a person restrained of liberty to be brought before the judge or into court, that the lawfulness of the restraint may be investigated and determined.

b) Habeas Corpus Act: the name commonly given to the Act 31 Chas. II. c. 2 (1679), whereby the granting and enforcing of this prerogative writ was much facilitated. certiorari : A writ, issuing from a superior court, upon the complaint of a party that he has not received justice in an inferior court, or cannot have an impartial trial, by which the records of the cause are called up for trial in the superior court.

1523 in W. H. Turner Select Rec. Oxford 38 By no wryt of error of certiorare.
1641 Jrnls. Ho. Commons II. 162 Upon what Grounds they issued forth those Certioraries.
1649 FULLER Just Man's Fun. 16 If one conceive himself wronged in the Hundred..he may by a certiorari, or an accedas ad curiam, remove it to the King's-Bench or Common-Pleas.
1693 CONGREVE Doub. Dealer II. iv, I'll firk him with a certiorari.
1712 ARBUTHNOT
John Bull (1727) 9 He talks of nothing but..replevins, supersedeas's, certiorari's, writs of error, etc.
1881 Times (weekly ed.) 11 June 3/4 The Court granted the rule nisi for the removal here by writ of certiorari. writ, n. :
3. A formal writing or paper of any kind; a legal document or instrument. (Passing into next.)
b. Law. A written command, precept, or formal order issued by a court in the name of the sovereign, state, or other competent legal authority, directing or enjoining the person or persons to whom it is addressed to do or refrain from doing some act specified therein.
c. With of (the specific designation). writ of aiel, certiorari, cessavit, distringas, ease, elegit, entry, error, execution, formedon, habeas corpus, injunction, inquiry, manumission, mesne, mort d'ancestor, non est inventus, privilege, prohibition, ravishment, rebellion, right, summons, venire facias, waste, etc.: see these words.
d. spec. A document issued by the crown conveying a summons to a spiritual or temporal lord to attend Parliament, or directing a sheriff to hold an election of a member or members of Parliament.

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 one hundred fourteen 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 enlightning 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 the 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
At: 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
At: http://home.earthlink.net/~walterk1/Patr/CL/Habeas.html

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

Habeas Corpus: Ambrose Bierce: The Devil’s Dictionary - H
At: 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
At: http://profs.lp.findlaw.com/habeas/

Whigs and Tories : The Habeas Corpus Act
At: 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.
At: 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
At: 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

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 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
At: 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
At: http://rwor.org
Write: Box 3486, Merchandise Mart, Chicago, IL 60654
Phone: 773-227-4066 Fax: 773-227-4497

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
At: 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.

Over the centuries [the Writ of Habeas Corpus] has been the common law world's "freedom writ" by whose orderly processes the production of a prisoner in court may be required and the legality of the grounds for his incarceration inquired into, failing which the prisoner is set free. We repeat what has been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," and unsuspended, save only in the cases specified in our Constitution - Smith v. Bennett.

1 [I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . [L]awyers in criminal cases are necessities, not luxuries Gideon v. Wainwright.

2 Habeas corpus review and the right to counsel have been celebrated at home and revered abroad as two fundamental components of the American criminal justice system.

Although there has always been a substantial gap between the pronouncements of courts, bar leaders and commentators about the importance of these components and the quality of justice actually received by the poor, the goals of meaningful habeas corpus review and providing competent counsel to the poor have been seen as indispensable elements in the larger quest for equal justice for all.

Those goals were abandoned during the past year by the 104th Congress.

In pursuit of a criminal justice system that will serve the goal of vengeance, Congress eliminated funding for the death penalty resource centers and limited habeas corpus by imposing a statute of limitations,

3 requiring federal courts to defer to the legal conclusions of state courts,

4 severely limiting when a federal court may conduct an evidentiary hearing,

5 and all but eliminating a second or "successive" petition for habeas corpus relief.

6 Many states are following suit, placing unreasonable time restrictions or other limits on their state post-conviction review processes and cutting back on already understaffed and overworked programs which provide counsel for the poor. The stated objectives of these measures is to hasten executions, but the resulting injustices will not be limited to those condemned to die. Anyone unconstitutionally convicted of any crime, regardless of the sentence, faces these new barriers to obtaining justice. The increased speed will be obtained at the cost of fairness and reliability.

These developments create extraordinary challenges for criminal defense attorneys.
This column surveys the damage and addresses the challenges.

The Once-Great Writ of Habeas Corpus

There is no better example of the importance and value of the Writ of Habeas Corpus than the case of Rubin "Hurricane" Carter, who was freed by a federal judge after being wrongfully imprisoned by New Jersey for almost 20 years.

Carter was the number-one-ranked contender for the middleweight boxing crown in 1966 when he and a companion were arrested and charged with the murders of three white people. They were convicted and narrowly escaped the death penalty. Carter was sent to Trenton State Prison and later to Rahway. While in prison, Carter wrote the story of his life, The 16th Round: From Number 1 Contender to Number 45472 (1974).

In 1980, Lesra Martin, a 16-year-old African-American youth from Brooklyn, who had been taken in by a group of Canadians, bought a copy of Carter's book for $1 at a used-book fair in Toronto. He and his Canadian friends read the book and became convinced of Carter's innocence. Working with attorneys Myron Beldock and Leon Friedman, the Canadians spent four and a half years investigating the case and providing Carter moral support.

After Carter had been rejected many times in the New Jersey courts, United States District Judge H. Lee Sarokin held in 1985 that the prosecution had withheld critical exculpatory evidence and improperly argued racial hatred as the motive for the crime, and granted habeas corpus relief.

7 Carter was released and has lived in Canada ever since.

Today, Rubin Carter is one of the most eloquent spokesmen in support of the Writ of Habeas Corpus. He has testified before Congress and spoken at law schools.

8 He is the director of an international organization, the Association in Defense of the Wrongly Convicted, and seeks the release of other people who were wrongfully convicted and imprisoned. But federal habeas corpus relief has corrected other injustices besides the conviction of innocent people.

The United States Supreme Court unanimously ordered habeas corpus relief for Tony Amadeo after it was revealed at a federal evidentiary hearing that the prosecutor had secretly directed jury commissioners to under-represent African-Americans in the jury pools.

9 Amadeo had been sentenced to death by a jury drawn from the rigged pools.

Jimmy Horton was granted habeas corpus relief based on evidence presented at a federal evidentiary hearing that the prosecutor, who struck African-Americans to get the all-white jury that sentenced Horton to death, routinely struck all black citizens from jury service.

10 William Alvin Smith, a mentally retarded youth sentenced to death in Georgia, was granted habeas corpus after a federal district judge heard evidence of Smith's mental retardation and concluded that because of his disability, he did not understand the Miranda rights read to him.

11 Amadeo, Horton and Smith were not innocent, but they were unconstitutionally sentenced to death. Like many others granted federal habeas corpus relief, they were not resentenced to death upon return to the state courts. Tony Amadeo graduated summa cum laude from Mercer University in the summer of 1995.

It is doubtful whether under the new habeas law, evidentiary hearings would even be granted in these and scores of other cases in which relief was granted under the previous law. The constitutional violations will still exist, but Congress has directed the courts to refuse to hear the evidence necessary to prove them.

Many of those who languished in prison for years, as did Rubin Carter, before gaining access to the federal courts and ultimately obtaining relief, would not have been able to comply with a statute of limitations.

Nor is it clear that relief would have been granted in many of these cases under the new standard of review which prohibits federal courts from setting aside a state court's legal conclusions unless the state court's decision was "contrary to or involved an unreasonable application of clearly established federal law."

12 The Supreme Court upheld the new provisions regarding successive habeas petitions last summer in Felker v. Turpin.

13 A successive petition is allowed only when it relies on a new rule of constitutional law, which applies retroactively to cases on collateral review, or a constitutional violation that could not have been discovered previously through due diligence and it is established that "but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense."

14 Before a petitioner can file a successive petition in a district court, the petition must be presented to a three-judge panel of the U.S. Court of Appeals which must determine whether the petition makes a prima facie showing that it meets these requirements.

15 The U.S. Supreme Court concluded that these new provisions do not constitute a suspension of the Writ of Habeas Corpus prohibited by the Constitution.

16 The Court also concluded that the new law, which sought to deny petitions for rehearing at the Court of Appeals and petitions to the Supreme Court for certiorari, does not preclude the Supreme Court from entertaining an application for habeas corpus relief. The Court's consideration is "informed" by the new provisions.

Long before Congress acted, the Supreme Court, at the urging of Chief Justice William Rehnquist, had erected numerous barriers to the vindication of violations of the Bill of Rights through habeas corpus.

Then-Justice Rehnquist authored the Court's opinion in Wainwright v. Sykes,

17 which set new, strict rules of procedural default. Subsequent decisions from the Court has made clear that those rules are air tight and unreasonable.

18 The Court had also excluded Fourth Amendment claims from habeas corpus review,

19 made it more difficult for a habeas petitioner to obtain an evidentiary hearing to prove a constitutional violation,

20 adopted an extremely restrictive doctrine regarding the retroactivity of constitutional decisions,

21 reduced the burden on the states to establish harmless error once a constitutional violation was found,

22 and erected new barriers to the filing of a second habeas petition.

23 Justice Harry Blackmun found the majority of the Supreme Court to be on a "crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims" which had resulted in "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights."

24 Justice John Paul Stevens observed that "the Court has lost its way in a procedural maze of its own creation" and "grossly misevaluated the requirements of 'law and justice.'"

25 Instead of pointing a way out of the maze, Congress has contributed to its complexity by adding even more barriers which will produce even more arbitrary and unjust results.

Denial of Counsel to Those Most in Need
Before mourning the decimation of the resource centers (which are also called post-conviction defender organizations), it is appropriate to celebrate for a moment the outstanding work done by the people at those programs under extraordinarily difficult circumstances in complex cases involving the highest stakes.

The resource centers, created in 1987, were small programs which were given an enormous responsibility. All together the resource centers had about 200 lawyers to deal with the post-conviction representation of over 3000 men, women and children condemned to death.

When the resource centers were created, it was envisioned that they would be jointly funded by the state and federal governments to recruit lawyers to provide representation to the condemned in both state and federal collateral review. But many states with the largest death rows, such as Texas, Alabama and Nevada, refused to make any contribution to their state resource centers.

As a result, many of the centers were understaffed. They had too many complex cases which had to be litigated under immense pressure without adequate time or resources. But they proved what a difference dedicated lawyers can make by building an expertise, working long hours, thoroughly investigating every aspect of a case, and never giving up.

Walter McMillian, an African-American sentenced to death in Monroeville, Alabama, who spent six years on that state's death row, is free today because Bryan Stevenson and other lawyers at the Alabama Resource Center proved that he was innocent of the murder for which he had been condemned to die.

26 Lloyd Schlup is alive today because Sean O'Brien and other lawyers at the resource center in Missouri developed evidence of his innocence. After first being denied federal habeas corpus relief, the lawyers persuaded the United States Supreme Court to give them an evidentiary hearing.

27 At the hearing, they presented evidence demonstrating that Schlup was entitled to habeas corpus relief.

28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence and, in a federal habeas corpus case, persuaded the Supreme Court that Kyles was entitled to a new trial because the prosecution had failed to disclose critical exculpatory evidence.

29 In addition to providing direct representation, the lawyers at the resource centers recruited lawyers to provide pro bono representation. Together they exposed constitutional violations in other cases, resulting in numerous death sentences being set aside and new trials ordered. A committee of federal judges concluded that the resource centers were cost effective and enhanced the quality of representation in capital cases.

30 Because the resource centers made a difference, they came under attack by the National Association of Attorneys General. The attack was led by the new attorney general of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.

31 Undoubtedly, it is a bad reflection on the criminal justice system that innocent people are being sentenced to death, but the elimination of funding for the resource centers does not solve this problem. It only hides it and increases the likelihood of injustices going uncorrected.

The elimination of funding has resulted in the closing of resource centers in some states. Those sentenced to death in Mississippi have nowhere to turn to seek counsel. Other resource centers are a mere shadow of their former selves. For example, the resource center in Texas, which once had a budget of over $3 million and 25 attorneys, now has a budget of only $50,000 and a single lawyer.

Some programs, through heroic efforts of the lawyers remaining there, have managed to survive. For example, Bryan Stevenson and three other attorneys have created without any state or federal money a new entity called the Equal Justice Initiative, which provides representation to those facing the death penalty in Alabama. But four lawyers cannot begin to represent all 150 people on Alabama's death row or provide assistance to lawyers defending an equal number of new capital cases in the trial courts.

Some states, such as Georgia and Mississippi, provide no compensation to lawyers for representing inmates in state post-conviction proceedings. Others have unreasonable limits on what lawyers may receive for representing an indigent person in state collateral proceedings. Texas, which has 400 people under death sentence, limits compensation at $7500. Other states pay only a token amount, such as the $600 that Alabama pays for post-conviction representation.

Not surprisingly, many of those under death sentence in these states are without counsel to represent them in post-conviction proceedings. Over 20 condemned persons in Alabama and Georgia are without counsel and there are many more in other states. Although appointment of counsel and compensation under the Criminal Justice Act is provided for habeas corpus representation in the federal courts, inmates first need lawyers to represent them in seeking remedies through the state post-conviction proceedings. Those seeking federal review are required to first seek any state remedies before petitioning for federal relief. And many inmates on death row do not even know how to ask that a lawyer be appointed for them.

Thus, even in capital cases, some people may be denied their day in court because they do not have a lawyer and cannot comply with the statute of limitations. The clock is ticking on many inmates who have completed direct appeal but have no lawyer to file applications for state post-conviction relief.

Indifference to Injustice

In restricting habeas corpus and eliminating funding for the resource centers, Congress has shown a remarkable indifference to injustice. The starkest example is the adoption of a statute of limitations on habeas corpus that is not tied to the provision of counsel. Even worse, Congress took away counsel for the condemned before adopting the statute.

Never before in the nation's history has there been a statute of limitations on habeas corpus. The time limits in the new habeas law will be challenged as a suspension of habeas corpus prohibited by the Constitution.

32 However, if they are upheld, many people convicted of crimes who are without counsel will be unable to pursue relief before the statute of limitations expires.

The Supreme Court has held that the states are not required to provide counsel for the poor for post-conviction review,

33 even in capital cases.

34 For hundreds of those serving non-capital sentences and even for some under death sentence, the time will run out before they can get a lawyer and get to court.

The statute of limitations also creates the possibility of fatal consequences to the client for a mistake by counsel. The person whose lawyer misses the deadline created by the statute of limitations apparently will be barred from ever seeking federal review.

35 Indifference to injustice is most obvious as the new law applies to capital cases. The changes in habeas corpus law were aimed specifically at capital cases and funding for capital resource centers was eliminated despite undeniable signs that something is fundamentally wrong with the way in which people are being sentenced to death in the United States.

"The recent development of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent," U.S. Supreme Court Justice John Paul Stevens observed in a speech to the American Bar Association (ABA) in July.

36 In the 20 years since the Supreme Court upheld the resumption of capital punishment, 59 persons sentenced to death have been freed after establishing their innocence.

37 Justice Stevens told the ABA that "the cases in which the innocence of death row inmates has been established in protracted post-conviction proceedings" are the "unfortunate consequences" of the failure to provide competent counsel in many capital cases.

38 Another sign that something is wrong is that federal courts have found constitutional violations and granted habeas corpus relief in 40 percent of the capital cases they have reviewed.

39 In some states the percentage is even higher. In Georgia, for example, the federal courts have set aside either the conviction or death sentence in two-thirds of the capital cases they have reviewed. Many of those sentenced to death at trials marred by constitutional violations were not sentenced to death at their retrials.

Additionally, virtually every report that has examined the operation of the death penalty has found racial discrimination and arbitrariness in its infliction.

40 One of the most recent reports reaching this conclusion was issued in July by the International Commission of Jurists, a highly regarded organization made up of jurists from around the world, after a visit to the United States and extensive study by members from Australia, India, Nigeria and Sweden.

41 The removal of state court judges from office by voters after campaigns in which capital punishment was the central issue is another indication that capital cases are often caught up in the passions and prejudices of the moment. It is particularly in such cases that racial minorities, the poor, the unpopular and the despised need the protection of independent, life-tenured federal judges, not judges who must be looking over their shoulders at the next election.

Justice Penny White was voted off the Tennessee Supreme Court in August in a retention election which became a referendum on the death penalty. Since Rose Bird and three of her colleagues were voted off the California Supreme Court in 1986 because of their votes in capital cases, trial and appellate judges in other states have also been removed from the bench for being "soft" on the death penalty.

42 The judges who remain on those courts know that by issuing a unpopular ruling, even though required by the Constitution, they may be signing their own political death warrants.

These indications that something is terribly amiss might be reasons to reconsider the appropriateness of capital punishment or, at least, to ensure that those facing the ultimate punishment were adequately represented and their cases carefully reviewed. But the reverberations of injustice were ignored by a Congress caught up in the politics of crime, in which each political party attempts to demonstrate that it is tougher than the other.

Responding to the Challenge

The great challenge posed by this sad state of affairs is to see that no person faces the executioner alone. Unless hundreds of lawyers volunteer their services immediately, many persons condemned to death in violation of the Constitution will be denied state and federal review of their claims simply because they do not have counsel to pursue relief.

The National Association of Criminal Defense Lawyers (NACDL) has moved swiftly to respond to this crisis. Before the restrictions on habeas corpus had been passed, the NACDL Board of Directors had hired Renée McDonald to be the organization's death penalty resource counsel. But the success of NACDL's efforts will depend upon the response of its members to this crisis.

The responsibilities of the resource counsel include involving NACDL members in responding to the need for representation, developing a catalog of resources, assisting lawyers in the direct representation of individuals facing the death penalty, and alerting the membership to significant developments in the courts or legislatures.

The most immediate and urgent need is for representation at every level of the process. Scores of condemned persons all across the country are desperately in need of lawyers to represent them in state and federal post-conviction proceedings. It is important that these people not only be represented, but represented well and aggressively in mounting challenges to various aspects of the new habeas law. Anyone willing to take a case should contact Renée McDonald at (404) 688-1202.

Many individuals facing the death penalty could avoid the post-conviction review process altogether if they were adequately defended at trial. But judges in many jurisdictions appoint the least experienced and least capable lawyers to defend capital cases and then deny the compensation and funds for experts necessary to defend the cases properly.

In jurisdictions where this occurs, efforts must be made to bring about indigent defense systems that are independent of judges and committed to the zealous defense of the accused. While that will make a difference in the long term, there remains a need for capable, caring lawyers to provide representation in individual cases. Defense lawyers in some communities have come together to ensure that all of those facing death receive adequate representation at trials. Similar efforts are needed in other communities.
In addition, members of Congress must be made aware of the injustices which are resulting from their irresponsible actions.

Congress should be urged to restore immediately funding for counsel to represent the condemned in post-conviction proceedings. Because capital post-conviction litigation involves a very complex and demanding area of the law, the same specialization is needed for counsel litigating habeas cases on behalf of petitioners that the states receive in defending those actions from offices of their attorneys general.

Members of the House and Senate must be urged to resist any further efforts to eliminate federal habeas corpus review. Instead, as discussed at the NACDL legislative fly-in, they should be encouraged to offer legislation to restore the Writ of Habeas Corpus to its proper place as the common law world's "freedom writ."

NOTES:
1. Smith v. Bennett 365 U.S. 708, 712-13 (1961), quoting Bowen v. Johnson, 306 U.S. 19 26 (1939).
2. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
3. The Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, 101, 105, amending 28 U.S.C. Title 153, to establish a one-year statute of limitations. A statute of limitations of 180 days is provided by 107 of the Act for states which meet certain standards of providing counsel in capital post-conviction proceedings. The time limits for petitions filed under 28 U.S.C. 2255 are discussed by Alan Ellis, Peter Goldberger and Nancy Simmons in It's Not Too Late: Time Period for Filing 2255 Motions Under the New Habeas Reform Law, The Champion, July 1996.
4. The Anti-Terrorism and Effective Death Penalty Act of 1996, 104(3).
5. Id., 104(4).
6. Id., 105, 106 (limiting any successive habeas corpus petition to constitutional violations which resulted in the conviction of an innocent person or involved a new rule of law that applies retroactively to cases on collateral review).
7. Carter v. Rafferty, 621 F. Supp. 533 (D. N.J. 1985), aff'd, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).
8. See, e.g., Rubin "Hurricane" Carter, Keynote Address, 35 Santa Clara L. Rev. 425 (1995).
9. Amadeo v. Zant, 486 U.S. 214 (1988).
10. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 117 L. Ed. 2d 652 (1992).
11. Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987), aff'd by equally divided court, 887 F.2d 1407 (11th Cir. 1989).
12. The Anti-Terrorism and Effective Death Penalty Act of 1996, supra, 104(3).
13. 116 S. Ct. 2333 (1996).
14. Anti-Terrorism Act, supra, 106(b)(2).
15. Id., 106(b)(3)(C).
16. U.S. Const. Art. I, 9, Clause 2.
17. 433 U.S. 72, 88-91 (1977).
18. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991); Dugger v. Adams, 489 U.S. 401 (1989); Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989).
19. Stone v. Powell, 428 U.S. 465 (1976).
20. Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992).
21. Teague v. Lane, 489 U.S. 288 (1989). For a discussion of the Court's retroactivity doctrines, see James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991).
22. In Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), the Court held that habeas corpus relief is not to be granted unless the court concludes that the constitutional error had "substantial and injurious effect or influence in determining the verdict." In contrast, on direct appeal, once a constitutional violation is established relief must be granted unless the government can establish that the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18 (1967).
23. McCleskey v. Zant, 499 U.S. 467 (1991).
24. Coleman v. Thompson, 501 U.S. 722, 758-759 (1991) (Blackmun, J., dissenting).
25. Smith v. Murray, 477 U.S. 527, 541 (1986) (Stevens, J., dissenting).
26. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1. See also Pete Earley, Circumstantial Evidence: Death, Life and Justice in a Southern Town (Bantam Books, 1995).
27. See Schlup v. Delo, 115 S.Ct. 851 (1995).
28. Schlup v. Bowersox, No. 4:92CV433-JCH, Memorandum Opinion and Order of May 2, 1996 (D. Mo. 1996).
29. Kyles v. Whitley, 115 S .Ct. 1555 (1995).
30. Committee on Defender Services, Judicial Conference of the United States, Report of the Subcommittee on Death Penalty Representation (June 1995).
31. Marcia Coyle, Republicans Take Aim At Death Row Lawyers, Natl. L. J., Sept. 11, 1995 at A1, A25.
32. U.S. Const. Art. I, 9, Clause 2.
33. Ross v. Moffitt, 417 U.S. 600 (1974).
34. Murray v. Giarratano, 492 U.S. 1 (1989).
35. See, e.g., Coleman v. Thompson, 501 U.S.722 (1991) (federal habeas review of issues raised in state post-conviction proceedings barred because counsel failed to file notice of appeal on time in the state courts).
36. Justice John Paul Stevens, Opening Assembly Address, American Bar Association Annual Meeting, Aug. 3, 1996, at 13.
37. Ted Gest, A House Without a Blueprint, U.S. News & World Report, July 8, 1996
38. Justice John Paul Stevens, supra, at 12. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835, 1849-1855 (1994).
39. Liebman, supra, at 541 n. 15.
40. See, e.g., U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990) (reporting that a synthesis of 28 studies shows a pattern of racial disparities in charging, sentencing and imposition of the death penalty in the statutes adopted since 1972); Stephen B. Bright, Discrimination, Death and Denial:
The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995) (describing racial discrimination in the infliction of the death penalty and the failure of courts to deal with it).

41. International Commission of Jurists, Administration of the Death Penalty in the United States (June 1996).
42. See Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 Bos. U. L. Rev. 759 (1995) (describing numerous instances in which judges have been voted off state courts because of their votes in capital cases).

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

A. Introduction
The undersigned amici curiae submit the present Brief in support of Mumia Abu-Jamal's Petition for Writ of Habeas Corpus. The present Brief underscores the full magnitude of the rights and interests at issue in the Petition under consideration, discusses the parameters of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), and concludes that Petitioner is entitled to an evidentiary hearing on the merits of his Petition. The writ of habeas corpus as a remedy for wrongful incarceration is of transcendent historical significance in American law, long predating the colonization of North America and the creation of the United States. The power of federal courts to grant habeas corpus relief has expanded over time. Federal courts now have full power to determine whether an individual's incarceration is in violation of the Constitution or federal law, in a civil proceeding independent from the state criminal proceedings and requiring a full evidentiary hearing.

This power was not diminished by the passage of the AEDPA. The AEDPA merely instituted a requirement that federal courts pay a certain degree of procedural deference to state court proceedings, by requiring that the state court's decision be evaluated on the basis of its adherence to then-established Supreme Court law. Further, the AEDPA does not retroactively apply to Petitioner's cause, if it would diminish the Constitutional protections to which he was entitled before its passage. Petitioner is entitled to a full evidentiary hearing on the merits of his Petition. A federal court is obliged to hold its own evidentiary hearing on habeas corpus if, among other factors, the fact-finding procedures employed by the State were not adequate to afford a full and fair hearing, the material facts were not adequately developed at the state court hearing, the application did not receive a full, fair and adequate hearing in the state court proceedings, or the state court trier-of-fact has not reliably found the relevant facts. Amici Curiae respectfully request that this Court grant a full evidentiary hearing on the Petition for Writ of Habeas Corpus.

B. Habeas Corpus Review
Habeas corpus is a remedy whose "most basic traditions and purposes" are to "avoid the grievous wrong of holding a person in custody in violation of the Federal Constitution [or laws or treaties] and thereby both protect individuals from unconstitutional convictions and help to guarantee the integrity of the criminal process by assuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 442, 115 S. Ct. 992, 997 (1995). Further, habeas corpus is a remedy that "has been for centuries esteemed the best and only sufficient defense of personal freedom" which, if withdrawn, "risk[s] injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 116 S. Ct. 1293, 1299 (1996), quoting Ex parte Yerger, 75 U.S. (8 Wall.) 85, 95 (1869) (emphasis added).

The United States Supreme Court has consistently found that "because there is a qualitative difference between death and any other punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 2747 (1983), citing Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 2991 (1976). "[E]very member of this [the United States Supreme] Court has written or joined at least one opinion endorsing the proposition that because of its severity and irrevocability, the death penalty is qualitatively different from any punishment, and hence must be accompanied by unique safeguards[.]" Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 3166-67 (1985).
See also, Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 2252 (1998), quoting Gardner v. Florida, 430 U.S. 349, 357-58 (1997), citing Lockett v. Ohio, 438 U.S. 586, 604 (1978) (Opinion of Burger, C.J.) ("qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed").

While there is a responsibility not to interfere with the sovereign power of the State, it is also the right and the duty of the federal courts to conduct its judicial work in a manner that reflects the seriousness of inflicting the death penalty upon a human being. Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam). In fact, the federal court's "duty to search for constitutional error with painstaking care is never more exacting than in a capital case." Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1560 (1995). Although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates a careful scrutiny in the review of any colorable claim of error. Zant, supra, at 2747.

C. History Of The "Great Writ"
This case follows several centuries of well established Anglo-American habeas corpus jurisprudence. That body of decisions is founded on an early recognition that "[t]he right of personal liberty" is an "absolute right" established on the firmest basis by the provisions of Magna Carta, and a long succession of statutes enacted under Edward III. Blackstone's Commentaries, Book III, Ch. 8, §§ 119, 128-29, at 1115, 1126 (Lewis' Ed., Reese, Welsh & Company 1897).
Further:
[w]e know - it is a maxim - that this right of liberty must have had a remedy, and, if none was known, one must have been invented after 1215; and that one was invented before 1640 or 1679[.] the great writ must have been contrived in that interim. Hallam, Const. Hist. 617, narrates that in the case of a freeman detained in prison on a criminal charge 'it was always,' that is before 1679, in his power to demand the King's Bench a writ of habeas corpus[.]

George F. Longsdorf, Habeas Corpus: A Protean Writ and Remedy, 8 F.R.D. 179 (1949). This remedy that was invented was, in fact, the "great and efficacious writ in all manner of illegal confinement
[] habeas corpus ad subjiciendum; [It was] directed to the person detaining another, [] commanding him to produce the body of the petition
[] to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf." Blackstone Commentaries, supra, § 131, at 1127.
Originally, the Writ of Habeas Corpus was simply a judicial mechanism by which the sheriff or other custodian was commanded to "have the body" of some person before the court. Notwithstanding its early purposes and functions, its use as a means of correction is well illustrated by cases decided in the latter part of the fourteenth century.

The writ is particularly significant because it goes much further than demanding the presentment of the prisoner's body together with the cause of his taking and detention, in that it includes an explicit statement of the court's intention upon examination: 'in order that the king might give order for his delivery according to right and the law and custom of the realm.'

William F. Ducker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U. L. Rev. 983, 1009 (1978). In 1629, Chamber's Case confirmed that the writ of habeas corpus had assumed a new role.
[] The questioning of the validity of commitments, previously an incidental effect of the writ, now became the major object. It was at this point, then, that the writ of habeas corpus embarked upon its journey as 'the highest remedy in law, for any man that is imprisoned.'" Ducker, supra, at 1035.
Yet, abuse of the writ by the English courts was common.
1 These abuses led to legislation that culminated in the passage of the "Habeas Corpus Act of 1679." The Act formalized certain provisions of the habeas corpus law [including adding penalties for evasion of the writ], but "all other cases of unjust imprisonment [were] left to the habeas corpus at common law." Blackstone Commentaries, supra, § 137, at 1133. "It should be noticed that the [Act of 1679] did not grant anything new; that it did not make habeas corpus, but merely made efficient a writ, which was recognized as already existing." A.H. Carpenter, Habeas Corpus in the Colonies, 8 Am. Hist. Rev. 18, 19 (1902). In fact, "the development of habeas corpus can largely be attributed to the unconscious forces of constitutional law.
[] The writ became a viable bulwark between the powers of government and the rights of the people in both England and the United States." Ducker, supra, at 1054.

D. Habeas Corpus In The United States
"Habeas Corpus came to America and became part of the common and statute laws of the several states and of the United States." Longsdorf, supra, at 181.
Habeas corpus was "claimed as among the immemorial rights descended to [the Colonists] from the ancestors." Yerger, supra, at 96.
"[T]he habeas corpus, brought by our ancestors as their birthright, to this country, was the common law habeas; that great embodiment of free principle, which [was] born with the sturdy Roman [and] preserved by the free Saxon." In re McDonald, 16 Fed. Cas. 17, 31 (E.D. Mo. 1861) (Treat, J.).

The writ "was a common law writ and remedy.
[] It was therefore common law in the Colonies and the several States." George F. Longsdorf, The Federal Habeas Corpus Acts: Original and Amended, 13 F.R.D. 407 (1953). "[T]he rights of the colonists as regards the writ of habeas corpus rested upon the common law with the exception of South Carolina, which re-enacted the English statute. The lack of statute did not mean that the colonists had no protection for their personal rights, for the want was supplied by the common law, and also by the placing of habeas corpus provisions in their court laws." Carpenter, supra, at 26. "That [petitioning for the writ] must have been a common practice is
[] shown by Samuel Sewall, for he speaks in his Diary, Dec. 11, 1705, of issuing of habeas corpus." Carpenter, supra, at 21.
With the birth of the Union came the debates concerning principles of comity and federalism. "The powers delegated by the proposed Constitution to the federal government [were] few and defined. Those which [were] to remain in the State governments [were] numerous and indefinite.
[] The powers reserved to the several States [would] extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people." The Federalist No: 45, 1787 (Rossiter ed., Mentor printing at 292-93 1961) (emphasis added). "The United States recognized the Great Writ as inherited common law by Const. Art. I, Sec. 9." Longsdorf, supra, 8 F.R.D. 181. "Considered by the Founders as the highest safeguard of liberty, it was written into the Constitution that its 'privilege' shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it."
Const. Art. I, Sec. 9, Cl. 2; Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 897-98 (1961).
Yet, "[i]n the early days of the Republic, the colonists viewed the writ
[] as protection for citizens only against the new federal government.
[] The colonists had no fear that their states might abuse their power.
Accordingly, the Judiciary Act of 1789 made the writ available only to federal prisoners and prohibited any inquiry by the federal courts into the propriety of state custody."
Hartman & Nyden, Habeas Corpus and the New Federalism After the Anti-Terrorism and Effective Death Penalty Act of 1996, 30 John Marshall L. Rev. 337, 339 (1997).

E. Congressional Alterations Of Habeas Corpus
Pursuant to the Judiciary Act of 1789 (1 Stat. 81), the United States Supreme Court "dislaim[ed] all jurisdiction not given by the constitution or by the laws of the United States." Ex parte Bollman, 8 U.S. 75, 94 (1807).
The "restriction is interposed by the proviso to the fourteenth section of the act.
[] It is in these words: 'Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States.'"
2 The object of the proviso "was to prevent any possible conflict between the federal and state tribunals.
[] The proviso simply inhibits [the federal courts] from sending the writ to persons in legal custody in jail, unless there under the authority of the United States." Ex parte Des Roches, 7 Fed. Cas. 537, 539 (C.C. Cal. 1856); see also In re McDonald, supra, at 22. Unquestionably, though, the federal courts had the power to grant the writ in all other cases it would reach at common law. Des Roches, at 538.

Habeas corpus proceedings were governed by the common law of England, as it stood at the adoption of the Constitution, subject to such alterations as Congress might see fit to prescribe. McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 1461 (1991); see also Ex parte Kaine, 14 Fed. Cas. 78, 80 (S.D. N.Y. 1853), citing Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830).
Yet, the powers of Congress to regulate the writ were not unlimited since habeas corpus was viewed as "an indefeasible privilege, above the sphere of ordinary legislation." And, if Congress had attempted to deny all federal jurisdiction or limit or declare in which specific instances the writ could be issued, "it would be difficult to escape the conclusion that the ancient and venerable privilege of the writ of habeas corpus had not been in some degree suspended, if not annulled." In re McDonald, supra, at 29.

The decisions of the federal courts refusing to grant habeas corpus relief because of a lack of jurisdiction, though, in no way diminished the historical fact that habeas corpus lay to "test any restraining contrary to fundamental law." The Framers, as well as every Colonist, clearly expected that the States would fully and fairly make available the Great Writ as it was known at common law and in the court rules of the various Colonies. The Federal Constitution's Suspension Clause merely guaranteed that the writ would not be suspended except in extraordinary circumstances. This provision thus insured that if the States failed in their responsibilities, the United States Constitution would authorize federal intervention, since habeas corpus is a right of national citizenship protected by the Privileges and Immunities Clause.
See Slaughter House Cases, 83 U.S. (16 Wall.) 36, 114-15 (1872) (Bradley, J. dissenting).

As the Union aged, Congress found it necessary to amend the habeas corpus jurisdictional statues from time to time because of the failings of the States. While a State might not abuse its powers against one of its own citizens, an abuse of power might be directed towards others. In fact, the experiences of history taught, and the National Congress was quick to recognize, that the States were not always true to the purposes of the Great Writ. Thus, Congress determined that federal courts must have jurisdiction to enforce the fundamental purposes of the writ of habeas corpus to prevent de facto suspension of the Great Writ.3 congress then used "[t]he habeas corpus jurisdictional statute [to] implement[] the constitutional command that the writ of habeas corpus be made available." See Jones v. Cunningham, 371 U.S. 236, 238, 83 S. Ct. 373 (1963).

All the significant statutory changes in the federal writ have been prompted by grave political crises. The first modification [] was made [] March 2, 1833 [] in response to South Carolina's nullification ordinance. The Act provided that federal courts and judges could release from state custody persons who had been acting under federal authority. The Act of August 29, 1842 [] which extended federal habeas to foreign nationals acting under authority of a foreign state, was prompted by British diplomatic protest following the trial of a Canadian soldier by a New York court. [] The Act of February 5, 1867 [] which extended federal habeas to state prisoners generally, was passed in anticipation of possible Southern recalcitrance toward Reconstruction legislation.

Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 828, n. 9 (1963).
"[T]he general spirit and genius of our institutions has tended to the widening and enlarging of the habeas corpus jurisdiction of the courts and judges of the United States." Yerger, at 102 (1868). In 1867, Congress sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Fay, supra, at 842. The legislation was "of the most comprehensive character. It br[ought] within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It [wa]s impossible to widen the jurisdiction." Ex parte McCardle, 73 U.S. 318, 325-26 (1867).

"[W]hen the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended [] to incorporate the common law uses and functions of this remedy." Dallin Oaks, Legal History in the High Court - Habeas Corpus, 64 Mich. L. Rev. 451, 452 (1966). "[T]he Act of 1867 [] restored rather than extended the common-law powers of the habeas judge." Fay, supra, at 868, n. 27. And, even though the appellate jurisdiction of the Supreme Court was rescinded by the Act of March 27, 1868 (14 Stat. 44), final action in habeas cases rested with the district and circuit judges. Charles Warren, The Supreme Court in United States History, Vol. II, at 687 (Little, Brown & Company 1935). Thus, since 1867, the full and complete common law usages of the Writ of Habeas Corpus have come within the "jurisdiction" of the federal courts.

F. Common Law Habeas Corpus
"The more liberal principles . . . of the common law" regulate the exercise of writ of habeas corpus. In re McDonald, supra, at 31. And, since "[t]he common law [] ought not to be repealed unless the language of a statute be clear and explicit for that purpose," Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603, 623 (1812), and no act of Congress has ever repealed the common law of habeas corpus, those common law usages are still appropriately considered in habeas litigation.
The Supreme Court has acknowledged this when, upon their consideration of centuries of Anglo-American common law, the Court held that:

. . . the Great Writ, habeas corpus ad subjiciendum [] is a writ antecedent to statute [] throwing its root deep into the genius of our common law [] affording as it does a swift and imperative remedy in all cases of illegal confinement. It is immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I. [] Received into our own law in the colonial period, given explicit recognition in the Federal Constitution[,] incorporated in the first grant of federal court jurisdiction[,] there is no higher duty than to maintain it unimpaired.

Fay, supra, at 827-28. See also Eisentrager v. Forrestal, 174 F.2d 961, 964 n. 12 (D.C. Cir. 1949); Ex parte Thompson, 96 A. 102, 85 N.J. Eq. 221 (N.J. Ch. 1915). Even today, the United States Supreme Court consistently adheres to the principle that habeas corpus is, "at its core, an equitable remedy." Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 863 (1995). Statutes, rules, precedents, and practices control the writ's exercise. Within constitutional constraints, they reflect a balancing of sometimes controversial objectives which are normally for Congress to make, but which courts will make when Congress has not resolved the question. Lonchar, supra, at 1298. As such, the Supreme Court has, at times, even ignored statutory changes that attempted to limit habeas corpus, review.

In Kuhlmann,4 seven Members of th[e] Court squarely rejected the argument that in light of the 1966 amendments, 'federal courts no longer must consider the "ends of justice" before dismissing a successive petition.' [] [I]n Kuhlmann, [w]e held that despite the removal of [the reference to the ends of justice] from 28 U.S.C. Sec. 2244(b) in 1966, the miscarriage of justice exception would allow successive claims to be heard.

Schlup, supra, at 863; see also Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S. Ct. 1618, 1621 (1998) (interpretation of "second or successive" language in AEDPA to preclude later consideration of claims dismissed initially as untimely would be "perverse").
Simply put, the various habeas corpus jurisdictional statutes could not restrict and, thus, did not change the time honored and constitutionally guaranteed understanding of the purposes, common law usages and availability of the Writ of Habeas Corpus ad Subjiciendum. "The history of the writ indicates that it constitutes a prompt avenue of redress for grievances second to none. [R]estrictions upon its availability must be narrowly construed, must be clear and unequivocal, and not [] imposed by judicial gloss." United States ex rel. Norris v. Norman, 296 F. Supp. 1270, 1272-73 (N.D. Ill. 1969) (Parsons, J.). And, restrictions upon the constitutional availability of the writ must not now be imposed by legislative gloss since "the Suspension Clause of the Constitution refers to the writ as it exists today." Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 2340 (1996). "[S]ince [1867], Congress has generally left it within the federal court's equitable discretion to determine the specific conditions that warrant habeas relief. (cites) Habeas corpus doctrine has thus ebbed and flowed over the years as courts' understandings of what 'law and justice require' have changed." Gomez v. Acevedo, 106 F.3d 192, 197 (7th Cir. 1997). The AEDPA does not change that this Court is to "dispose of the matter as law and justice require." 28 U.S.C. § 2243 (1996).

G. Nature And Procedures Of A Habeas Corpus Action
Habeas corpus, technically speaking, is a civil proceeding. O'Neal, supra, at 996. "[T]he traditional characterization of the writ of habeas corpus as an original [] civil remedy for the enforcement of the right to personal liberty, rather than a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. Fay, supra, at 841.

As the Supreme Court has noted:
Habeas Corpus is not an appellate proceeding, but rather an original civil action in a federal court. (cites) [I]t is a new suit brought by [the petitioner] to enforce a civil right. (cite) Any possible doubt about this point has been removed by the statutory procedure Congress has provided for the disposition of habeas corpus petitions, a procedure including such non-appellate functions as the allegation of facts [] the taking of depositions and the propounding of interrogatories [] the introduction of documentary evidence [] and, of course, the determination of facts at evidentiary hearing.

To be sure, habeas corpus has its own peculiar set of hurdles a petitioner must clear before his claim is properly presented to the district court. The petitioner must, in general, exhaust available state remedies (cite), avoid procedural default (cite), not abuse the writ (cite) and not seek retroactive application of a new rule of law. (cite) [] But once they [the hurdles] have been surmounted - once the claim is properly before the district court - a habeas petitioner, like any civil litigant, has had a right to a hearing where one is necessary to prove the facts supporting his claim. (cites).

Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 1722 (1992) (emphasis added). Also, the Supreme Court has repeatedly noted the interplay between statutory language and judicially managed equitable considerations in the development of habeas corpus jurisprudence. Schlup, supra, at 863 n. 35.
As the writ has evolved into an instrument that now demands not only conviction by a court of competent jurisdiction (cite) but also application of basic constitutional doctrines of fairness (cite), Congress, the Rule writers, and the courts have developed more complex procedural principles that regularize and thereby narrow the discretion that individual judges can freely exercise. Those principles seek to maintain the courts' freedom to issue the writ, aptly described as the 'highest safeguard of liberty,' (cite), while at the same time avoiding serious, improper delay, expense, complexity, and interference with a State's interest in the 'finality' of its own legal processes. (cites) These legal principles are embodied in statutes, rules, precedents, and practices that control the writ's exercise.

Lonchar, supra, at 1298.
"When a federal district court reviews a habeas corpus petition pursuant to 28 U.S.C. § 2254, it must decide whether the petitioner is 'in custody in violation of the Constitution or laws or treaties of the United States.' The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 2554 (1991) (citations omitted).
H. The Amendments Of The AEDPA
Unaffected by the April 24, 1996 amendments5 to the habeas corpus statute, 28 U.S.C. § 2243 provides that, "[t]he Court shall summarily hear and determine the facts, and dispose of the matter as law and justice require" (emphasis added). "The task of a federal court reviewing a habeas petition remains the same as before: to determine whether a State prisoner is 'in custody in violation of the Constitution or laws or treaties of the United States.'" United States ex. rel Howard v. DeTella, 959 F. Supp. 859, 863 n. 4 (N.D. Ill. 1997) (Castillo, J.).

I. History And Legislative Intent Of The AEDPA
From 1867 until 1966, the federal courts treated a habeas corpus proceeding entirely as an original civil action. Murray v. Giarrantano, 492 U.S. 1, 8, 109 S. Ct. 2765 (1989). Although a prisoner had to exhaust state remedies, the federal court did not review the state court's decision but addressed the claims anew. Riddle v. Dyche, 262 U.S. 333, 335-36, 43 S. Ct. 555 (1928). The state decision "counted" only as a case on point from another jurisdiction, Brown v. Allen, 344 U.S. 443, 458, 73 S. Ct. 397 (1953), and thus had no statutory role in the federal adjudication.

In 1948, Congress codified the habeas jurisdictional provisions at 28 U.S.C. §§ 2241(c)(3) and 2254(a), providing federal courts jurisdiction to entertain petitions on behalf of state prisoners "in custody in violation of the Constitution." The 1996 amendments did not modify Sections 2241(c)(3) or 2254(a).

Today, as in 1867, a district court "shall entertain" an application and "forthwith" award the writ if the applicant shows that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2243, 2254(a) (1996). These jurisdictional provisions were unchanged by the Antiterrorism and Effective Death Penalty Act.

In 1966, Congress adopted the original Section 2254(d), which required federal courts to give certain kinds of deference to state determinations of fact.6 If there had been a "full and fair" state fact-finding to which deference was owed, see 28 U.S.C. § 2254(d)(2) (1966), the federal judge "presumed [it] to be correct" unless "the applicant [] establish[ed] by convincing evidence that [it] was erroneous." Id. The 1966 version of Section 2254(d) thus required federal courts to give two kinds of deference to state court decisions of fact. First, was an important kind of procedural deference. The federal court was bound to (1) treat the state court determination as the focal point of its review, and (2) review the state determination to see if it was "correct" or "erroneous," and treat it as dispositive if correct. Second, was substantive deference. Section 2254(d) told federal courts to "presume[]" state fact determinations "to be correct" unless the petitioner could "establish [otherwise] by convincing evidence." Id. The 1966 version of Section 2254(d), however, required neither kind of deference to state legal determinations. See H.R. 1384, 88th Cong. 2d Sess. 23-24 (1964).

Congress addressed habeas corpus again in 1995 and 1996. Only the Senate conducted extended floor debate. But, before the new Section 2254(d) was proposed, the Senate defeated a proposal by Senator Kyl to repeal altogether the basic habeas jurisdiction in Sections 2241(c)(3) and 2254(a).7 Senator Hatch, Chairman of the Senate Judiciary Committee, voted against the Kyl proposal, expressing the majority's sense that it was "not [] advocat[ing] abolition of Federal habeas corpus." 141 Cong. Rec. S7826, S7836 (June 7, 1995). Accordingly, Senator Hatch wrote the proposal that became new Section 2254(d), to "correct" flaws in the system "while still preserving and protecting the constitutional rights of those who are accused." Id., at S7479 (May 25, 1995).

Congress set out to correct two perceived problems. First, it objected to the "disrespectful" treatment of state decisions under the "independent civil suit" approach.8 What troubled Section 2254(d) supporters was not federal review of state decisions to see if they were "properly adjudicated," but the requirement that federal courts ignore the state courts' efforts to comply with Federal law. See Id., at S3446 (Sen. Hatch). Second, Congress was distressed that federal habeas courts were relying on legal principles that had not existed when the state courts ruled.9 Worse, federal courts could rely on legal rules established by the lower federal courts as well as by the Supreme Court, increasing the risk that the case would be adjudicated based on legal principles different from those binding on the state courts when they ruled,10 making state decisions even less relevant.11 By changing habeas jurisdiction of legal questions in two important procedural respects, Section 2254(d) cures both defects. First, Section 2254(d) requires federal courts to treat a qualifying state "decision" on the law, as well as on the facts, as the focus of review (rather than allowing relitigation from scratch) and as dispositive unless it is shown to be wrong, i.e., "contrary to [] Federal law." Second, when deciding whether the state legal decision was correct, the federal court may rely only on law that, when the state courts ruled, was "clearly established" by the United States Supreme Court. 28 U.S.C. § 2254(d). And, unlike Teague, Section 2254(d)(1)'s already narrower review principle has no exceptions. Section 2254(d) requires procedural deference. It does not require reviewing federal judges to forego their own judgment about the meaning and effect of federal law. Instead, its language, statutory context and history simply extend to habeas the usual rule that, in deciding whether another court's legal decision is correct, the reviewing court exercises its own judgment.

Section 2254(d)(1) does not limit federal review of state legal decisions to "arbitrariness," "clear error," "abuse of discretion," or any other attribute needed to overcome a presumption in its favor; nor does it establish such a presumption. Rather, it tells the federal court to determine whether the state court decision was contrary to federal law. There is no mystery about this test. "Contrary to law" means either "in violation of statute or legal regulations" or "in conflict with the law contained in court's instructions." Black's Law Dictionary 328 (6th ed. 1990). Plainly, therefore, Section 2254(d)(1) tells a federal habeas judge reviewing a state court legal decision to place the decision alongside governing Supreme Court law to see whether the two are in conflict.

Via procedural deference, Congress intended to make state decisions dispositive unless shown to be incorrect under binding legal principles when the state courts ruled. But, Congress assumed that, when reviewing state decisions for legal correctness, federal judges would exercise their own best judgment. Senator Hatch, who drafted Section 2254(d), emphasized that the new statute "essentially gives the Federal court the authority to review, de novo, whether the State court decided the claim in contravention of Federal law." 142 Cong. Rec. S3446-47 (April 17, 1996). He added that the "deference" required by Section 2254(d) "just means that we defer to the state courts if they have properly applied Federal law." Id. (emphasis added). When opponents of the bill suggested that federal courts would be bound to "defer to State courts in almost all cases, even if the State is wrong about the U.S. Constitution," Senator Hatch called that claim "absolutely false." 141 Cong. Rec. S7846 (June 7, 1995).12

These assurances were critical in securing passage of Section 2254(d). Efforts to stop legislation requiring substantive deference to state court decisions had failed for 30 years. Only the innovation of procedural deference enabled Senator Hatch to muster a thin majority for Section 2254(d). 141 Cong. Rec. S7850 (June 7, 1995) (vote to strike Section 2254(d) fails 46 to 53).13 Thus:

Under Section 2254(d), a federal court is not to take up a claim as though it were writing on a clean slate. [] The federal court is to begin with the work already done on the claim in state court and ask, first and foremost, whether the state court arrived at the correct outcome. In this way, the federal court takes serious account (but not controlling account) of the best available thinking on the claim at bar - the prior adjudication of that very claim in state court. This framework for the federal court's function in habeas corpus is related to, but plainly distinguishable from, the hierarchical structure of a routine appellate jurisdiction to review state court judgments for error.

Larry W. Yackle, The New Habeas Corpus Statute, 44 Buff. L. Rev. 381, 383 (1996). J. Applicability Of The New Law: A Threshold Question
Habeas corpus litigation involves complex procedural principles "that are embodied in statutes, rules, precedents, and practices that control the writ's exercise." Lonchar, supra, at 1298. And, while a habeas petition filed after April 24, 1996 is presumptively governed by the AEDPA, Holman v. Gilmore, 126 F.3d 876, 879-880 (7th Cir. 1997), only qualifying State court decisions are subject to review under the statute. This Court must make an initial inquiry to determine if the provisions of the AEDPA apply to the issues presented herein. As to each issue raised by the Petitioner, this Court must first determine if the new statute applies. If not, the Court is to consider the claim as if nothing happened on April 24, 1996.

1. Adjudication on the merits.
One prerequisite to application of amended Section 2254(d) is clear from the statutory language. Section 2254(d) states that "[a]n application for writ of habeas corpus [] shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - resulted in a decision[.]" Thus, the 1996 Amendments affect only a "claim that was adjudicated on the merits in state court proceedings." Liegakos v. Cooke, 106 F.2d 1381, 1385 (7th Cir. 1997); see also Mainiero v. Jordan, 105 F.3d 361, 365 n. 5 (7th Cir. 1997). Thus, if there was no state court "adjudication," this Court must disregard the amendments of the AEDPA and address the claim under prior habeas corpus precedents and rules.

Moreover, a state adjudication on the basis of a state procedural default rule has never been considered an "adjudication on the merits" by the federal judiciary. Coleman, supra; Lostutter v. Peters, 50 F.3d 392, 394-96 (7th Cir. 1995); Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Therefore, any claim this Court reviews after an alleged default must be considered using pre-AEDPA standards. 2. Findings of fact.
Title 28 U.S.C. § 2254(e)(1), regarding the preclusion of evidentiary hearings, does not apply where there have been no findings of fact by the state court. Burris v. Parke, 116 F.3d 256, 258 (7th Cir. 1997). Moreover, where there are no specific fact findings by a state court, there can be no presumption of correctness.
See Tippins v. Walker, 77 F.3d 682, 685 (2nd Cir. 1996). And, a finding not supported by the record carries no presumption of correctness. See Jackson v. Herring, 42 F.3d 1350, 1366 (11th Cir. 1995), cert. denied 116 S. Ct. 38 (1995).
Thus, in situations such as these, a hearing is required and this Court must, again, review the claim as if nothing happened on April 24, 1996.
3. The AEDPA does not apply if it results in an unconstitutional retroactive application.

The Petitioner is entitled to the issuance of the writ if the application of AEDPA has retroactive adverse legal consequences under Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994). The Supreme Court's holding in Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059 (1997), that the new provisions of the Anti-Terrorism and Effective Death Penalty Act (Chapter 153 of the AEDPA) generally apply only to cases filed after the Act became effective, does not imply that it applies where a retroactive effect would thereby result. Because the Supreme Court held that the AEDPA was inapplicable to the Lindh case, the Court did note: "[a]lthough Landgraf's default would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case)[.]" Lindh, supra, at 2063.

Even Congress' explicit statement that Chapter 154 of the AEDPA applies to pending cases does not indicate that those provisions would apply if there was a retroactive effect. See Lindh, 1147 S. Ct. at 2064, n. 4. "Where applying a new statute would attach a serious new adverse legal consequence to pre-enactment conduct such that the party affected might have acted differently in light of the new law, Landgraf instructs us not to apply the new law." In re Hanserd, 123 F.3d 922, 931-32 (6th Cir. 1997).

According to Landgraf, statutory provisions that have "retroactive effects" include those that (1) affect substantive rights, Landgraf, supra, at 1054, (2) change the legal consequences of acts completed before the new statute's effective date, Id., at 1499 n. 23, (3) impair rights a party possessed when he acted or impose new duties with respect to transactions already completed, Id., at 1505, or (4) sweep away settled expectations suddenly and without individualized consideration. Id., at 1497.

Specifically, in the instant cause, if the AEDPA would require a different outcome, application of the statute would be retroactive. See, e.g., Boria v. Keane, 90 F.3d 36, 37 (2nd Cir. 1996). Applications of the new Act that would attach new legal consequences to pre-enactment events are barred. Burris v. Parke, 95 F.3d 465, 468-69 (7th Cir. 1996) (en banc); Pitsonbarger v. Gramley, 103 F.3d 1293, rehrg. denied at 1297 (7th Cir. 1997), cert. granted, vacated and remanded 118 S. Ct. 37 (1997). Thus, if the petitioner is entitled to relief under "old" habeas law but seemingly precluded under the AEDPA, "old" law must be used and relief granted to avoid an unconstitutional retroactive application of the law.

The rule against retroactivity is not premised merely on the detrimental reliance of those that will be harmed by the new legal consequences a law may engender. Rather, the Landgraf rule is based on different considerations, including among them the risk that the legislature "may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf, supra, at 266. The rule also is informed by an effort to "restrict[] governmental power by restraining arbitrary and potentially vindictive legislation." Id. (citations omitted). As the Supreme Court has taught:

The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens. It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed. [] [Richmond v. J.A. Croson Co., 488 U.S. 469, 513-514 (1989)] (Stevens, J., concurring in part and concurring in judgment); James v. United States, 366 U.S. 213, 247, n. 3, 81 S. Ct. 1052, n. 3, 6 L. Ed. 2d 246 (1961) (retroactive punitive measures may reflect 'a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons'). James Madison argued that retroactive legislation also offered special opportunities for the powerful to obtain special and improper legislative benefits. According to Madison, '[b]ills of attainder, ex post facto laws, and laws impairing the obligation of contracts' were 'contrary to the first principles of the social compact, and to every principle of sound legislation,' in part because such measures invited the 'influential' to 'speculat[e] on public measures,' to the detriment of the 'more industrious and less informed part of the community.' The Federalist No. 44, p. 301 (J. Cooke ed. 1961). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroactive statute 'may be passed with an exact knowledge of who will benefit from it').

Id., at 267 n. 20. The presumption of non-retroactivity, then, is meant to preclude such results; unless Congress speaks clearly, retroactive application will not be countenanced.

4. Summary
In short, where the state court has not made an "adjudication on the merits" as to a particular claim, has not made "findings of fact" on an issue or has otherwise not complied with the new law, this Court is to disregard the amendments of the AEDPA and proceed as if nothing happened on April 24, 1996. "[T]he new federal standards put a premium on following the rules of procedure. States must do likewise, if they seek to reduce the federal role. An obligation to turn square corners applies across the board." Liegakos, supra, at 1385.

If the AEDPA is found inapplicable to any issue raised herein, this Court, while it must proceed consistently with the objects of the statute, is required to "be guided by the general principles underlying [the Supreme Court's] habeas corpus jurisprudence." Calderon v. Thompson, 523 U.S. 538, 118 S. Ct. 1489, 1500 (1998). These principles entitle a petitioner to both "the benefit of an expanded body of law in challenging his conviction and to a more exacting review of any claims involving the application of federal law to the facts of his case." Abrams v. Barnett, 121 F.3d 1036, 1038 (7th Cir. 1997).
K. Right To An Evidentiary Hearing


Ever since 1867, federal courts have had the authority and the responsibility to "hear and determine the facts, and dispose of the matter as law and justice require." See Act of February 5, 1867, Ch. 28, § 1; 14 Stat. 385-386, currently codified at 28 U.S.C. § 2243 (1996). Thus, whenever "there is a reasonable likelihood that the production of evidence will make the answer to the [constitutional] questions clearer." Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 213, 55 S. Ct. 187 (1934) (Cardozo, J. concurring), the "essential facts should be determined before passing upon grave constitutional questions[.]" Polk Co. v. Glover, 305 U.S. 5, 10, 59 S. Ct. 15 (1938).

Generally, an evidentiary hearing is mandatory14 if (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier-of-fact did not afford the habeas applicant a full and fair fact hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S. Ct. 745 (1963).

More importantly, though, a federal district court always has the discretion to hold an evidentiary hearing. Id., at 318. The Supreme Court's decision in Keeney did not limit in any way the federal court's discretion to hold evidentiary hearings. Keeney, supra, at 11-12. See e.g. Lonchar, supra, at 326 ("district court is afforded a degree of discretion in determining whether to hold an evidentiary hearing," citing Rule 8(a) of the Rules Governing Section 2254 Cases; Keeney, supra, at 11-12; Townsend, supra, at 318). Moreover, the standards announced in Townsend, including the requirement that a hearing is mandatory when a habeas petitioner has alleged facts that, if proven, would entitle him to relief, are still applicable even after the amendments made by the AEDPA. See Porter v. Gramley, 112 F.3d 1308, 1314 (7th Cir. 1997); see also United States ex rel. Patosky v. Kozakiewicz, 960 F. Supp. 905, 923 n. 6 (W.D. Pa. 1997) (the amendments in the AEDPA do not alter the standards for determining whether an evidentiary hearing is necessary in federal court.)
Section 2254(e)(2), which prescribes when a petitioner is not entitled to an evidentiary hearing, provides as follows:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that:

(A) the claim relies on -
(i) a new rule of constitutional law, made retroactive on collateral review by the Supreme Court, that was previously unavailable; or
(ii) [newly discovered evidence]; and
(B) the facts underlying the claim [establish the applicant's actual innocence] of the underlying offense.

The plain language of this provision indicates that it is essentially a codification of the Supreme Court's decision in Keeney, in that it precludes a federal evidentiary hearing "[I]f the applicant has failed to develop" the facts in state court. Section 2254(e)(2) (emphasis added). See Hunter v. Vasquez, 1996 WL 612484 (N.D. Cal. Oct. 3, 1996) (finding that Section 2254(e) is essentially a codification of Keeney); Caro v. Vasquez, 1996 WL 478683 (N.D. Cal. Aug. 19, 1996) (same). As in Keeney, the central inquiry under Section 2254(e)(2) is whether the "applicant" was the one who "failed to develop" the facts. Only when the lack of factual development before the state tribunal is fairly chargeable to the habeas petitioner, as opposed to the state or the tribunal itself, is Section 2254(e)'s preclusion of an evidentiary hearing triggered. Thus, the limitations of Section 2254(e) do not apply if the State bears the responsibility for the failure to present evidence or is responsible for omissions in the state court record.

To be attributable to a 'failure' under federal law the deficiency in the record must reflect something the petitioner did or omitted. Like the third circuit, see Love v. Morton, 122 F.3d 131 (3rd Cir. 1997), we think that the word 'fail' cannot bear a strict-liability reading, under which a federal court would disregard the reason for the shortcomings of the record. If it did, then a state could insulate its decisions from collateral attack in the federal court by refusing to grant evidentiary hearings in its own courts. Nothing in 2254(e) or the rest of the AEDPA implies that the states may manipulate things in this manner.

Burris, supra, at 258-59. At the federal evidentiary hearing, the habeas court is not limited to consider only the information available to the state court. Watts v. Singletary, 87 F.3d 1282, 1290 (11th Cir. 1996).

In short, a federal court is obliged to hold its own evidentiary hearing on habeas corpus if, amongst other factors, the fact-finding procedures employed by the State were not adequate to afford a full and fair hearing, the material facts were not adequately developed at the state court hearing, the application did not receive a full, fair and adequate hearing in the state court proceedings, Hamilton v. Texas, 497 U.S. 1016, 110 S. Ct. 3262, 3264 (1990); Townsend, supra, or the state court trier-of-fact has not reliably found the relevant facts. Jones v. Wood, 114 F.3d 1002, 1010 (9th Cir. 1997). These standards announced in Townsend are still applicable even after the amendments made by the AEDPA. Porter, supra, at 1314. The AEDPA cannot mean that a petitioner must establish that he is entitled to relief before he can have a hearing to determine whether he is entitled to relief.15 United States ex rel. Crivens v. Washington, 1997 WL 120017, at 7 (N.D. Ill. March 13, 1997). Based on these applicable standards, the Petitioner is entitled to an evidentiary hearing in this cause.
L. Conclusion
For all the foregoing reasons, the undersigned Amici respectfully request that this Honorable Court grant a full evidentiary hearing on the Petition of Mumia Abu-Jamal for Writ of Habeas Corpus.

Respectfully submitted,
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

Book Review:
Civil Liberties in wartime
ALL THE LAWS BUT ONE
Written by Supreme Court Chief Justice, William H. Rehnquist
At: http://hometown.aol.com/gordonkwok/rehnquist.html
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)
(referring to US Constitution)

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

"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
At: 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

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

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.

Lord Alfred Thompson Denning OM, PC - Telegraph Obituary (1899 to 1999)
At: http://www.telegraph.co.uk/et?ac=001140216948400&rtmo=VwZ4k1Gx&atmo=kkkkkkku&pg=/et/99/3/6/nden406.html

"THE LORD DENNING, the former Master of the Rolls who has died aged 100, was one of the outstanding judges of the century and a fearless champion of the rights of the common man. "Unlike my brother judge here, who is concerned with law," he once teased at a legal dinner, "I am concerned with justice."

Whenever "Tom" Denning was faced with a situation that seemed to him dishonest, unjust or wrong, all his ingenuity and erudition would be directed to finding a remedy, even if the wrongdoer appeared to have the law on his side. This was particularly the case when some powerful institution seemed to be oppressing a smaller body or individual. As Master of the Rolls from 1962 to 1982 - the length of the term inspired the jest that he possessed every Christian virtue save that of resignation - Denning was well placed to combat the insolence of office."

To the students of Lincoln's Inn, Denning quoted with gusto Lord Chief Justice Mansfield's peroration on the freeing of slaves: "The air of England has long been too pure for a slave and every man is free who breathes it. Every man who comes to England is entitled to the protection of English law whatever the colour of his skin . . . Let the Negro be discharged."

The Sketch: Simon Carr : Will Mr Speaker stand up for backbenchers or mumble in the darkness? : 13 November 2001

At: http://argument.independent.co.uk/regular_columnists/simon_carr/story.jsp?story=104638

At 3.30pm there was an opportunity for the Commons to rise out of the irrelevance to which it is almost constitutionally condemned.
It may be an error of taste to admire the great pale thing that is Douglas Hogg, but he led the charge, and led it well.
The Government is suspending Habeas Corpus. Many of us have a sentimental attachment to this old statute but the Home Secretary has decided the national life is threatened.
The Act has not yet been published as a Bill, Mr Hogg pointed out, and it cannot be obtained from the Vote Office. Yet it has the force of law. And the minister has declined to come and explain himself to the Commons. It's very, very unusual.
"These are huge changes to the human rights legislation," the former minister Mark Fisher said, pursuing the attack. "At the very least, we need to ask the Home Secretary the basis on which he's making them."
The Speaker varied his standard response ("I have no power to make the minister make a statement.") by suggesting Mr Fisher ask the minister himself.
Tory Richard Shepherd had asked whether there weren't rules that governed ministerial behaviour during a national emergency.
"I can say there are no rules. Thank you." There is an explanation for the Speaker's remark but I'm not going to tell you what it was.
Now then. Speaker Martin claims to have no power to summon a minister. As we know, he's a duffer but, in a general sense, he is correct.
However, the Sketch understands from certain subterranean sources that a Tory has applied for a Private Notice Question on Blunkett's Bill, and that the Speaker will be considering, at midday today, whether to grant the application. If granted, Mr Blunkett will have to present himself to Parliament this afternoon.
The Home Secretary has no plans to make a statement on the matter. The Speaker is left with an opportunity to summon a senior minister to the Commons.
Will the Speaker agree to accept the application? Will he assert the rights of backbenchers and champion the position of parliament?
Speaker Weatherill did. Mr Tebbit complained of it bitterly. Will Speaker Martin demonstrate his virility? Or will he turn into the darkness, shaking his head and mumbling wordlessly? It's not much of a bet, is it?

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

Justice Oliver Wendell Holmes, Jr. (1841-1935)
In the 1935 introduction to "An economic interpretation of the constitution of the United States", Charles Beard makes the following comment:

"Few took the position occupied by Justice Oliver Wendell Holmes, who once remarked to me that he had not got exicted about the book, like some of his colleagues, but had supposed that it was intended to throw light on the nature of the Constitution, and, in his opinion, did so in fact."

Justice Oliver Wendell Holmes, Jr. (1841-1935)
by Judge Mark P. Painter
At: http://odur.let.rug.nl/~usa/B/oliver/oliverxx.htm

Oliver Wendell Holmes, Jr. was born in Boston on March 8, 1841. He would live until two days short of his 94th birthday. His father, Oliver Wendell Holmes, Sr., was a physician, a professor of medicine at Harvard, and an author of novels, verse, and humorous essays. Thus, Holmes grew up in a literary, and prosperous, family. Holmes attended private schools in Boston and then, like his father, Harvard. Young Holmes was not overly impressed with the Harvard of that time, finding the curriculum stultifying (Henry Adams later remarked that "Harvard taught little, and that little ill."). He exercised his literary talents as editor of the Harvard Magazine, and in numerous essays. His graduation was even in some doubt, as he had been publicly admonished by the faculty for "disrespect" towards a professor. Holmes evidently took this as an affront and left to train for the Civil War. His unit was not immediately sent to the front, and Holmes was persuaded to return and receive his degree.

After graduating from Harvard, Holmes began his Civil War service. He was wounded in battle three times and also suffered numerous illnesses. Though he was later to glorify wartime service, he declined to renew his term of service when it expired. Holmes apparently, and justifiably, felt that he had done more than his duty, and had survived one battle too many to continue tempting fate.

Holmes's most famous work, The Common Law, published in 1881 grew out of a series of twelve lectures he was invited to deliver, which required that he explain the fundamentals of American law. Holmes questioned the historical underpinnings of much of Anglo-American jurisprudence. The work contains Holmes's most famous quote, "The life of the law has not been logic; it has been experience." Holmes had come to believe that even outdated and seemingly illogical legal doctrines survived because they found new utility. Old legal forms were adapted to new societal conditions. Holmes's legal philosophy evolved over the sixty-odd years he wrote on the law. At first, he attempted a rational, systematic, or "scientific" conceptualization. But over time, he came to realize that the law was more of a compendium of decisions reflecting individual judges' resolutions of actual cases. Thus, the growth of the law was by experience molded to actual controversies in the society of the day. Widely considered a "liberal" because he believed in free speech and the right of labor to organize, Holmes was very conservative in his response to injury cases. He was a champion of "judicial restraint"-deferring to the judgment of the legislature in most matters of policy.

Holmes is considered one of the giants of American law. Not just because he wrote so well, but also because he wrote so much, and for so long. A lawyer seeking a quote from Holmes is never left wanting. Even the Internal Revenue Service building in Washington, D.C. bears his writing, "Taxes are the price we pay for a civilized society."

Declaration of the Rights of Man - 1789:
At: http://www.yale.edu/lawweb/avalon/rightsof.htm
Approved by the National Assembly of France, August 26, 1789

The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:

Articles:
1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.
5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.
6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.
7. No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.
8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.
9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law.
10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.
11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.
12. The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted.
13. A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means.
14. All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment and of collection and the duration of the taxes.
15. Society has the right to require of every public agent an account of his administration.
16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.
17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.

Good Samaritan law isn't that bad an idea.
At: http://www.daily.umn.edu/daily/1998/05/21/editorial_opinions/oo0521/

The Good Samaritan Law was recently lampooned on the final episode of "Seinfeld" as Jerry and friends were sent to prison for one year.
There is, however, a good, practical reason for such laws.
Good Samaritan laws first came to mainstream attention after French photographers were charged in France with not coming to Princess Diana's aid after her fatal car crash. Most European countries have Good Samaritan laws which require a person to summon aid or help someone in an emergency when it is reasonable to do so. Minnesota, Vermont and Wisconsin are the only American states that have Good Samaritan laws.

According to legal experts contacted by The Associated Press, even when no duty is spelled out in state law people may have common-law obligations to help in emergencies.

There is no group more qualified to help in an emergency such as a shooting than those in a hospital. To rely entirely on others to bring the injured to them is ridiculous when the injured are dying right outside their building.

Good Samaritan Statutes
At: http://www.law.wfu.edu/courses/crimlawrfw/Samaritan.doc

Rhode Island General Laws §11-56-1 - Duty to Assist: Any person at the scene of an emergency who knows that another person is exposed to, or has suffered, grave physical harm shall, to the extent that he or she can do so without danger or peril to himself or herself or to others, give reasonable assistance to the exposed person. Any person violating the provisions of this section shall be guilty of a petty misdemeanor and shall be subject to imprisonment for a term not exceeding six (6) months or by a fine of not more than five hundred dollars ($500), or both.

NOTES:
Belgium, Czechoslovakia, Denmark, France, Germany, Holland, Hungary, Italy, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Switzerland, and Turkey all impose criminal penalties for failure to engage in "easy rescue."
See Alexander Rudzinski, The Duty to Rescue: A Comparative Analysis, in The Good Samaritan; John Dawson, Rewards for the Rescue of Human Life, in The Good Samaritan (surveying European legislation).
The Netherlands first incorporated the duty to rescue into legislation in 1866. In France, the failure to render easy aid to a stranger can lead to the imposition of a maximum of five years incarceration plus a fine of up to 50,000 francs. Article 63, Criminal Code (introduced by decree of June 25, 1945).

TWENTY-ONE LEGAL PUZZLERS PHIL 22B - Spring 2000 At: http://people.brandeis.edu/~teuber/puzz17.html

Commentary:
In the commentary following the fifteenth puzzler there was speculation about the difference between killing and letting die and it was suggested that there may not be that great a difference in John's decision to let the trolley continue on its path or to turn it onto a side-track. Here we have a somewhat different case in that John is not in a situation such that whichever way he chooses lives will be lost.
The question here is simply whether John ought to be liable or punishable for failing to rescue the child. This puzzler is adapted from an imaginary case put forward by a Judge at the turn of the century to illustrate a principle of our present criminal justice system: few states require citizens to aid others unless they have a legal duty to do so. Here is how the Judge put the matter in 1897:

Buch v. Amory (1897)
With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two year old babe on the track and a [train] approaching. He can easily rescue the child with entire safety to himself, and the instincts of humaity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster, but he's not liable in damages for the child's injury, or indictable under the statute for its death . . . There is a wide difference, a broad gulf - both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one's neighbor, and preventing him from injuring himself . . .

Case law suggests that there are four sets of circumstances in which courts have decided that persons have a duty to rescue:

First, where a statute imposes a duty of care to another;
Second where one stands in a certain [special] status relationship to another;
Third, where one has assumed a contractual duty to care for another; and
Fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid." John's situation above fits none of these situations readily.

Every European country has a duty to rescue law on its books. Most recently, these laws have been the subject of some interest in the international press because the photographers who pursued Princess Diana's car through the streets of Paris were threatened with prosecution under France's "duty to rescue" law for their failure to aid Princess Diana and the others involved in the accident.

Some of you, too, may have watched the final episode of Seinfeld where the entire cast was arrested for their failure to respond to a mugging which took place right under their noses. The premise of the episode was to highlight Jerry's, George's, Elaine's and Kramer's indifference to the plight of others in episode after episode throughout the entire nine years of the series. The final episode was long on premise and somewhat short on substance, but its poking fun at Good Samaritanism was anything but Un-american. Only five states (Massachustts, Rhode Island, Vermont, Minnesota and Hawaii) have enacted "Good Samaritan" laws. Vermont's law reads in part as follows:

Any person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others The Minnesota statute notes that "Reasonable assistance' may include obtaining or attempting to obtain aid from law enforcement or medical personnel." Massachusetts and Rhode Island enacted their "Good Samaritan" laws, one year after an incident that took place in Big Dan's Tavern in New Bedford, Massachusetts, in March 1983 where more than ten bystanders were witnesses to a rape at the Tavern, but none of the bystanders made an effort to stop it or call the police, although a public phone was only a few feet away. You may recall that a film was made based on this case with Kelly McGillis and Jodie Foster, called The Accused. You may have seen it. In the actual New Bedford case two of the onlookers were charged as accessories to rape and were acquitted, prompting the Massachusetts and Rhode Island legislatures to enact "duty to rescue" statutes requiring citizens of those states who witness a crime to telephone the police.
Call 911 for Help
At: http://www.garamchai.com/mohan/ITPSep911.htm

In most states in the US, like in other western nations, there exists, what is commonly known as a "Good Samaritan" law. What this implies is "When anyone in good faith, renders emergency care or assistance at the scene of an emergency or accident, no liability may be imposed for any civil damages arising from acts or omissions in rendering such emergency care" [extracted from a legal text]. What this means is that people who aid others in distress will not be held accountable. In general, if a Good Samaritan does what a "reasonable person" (in France he’s called a bon pere de famille) would do under the circumstances, he won’t be held liable in negligence for any harm he may cause the accident victim. This encourages bystanders and those who witness accidents to report them to authorities, at the very least, call 911 and inform someone about the incident.

The Risk of Rescue - The Plight of the Good Samaritan
At: http://www.sarbc.org/goodsam.html
COMMON LAW

The Duty To Assist
As a general principle, common law does not require a bystander to help someone in peril - the priest and the Levite would not be liable for failing to assist the stranger.

Common law jurisdictions generally rely on inducements - the carrot and stick approach - to persuade citizens to aid others by minimizing risk to themselves. However, several exceptions exist where failure to act could result in both civil and criminal liability.

A "special relationship" may give rise to a duty to assist. Such a relationship exists when, for example, one party derives an economic advantage from the other. An employer may be obligated to assist an employee injured at work. In an accident, common carriers must assist passengers, and innkeepers must aid their quests. Although the spectrum of special relationships has not yet been determined by the courts, the scope will likely expand as it has in the United States. Another exception occurs when a person creates a situation placing another in danger. A negligent motorist who causes an accident involving injuries is liable if he or she does not provide assistance.

In some circumstances, a person is assumed to have a duty to assist because of the nature of his or her job. Policemen and Firemen, not good samaritans since it is their job to assist in an emergency. In general, a good samaritan is not paid for rescuing people in danger.

Risks Of A Good Samaritan

In Legal theory, the bystander is safe as long as he or she does absolutely nothing. But as soon as steps are taken to help, immunity for failing to act is removed. If a bystander decides to act as a good samaritan and chooses to intervene, he or she will be liable to the victim if rescue actions were unreasonable, and indeed aggravated the plight of the sufferer.

So long as nothing is done to worsen the situation, a good samaritan can abandon the rescue effort and leave the scene. A point is reached, however, when someone who intervenes is considered to have assumed a legal duty to act, but the rule and limits have not been tested.

The good samaritan probably runs greater risk of being held liable for personal injury or damage to property to a third party than to the victim. But the old common law defense of necessity protects a rescuer from liability for trespass if the individual enters another's property or uses others' goods necessary to save lives or protect property. A good samaritan can break into a garage and seize an axe to save a stranger trapped in a burning car.

Rights Of A Good Samaritan

What happens when a good samaritan suffers injuries or damage to his or her property as a result of responding to a call for help? Courts formerly considered that risk of loss or injury was voluntarily assumed. Today, the rights of a good samaritan to claim compensation depend mainly on whether the emergency was caused by another's negligence or fault. If danger is caused by the victim, the good samaritan can claim compensation from the victim. If a third party causes the situation, both rescuer and victim can recover damages from that person.

The Ogopogo Case

The case of Horsley v MacLaren, 1970, represents a controversial example of the right to compensation. A quest (Matthews) on a power boat (the Ogopogo) owned by the defendant (MacLaren) fell overboard into Lake Ontario. MacLaren tried to rescue Matthews but was unsuccessful. Meanwhile, the plaintiff Horsley (another quest) attempted to save Matthews but both men drowned. The court held that MacLaren had a duty to rescue Matthews because of a special relationship - a power boat operator owed a duty of protective care to the passengers - and if negligent, MacLaren would be liable to Matthews (or his dependents).

Horsley, on the other hand, was a good samaritan with no duty to rescue Matthews. His only recourse was against MacLaren and his right to compensation depended on whether MacLaren had been negligent to Matthews, which the Supreme Court found not to be the case. Since MacLaren was not liable to Matthews, he could not be liable to Horsley.

Statutory Modifications To The Common Law

The Canadian federal and provincial governments have passed legislation to modify common law rules in certain circumstances. For example, the Criminal Code and child welfare legislation specify that one must provide necessities of life to children, spouses and wards. The Criminal Code also gives a police officer the power to require any citizen to assist in making an arrest for keeping the peace. The Ontario Forest Fires Prevention Act allows a fire warden to enlist any person to help fight a forest fire.

Most statutory modifications impose a duty to assist and offer protection against civil liability in executing that duty. These features common under provincial emergency powers legislation, empower the responsible minister to demand any qualified person to provide aid. Failing to comply could result in a fine or imprisonment. When the new Canadian Emergencies Act is passed, the federal government will have similar powers during public welfare emergencies.

CIVIL LAW

In Quebec, the law relating to the good samaritan is in marked contrast to the common law provinces. Quebec is unique in Canada in imposing a duty on everyone to help a person in peril. Violators can also be liable to pay damages to the person who suffers. In spite of these differences, law suits are still virtually non-existent against rescuers, paralleling the experience in the rest of Canada. While the duty to take action stems from the Quebec Charter of Human Rights and Freedoms enacted in 1975, and the Civil Code, there is still little jurisprudence interpreting these provisions.

The Charter contains a provision that imposes an obligation to render aid if it can be accomplished without serious risk to the good samaritan or a third person. Under the Civil Code, every person is obligated to act as a bon pere de famille, broadly defined as a reasonably prudent person. Failure to do so would amount to fault and lead to legal wrong.

Quebec is also the only province to have passed, in 1977, an Act to compensate a good samaritan suffering injuries or other losses.

Under civil law in Europe, it is a criminal offence not to assist an individual in an emergency. There is a high degree of uniformity among these European laws. Interestingly, under Roman law and the original codes of some European nations, it was not required that a person provide emergency assistance to a stranger. The duty to assist a person in danger is of recent origin in countries such as France and Belgium.

An economic interpretation of the constitution of the United States

"The furtive fallacy is the erroneous idea that facts of special significance are dark and dirty things and that history itself is a story of causes mostly insidious and results mostly invidious. It begins with the premise that reality is a sordid, secret thing; and that history happens on the back stairs a little after midnight, or else in a smoke-filled form, or a perfumed boudoir, or an executive penthouse or somewhere in the inner sanctum of the Vatican, or the Kremlin, or the Reich Chancellery, or the Pentagon. It is something more, and something other than a conspiracy theory ."

"Historians in the Progressive era showed the same habit of thought. A socialist scholar, Algie Simons, led the pack in their reinterpretations of that sacred ark of republicanism, the United States Constitution (30. Algie M. Simons, Social Forces in American History New York, 1911). In rhetoric which "sweats with rural superstition," he informed his readers that "the organic law of this nation was formulated in secret session by a body called into existence through a conspiratory [sic] trick, and was forced upon a disfranchised people by means of dishonest apportionment in order that the interests of a small body of wealthy rulers might be served."

"An economic interpretation of the constitution of the United States"
by Charles A. Beard (published 1913)
Charles Austin Beard (1874-1948):
At: http://www.netrax.net/~rarebook/s981120.htm

Beard was born in Knightstown, Indiana. He studied at DePauw University, Oxford, and Columbia, where he taught from 1907; resigning in 1917 on an issue of academic freedom in wartime.

After working for some years on European history, he turned his attention to America and produced this 'Economic Interpretation of the Constitution of the United States'. It is his best known and most significant work. He argues here that personal and communal economic interests were the main engine for the framing of the U.S. Constitution. In subsequent years, his interpretation became axiomatic, but at the time, it was nothing short of revolutionary. It was the first salvo in demolishing a wall of patriotic historiography that held the Constitution to be the result of unselfish labor by giants of a 'Golden Age'.

Charles Beard (who with his wife Mary wrote several large and important general histories) was asked by a publisher if he could write a book on the lessons of history. He said that he could do it in four sentences:

1. Whom the Gods would destroy; they first make made with power.
2. The mills of God grind slowly, but they grind exceedingly small.
3. The bee fertilizes the flower it robs.
4. When it is dark enough, you can see the stars.

"First published in 1913, this iconoclastic masterpiece sparked a lively scholarly debate that has not yet fully subsided. Beard's then-radical thesis was that the business and property interests of the Founding Fathers---not notions of liberty and freedom---were the biggest factors in shaping the U.S. Constitution. For example, Beard concluded that speculation in depreciated certificates of Revolutionary War debt were an extremely dynamic element in bringing about the establishment of the Constitution. Such analysis was a dramatic break from the uncritical reverence previously given to the Founding Fathers and the Constitution, and sparked a revolution of its own in historical scholarship. While more recent research has undermined many of Beard's conclusions, this book remains as thought-provoking and intellectually challenging as when it was first published. Noted historian Forrest McDonald has contributed an introduction to this new edition that tells how Beard's work affected historians and summarizes later research that questions Beard's conclusions.

No serious student of the U.S. Constitution can afford to be without this major work!"

"The Convention was singularly lacking in doctrinaires, in idealists. Jefferson, the great idealist and humanitarian of the epoch, was in France as the official representative of the government. It was also lacking in a spirit of inquiry. One would naturally think that a body of men engaged in a constructive work of such immense possibilities would summon before them, day after day, citizens of all degrees and from all sections, in an effort to find out what was wrong and what was required to set it right. But they did not do this; they never summoned anybody. To have done so might have revealed the purport of the Convention, and they could not risk that contingency. The Constitution was planned like a coup d'etat; and that was its effect, in truth."

"What comes to the minds of most people when they think of the constitutional convention is a gathering of scholarly gentlemen who sought to create a government that was for the people and by the people. In all facets of the documents this holds true. Nowhere in the Constitution are there rules that protect any one class in its rights or property over any other. The Constitution does not distinguish differences by descent, opinion, religion, or property. In these respects the founding fathers have much credit owed to them. In An Economic interpretation of the Constitution of the United States Charles Beard refutes this perception of the founding fathers. “The whole theory of the economic interpretation of history,” Beard states, “rests upon the concept that social progress in general is the result of contending interests in society…”(p.19). By researching the classes and social groups that existed at the time previous to the adoption of the Constitution those who would have most immediately gained and benefited by the overthrow of the old system and adoption of the new system would be made clear. Beard goes methodically through who was in the convention and the person’s financial standing, the states involved in the ratification and where her finances were found."

"Although personalty in the form of money in interest or investment capitol doesn’t come close to what it does today nonetheless it played a role in the politics at the convention. Money capitol was suffering in two ways under the Articles of Confederation. It was difficult to invest money because of the lack of protection for manufacturers, there was an absence of protection for investments in western lands and there existed discrimination against American shipping by foreign countries. Personalty in money was also in dire straights because of the makers of paper money. There were stay laws, pine barren acts, and other mechanisms to depreciate the value of money or to delay the collection of debts. Furthermore, each state had its own form of currency and coinage making it difficult to conduct business across borders. This situation greatly favored debtors, possibly driving creditors into class-consciousness and seeking a means to an end at the convention according to Beard.

Those who were holders of personalty in public securities were greatly concerned with the establishment of a national government. Under the Articles of Confederation the government was not paying the interest on its debts and its paper money had depreciated to the point it was selling at one-sixth to one-twentieth its par value as Beard put forth. State money was also at a low price because of the reservations people had of the actions of state legislatures. The advantages of a strong national government that would be able to pay off its debts at face value, coin its own money and maintain its worth is obvious."

"To understand the origins of the writing of the United States Constitution an examination of the men, their place in society, their wealth and political power should be examined. Also, it would be most beneficial to examine rest of society who had no say in its formulation and those who opposed its proposed legislation. It is important to assume, according to Beard, that there were a certain number of men who were in favor of the creation of the Constitution and a certain number of men were against its creation. Beard attempts to search for and or explain the economic biographies of the men who wrote and implemented this document and show that they had the power to choose legislation which would benefit their economic class.

Beard states that if all the merchants, lenders, security holders, manufacturers, shippers, capitalists, financiers and their professional associates were on one side in support of the Constitution and substantially all or the major proportion of the opposition came from the non-slave holding farmers and debtors would it be not conclusive that our fundamental law was not a product of an abstraction known as the whole people. His point is that the Constitution may not have been written from a standpoint which would promote the general welfare of the entire people of the country, but would first promote the economic advantages for the people in power."

"Beard examines the Americans who had no say in the Constitution. The amount of citizens who could not vote or participate in its formation is immense. These people were women, slaves, indented servants, the mass of men who could not qualify for voting under the property tests imposed by state constitutions and laws. The working class had almost no say in the adoption of the Constitution and the leaders did not appear to show interest in sharing that power. Hamilton, in a report concerning manufactures, writes that introducing machinery will provide employment to people who are otherwise idle, he said women and children in Europe are four-sevenths of this workforce. He continues to say that this income is to accrue principally to the fathers of families and remarks that the Ahusband himself experiences a new source of profit and support from the increased industry of his wife and daughters, invited and stimulated by the demands of the neighboring manufactories. This statement gives a true sense of the patriarchal power and attitude of the time."

"This classic suggests that the U.S. Constitution was written by the country's monied classes and largely serves their interests. It remains an important work not merely for its historical data but because it raises the question of whether representatives need to reflect the class backgrounds of their constituents to represent their interests.

Beard is the first to compare the economic backgrounds of elites with their mass counterparts. He argues that the framers of the Constitution were exclusively "merchants, money managers, security holders, manufacturers, shippers, capitalists, financiers, and their professional associates." Not represented were the small farming classes and the population of debtors.

Furthermore, Beard claims that the framers of the Constitution were conscious of their economic self-interests; the Federalists presented an economic interpretation of politics to defend their work. Their main concerns, according to Beard, were to provide a strong central government and banking system and to protect the propertied classes from tyranny by the majority, by which they meant the poor taking from the rich."

"In reading the pages of this remarkable work as a study in political economy, it is important to bear in mind that the system, which the authors are describing, consisted of two fundamental parts-one positive, the other negative:

I. A government endowed with certain positive powers, but so constructed as to break the force of majority rule and prevent invasions of the property rights of minorities.

II. Restrictions on the state legislatures which had been so vigorous in their attacks on capital."

"Conclusions"

At the close of this long and arid survey-partaking of the nature of catalogue-it seems worth while to bring together the important conclusions for political science which the data presented appear to warrant.

The movement for the Constitution of the United States was originated and carried through principally by four groups of personalty interests which had been adversely affected under the Articles of Confederation: money, public securities, manufactures, and trade and shipping.

The first firm steps toward the formation of the Constitution were taken by a small and active group of men immediately interested through their personal possessions in the outcome of their labors.

No popular vote was taken directly or indirectly on the proposition to call the Convention which drafted the Constitution.

A large property-less mass was, under the prevailing suffrage qualifications, excluded at the outset from participation (through representatives) in the work of framing the Constitution.

The members of the Philadelphia Convention which drafted the Constitution were, with a few exceptions, immediately, directly, and personally interested in, and derived economic advantages from, the establishment of the new system.

The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.

The major portion of the members of the Convention are on record as recognizing the claim of property to a special and defensive position in the Constitution. In the ratification of the Constitution, about three-fourths of the adult males failed to vote on the question, having abstained from the elections at which delegates to the state conventions were chosen, either on account of their indifference or their disfranchisement by property qualifications.

The Constitution was ratified by a vote of probably not more than one-sixth of the adult males.

It is questionable whether a majority of the voters participating in the elections for the state conventions in New York, Massachusetts, New Hampshire, Virginia, and South Carolina, actually approved the ratification of the Constitution.

The leaders who supported the Constitution in the ratifying convention represented the same economic groups as the members of the Philadelphia Convention; and in a large number of instances they were also directly and personally interested in the outcome of their efforts.

In the ratification, it became manifest that the line of cleavage for and against the Constitution was between substantial personalty interests on the one hand and the small farming and debtor interests on the other.

The Constitution was not created by "the whole people" as the jurists have said; neither was it created by "the states" as Southern nullifiers long contended; but it was the work of a consolidated group whose interests knew no state boundaries and were truly national in their scope. [emphasis added]"

Beard states that if all the merchants, lenders, security holders, manufacturers, shippers, capitalists, financiers and their professional associates were on one side in support of the Constitution and substantially all or the major proportion of the opposition came from the non-slave holding farmers and debtors would it be not conclusive that our fundamental law was not a product of an abstraction known as the whole people. His point is that the Constitution may not have been written from a standpoint which would promote the general welfare of the entire people of the country, but would first promote the economic advantages for the people in power. Beard examines the Americans who had no say in the Constitution. The amount of citizens who could not vote or participate in its formation is immense. These people were women, slaves, indented servants, the mass of men who could not qualify for voting under the property tests imposed by state constitutions and laws. The working class had almost no say in the adoption of the Constitution and the leaders did not appear to show interest in sharing that power. Hamilton, in a report concerning manufactures, writes that introducing machinery will provide employment to people who are otherwise idle, he said women and children in Europe are four-sevenths of this workforce. He continues to say that this income is to accrue principally to the fathers of families and remarks that the Ahusband himself experiences a new source of profit and support from the increased industry of his wife and daughters, invited and stimulated by the demands of the neighboring manufactories. This statement gives a true sense of the patriarchal power and attitude of the time.

We used to think in the old-fashioned days when life was very simple that all that government had to do was to put on a policeman’s uniform, and say, "Now don’t anybody hurt anybody else." We used to say that the ideal of government was for every man to be left alone and not interfered with, except when he interfered with somebody else; and that the best government was the government that did as little governing as possible. That was the idea that obtained in Jefferson’s time. But we are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live. Let me illustrate what I mean: It used to be true in our cities that every family occupied a separate house of its own, that every family had its own little premises, that every family was separated in its life from every other family. That is no longer the case in our great cities. Families live in tenements, they live in flats, they live on floors; they are piled layer upon layer in the great tenement houses of our crowded districts, and not only are they piled layer upon layer, but they are associated room by room, so that there is in every room, sometimes, in our congested districts, a separate family. In some foreign countries they have made much more progress than we in handling these things. In the city of Glasgow, for example (Glasgow is one of the model cities of the world), they have made up their minds that the entries and the hallways of great tenements are public streets. Therefore, the policeman goes up the stairway, and patrols the corridors; the lighting department of the city sees to it that the halls are abundantly lighted. The city does not deceive itself into supposing that great building is a unit from which the police are to keep out and the civic authority to be excluded, but it says: "These are public highways, and light is needed in them, and control by the authority of the city."

I liken that to our great modern industrial enterprises. A corporation is very like a large tenement house; it isn’t the premises of a single commercial family; it is just as much a public affair as a tenement house is a network of public highways. I believe, for one, that you cannot tear up ancient rootages and safely plant the tree of liberty in soil which is not native to it. I believe that the ancient traditions of a people are its ballast; you cannot make a tabula rasa upon which to write a political program. You cannot take a new sheet of paper and determine what your life shall be to-morrow. You must knit the new into the old. You cannot put a new patch on an old garment without ruining it; it must be not a patch, but something woven into the old fabric, of practically the same pattern, of the same texture and intention. If I did not believe that to be progressive was to preserve the essentials of our institutions, I for one could not be a progressive.

Now, it came to me, as this interesting man talked, that the Constitution of the United States had been made under the dominion of the Newtonian Theory. You have only to read the papers of The Federalist to see that fact written on every page. They speak of the "checks and balances" of the Constitution, and use to express their idea the simile of the organization of the universe, and particularly of the solar system,-how by the attraction of gravitation the various parts are held in their orbits; and then they proceeded to represent Congress, the Judiciary, and the President as a sort of imitation of the solar system.

They were only following the English Whigs, who gave Great Britain its modern constitution. Not that those Englishmen analyzed the matter, or had any theory about it; Englishmen care little for theories. It was a Frenchman, Montesquieu, who pointed out to them how faithfully they had copied Newton’s description of the mechanism of the heavens.

The makers of our Federal Constitution read Montesquieu with true scientific enthusiasm. They were scientists in their way,-the best way of their age,-those fathers of the nation. Jefferson wrote of "the laws of Nature,"-and then by way of afterthought,-"and of Nature’s God." And they constructed a government as they would have constructed an orrery,-to display the laws of nature. Politics in their thought was a variety of mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of "checks and balances."

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live. On the contrary, its life is dependent upon their quick co-operation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their co-operation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive co-ordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission-in an era when "development," "evolution," is the scientific word-to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

Some citizens of this country have never got beyond the Declaration of Independence, signed in Philadelphia, July 4th, 1776. Their bosoms swell against George III, but they have no consciousness of the war for freedom that is going on to-day.

The Declaration of Independence did not mention the questions of our day. It is of no consequence to us unless we can translate its general terms into examples of the present day and substitute them in some vital way for the examples it itself gives, so concrete, so intimately involved in the circumstancs of the day in which it was conceived and written. It is an eminently practical document, meant for the use of practical men; not a thesis for philosophers, but a whip for tyrants; not a theory of government, but a program of action. Unless we can translate it into the questions of our own day, we are not worthy of it, we are not the sons of the sires who acted in response to its challenge.

What form does the contest between tyranny and freedom take to-day? What is the special form of tyranny we now fight? How does it endanger the rights of the people, and what do we mean to do in order to make our contest against it effectual? What are to be the items of our new declaration of independence?

By tyranny, as we now fight it, we mean control of the law, of legislation and adjudication, by organizations which do not represent the people, by means which are private and selfish. We mean, specifically, the conduct of our affairs and the shaping of our legislation in the interest of special bodies of capital and those who organize their use. We mean the alliance, for this purpose, of political machines with selfish business. We mean the exploitation of the people by legal and political means. We have seen many of our governments under these influences cease to be representative governments, cease to be governments representative of the people, and become governments representative of special interests, controlled by machines, which in their turn are not controlled by the people.

Sometimes, when I think of the growth of our economic system, it seems to me as if, leaving our law just about where it was before any of the modern inventions or developments took place, we had simply at haphazard extended the family residence, added an office here and a workroom there, and a new set of sleeping rooms there, built up higher on our foundations, and put out little lean-tos on the side, until we have a structure that has no character whatever. Now, the problem is to continue to live in the house and yet change it.

Well, we have started now at all events. The procession is under way. The stand-patter doesn’t know there is a procession. He is asleep in the back part of his house. He doesn’t know that the road is resounding with the tramp of men going to the front. And when he wakes up, the country will be empty. He will be deserted, and he will wonder what has happened. Nothing has happened. The world has been going on. The world has a habit of going on. The world has a habit of leaving those behind who won’t go with it. The world has always neglected stand-patters. And, therefore, the stand-patter does not excite my indignation; he excites my sympathy. He is going to be so lonely before it is all over. And we are good fellows, we are good company; why doesn’t he come along? We are not going to do him any harm. We are going to show him a good time. We are going to climb the slow road until it reaches some upland where the air is fresher, where the whole talk of mere politicians is stilled, where men can look in each other’s faces and see that there is nothing to conceal, that all they have to talk about they are willing to talk about in the open and talk about with each other; and whence, looking back over the road, we shall see at last that we have fulfilled our promise to mankind. We had said to all the world, "America was created to break every kind of monopoly, and to set men free, upon a footing of equality, upon a footing of opportunity, to match their brains and their energies." and now we have proved that we meant it.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world. One of the great American industrialists of our day-a man who has rendered yeoman service to his country in this crisis-recently emphasized the grave dangers of "rightist reaction" in this Nation. All clear-thinking businessmen share his concern. Indeed, if such reaction should develop-if history were to repeat itself and we were to return to the so-called "normalcy" of the 1920’s-then it is certain that even though we shall have conquered our enemies on the battlefields abroad, we shall have yielded to the spirit of Fascism here at home.

I ask the Congress to explore the means for implementing this economic bill of rights-for it is definitely the responsibility of the Congress so to do. Many of these problems are already before committees of the Congress in the form of proposed legislation. I shall from time to time communicate with the Congress with respect to these and further proposals. In the event that no adequate program of progress is evolved, I am certain that the Nation will be conscious of the fact.

Our fighting men abroad-and their families at home-expect such a program and have the right to insist upon it. It is to their demands that this Government should pay heed rather than to the whining demands of selfish pressure groups who seek to feather their nests while young Americans are dying.

Each and every one of us has a solemn obligation to serve this Nation in its most critical hour - to keep this Nation great and to make this Nation greater in a better world.