The ‘Great Writ’ and our rights
During my brief foray at Duke University Law School, the dean, E.R. Latty, started us off with a lecture on the writs by which the ancient courts of Mother England had enforced their sway. To get justice or resolve a dispute, a subject had to apply to the higher courts for a specific writ either to challenge or seek redress before some officer of the law or lower court. The trouble with writs, dean Latty said, was that they often were too narrowly drawn to fit the ever-growing complexities of medieval life.
As an example, he cited the Writ of Wowsin, which one had to seek to stop a neighbor from climbing over the writ-seeker’s stone wall during the light of the full moon to steal his melons. If, however, the fence were of wood, if the moon were in the quarter or if the neighbor was stealing pumpkins, the writ-seeker was out of luck. Only after some time did he tell us that the Writ of Wowsin was a fiction. But the point was made. Writs had more to do with the power of authority than the ability of a citizen to secure justice.
Author Paul D. Halliday, a University of Virginia historian, would happily recognize the Writ of Wowsin. In what was a heroic research quest, Mr. Halliday has undertaken a needed and timely re-examination of what some call the “great writ of liberty” — the writ of habeas corpus — and concludes that its basic purpose is about who gets to exercise power and not at all about individual rights as most of us quite wrongly think.
Whether one thinks the writ of habeas corpus is an individual’s bastion against oppression or an unfair weapon by which the American Civil Liberties Union and other do-gooders thwart the efficient workings of the justice system, Mr. Halliday tells us both views are just plain wrong.
What Mr. Halliday did was journey to London, to the archives of the King’s Bench, Britain’s historical high court, where he pored through more than 11,000 reports of plaintiffs seeking the writ as it evolved from 1500 through 1800. Based on his astonishing amount of digging, he concludes that from its first utterance, the writ was primarily a tool by which the king’s most senior judges could examine and oversee the proper functioning of those who held power in franchise directly from the monarch — lower court judges, jailers, city councils, navy captains — in an ever-widening network of government and service.
So the writ is not a weapon of the individual at all. Rather, it is a mechanism by which a superior entity of government can compel a lesser unit to uphold certain standards. This may sound like the kind of precious parsing that moot-court debaters get into, but it isn’t. Just ask the terrorist detainees sitting in cages in Guantanamo if you don’t believe me.
At its narrowest, the writ of habeas corpus ad subjiciendum was supposed to order a jailer, a sheriff or some other government body holding a prisoner without charges to “have the body” brought before the King’s Bench to determine whether there was a just cause to try him, free him on bail to await trial later or free him from unlawful imprisonment.
Over the centuries, individuals sought the writ to free themselves from navy press gangs, cruel masters, abusive husbands and 100 other causes as the power of the writ grew with the ever-expanding British Empire and the imperial power of the throne devolved into 100 colonial courtrooms where scores of languages were used. Mr. Halliday’s second point is that as the empire expanded, the writ itself became covered in a myth that pretended its purpose was something other than what it was.
A far more important point that Mr. Halliday makes is that while individuals have and still can seek superior courts to intercede on their behalf through the invoking of the writ, it is not an open-ended right and can be — and all too often has been — suspended at the will of the higher power, be it court, monarch or chief executive. Nowhere has that been truer than here in America.
While the writ generally is considered to be a guarantee of our enshrined U.S. Constitution, some debate is going on right now about whether that is, in fact, so, and even if so, just how far the writ’s reach runs. The Constitution itself is tantalizingly equivocal: Article 1, Section 9 states, “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.”
Abraham Lincoln did not hesitate to suspend it to prevent sympathizers with the Confederacy from stampeding states such as Maryland into rebellion. Ulysses Grant suspended it in nine South Carolina counties in a bid to stamp out the Ku Klux Klan. Franklin D. Roosevelt selectively suspended it against American citizens of Japanese descent. Bill Clinton (in the wake of the Oklahoma City bombings) signed a congressional tightening on the statute of limitations on seeking the writ in domestic terrorism cases.
This brings us smack into the middle of the current brawl over when and how the writ may be used to aid individuals charged with terrorist acts. Can habeas be invoked to grant them access to federal criminal courts where other civil liberties and protections can be claimed? As a footnote, Mr. Halliday’s writings on this topic have been an influence on the landmark case Boumediene v. Bush, which centers squarely on whether the Guantanamo detainees can use the writ to get into U.S. courts. This book of meticulous history is as fresh as today’s headlines and should be required reading for anyone concerned about our rights and our security.
James Srodes is a Washington journalist and author. His latest book is “Franklin: The Essential Founding Father” (Regnery, 2002).