The Privilege Of The Writ Of Habeas Corpus Not To Be Suspended Except In War

Here is something in our Constitution which I suppose you have read, but which you probably do not understand. That is, you probably do not understand its real value, not to somebody else, but to yourselves, because all of these provisions of the Constitution are for each one of us.

We may go along through life, never being placed in a position where we will have to call upon the Constitution to defend us. Most of our people are peaceful and just, and it isn't often that the rights of innocent persons are attacked or invaded. It isn't often that an innocent man is arrested for a crime, and yet such a thing may occur any day to any one of us. You may rest assured that such things do not occur as often as they would if the Constitution did not stand as a barrier to protect innocent persons. These great constitutional guaranties are not only valuable when we want to assert our rights, but they are valuable as a restraint upon wrongdoers.83

Now here is this provision:

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”84

What is a “writ of habeas corpus”? “Habeas Corpus” is a Latin phrase, which in English means “you may have the body”. A writ of habeas corpus is a writ directed to the person detaining another, or holding him in prison, commanding him to produce the prisoner at a certain time and place before a court or judge, so that the right of imprisonment or [pg 145] restraint may be inquired into. It is an ancient writ, recognized as far back in English jurisprudence as 1679. It was used against the king in the reign of Henry VII, and on through the later years. It was recognized from time to time, sometimes entirely denied, and again given force.

But as applied to you and to me, what does it signify? Suppose on your way home this evening, some person should seize you and force you to go to jail, and lock you up. No charge is made against you. You are innocent of any offense. You sit there in the cell wondering what it all means. You cannot even communicate with your parents or friends. The jail is built of stone, the iron bars are strong, and you are helpless.

Well, in the olden days, many a man and woman had such experiences, and many a man and many a woman lay in jail for long periods without any charge, or any trial, deprived of liberty, utterly powerless.

Now as I said, suppose you were in jail to-night—not even permitted to communicate with a friend or with a lawyer, and your father found out where you were. He could not go and break down the prison walls. He could not even talk to you; but if he were familiar with the Constitution of the United States and of his State—because there is a like provision in the Constitutions of all States—if your father understood his constitutional rights, he would at once apply to some court or judge for a writ of habeas corpus. It would be a simple matter. He would set out in writing the facts, simply the story that you were seized and were imprisoned wrongfully, and he would ask that a writ of habeas corpus issue, and this request, no court or judge can deny. He would promptly issue the writ, which would be in writing directed to the person keeping you in jail, or the keeper of the jail, or some one who was aiding in keeping you in jail, and this writ would command such person to have you [pg 146] brought before the court at once, “commanding him to produce the body of the prisoner at a certain time and place”. You would be brought there, and the person having you in jail would have to show cause for such conduct. Unless legal cause were shown, the judge would promptly discharge you, and the person who had committed the wrong against you would probably receive proper punishment, after a trial, for his wrongful act.

Now there were long periods of time in England when the right to a writ of habeas corpus was suspended, during which time a person wrongfully in prison had no relief and no remedy, when helpless men and women starved and died. So when the Constitution was adopted, the people of America were careful to see that the following guaranty was written therein:

“The Privilege of the Writ of Habeas Corpus shall not be suspended”.85

Under our Constitution this may be done only “in case of rebellion or invasion” when “public safety may require it”. For instance, in the World War, which you all remember, some dangerous person, some traitor, might have been arrested by the military authorities and detained in custody, and he could not be discharged upon a writ of habeas corpus, because a state of war existed, and public safety required that he be held. Of course in times of war persons engaged in the military service are not entitled to a trial in a civil court for their offense. They are tried for military offenses by court martial. That is a military court, where the judges are military officers, ordered by their superiors to sit and hear the evidence. There is not much formality. In grave offenses prompt action is necessary. Spies are caught, the courts organized, the evidence taken, a finding of guilty made, and the party shot, all perhaps within twenty-four hours. These are the necessary awful consequences of war. [pg 147] But can't you see now what a sense of security this little provision of our Constitution ought to bring to each one of us? We always know that in case of our wrongful arrest, a writ of habeas corpus will bring us before some court where we may have prompt inquiry into the reasons for invading our right to liberty, and prompt order for discharge if the arrest is not justified.

This writ issues not only in behalf of persons confined in jails and prisons, but also in every case where one is held by force against his will by another person, because this is a free country, and no man, whether a private citizen or public officer, has any power to restrain another against his will, unless such restraint is under legal proceedings with all the safeguards of the Constitution.

I remember a case when unfortunately a father and mother were separated and divorced. Their little boy was left with his mother. The judge decided that the father was a bad man and that he was not worthy to have charge of his son.

A few months later that father went to the house where the mother and boy lived, watched behind the hedge until the little boy was at play in the yard, when he seized him, jumped in an automobile which was waiting for him in the woods, and drove away at great speed. He took the boy to a boarding school in a neighboring State, telling the principal of the school that he wanted the boy safely kept until he should return from Europe. After many days the sheriff with the aid of detectives found where the boy was. The mother came to the school. Of course she was filled with joy when she saw her son. She thought that she could take him away with her at once, but the principal would not consent. He said that he had no knowledge of whether or not she was the boy's mother; that she had no right to take him away; and that his duty was to return the boy to [pg 148] the man who had left him in the school. The appeal of the mother and the tears of the boy were in vain.

At last she had to leave the boy. She at once consulted a lawyer. He prepared a written application asking that a writ of habeas corpus be issued, commanding the principal of the school to bring the boy before the judge, that the judge might hear the evidence, and make an order releasing the boy from the school and placing him in the charge of his mother. The writ was issued by the judge. An officer went to the school, read the writ to the principal, who promptly brought the boy to the court room.

There the judge heard the story of the mother and the simple tale of the little boy, he examined certified copies of the order of the court awarding the custody of the boy to his mother, which the sheriff had procured, and then he very promptly ordered the principal of the school to give the boy to his mother. The principal was of course glad to do so, when he found that the father had done wrong.

This is only one of hundreds of cases where the writ of habeas corpus releases someone from wrongful confinement. Such wrongful confinement may be in a school or in a home or in a jail or in a dungeon or in a dark cellar. No matter where, the writ of habeas corpus does not stop at locked doors or barred windows or stone walls. An officer with such a writ can break and enter if necessary. No obstacle can be allowed wrongfully to deprive an American citizen of his liberty.

[pg 149]

ELEMENTARY QUESTIONS

1. What is a writ of habeas corpus?

2. What does “habeas corpus” mean?

3. When was it recognized in England?

4. When may it be suspended in America?

5. Just what does it mean to the average citizen?

6. Can you think of a time when it might be valuable to you?

7. What is martial law?

ADVANCED QUESTIONS

A. Just when is a writ of habeas corpus likely to prove valuable?

B. Why is it called “the most famous writ of the law”?

C. Show how it affects the poor man.

D. Show how it makes for democracy.

E. Write a paper on the following:

Abuses Found Before the Writ of Habeas Corpus Was Recognized

Cases Where It was Used Locally

The Experience of the Arrest of an Innocent Man Who Was Unable to Furnish Bail

A Court Martial

[pg 150]