The long journey of Anglo-American civilization, the drift of the emergent idea that INDIVIDUALS are the fundamental unit of civilization, grew at least partly from the Writ of Habeas Corpus:
It is a writ which requires a person detained by the authorities be brought before a court of law so that the legality of the detention may be examined.
The name is taken from the opening words of the writ in medieval times.
The Writ has been the lodestar which guided the intricate, often perilous trip toward western democracy. Yesterday, the United States Congress destroyed the sextants, shredded the maps, burned up the sounding lines that enabled us to follow that guide on our journey.
It does not determine guilt or innocence, merely whether the person is legally imprisoned. It may also be writ against a private individual detaining another.
If the charge is considered to be valid, the person must submit to trial but if not, the person goes free.
The Habeas Corpus Act passed by Parliament in 1679 guaranteed this right in law, although its origins go back much further, probably to Anglo-Saxon times.
Sir William Blackstone, who wrote his famous Commentaries on the Laws of England in the 18th Century, recorded the first use of habeas corpus in 1305. But other writs with the same effect were used in the 12th Century, so it appears to have preceded Magna Carta in 1215.
Its original use was more straightforward – a writ to bring a prisoner into court to testify in a pending trial. But what began as a weapon for the king and the courts became – as the political climate changed – protection for the individual against arbitrary detention by the state.
It is thought to have been common law by the time of Magna Carta, which says in Article 39: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.”
Over the next few hundred years, concern grew that kings would whimsically intervene on matters of detention, so it was enshrined in law in 1679.
We’ve never applied it completely, of course. Tom Shipp and Abe Smith, dragged out to the hanging tree, weren’t people who could apply the writ to the mob reducing them to strange fruit hanging from the bent bough. Big Foot’s cries for the charges against him would not have been recognized by any court. The internees at Manzanar weren’t considered worth the paper to bring the matter before the magistrate. However, to recognize more and more human beings as legal persons, with this most fundamental of rights, is the light with which enlightened Democracies illuminated their way. It has been there for centuries, flickering off above the far horizon, a guide to making a more just and fair society possible.
We have no need for it anymore, apparently. Captain Quieg knows best, and sadly on the ship of our state all of the officers called Republicans and the cabin boys called Democrats have no interest in mutiny. Instead, they cheer. They feast on their ill-gained booty, whip the unfortunates in the galley, and the cabin boys happily submit to the whims of their betters.
After all, beyond the horizon lie monsters. Terrible, ravenous beasts who will kill us all, if we don’t submit to the better sense represented by our good Captain. If he needs to randomly pick one or more of us to keel haul to make the rest of us safe, who are we to complain?
As we drift further off course, headed toward the rocks, remember this week. This is the week we abandoned the North Star of freedom. The only questions left are, how many of us will sink beneath the hungry waves or be split upon the jagged rocks?
