Current Shareware 1994 January/SHAR194.ISO/textfile/fija.zip/HABEAS.TXT

Text File | 1993-10-01 | 4KB | 74 lines

                    H A B E A S   C O R P U S

                     History and Definition

The dictionary definition in Black's Law Dictionary is definitely
NOT the definition you should use.  It's more a secondary
definition.  The primary definiton of H.C. is not in the
dictionaries, but rather, it is in the history books.

In the early days (before Magna Carta), the king had many court
systems operating:  e.g. common law court, equity court,
admiralty court, court of the exchequer, etc.  Each court had its
jurisdiction defined.  Of course, courts are nothing but
bureaucracies, like any other bureocracy, and they would always
want to expand their jurisdictions.  If a court went beyond its
jurisdiction, a person could go to the proper court that had
jurisdiction on the subject matter, and ask that it order the
errant court to keep hands off.  The term "habeas corpus"
translates into "you have the body" and basically was a phrase
put at the end of pleadings to the second court asking that the
first court produce the body if it was being held.

Of course, you can see that this 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,
over the centuries, became known as the "Great Writ of Liberty,"
and I'm certain that you can see why.

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 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 people
outside the court system who want to get it (i.e. plaintiffs,
defendants, and attorneys) but not ok for judges themselves.

When you move for H.C., you are opening your own court, which is
separate and distinct from their court.  You are sitting 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 you can issue your own order to
dismiss their case.  Your court is a " common law" court and
takes precedent over their equity court.  You should also, before
all that, send them a bill for their claims against you.  The
bill serves as a bond for their claims when you judge their
jurisdiction. This info comes from Elvick's materials.

The billing is a very important part of it.  It puts the teeth
into habeas corpus.  Basically, you are putting a claim on them
without admitting an injury.  You NEVER want to admit any injury.
Instead, you put the bond (bill) on their claim against you.
They want you to admit an injury, because then that satisfies the
requirements of habeas corpus. You could be standing before a
magistrate, with both arms broken and a pool of blood around your
feet, but when they ask you if you are injured, the answer is
alway "no, I'm not injured.  I'm merely undergoing a reasonable
inquisition in search of the injured party.  However, if it is
determined that there is no injured party, then I could become an
injured party after that determination because I would have
undergone that inquiry without reasonable cause.  However, at the
present, I'm not injured and am only undergoing a reasonable
inquiry.  Sir magistrate, where is the injured party who is
causing this inquiry?"