In the battle between the plow and the crown, the rulers had all the cards. The deck was stacked. It was hard for a peasant with a pitchfork made of iron to stand up against a knight clad in chain mail, swinging a steel sword and riding a huge horse. Add to that the jails belonged to the king. If they did not like you all they had to do was kill you or lock you up until you died.
The response to this began to develop with the writ of habeas corpus. We know it was part of the Magna Carta of 1215. I have heard different translations of the phrase but they come out to something like “produce the body.” In application it meant that the accuser or law enforcer was required to bring the prisoner out on demand and explain why he was being locked up. If this was not done in a timely manner, the prisoner was to be set free. If an impartial judge thought the evidence was flaky, the prisoner was to be set free. It was designed to protect against the flagrant abuses of a culture based on muscles and swords.
The protections and rights of this concept are expanded in our Bill of Rights, Amendments IV, V and VI. This involves warrants, due process, probable cause, jury of our peers and so forth. It is the foundation of much of our liberty because it protects us from an aggressive government that wants to lock us up and throw away the key just because they don’t like us. It is a bulwark against tyranny.
The Constitution gives an exception to this protection.
Article I, Section 9, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety require it.”This is the only place in the Constitution that we find the term. It was the source of Lincoln’s action.
To be continued...
homo unius libri
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