Time: Sun Nov 16 03:27:11 1997
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Date: Sun, 16 Nov 1997 03:17:58 -0800
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: Monograph on Habeas Corpus (fwd)

>Attached is my monograph on Habeas Corpus, included here in embedded 
>text form as well as an attached file in MS Word 7.0 for Windows 95
>Dale Robertson
>Box 724  - Pinehurst, Texas   77362  -  (281) 356-8843 
>e-mail: habeascorpus@hotmail.com
>Habeas Corpus is an ancient common law prerogative writ of right - a 
>legal procedure to which you have an undeniable right. It is an 
>extraordinary remedy at law. Upon proper application, or even on naked 
>knowledge alone, a court is empowered, and is duty bound, to issue the 
>Extraordinary Writ of Habeas Corpus commanding one who is restraining 
>liberty to forthwith produce before the court the person who is in 
>custody and to show cause why the liberty of that person is being 
>restrained. Absent a sufficient showing for a proper restraint of 
>liberty, the court is duty bound to order the restraint eliminated and 
>the person discharged. Habeas Corpus is fundamental to American and all 
>other English common law derivative systems of jurisprudence. It is the 
>ultimate lawful and peaceable remedy for adjudicating the providence of 
>libertyís restraint. Since the history of  Habeas Corpus is 
>predominately English we must visit that history to gain understanding 
>of American use of Habeas Corpus.
>ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is 
>ancient. It appears to be predominately of Anglo-Saxon common law 
>origin. Clearly, it precedes Magna Carta in 1215. Although the precise 
>origin of Habeas Corpus is uncertain in light of itís antiquity, its 
>principle effect was achieved in the middle ages by various writs, the 
>sum collection of which gave a similar effect as the modern writ. 
>Although practice surrounding the writ has evolved over time, Habeas 
>Corpus has since the earliest times been employed to compel the 
>appearance of a person who is in custody to be brought before a court. 
>And while Habeas Corpus originally was the prerogative writ of the King 
>and his courts, the passage of hundreds of years time has permitted it 
>to evolve into a prerogative writ initiated by the person restrained, or 
>someone acting in his interest rather than by the King or his courts. 
>Magna Carta obliquely makes reference to Habeas Corpus through express 
>reference to "the law of the land". From Magna Carta the exact quote is: 
>"...no free man shall be taken or imprisoned or disseised or exiled or 
>in any way destroyed except by the lawful judgment of their peers or by 
>the law of the land." The practice and right of Habeas Corpus was 
>settled practice and law at the time of Magna Carta and was thus a 
>fundamental part of the unwritten common "law of the land" as was 
>expressly recognized by  Magna Carta.
>CIVIL LAW VS. COMMON LAW:  However, Habeas Corpus was generally unknown 
>to the various civil law systems of Europe which are generally devolved 
>from Roman and/or Justinian law. European civil law systems tend to 
>favor collective authority from the top down while the Anglo-Saxon 
>common law tends to favor the individual. Thus, it is altogether 
>understandable that the ultimate right to determine the propriety of 
>restraint upon the liberty of an individual is an almost unique feature 
>derived from the ancient Anglo-Saxon common law of England. Indeed, the 
>Magna Carta itself is arguably a reaction to the incursion of  European 
>civil law into the English common law legal system via William in 1066. 
>The running tension and contest between the civil law of the "Norman 
>intruders" intrusively confronting the ancient Anglo-Saxon common law 
>continued throughout the period 1066 to the 1640ís when, following the 
>English Civil War, and the beheading of King Charles I in 1649, the 
>peopleís parliament clearly established the respective position of King 
>and citizen. In this crucible of contest, the confrontation of top down 
>authoritarian civil law principles clashed and continuously competed 
>with, but then yielded to, the ancient "good old" common law of the 
>land. In the final analysis, the strength and resilience, and I might 
>add common sense, of the evolved, time tested, common law prevailed. The 
>interest of the people as reflected in their common law won a several 
>centuries old contest with the civil law brought to England by the 
>Norman conquest. Habeas Corpus is merely one feature, albeit it an 
>important one, of the common law. As a feature of common law, the right 
>of Habeas Corpus reflects the age old contest between the individual and 
>the state. Habeas Corpus empowers the individual in holding accountable 
>the exercise of the stateís awesome power to restrain liberty.
>The frequent use of  the great writ reflected the tension between common  
>and civil law practice during the period 1485 thru 1509,  generally the 
>reign of Henry VII. At that time Habeas Corpus was employed to secure 
>the liberty of those imprisoned by the Chancellor, the Kingís Privy 
>Counsel, the Courts of Admiralty, The Court of High Commission and  its 
>prerogative courts including its inquisitorial processes featured by the 
>hated "star chamber court" at Westminster, so called because of the 
>stars on its ceiling. Conversely, the common law preference of 
>accusatorial processes had long been a fixture of Anglo-Saxon history. 
>The modern writ of Habeas Corpus dates from this history. During this 
>period, the sheer frequency of which Habeas Corpus was employed together 
>with its procedure and results, established the Writ of  Habeas Corpus 
>as a powerful tool to check the power of the state and to preserve the 
>rights of individuals against the arbitrary power of the King and his  
>Counsel together with the Kingís courts. It was the Kingís prerogative 
>courts which were given to inquisitorial practices while the parallel 
>system of common law courts employed purely common law accusatorial 
>practices. Thus the arbitrary character of civil law power devolved in 
>England since Williamís Norman intrusion was largely checked through 
>employment of the Writ of Habeas Corpus by the first part of the 
>sixteenth century. And Habeas Corpus saw frequent use and growth in 
>prominence throughout the reign of Charles I which, in turn, found its 
>bloody end  on the chopping block in 1649. 
>THE HABEAS CORPUS ACT: The English common law practice and procedure 
>respecting Habeas Corpus was codified by Parliament in 1679 by enactment 
>of the Habeas Corpus Act. This historic act of the English Parliament 
>empowered English courts to issue Writs of  Habeas Corpus even during 
>periods when the court was not in session and provided significant 
>penalties to the judge, personally, who disobeyed the statute. And while 
>great hypocrisy surrounded the practice of the Habeas Corpus Act in the 
>late 17th century,  Habeas Corpus was nevertheless establishing itself 
>as the primary means by which individual liberty was empowered at the 
>expense of the arbitrary exercise of power by the state. During the 19th 
>century the Writ of  Habeas Corpus was further expanded to include those 
>held by a purely private process other than that of the state. 
>AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English 
>common law and practice, by the time of the American Revolutionary War, 
>the Writ of Habeas Corpus was clearly established in all of the British 
>colonies in New England and was generally regarded as part of the 
>fundamental protections guaranteed by law to each citizen. The American 
>Constitution at Article I, Section 9 states that:  "The Privilege of the 
>Writ of  Habeas Corpus shall not be suspended, unless when in Case of 
>Rebellion or Invasion the public Safety may require it."  It is 
>important to note that the framers of the Constitution for the United 
>States of America choose to include in the body of the Constitution  the 
>Writ of  Habeas Corpus while other important individual rights, arguably  
>as an afterthought, were included in the first ten amendments which were 
>popularly called the Bill of Rights. The "afterthought", that is to say 
>the Bill of Rights, was not included even as amendments until James 
>Madison single handedly,  but persistently and successfully, argued 
>before congress for its adoption and passage on 15 December 1791, some 
>two years after the constitution was ratified.  This fact sheds light on 
>the importance of the Writ of  Habeas Corpus as viewed by the framers of 
>the American Constitution at the time it was established.
>CIVIL WAR & HABEAS CORPUS:  The most famous American Habeas Corpus 
>action prior to the civil war was the case of Ex parte Dred Scott.  Dred 
>Scott was a slave owned by a physician. Upon the death of his master, it 
>was promised that Dred Scott would be set free.  However, at that time 
>Dred Scott was still being detained as a slave. Dred Scott petitioned 
>the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted 
>by the Federal District Court and subsequently upheld by the Federal 
>Court of Appeals. However, the Habeas Corpus was overturned by the 
>United States Supreme Court on the grounds that Dred Scott, as a slave, 
>was not a "person" as contemplated by the United States Constitution and 
>therefore did not have the right to petition the Federal Courts for a 
>Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the 
>great writ as Sir William Blackstone put it, was effectively suspended. 
>This notable case remains as one of the most controversial Habeas Corpus 
>actions in American history.
>As is generally known, the Writ of  Habeas Corpus was suspended by 
>President Lincoln during  the civil war.  Chief Justice Roger Tanney, in 
>the case of Ex parte Merryman (See: Ex parte Merryman, 17 Fed. Cas. 
>No.9, 487, p.144 (1861)) strongly excepted suspension of Habeas Corpus 
>by a sitting president and concluded that only the congress had the 
>power of suspension under Article I Section 9 of the constitution. The 
>ruling of the Supreme Court was apparently ignored by the President and 
>the military during the civil war. Congress later authorized the already 
>presidential suspension of the writ in 1863.  After 1863, and acting on 
>congressional authorization, the military was permitted to temporarily 
>hold people who were to be turned over to and adjudicated by the civil 
>courts. After the assassination of President Lincoln,  and in the case 
>of Ex parte Milligan  (See: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 
>L.Ed. 281 (1866))  the United States Supreme Court granted the writ and 
>once again established that only Congress had the power to suspend the 
>Writ of  Habeas Corpus and that the military had no jurisdiction over 
>the trial of civilians in the post civil war South.
>THE MODERN WRIT OF HABEAS CORPUS: Today the Writ of Habeas Corpus is 
>used in many different ways. It applies to post conviction relief in 
>criminal matters even where the judgment of judge and jury is final. It 
>applies to those who are in police custody but who are not charged with 
>a crime. It applies to those who are awaiting trial but who have not 
>been able to make an excessive bail.  It applies to death row prisoners 
>who challenge their death sentence. It applies to prisoners who remain 
>in custody after the expiration of their lawful sentence. Additionally, 
>Habeas Corpus applies to both adults and children who are restrained of 
>their liberty in some meaningful manner but who are not in the actual 
>custody of police or other public authority. For example, Writs of 
>Habeas Corpus have been issued in civil cases on application of a parent 
>where a childís custody is being sought against the wishes of the other 
>parent who allegedly "restrains" the child. It applies equally to those 
>who have been held because of their mental condition. And the writ 
>applies equally for any other fact or circumstance, civil or criminal, 
>in which the liberty of someone is restrained in any meaningful manner. 
>Habeas Corpus extends even to those who are already released from actual 
>custody on bail and who are contesting the manner and/or authority of 
>the restrictions which bail places on their liberty or the charge for 
>which they have been required to make bail. And although, research by 
>this writer has failed to reveal any cases to date, home schooling 
>contest are subject to the writ of Habeas Corpus. Parents whose 
>authority to home school their own children and who are challenged by 
>the state or other authority may properly file a Writ of Habeas Corpus 
>to adjudicate the dispute as in any other child custody case. And, the 
>writ may properly be signed and filed by an attorney - or - by "any 
>other person" (See: Texas Code of Criminal Procedure, Article 11.12 and 
>11.13.) who has knowledge of the improvident restraint of liberty.  In 
>fact, there is legal precedent recognizing the duty of any citizen to 
>proceed by Writ of Habeas Corpus to notice a court and to invoke the 
>duty of the court as to Habeas Corpus when any illegal restraint of any 
>other citizen is observed.
>CAVEAT & SUMMARY: On a more ominous note, the Writ of Habeas Corpus is 
>not without its detractors today. Movement is underway throughout the 
>United States and each of the states to curtail the employment and 
>exercise of Habeas Corpus. This questionable, if not highly suspicious, 
>exercise can be divided generally into two camps. Congressional 
>restrictions on the writ; and judicial restrictions on the writ. For 
>example, the United States Congress enacted the anti terrorism act in 
>April of 1996 which effectively stripped the Supreme Court of its power 
>to review lower federal court rulings in Habeas Corpus cases. However, 
>the Supreme Court retained its power to review petitions for Habeas 
>Corpus which are directly submitted to the court. Additionally, and more 
>disturbingly, there is evidence that the Writ of Habeas Corpus has in 
>some jurisdictions been selectively suspended in certain types of cases.
>For example, frequently State courts selectively ignore, as a practical 
>matter, the effect of the writ in cases where citizens are charged with 
>the "unauthorized practice of law". In most of these jurisdictions, it 
>is disturbing to note that it is an agency of the state Supreme Court 
>itself which makes the complaint and then prosecutes the charge.  In 
>these cases the supreme court is making the charge, prosecuting the 
>charge only to later sit in final adjudication of the charge before 
>their own court. The consolidation of power as reflected in this 
>practice against the liberty of individual citizens smacks of star 
>chamber practice and should be condemned by state legislators as was the 
>star chamber itself was condemned by Parliament in 1641.  Additionally, 
>many of these cases result in imprisonment of the defendant in a purely 
>civil case only to thereafter be effectively denied review by the Writ 
>of Habeas Corpus. Tragically, in these cases the ordinary review by 
>appeal is also denied leaving the defendant with no adequate remedy 
>under law. The Writ of Habeas Corpus in such cases is simply "overruled" 
>without comment or findings or supporting law. It is precisely this 
>practice which was sought to be avoided by those constitutional 
>provisions pertaining to the separation of powers as well as the 
>constitutional provisions that the Writ of Habeas Corpus is never to be 
>suspended. While all states have constitutional provisions pertaining to 
>the separation of powers only a few states have provisions prohibiting 
>the suspension of Habeas Corpus.  Nevertheless, the  Extraordinary Writ 
>of Habeas Corpus remains as the final and most fundamental process by 
>which one may test the propriety of a restraint on individual liberty.
>"We do well to bear in mind the extraordinary prestige of
>the great writ, Habeas Corpus ad Subjiciendum in Anglo-
>American jurisprudence: "The most Celebrated writ in the
>English Law." 3 Blackstone Commentaries 129. It is "a writ
>antecedent to statute, and throwing its root deep into the
>genius of our common law.... it is perhaps the most
>important writ known to the constitutional law of england,
>affording as it does a swift and imperative remedy in all 
>cases of illegal restraint or confinement. It is of 
>immemorial antiquity... ."
>"It's root principle is that in a civilized society, 
>government must always be accountable to the judiciary for
>a man's imprisonment: If the imprisonment connot be shown
>to conform with the fundamental requirements of law, the 
>individual is entitled to his immediate release."
>Fay v. Noia, 372 US 391 (1963)
>Dale Robertson

Attachment Converted: "I:\ATTACH\hc_fina3.doc"

Paul Andrew Mitchell, Sui Juris      : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA;   M.S.: Public Administration, U.C.Irvine 02
tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night 03
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU 04
website: http://supremelaw.com       : visit the Supreme Law Library now 05
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best 06
             Tucson, Arizona state   : state zone,  not the federal zone 07
             Postal Zone 85719/tdc   : USPS delays first class  w/o this 08
_____________________________________: Law is authority in written words 09
As agents of the Most High, we came here to establish justice.  We shall 10
not leave, until our mission is accomplished and justice reigns eternal. 11
======================================================================== 12
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Date: Sun, 16 Nov 1997 03:27:39 -0800
To: snetnews@world.std.com
From: Paul Andrew Mitchell [address in tool bar]
References: <>

The solution is quite simple:

compel the various versions of the
U.S. Constitution into evidence,
and convene a common law jury to
issue declaratory relief on the
following question:

"Do the facts support a legal conclusion
 that the so-called 14th amendment was
 never lawfully ratified?"  YES or NO?

See the Seventh Amendment for authority.

The Tenth Amendment reserves to the
People, and to the several states, 
all Rights not enumerated and 
otherwise delegated to the federal
government.  Since the People are
the authors of the Constitution, 
juries are the bodies which have final
authority to reconcile conflicting
versions of the U.S. Constitution.

/s/ Paul Mitchell

copy:  SLS

At 12:02 PM 11/15/97 -0500, you wrote:
>->  SearchNet's   SNETNEWS   Mailing List
>> The appeal is in limbo, because I ran out
>> of funds to prosecute it.  See the
>> Supreme Law Library for details.
>How is the appeal in limbo ?
>You mean it was scheduled to be heard and you told
>them you had no funds to proceed. And so the appeals
>court told the clerk to hold it indefinitely until
>you got the funds to proceed?
>And it's just there in limbo, subject to no procedural
>deadline, waiting indefinitely until you get the funds?
>Please disclose how you were able to do that.
>I'd like to file an appeal that pends indefinitely.
>The opposing party would be thrilled.
>> Bear in mind, the Tenth Amendment reserves
>> a Citizen's fundamental Right, under the
>> due process clause of the Fifth Amendment,
>> to "switch" a court of law into equity,
>> for purposes of enforcing a contract.
>Is this true ?
>I thought the Tenth Amendment protected
>rights not addressed by other amendments
>in the Bill of Rights. I may be wrong,
>but I always thought the Fifth Amendment
>was part of the Bill of Rights and that
>the right to due process is specifically
>> We have already reserved the People's 
>> fundamental Right to do so, for purposes
>> of compelling admission of the various
>> versions of the U.S. Constitution which
>> are now extant.  We did that in Looker's
>> case, and he ended up allowing his jailers
>> to persuade him to shred every single
>> pleading.  At least, they are now preserved
>> in the Supreme Law Library, while Looker must
>> contemplate his navel, for having stiffed
>> me for over $7,000 in legal fees.
>> And, Thanks!
>> /s/ Paul Mitchell
>> http://supremelaw.com
>> At 09:26 AM 11/13/97 -0700, you wrote:
>> >On 12 Nov 97 at 3:59, by way of Paul Andrew Mitchel wrote:
>> >
>> >TA> That is the reason why I did what I did,
>> >TA> because I have been planning this move for more
>> >TA> than 7 years.  The very same approach can be 
>> >TA> used to put the original 13th Amendment on the
>> >TA> table, and the 16th and 17th Amendments as
>> >TA> well (the latter of which we were never
>> >TA> lawfully ratified).
>> >
>> >I really enjoy reading your pleadings and complaints! I'm 
>> >thankful you're active in re-establishing a lawful constitution. 
>> >I hope you're careful to get a court of law in which to argue 
>> >your case, and not a court of equity. Are you going to arrange 
>> >for an independent tribunal as you planned in the Kemp case? 
>> >Obviously none of the judges now sitting in courts are Article 
>> >III judges, and most likely would not look with favor upon your 
>> >controversy!
>> >
>> >I can't wait until (the original) amendment 13 comes up for 
>> >'review'!
>> >
>> >God bless you for all your efforts!
>> >
>> >_________________________
>> >
>> >/s/ Terry Anderson
>> >Renton, Washington state
>> >teasr@zipcon.net
>> >
>> >
>> -> Send "subscribe   snetnews " to majordomo@world.std.com
>> ->  Posted by: Paul Andrew Mitchell [address in toolbar] (by way of Paul
Andrew Mitchell [address in tool bar])
>-> Send "subscribe   snetnews " to majordomo@world.std.com
>->  Posted by: pomi <pom@clark.net>

Paul Andrew Mitchell, Sui Juris      : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA;   M.S.: Public Administration, U.C.Irvine 02
tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night 03
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU 04
website: http://supremelaw.com       : visit the Supreme Law Library now 05
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best 06
             Tucson, Arizona state   : state zone,  not the federal zone 07
             Postal Zone 85719/tdc   : USPS delays first class  w/o this 08
_____________________________________: Law is authority in written words 09
As agents of the Most High, we came here to establish justice.  We shall 10
not leave, until our mission is accomplished and justice reigns eternal. 11
======================================================================== 12
[This text formatted on-screen in Courier 11, non-proportional spacing.] 13


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