Habeas Corpus - "the bulwark of individual liberty" - The Fourteenth Amendment and its effect on the citizen

Habeas Corpus
"the bulwark of individual liberty"

Gary Hunt
Outpost of Freedom
June 19, 2013


This article is divided into five sections:

  • A - Introduction to Habeas Corpus
  • E - Summation - that puts all of the pieces neatly into place
  • B - Court Cases and enactments affirming Habeas Corpus in the United States, during its first century
  • C - The Fourteenth Amendment and its effect on the citizen
  • D - The Fourth Branch of Government, and,  who is subject to that unconstitutional branch

If you wish to bypass the first four sections, but want to understand just what they prove, go to the "Summation", which puts all of the pieces in place.

The Fourteenth Amendment and its effect on the citizen

Next, though not a Habeas Corpus case, we will demonstrate that the Constitutional nexus must be clear and indisputable.  This case arises out of a statute enacted after the ratification of the 15th Amendment to the Constitution.  Two election officers were charged with violation of the Enrollment Act because they refused to receive and count a ballot from a negro, though they did so in accordance with state law.

The case is United States v. Reese (92 US 214), heard in 1875.

The 15th amendment (1870) reads:

Section 1--The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2--The Congress shall have power to enforce this article by appropriate legislation.

The Enrollment Act of 1870 was enacted by Congress under the authority of Section 2 of that Amendment.  The portions of that Act in question are the provisions of sections 3 and 4.

Section 3 states, in part:

Sec. 3. ...  That whenever... any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote,... if it fail to be carried into execution by reason of the wrongful act or omission... of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon...; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act..."

The key here is that it says "any act", without reference to "race, color, or previous condition of servitude."  Because of the broadness of the phrase, the court determined that the entire section was beyond the authority granted by the 15th amendment, to wit:

The third section does not in express terms limit the offence of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c.

The statute contemplates a most important change in the election laws.  Previous to its adoption, the States, as a general rule, regulated in their own way all the details of all elections.

Section 4 states, in part:

Sec. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall [penalties listed].

Again, we have a very broad brush, with no reference to "race, color, or previous condition of servitude".  The court responded:

[W]e find there no words of limitation, or reference even, that can be construed as manifesting any intention to confine its provisions to the terms of the Fifteenth Amendment.  That section has for its object the punishment of all persons, who, by force, bribery, &c., hinder, delay, &c., any person from qualifying or voting.  In view of all these facts, we feel compelled to say, that, in our opinion, the language of the third and fourth sections does not confine their operation to unlawful discriminations on account of race , &c.  If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose.

We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish.  For this purpose, we must take these sections of the statute as they are.  We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not.  The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there.  Each of the sections must stand as a whole, or fall altogether.

Therefore, in this instance, since there was no constitutional nexus, Sections 3 and 4 were struck down as unconstitutional.  It appears that if any law is unconstitutional, then it is no law, at all.  However, shortly, we will see that a new source of laws, outside of the Constitution, will be put in place – though only to those who allow it.

Next, we will look at another Habeas Corpus case, which demonstrates the limitations of jurisdiction of federal law, as we saw in the Act of 1825.  We will also see what establishes those spheres, laws, and tribunals for enforcement, as well as where jurisdiction is limited by the geographic boundaries and current status of certain parts of the United States.

The incident, for which Charles Mason Lane was tried, occurred in the Oklahoma territory, or, Indian territory.  The trial was held in the "district court of the United States in and for the district of Kansas." 

The charge was,

"on or about the 4th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at that part of the district of [judicial] Kansas aforesaid, the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court, with force of arms in and upon one Frances M. Skeed, a female under the age of sixteen years, then and there being, violently and feloniously did make an assault, and her, the said Frances M. Skeed, then and there, forcibly and against her will, feloniously did ravish and carnally know [Skeed]..."

Associate justice Samuel Miller gave the decision in In Re Lane (135 US 443), on April 28, 1890.

The law in which Lane was alleged to be in violation of was

"the act of congress approved February, 9, 1889, c. 120, (25 St. 658,) under which defendant is indicted and convicted, it is provided 'that every person who shall carnally and unlawfully know any female under the age of sixteen years, or who shall be accessory to such carnal and unlawful knowledge before the fact, in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction, or on any vessel within the admiralty or maritime jurisdiction of the United States, and out of the jurisdiction of any state or territory, shall be guilty of a felony, and when convicted thereof shall be punished by imprisonment at hard labor, for the first offense, for not more than fifteen years, and for each subsequent offense not more than thirty years.'

And in the decision, in which a writ of habeas corpus was denied, we find:

"We think the words 'except the territories' have reference exclusively to that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments.  These governments have an executive, a legislative, and a judicial system.  They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States.  They are not in any sense independant governments…  Yet they exercise nearly all the powers of government under what are generally called 'organic acts,' passed by congress, conferring such powers on them.  It is this class of governments, long known by the name of 'territories,' that the act of congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction.  Oklahoma was not of this class of territories.  It [Oklahoma territory] had no legislative body.  It had no government.  It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have, and have always had."

What can we conclude from this?  The States each have "have an executive, a legislative, and a judicial system"; recognized, or organized, territories, "have an executive, a legislative, and a judicial system".  However, those lands that are not within either a state or an organized territory, under the authority granted by the Constitution, in article IV, section 3, clause 2, grants Congress the "Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belong to the United States…"

We have come to assume that all laws enacted by Congress, absent the limiting phraseology, act upon all of us.  That assumption, however, is in contradiction with the Constitution.  Clearly, in times past, those separate spheres; those limitations on jurisdiction; and the creation of laws, were well-defined and limited.  It is evident that the state had the right to make laws that were not in conflict with the Constitution.  How, then, could the federal government enact laws that would be in conflict, or contradiction, to state laws that are not in conflict with the Constitution?  It is an untenable situation to think that one would have to decide which of two conflicting laws he was bound to abide by.

Let us see if there is another situation that might allow the general government to act upon someone that it does not have lawful authority to act upon.

To understand "standing", the right or obligation to appear in a certain court, we have to look as things were before the ratification of the Fourteenth Amendment.  This matter comes to light, and understand this, that it is a very significant point in dealing with the judicial system, in Dred Scott v. Sandford (60 U.S. 393), heard in 1856.  In this decision, notwithstanding the subject of the case, rather, with consideration of a rather obscure but significant portion of the decision, we find that Scott had no standing.  Scott was a freed slave, as such, he was not deemed a citizen capable of entering the federal judicial system.  At that time, most states would not allow a negro to testify against a white man, or sit on a jury.  Regardless of your present perspective, that was the law, at that time.  However, the Court decided to hear the case, anyway. 

"That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.  If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.  It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court."

Sandford "plead over" (he filed with the court), and, in so doing, he failed to challenge the prohibition (absence of jurisdiction) of Scott's lack of right to enter the jurisdiction of the court.  So, what we have is, if I don't challenge the jurisdiction of the court, instead, I plead, or otherwise fail to challenge jurisdiction, the court may deem that the right to challenge as waived and the court is free to proceed.

Now, we understand that if we assume that we have to submit to the court, when charged with any crime, then the court will assume that we have 'granted' them jurisdiction.  This does not mean that you are not subject to the court's jurisdiction in certain cases, such as counterfeiting, treason, or any law passed within the authority granted by the enumerated powers.  This is, however, very important in securing your right to Habeas Corpus -- to challenge the lawfulness of the law that you are charged with violating.  As we proceed, you will begin to understand.

As you have just seen, Scott was allowed to proceed in court, since Sandford failed to object.  If Sandford had objected to Scott's right to go to that court, the case would have stood, as had been previously decided by the state court – and in Sandford's favor.  It was Scott that appealed the lower court's decision.  Therefore, when there are two classes of people, it is important to differentiate between those two classes, and, to determine which class you are, and, whether the law, you are charged to be in violation of actually applies to you.

In 1868, something occurred that changed the nature of the government and the people of the United States; the 14th Amendment was ratified.  It reads, in part:

Section 1--All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Let's look closely at this sentence.  "All persons born or naturalized in the United States," well, that is pretty inclusive.  However, the next phrase, "and subject to the jurisdiction thereof," limits that inclusiveness to those "subject to the jurisdiction thereof."

As we have seen from the previous cases, those who were citizens before the 14th Amendment was ratified, were not "subject to the jurisdiction thereof," except when there was a constitutional nexus.

We have one class of people (Citizens), who created the Constitution.  We have another class of people (citizens) that were created by the Constitution.  There is nothing in the Constitution, or the 14th Amendment, that dissolved the first class; therefore, we must assume that it still exists, and, we will see that the Supreme Court still recognizes this fact.

So, the question arises, did the 14th Amendment change the nature of those who were already citizens?  The answer can be found in the next case.

It was over 40 years after the 14th amendment was ratified (1908) that this next case was heard.  Albert C. Twining and David C. Cornell were convicted of providing "false papers" to the state banking examiner.  They were sentenced to prison and Twining appealed to the United States Supreme Court, based upon his Fourth Amendment rights.  He argued that the requirement to turn over papers to the examiner, absent a court order, denied him due process clause under the 14th Amendment.  Twining and Cornell were both citizens of New Jersey.  Since they were citizens of New Jersey (state), they were not within the jurisdiction of the Court; therefore, the Court had no jurisdiction (federal) over them.

Justice Moody provided the decision of the court in Twining v. State of New Jersey (211 US 78):

In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: First, that the exemption from compulsory self- incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at barThe first proposition naturally presents itself for earlier consideration.  If the right here asserted is not a Federal right, that is the end of the case.  We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.

That last point, "If the right here asserted is not a Federal right, that is the end of the case", will lead to the final decision of the Court.  Does it also hold that if no right is conferred, that there is an absence of jurisdiction?

We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.


This tells us that there is, without a doubt, a limitation on the jurisdiction of the federal government.  If the Constitution does not provide for jurisdiction, they cannot assume to have jurisdiction, except as was noted.  If Twining had been a citizen created by the 14th Amendment, he would have been afforded the due process protection of the 14th Amendment.  Not being of that class of citizen, he came solely under state laws and protection of the state Constitution.

As we saw in Barron v. Baltimore (1833), the federal Constitution provided only protection from the federal government.  Twining v. State of New Jersey (1908), shows that such federal jurisdiction did not apply to those who were not of the nature of the citizens created by the 14th Amendment.

Dred Scott v. Sandford demonstrated that if we acquiesce to the jurisdiction of the court, whether proper or not, the court may assume that you are there properly, and proceed, absent any other consideration of jurisdiction.

Twining v. State of New Jersey, particularly, brings home the point that, more than two generations after the 14th Amendment was ratified, there was still a distinction between those who were citizens of a state and those who were not afforded the protection of the Constitution, if the matter was between them and state laws and their respective constitutions.

(Continued D)


This article is available online at  Habeas Corpus - The Guardian of Liberty

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