17 May 2005

A New-Olde Defense

So, I'm looking through my boxes of old books last night trying to find the Ranger Handbook I had when I was in the Army so I could settle a point I'd been discussing with another veteran (hopefully the caveat will keep Homeland Security from knocking on my door). There's a whole bunch of law school books, the MicroMash study books from my study at home Bar course, a lot of books about various religions from my undergrad (including my Arabic Bible, a Koran, and my Biblica Hebraica) but no Ranger handbook.

However, I did run across a copy of The Palladium of Justice: Origins of Trial by Jury and started to reread it. In so doing I ran across this forgotten gem: the writ of odio et atia - the writ of "spite and hatred."

The writ became part of English common law by statute in 1275. If someone charged a crime the defendant could file for this writ and have a jury impaneled to determine if the charge was filed out of - you guessed it - spite and hatred. If the jury so determined there was no trial on that charge (and since in 1275 we're talking about trial by combat that's an important point).

Hmmm . . . Virginia's a common law State. All the laws in place when the Commonwealth and the U.S. formed (much after 1275) have carried into our common law. The common law still exists unless statutorily changed. Statutes are to be construed to be in congruence with the common law and those that over rule the common law are to be narrowly construed.

I think I've just run across the perfect defense to about 50% of my A&B cases - perhaps as high as 75% of my domestic A&B cases. And if this applies to civil procedures pretty much every contested divorce and custody fight is doomed.

Now, which unsuspecting prosecutor and judge should I spring this upon . . .


Mister DA said...

Not sure how persausive W. Va. law is in the Old Dominion, but you may want to take a look at
Click v. Click, 28 W. Va. 419, 127 S.E. 194, 195 (1925).

There, the court observed,

"The origin of the writ of habeas corpus is lost in antiquity. Kane, J., in U. S. v. Williamson,, 4 Am. L. R. 5, associates it with the Roman edict de libero homine exhibendo. Several writs were used in England, prior to magna charta, to test the legality of an imprisonment, such as de odio et atia, corpus cum causa, etc. But after King John on June 15, 1215, signed the great charta at Runnymede--'a pleasant meadow by the Thames where rushes grow in the clear water of the winding river and its banks are green with grass and trees,' these other writs gave place to the summary and more efficacious writ of habeas corpus ad subjiciendum. This writ was claimed (though not always obtained) by American colonists to be their birthright as Englishmen. It has been zealously perpetuated by our federal and state Constitutions. It is regarded as 'a palladium of liberty,' and is admittedly one of "the greatest and most effective remedies known to the law." So great in fact is our veneration for this writ that our text-writers hesitate to define it in ordinary terms. Even our staid old American and English encyclopedia of law can find only Latin words with which to express a part of its definition of the Latin phrase 'habeas corpus ad subjiciendum.' "

And yes, I do have too much time on my hands.

Ken Lammers said...

So in West Virginia a statute which came into existence in 1275 is superceded by something which came into law in 1215?

Anonymous said...

I'm very ignorant: what would happen if you actually tried to use this argument in court? Laughter?

Mister DA said...

Probably. Head scraching, for sure. Grand Juries and probable cause hearings on Informations are supposed to do the same thing.

Ken Lammers said...

It would depend upon who the prosecutor was and which judge you were before. Some judges might have a perverse enough sense of humor to make you brief that argument (all the while knowing that they weren't going to depart from normal trial procedure).

Anonymous said...

I wonder if you could use it as a basis for suppressing the fruits of a pretext stop, notwithstanding Whren? (i.e., the cop pulled the car over ostensibly because it failed to signal a lane change, but the real reason was to go a-fishin' on a hunch; ergo, suppress). Now THAT would really cool.

Boyd said...

Since I don't even play a lawyer on TV, I can't begin to comment on the substance of your post. But in my inimitable style, I'll digress to comment on the edges.

1) Why are so many of the blogs I enjoy reading written by current or former military folks?

2) I also happen to own a Bible written in Arabic.

We now return you to your regular program, already in progress.