Habeas Corpus: From England to Empire

by Paul D. Halliday

We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world's most revered legal device. In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king's subjects. The key was not the prisoner's "right" to "liberty"—these are modern idioms—but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ's history and of English law. Halliday's work informed the 2008 U.S. Supreme Court ruling in Boumediene v. Bush on prisoners in the Guantánamo detention camps. His eagerly anticipated book is certain to be acclaimed the definitive history of habeas corpus.

Genres: Law, History, Nonfiction

512 pages, Hardcover

First published March 15, 2010

Reviews

[Ari · Rating 5 out of 5]

This is a charming work of legal history. The topic is the evolution and use of habeas corpus, primarily 1600-1800. The method is systematic analysis of the original writs.

As everybody ought to know, habeas corpus is a writ, an order from a court. Specifically, it is an order to A, who has custody of a prisoner, to present the body of the prisoner to the court and explain why they are being held. Habeas is a prerogative writ, a judicial writ, and not a writ of course. It is issued by the court, on behalf of the king, at the court's discretion. In general it issues because somebody asks for it, but that person who requests the writ is in general not the prisoner and indeed has no formal role in the process.

The book challenges the received story on several key points. The author suggests that we should think about the rise of habeas as a successful power grab by the Court of King's Bench. In 1600, England was covered in special jurisdictions with their own rules, and an amazing diversity of magistrates claimed the right to imprison -- The king's council, individual councillors, justices of the peace, borough courts, palatine courts as in Durham, special courts like the High Commission, and more. Habeas was a way of subjecting all those authorities to review by the King's Bench. This was nominally done on behalf of the king, who supposedly had a proprietary interest in his subjects and in seeing that the franchise of imprisonment was not being misused.

There were several high-profile 17th century legislative acts that purported to strengthen habeas -- the Petition of Right, the Star Chamber Act of 1640, and the Habeas Corpus act of 1679. The author suggests that these were not nearly so effective as we usually think -- they did not result in any abrupt changes to how the court granted Habeas, and indeed the statutes may have been counterproductive. When a statute says "a court should grant habeas if...", that suggests "only if", and thus may have reduced the scope of the writ at common law. In addition, once parliament got in the habit of tinkering, this seems to have made them more willing to suspend the writ entirely.

As often happens with legal history, there are good stories:

In 1648, Matthew Brunge was imprisoned for making disgraceful speeches to the clerk of the Yorkshire commission of sewers. He was released by the court, because "contempt of a sewer commission" is not a real thing.

In 1695, the London Musician’s company jailed a dance instructor named Grascot for not joining the guild and paying dues. Grascot was released by the Kings Bench because “at common law any man was at liberty to use any trade in any place provided he had skill and ability....Besides, this act is bad for it would set a price upon dancing.”

[K. G. Whitehurst · Rating 4 out of 5]

This is a difficult book on a complex legal subject--the origins and usages of the writ of habeas corpus. The text covers what is habeas corpus (yes, it means let's have the body, but there are different types of habeas corpus writ), from which courts one obtained it (usually King's/Queen's Bench), and what and how it was used. It is very well written and closely, densely argued. This is a book with a specific audience--early modern English historians with more than a passing acquaintance of the English legal system and English legal historians.

[UChicagoLaw]

An academic text that turns an interesting tale (at least for lawyers). It recounts developments in the so-called “great writ” from 1500 to 1800 with sympathy and verve. - Aziz Huq

[Laura · Rating 4 out of 5]

I have been repeatedly informed by scholarly texts in the law library that habeas isn't what we think it is. This book suggests that habeas was shaped by centuries of English monarchs using it to enforce their will on local law enforcement.

Professor Halliday took a hard look at habeas writs and returns from 1502 through 1798. And yes, Kings and Queens used the writ to enforce their power. But it was also used by people challenging the conditions of confinement, bad marriages, slavery, child custody, and tyranny.

Lord Hale thought English men brought English law, including habeas, with them where they went. (266). Which meant people had the right to appeal to the King's Bench for habeas relief, at least until Parliament limited the writ. (289, 301). I hear these echos today.

A good and readable book.

[Robert · Rating 4 out of 5]

An interesting survey of the development of Habeas Corpus, including the ebbs and flows of judicial
Intervention. While parts are technical, concepts are explained clearly and made plain to a component generalist reader. The books is also thoroughly referenced, which does make a nice change. However, I think this book still sits in a bit of a halfway house between academic legal history and general purpose reading.

[Jessica · Rating 5 out of 5]

A fascinating and well-researched read on habeas corpus! This book makes an often-complicated legal history quite comprehensible to those new to legal history without compromising academic integrity.

[Josh · Rating 4 out of 5]

I liked this book. Dense and legal, but very interestingly undermines the liberal trajectory of improving rights. And interestingly suggestive about the relationship of periphery and metropole in respect to legal borrowing