The Origins of Habeas Corpus

As U.S. courts grapple with the right of Guantanamo detainees to seek release through habeas corpus, understanding the history and the purpose of the Great Writ seems more important than ever. Why should foreigners, who are not citizens of the United States, held outside the United States, captured in the War on Terror but not charged or convicted of any crimes, have the right to go into a U.S. federal court to challenge their detention?

The answer lies deep in English history in stories not only of prisoners protesting their innocence, but slaves, seamen and heretics seeking their freedom and women seeking protection from oppressive husbands. In his comprehensive new work of historical and legal scholarship, “HABEAS CORPUS: From England to Empire,” Paul D. Halliday explores how British judges in the 17th and 18th centuries expanded the use of the writ of habeas corpus and how Parliament imposed limits and constraints.

“Throughout its history,” writes Halliday, “the central purpose of habeas corpus has been to provide the means by which the judge might find the place at which liberty and physical security could be protected simultaneously by ensuring that subjects were imprisoned only according to law.”

The origins of habeas corpus can be traced to the 39th clause of the Magna Carta signed by King John in 1215, which provided that: “No man shall be arrested or imprisoned…except by the lawful judgment of his peers or by the law of the land,” with “or” being understood to mean “and.”

By the 1600s, when the English courts began to actively consider petitions for habeas corpus, all manner of constables and other authorities were imprisoning people. Consequently, rather than interpreting habeas corpus as being an instrument in opposition to the divine right of kings to incarcerate people, English judges treated it as an extension of the king’s prerogative to demand “account for his subject who is restrained of his liberty.”

Habeas corpus was applied and strengthened in unlikely cases. In 1629, for example, Margaret Symonds was sent to jail for three months in Suffolk parish for her “loud laughing and talking” in church in violation of a law that made one an “offender of preachers” who by “word, fact, act, or deed, maliciously or contemptuously,” disturbed anyone authorized to preach. Margaret filed a petition for habeas corpus, and Justice Sir James Whitelocke ordered her release, finding that “laughing is no such disturbance as intended by the statute.”

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Halliday’s work derives its empirical strength from his personal review of the archives of the court of King’s Bench, where he sampled the habeas corpus files of 2,757 prisoners out of an estimated 11,000 pleas from 1500 to 1800, revealing that a sizable 53 percent won release. However, what Halliday, Associate Professor of History at the University of Virginia, learned is that contrary to the popular assumption that habeas corpus “followed a nearly consistent upward path” toward liberty, “the narrative we ought to tell is perhaps neither as comforting nor as inspiring as we might like it to be.”

In times of war or domestic insurrection, all too often Parliament valued stability and security over liberty and law. During the outbreak of war with France in 1793 and continuing until its end in 1815, Parliament passed a string of statutes that suspended habeas corpus, broadened the definitions of treason and seditious libel, and outlawed many kinds of public assembly and political association. And just when habeas corpus could have served its laudable origins, instead, according to Halliday, it was “shackled” and “collapsed,” bearing little resemblance to the vibrant remedy 100 years earlier when, during an equally tumultuous era, 80 percent of prisoners jailed for treason and seditious libel were discharged on habeas corpus, “caught in indiscriminate trawls for suspects.”

Halliday acknowledges the work of critics like John Lilburne and Granville Sharp, who urged that habeas corpus be applied broadly to protect liberty and dissent. Indeed, Halliday calls Lilburne, who wrote two dozen pamphlets between 1645 and 1656, collected in his seminal work “England’s Birthright Justified,” “the most public and persistent habeas corpus litigant of any age,” having been imprisoned in turn by the House of Lords, the House of Commons, and the Lord Protector. In seeking his own release, Lilburne argued that habeas corpus was justified by “a righteous God in heaven that judgeth righteously and hears the sighs and groans of his poor oppressed and distressed prisoners.”

Sharp, a clergyman’s son who wrote eloquently about natural law in the 1770s and 1780s, saw habeas corpus as part of English law, which made any form of human bondage, from illegal imprisonment to naval impressment to slavery, utterly intolerable. When Parliament suspended habeas corpus in 1777, Sharpe protestedthat “no human authority upon earth can suspend or annul any part of the eternal law, without grievous sin!”

Yet, Halliday concludes that the bold visions of Lilburne and Sharp for what habeas corpus should be did not come to pass. “By the nineteenth and twentieth centuries, for all that the palladium of liberty was worshipped, habeas corpus was more often invoked as an aspiration for what law might do than used by judges in the vigorous manner of their forebears: as the means to control all other jurisdictions, wherever, however, and whomever they imprisoned.”

Halliday’s comprehensive study at times suffers from its extensive detail and may be slow going for some readers. Its more significant drawback, however, is what it does not address. Although Halliday surveys the use of habeas corpus into the 20th century and throughout the world outside England, and although he includes a discussion of the provisions of the U.S. Constitution dealing with habeas corpus, he stops short of addressing the serious habeas corpus issues that have arisen in the War on Terror. How useful it would have been for Halliday to draw upon his historical research to assess the use of habeas corpus since September 11.

The U.S. Supreme Court has recognized that the “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” and must be “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected. ” No one doubts, as Chief Justice John Marshall wrote in 1830, that the “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.”

In 2008, the Supreme Court ruled in Boumediene v. Bush that Guantanamo detainees have the right to file habeas corpus petitions challenging their indefinite detention. Yet even now many detainees, including several Chinese Uighurs, found to be of no threat to the United States but fearing execution if sent back to China, remain in custody because the United States refuses to admit them into our country. Last March, the Supreme Court rebuffed a legal challenge seeking to afford these men safe harbor in our country, which seized them in the first place. Habeas corpus is useless if all one has the right to do is file a petition but not to secure an effective remedy.

James Madison, in 1789, argued for the adoption of the Bill of Rights, because “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights” and “an impenetrable bulwark against every assumption of power in the Legislature or the Executive” by resisting “every encroachment upon rights expressly stipulated for in the Constitution.”

Halliday would have enlarged the relevance and impact of his otherwise important work had he examined whether we are living in yet another era where national security trumps the rule of law and where the courts have failed to serve as the “guardians” Madison envisioned.

“HABEAS CORPUS: From England to Empire,” by Paul D. Halliday, The Belknap Press of Harvard University Press, Cambridge and London 2010, 502 pages, $39.95.