book cover imageHabeas Corpus. From England to Empire
by Paul D. Halliday.
(Harvard University Press, 2010, 502 pp., $39.95)

The legal right to be judged by a neutral arbiter before as a condition of imprisonment is deeply ingrained in the Anglo-American legal system, so much so that it is easy to forget that citizens in countries as widely dispersed as Argentina and Egypt have not also enjoyed this privilege. Over the centuries, this legal protection, known as habeas corpus, has both informed and been informed by the larger political and social culture in which it developed.

In Habeas Corpus, legal historian Paul Halliday makes the cases that form the history of what is known as the “Great Writ” come to life. Covering the period roughly from the sixteenth to the twentieth centuries, he shows in an engaging, readable narrative drawn from legal records never previously used by scholars, how the phrase and the legal principle behind it has become enshrined, albeit sometimes misunderstood, in the Anglo-American narrative of liberty.

Habeas corpus, Latin for “you have the body,” was one of the common-law “writs,” or causes of action. It required the authorities to whom the writ was presented to bring before the court a person who had been detained. As Halliday, an associate professor of history at the University of Virginia, notes, the writ covered the entire range of legal relations, from domestic disturbances to high treason. In all such cases, the law required that a judge review the evidence and determine whether the body of the prisoner could still be detained by the authorities. Halliday rescues this history from the dry materials of legal scholarship, from impressed Portuguese sailors, Jacobite conspirators to the slave John Anderson who escaped to Canada and ultimately received the protection of the writ.

Habeas corpus is often considered a defense against tyrannical executive power; the prisoner petitions the judge for release from unjust imprisonment at the hands of a tyrant. This is not supported by the historical evidence, Halliday argues. Rather, habeas extended from the king’s prerogative, and was often invoked against local or legislative imprisonments. In fact, the power to judge whether a prisoner was properly held, Halliday writes, “arose not from ideas about liberty, but from sovereignty as it was understood three or four centuries ago: as embodied in an actual person.” The king was sovereign over all his subjects, and therefore a judge could command that the king’s subjects be brought before the bench to have their petition heard. Over time, judicial precedent form cases reaching Calais, India, and elsewhere established that the writ extended to all the territories over which the British king was sovereign. Yet what Halliday calls the “logic of liberty” was in tension with the “logic of detention,” which provided that protections such as habeas could be suspended in time of danger.

Moreover, the use and protection of the writ preceded the political theory that justified it as part of a progressive march of liberty. Instead, as Halliday demonstrates, the fit between liberty understood “as a quality inhering in morally autonomous individuals” and the intricacies ofpremodern common law did not always fit well together. Yet what does come through is the strength of the British common-law system for protecting liberty even without a fully-theorized basis.

The American desire for liberty played a role in the history of the writ. In 1777, Parliament suspended habeas in the colonies, for all those detained in rebellion against the crown, and maintained it for six years, until 1783, the longest such suspension in British history. Once they had achieved their independence, the colonies all enshrined habeas in their constitutions. The federal Constitution presumed the existence of the writ, though it reserved the possibility of its suspension “when in cases of rebellion or invasion the public safety may require it.” Lincoln invoked that provision during the Civil War in suspending habeas, an action that has more modern British echoes, such as when the British government suspended habeas during the Mau Mau rebellion in Kenya in the 1950s.

Halliday’s study effectively ceases with the collapse of much of Britain’s colonial empire. He does not fully analyze the use of habeas in modern America, though he recognizes that much of that history concerns relations between federal courts and the states, which is an echo of the British experience. Though that history is complicated, in it we see the shift in the theoretical underpinning of habeas in America. Without a king as source of the writ’s authority, habeas becomes more fully identifiable with the abstract right of “liberty.” In Britian, even with the king’s prerogative, the use of habeas depended on a strong judiciary. In America, judicial supremacy reaches its apogee as an American judge can do what a British judge could not: rule an Act of Congress unconstitutional.

Such a system is relatively free from the idiosyncrasies of a personal monarch, but also has obvious disadvantages, not least when federal judges discount the federal system and its checks and balances in light of their own moral views. Thus the debate over habeas protections for enemy combatants or prisoners in Guantanamo has judicial supremacy as its backdrop. The debate itself, however, centers around the same themes that have contended since the sixteenth century. Agreeably free of academic jargon, Halliday recalls for us the roots of that debate.  

Gerald J. Russello is the Editor of The University Bookman.