Reviewed by Louis Fisher, Scholar in Residence, The Constitution Project. Former Senior Specialist in Separation of Powers at the Congressional Research Service and Specialist in Constitutional Law at the Law Library, Library of Congress. Lfisher11 [at] verizon.net.
Paul Halliday, professor of history at the University of Virginia, researched thousands of British cases from 1500 to 1800 to study the origin, practice, and limitation of habeas corpus, often referred to as the Great Writ of Liberty. During that period in England, more than 11,000 people used habeas corpus (p.28). Habeas saved many from servitude, not only the king’s “subjects” but foreigners as well. We are accustomed to thinking of habeas as a judicial instrument to determine on what basis the executive branch is detaining someone. If no legal grounds are discovered, the person is set free. Halliday, however, describes habeas as originating as part of executive power. “By putting the king’s prerogative rather than the usual liberal ideas at the center of habeas corpus, I am asking historians of political thought to consider again how talk of ‘liberties’ operated in the sixteenth century and beyond” (p.3). Although the king “is the traditional villain in the history of habeas corpus,” Halliday explains that “the power to use the writ came from the prerogative, that part of legal authority peculiar to the king” (p.7).
The Magna Carta of 1215 made no mention of habeas corpus, but it did represent a check on King John and promised a defense against arbitrary and unjust rule. It incorporated several important principles, including Article 39: “No free man shall be arrested or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Article 45 added: “We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.”
As the book progresses, it becomes clear that habeas originated more from judges than from kings. Judges “spoke in the sovereign’s name” to justify their actions in releasing someone or returning individuals to jail, but the action came from a judge, not the king (p.7). The prerogative added a necessary legitimacy to the writ. In Halliday’s words: “habeas corpus was fundamentally an instrument of judicial power derived from the king’s prerogative” (p.14). Habeas corpus “was made into a powerful writ by judges responding to the volatile mix of social, religious, and political controversy present in the decades just before and after 1605” (p.18). Also [*496] pressing the case for individual liberties were lawyers (such as Edward Coke, Thomas Fleming, and John Popham) and non-lawyers (including John Lilburne).
Parliament was actively involved, passing the Habeas Corpus Act in 1679 to clarify the writ and in 1689 when for the first time it suspended habeas corpus. Habeas was suspended again in England from 1777 to 1783, 1794 to 1795, and 1798 to 1801. During this period, the newly independent American states included the writ in their constitutions. The British experience of suspension informed the adoption of the Suspension Clause in the U.S. Constitution. The Northwest Ordinance, issued in 1787 to cover the territories between the Ohio River and the Great Lakes, declared that “the inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus” (p.253). All 21 States admitted after 1787 and prior to 1860, with the exception of Vermont, included in their constitutions a habeas corpus provision basically identical to the federal constitution (Oaks, 1964-65: 249).
Parliament could imprison “without judicial supervision” (p.213). In the case of the Earl of Shaftesbury in June 1677, William Williams asked that he be released from the Tower of London. Williams conceded that Parliament “was a superior court, even to the King’s Bench” (p.215). He was confronted with the argument that the King’s Bench might be superior to all courts of ordinary jurisdiction, but the House of Lords “is the supreme court of the realm.” Shaftesbury was returned to the Tower. The House of Commons, like the Lords, “might imprison for any contempt committed by one of its members or for nonmembers’ violations of members’ privileges” (p.218). In the United States, either the House or the Senate may hold someone in contempt, but prosecution and conviction require action by the executive and legislative branches. It has been argued that Congress possesses an inherent power to punish for contempt and may subject someone to detention until they purge themselves of contempt, but that power is more theoretical than real.
Magistrates “acted in the king’s name since all justice arose from the king” (p.74). Through this formulation, Halliday suggests that no overriding judicial power existed to check executive abuses. Elsewhere in the book, however, judges, lawyers, and non-lawyers did not take their cues solely from the king. They thought, and acted, with independent minds. For example, judgments in court “did not just happen; they were made. Judges, not rules, made them” (p.101). Through their “deeds more than their words,” successive chief justices (Matthew Hale, John Holt, and William Murray Mansfied) “broadened the principles that legitimated a widening oversight of detention in all forms” (p.101). The king’s prerogative was not the sole authority to justify habeas. Independent judicial authority “would persist, with the prerogative living on in the judges’ hands even after the king himself was destroyed” in the civil war of the 1640s (p.161). Charles I was executed in 1649. Judges could prevail but “there was a greater authority: Parliament” (p.212).
Four courts played a prominent role: the Queen’s Bench, Common Pleas, Courts of Chancery, and Courts of the Exchequer (p.19). Depending on the [*497] times, the Queen’s Bench functioned as the King’s Bench. Such terms as Queen’s Bench and King’s Bench underscore that the concept of judicial independence did not exist in England during this time. We think of detention as an executive action monitored by the courts. In England, there were statutory forms of detention (p.33), with Parliament exercising its power over kings and courts.
At times Halliday refers to “miracles” performed by the king (pp.67-73, 88, 202) but offers no examples of a power usually attributed to deities, religious founders, and saints. “As God performed miracles within and upon the natural world, so too did kings wield the prerogative within and upon a world that normally resolved according to law” (p.68). The closest example offered by Halliday of the king’s “miraculous power” is when an alien becomes a “natural born subject” (p.202). Elsewhere he talks about the king’s “nearly divine power to pardon” (p.74). Throughout history, as a means of reinforcing their political power and legitimacy, kings claimed to rule by divine right. Policies and decisions were said to descend from heaven, even when the results were calamitous. Countries found it convenient to recognize the divine right of the king to offset the same claim by popes.
Turning to contemporary U.S. experience, Halliday cites a Supreme Court decision in 2001 (INS v. St. Cyr) to point out that the Court “suggested that it should interpret the U.S. Constitution’s Suspension Clause, and thus the use of habeas corpus ‘at the absolute minimum . . .’ as it existed in 1789” (p.314). A book first published in 2010 could have discussed not only St. Cyr but also what happened to detainees after 9/11, when hundreds were held by the United States in Guantánamo and other locations for years without being charged. When finally set free, they received no apology or financial compensation, as Great Britain eventually did with British citizens held at Guantánamo, and as Canada did with the extraordinary rendition case of Maher Arar. With G. Edward White, Halliday did publish an article in 2008 that analyzes habeas rulings after 9/11. Contemporary issues of military tribunals, Guantánamo, the State Secrets Privilege, and extraordinary rendition are covered in my book, The Constitution and 9/11: Recurring Threats to America’s Freedoms (2008). Supreme Court habeas cases include Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008).
Readers interested in the application of habeas corpus during the George W. Bush administration will benefit from the excellent study by Jonathan Hafetz, Habeas Corpus After 9/11: Confronting America’s New Global Detention System (2011). Another recent study by Kasper (2011-2012) connects the Magna Carta with various judicial cases decided during the Bush administration. Six articles in the July 2010 issue of PS: Political Science & Politics examine the history of Magna Carta and the use of habeas petitions, including after 9/11.
Fisher, Louis. 2008. The Constitution and 9/11: Recurring Threats to America's Freedoms. Lawrence, Kansas: University Press of Kansas.[*498]
Hafetz, Jonathan. 2011. Habeas Corpus After 9/11: Confronting America's New Global Detention System. New York University Press.
Halliday, Paul D. and G. Edgar White. 2012. “The Suspension Clause: English Text, Imperial Contexts, and American Implications.” 94 Virginia Law Review 575.CASE REFERENCES:
Boumedienev v. Bush, 553 U.S. 723 (2008).
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
INS v. S. Cyr, 533 U.S. 289 (2001).
Rasul v. Bush, 542 U.S. 566 (2004).
© Copyright 2012 by the Author, Louis Fisher