In my
opening post last week, I noted that Paul Halliday’s
new book on the history of habeas corpus in pre-revolutionary England disturbs a number of long-held assumptions about both the scope and shape of the writ at the time our Constitution was written. Perhaps the single biggest example of how Halliday’s original archival research disproves the classical narrative is with regard to the
Habeas Corpus Act of 1679, which has traditionally been celebrated as one of the landmark moments not just in the development of habeas corpus, but in the development of English civil liberties more generally. [Blackstone, for example,
described it as “our second Magna Carta, and stable bulwark of our liberties.”]
Halliday’s research underscores two distinct conclusions about the Habeas Corpus Act of 1679: that it was basically unnecessary, and that, even worse, it may have been counterproductive, opening the door for formal suspensions of the writ by Parliament in the eighteenth and nineteenth centuries. At the very least, the act had the effect, in Halliday’s words, of “cutting down the common law writ by promoting the assumption that the writ could be effective only when supported by statute.” Saving the latter point (that the HCA was counterproductive) for my next post, I thought I’d try to briefly outline in this post the key evidence supporting Halliday’s first conclusion: that the Habeas Corpus Act of 1679 was largely unnecessary.
First, Halliday’s archival research disproves rather convincingly the long-held view that it was difficult (if not impossible) to obtain a writ of habeas corpus during the King’s Bench’s vacations prior to 1679. Halliday uncovered dozens (if not hundreds) of writs issued during vacation, and just as many that, though stamped as if issued on the last day of the previous Term, concerned detention that commenced only after that date (meaning that the writ had been issued during vacation, but back-dated).
Second, although the vacation point seems hypertechnical, it bespeaks a larger trend that emerges from Halliday’s quadrennial survey of King’s Bench: beginning in the 1620s (decades before the 1679 HCA), Halliday documents how habeas became an instrument of increasing judicial power—the means by which King’s Bench increasingly came to assert its authority, at first at the expense of other judicial tribunals, and then eventually at the expense of Parliament and the King himself. And all of this with but the barest of legislation (the Habeas Corpus Act of 1640, enacted solely to dismantle the Star Chamber). Thus, writs issued in contexts in which they never had previously, and returns that had previously sufficed were routinely dismissed as inadequate. As Halliday puts it in the book,
At the center of this jurisprudence stood the idea that the court might inspect imprisonment orders made at any time, anywhere, by any authority. This simple idea, grounded in the prerogative, marked the point from which the justices’ use of the writ expanded. Rather than analogize among cases—follow precedents—their thinking radiated in every direction from this core principle.
Against this backdrop, Halliday writes, Blackstone’s hyperbole about the 1679 Act “sounded marvelous rolling off the tongue, but had little to do with practice, except perhaps to hide the once vigorous common law writ behind its chimerical statutory twin.”
Third, perhaps the strongest proof that the Habeas Corpus Act of 1679 was unnecessary comes from subsequent events. In
Aylesbury’s Case in 1696, the judges of King’s Bench found that the defendant, charged with treason, could not be bailed under the Habeas Corpus Act. Nevertheless, Halliday quotes the judges, who concluded that, “in regard that this court hath a sufficient power to bail by the common law, and that as well from the Tower as other prisons . . . the court thought it therefore very just and reasonable to bail him, not as an act of duty to which they were obliged by the statute, but as a discretionary act, which was in their power by the common law.”
And in 1758, when Parliament considered a bill to expedite the processes under the 1679 Act and otherwise expand the Act’s scope, it was the judges who opposed it. As Halliday and Ted White wrote in the
Virginia Law Review,
Jurists consulted at the time, such as Chief Justice Lord Mansfield of King’s Bench and Lord Chancellor Hardwicke, opposed the bill in part because of the constraints it would put on judicial freedom in using the writ. They feared the damage a statute might do to the equitable flexibility of common law habeas. Parliamentary debates in 1758 show a broad awareness of the surprising ways in which the 1679 Act had produced just this result. After the failure of the 1758 bill—to remedy the supposed incapacity of the statutory writ to challenge impressment orders—Mansfield’s King’s Bench issued numerous writs at common law for just that purpose.
Thus, it was the common-law writ (and not the statutory one) that proved the most expansive in eighteenth-century English practice, especially as the scope of the writ expanded to cover new contexts in which the petitioner was not charged with a crime. Moreover, this conclusion does not just follow from the fact that the writ was used in contexts in which the 1679 Act did not apply, but from the note that was routinely appended to the back of each writ issued by King’s Bench after 1679, specifically indicating whether the writ was issued pursuant to the statute or by rule of the court.
What all this means in a nutshell is that the writ that the American Founders sought to protect via the Suspension Clause is not just the writ provided for by the Habeas Corpus Act of 1679. Rather, to fully understand the scope of habeas corpus under English law at the time the Constitution was written, we must first understand that habeas was both a statutory and a common-law remedy, and that, rather than the former preempting the latter, the latter in fact supplemented the former, routinely providing the courts with the power to fashion appropriate relief in cases in which the statute failed to do so.
