My first three posts focused on the reality that habeas corpus in England in the seventeenth and eighteenth centuries was predominantly a common-law writ, and not a creature of statute, despite the Habeas Corpus Act of 1679 and our historical misreadings thereof. But to call it primarily a "common-law writ" is to bely the significant extent to which King's Bench increasingly relied on its equitable authority to expand the uses of the writ, and in ways that historians have often failed to appreciate.
Thus, for example, commentators often refer to the common-law rule that barred prisoners from controverting the facts of the return--that courts could not second-guess facts offered by the jailer in response to a writ of habeas corpus. That rule was abrogated by statute in England by the Habeas Corpus Act of 1816, but Halliday's research shows convincingly that King's Bench had found ways around the rule well over a century earlier. Halliday found examples of judges supplementing the record, whether by asking the prisoner’s counsel for relevant information about his client; asking court officers to examine factual matters in dispute; or accepting various forms of written testimony, the only purpose of which could have been to offer evidence rebutting averments in the return. Most creatively, the justices also appear to have adopted a practice of delaying the formal filing of the return for as long as possible, since the return did not become part of the formal record until it was filed. Thus, Halliday encountered a number of cases where returns were amended before they were filed—a curious step if no intervening evidence had been considered.
More systematically, though, Halliday’s research demonstrates that, into the eighteenth century, the historically oral practice of “praying” for the writ shifted increasingly toward written affidavits in support of the prayer, affidavits that tended to include varying degrees of factual detail. Thus, “the decision to issue the writ, rather than the determination of what to do upon its return, became the occasion for the most important discussions about facts and their legal meaning.” To sidestep the bar on facts beyond the return (and, presumably, to expedite the process in cases in which no possible right to relief appeared), the justices moved toward a nisi procedure (effectively a rule to show cause why the writ should not be granted), wherein the bulk of the court’s work came in calling upon the jailer to provide further support for the prisoner’s continued detention—before ordering that the prisoner’s body be produced. As Halliday concludes,
[b]y the 1730s, rulebooks increasingly noted the issuance of writs based on affidavits, signaling that the discussion of facts had moved to the beginning of the process. Many prisoners now had a full review of their imprisonment without the writ ever issuing: habeas corpus without the writ. In such cases, judges were entirely unconstrained by any rule against controverting the return.
Indeed, this is exactly the development that eventually took place in our own habeas jurisprudence--resolving the petition on an order to show cause, and issuing the writ only after resolving the detainee's entitlement to release.
Whereas the affidavit procedure represented a specific exercise of equitable authority by the justices, it was the more general reliance upon the “equity” of the writ that brought the jurisdiction of King’s Bench to its zenith in the eighteenth century. For while the justices could order bail, remand, or release, they increasingly came to do far more under the cover of habeas, especially in cases of private detention--family disputes, confinement of "lunatics," and so on; “[b]y negotiating settlements, by constraining—sometimes undermining—the statutes or customs on which other magistrates acted, and by chastising those who wrongfully detained others, the justices defined what counted as jurisdiction and what counted as liberties.” Common law may have empowered the justices to issue the writ, but it was equity that enabled them to shape it—and to use the writ to shape the conduct of its recipients.