Monday, July 19, 2010

The History of Habeas, Part III: The Dangerous Habeas Corpus Act of 1679

In my last post on Paul Halliday's new book on the history of habeas corpus in pre-revolutionary England, I focused on Halliday's significant conclusions with regard to the Habeas Corpus Act of 1679, and how it was largely unnecessary -- how most of the key innovations classically traced to that statute can in fact be found in the jurisprudence of King's Bench in the years and decades before its enactment.

More than just unnecessary, though, Halliday's work also emphasizes the double-edged nature of the Habeas Corpus Act of 1679. In its terms, the Act did not include within its scope detention pursuant to legislative orders--indeed, it was largely limited to cases of criminal detention. And while such orders might have been subject to review at common law, the Act undermined the common-law writ by, in Halliday's words, "promoting the assumption that the writ could be effective only when supported by statute." And if the writ relied on Parliament, then Parliament could take it away...

Thus, it was ten years after the Habeas Corpus Act of 1679 that Parliament first "suspended" habeas corpus, passing "An Act for impowering his Majesty to apprehend and detain such persons as he shall find just cause to suspect are conspiring against the government." The suspension was only valid for one month (although it was twice renewed), but the precedent was set: Parliament would pass similar acts on dozens of occasions throughout the eighteenth century, some of which would even form part of the casus belli for the American Revolution. And although these statutes did not purport to constrain the common-law jurisdiction of King's Bench, they rendered such jurisdiction moot, because they provided for imprisonment in the specified cases "any law, statute, or usage to the contrary in any wise notwithstanding." In other words, so long as these statutes were in effect, any detention pursuant thereto was per se lawful--or, at least, not an appropriate basis for habeas relief.

The suspension acts are telling in another respect: their focus on short-term operation. As Halliday and Ted White wrote in their Virginia Law Review article,
The language of fixed duration in all the [suspension] statutes was accompanied by provisos addressing what should follow suspension: “Provided always, [t]hat from and after the said [date the statute expired], the said persons so committed shall have the benefit and advantage of all laws and statutes any way relating to, or providing for, the liberty of the subjects of this realm.” These provisos were signals that the suspension statutes were being enacted in a jurisprudential universe in which the writ, and all the powers it gave to the judges to ensure that the king’s franchisees did not abuse the subject’s liberty, remained in place. The statutes did not simply curtail the writ. By these provisos, they reinforced what should be the natural state of affairs: an unconstrained writ.
Why does all of this matter today? First, it helps explain the genesis for the U.S. Constitution's protection of habeas--the "Suspension" Clause, which carefully delineates those circumstances in which the "Privilege of the writ of Habeas Corpus" may be "suspended." By specifying only two such scenarios ("Cases of Rebellion or Invasion where the public Safety may require it"), the Constitution was otherwise denying a suspension power to the legislature comparable to that exercised by Parliament, even for only the shortest periods of time, throughout the eighteenth century.

Second, and more generally, the experience after the Habeas Corpus Act of 1679 suggests that the greatest threat to habeas came not from overzealous executives, but rather from legislatures responding to popular passion. The courts could handle the job fine without legislative interference, and such interference tended only to dilute the effectiveness of the writ. Thus, this history serves as a reminder, yet again, of the misunderstandings that follow from treating habeas corpus as a creature of statute. The reality was--and has always been--that the common-law writ was the means by which King's Bench asserted itself at the expense of Parliament and the Crown throughout the pre-revolutionary period, and that the statutes Parliament enacted purportedly to make it more effective tended not to work as planned...

The next question, to which I'll turn in my next post, is what the "common-law" writ actually looked like throughout this period, and the extent to which courts did more than just ask for--and receive--the jailer's return to the writ.

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