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| 81 5 Habeas Corpus and the Right to Challenge Unlawful Imprisonment The writ of habeas corpus first emerged in England around the early thirteenth century as a mechanism to ensure a person’s presence in court.1 Of the several forms of the writ that developed, one, habeas corpus ad subjiciendum, enabled a court to examine whether there was a lawful basis for a prisoner’s confinement by ordering the jailer to produce both the prisoner and the cause for his commitment. Habeas corpus ad subjiciendum was initially used by the king’s common law courts to limit the jurisdiction of local and rival central courts, such as the specialized courts that decided ecclesiastical and admiralty matters.2 Habeas was thus not originally understood , as it is now, as a guarantee of civil or human rights but, rather, as a means for the king to ensure just cause for the imprisonment of any of his subjects. By the 1600s, habeas corpus started to become viewed “as a safeguard against the arbitrary power of the Crown itself.”3 An important shift occurred with the Five Knights case (also known as Darnel’s case). King Charles I had imprisoned a number of men for refusing to contribute to a loan to raise money for a war with France and Spain. No charges were filed, and five of the men sought writs of habeas corpus challenging their imprisonment and demanding release on bail. Without formal charges, they argued, “imprisonment shall not continue for a time, but for ever; and the subjects of this kingdom may be restrained of their liberties perpetually” in violation of the Magna Carta’s guarantee of due process of law.4 Attorney General Robert Heath responded on behalf of the Crown that it was the king’s prerogative to imprison by his “special command” for “a matter of state . . . not ripe nor timely” for the ordinary process of formal accusation and trial. Heath insisted that the judges defer to the king’s judgment about what means were necessary to protect “a conspiracy-threatened commonwealth” from danger and not “inquire further” into matters of state.5 82 | Habeas Corpus and Unlawful Imprisonment Although the king won this particular battle, he lost the larger struggle over the Crown’s prerogative. After the court denied relief to the prisoners, Parliament responded with the Petition of Right, proclaiming it illegal for the Crown to imprison based on royal command and without formal charges. Responsible government, the Petition of Right stated, could not coexist with such sweeping claims to emergency powers of arrest and detention.6 When the king continued to imprison individuals without charge or trial, Parliament enacted the Habeas Corpus Act of 1641, requiring the courts to issue writs of habeas corpus on behalf of prisoners “without delay” and abolishing the Star Chamber, which had become associated with arbitrary exercises of power and other abuses.7 In 1679, Parliament enacted another habeas corpus act to remedy the perceived loopholes in existing law and to ensure that prisoners would not languish in jail without a prompt judicial examination into the cause of their commitment.8 William Blackstone praised the 1679 act as a “second magna carta and stable bulwark of our liberties.”9 Yet it was the development of the judicial exercise of common law habeas powers (as opposed to statutory intervention by Parliament) that was most crucial to the writ’s emergence as a guarantee of individual liberty.10 Judges increasingly became willing to uphold challenges to detention by Crown officials through the exercise of their habeas corpus jurisdiction. Amid the political turmoil of the late 1600s, for example, the King’s Bench adjudicated numerous habeas petitions involving accusations of treason, treasonous practices, and sedition , often finding that there was no basis to hold the prisoner.11 The writ had become, and would thereafter remain, “the great and efficacious writ, in all manner of illegal confinement.”12 Even so, there remained one lawful means to deprive prisoners of the Great Writ’s protections: suspension of habeas corpus by Parliament. Through suspension acts, Parliament deprived courts of their authority to adjudicate accusations by Crown officials and asserted its control over detention in matters affecting the security of the state.13 In 1688, Parliament passed the first suspension act amid armed conflict abroad and fears that King James II would try to regain the throne after his ouster earlier that year in the Glorious Revolution.14 Other suspension acts followed, authorizing the detention of...

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