Liberating Habeas Corpus

Paul Halliday has written a pathbreaking work on the British history of habeas corpus focusing on the period from 1500 to 1800 that will necessarily undergird all future discussions of the Anglo-American writ.

Most critically, he has unearthed and organized an enormous amount of primary data. Although there are manuscript records of over 11,000 habeas corpus cases in his period, their inaccessibility has meant that historical and legal scholars have worked until now with the same few printed case reports, representing perhaps two percent of what is available.

Halliday systematically reviewed and analyzed the manuscripts, assembling scraps of often-stained parchment written in Latin from recorda files, controlment rolls, rule and order books, and other sources to construct the most complete possible file on each of the nearly 5,000 prisoners he studied in his database (pp. 320-22).

This is a monumental achievement in pure scholarship. The tensions captured by the writ of habeas corpus are as old as, and will endure for as long as, organized society—and so will disagreements about the resolution of those tensions (p. 316). But future debates among historians, legal scholars, lawyers, and judges about habeas corpus will necessarily be enriched by the need to take account of Halliday's empirical findings.

Halliday's own synthesis of this material demonstrates that it can be utilized in many ways, from documenting the rates of release and sorts of restraints challenged at different periods (pp. 322-28), to undermining statements in Coke's Institutes (pp. 239-40), to creating new conceptual models for the historical narrative (pp. 7-8). From the perspective of this side of the Atlantic, though, one might isolate four of Halliday's themes as being of particular importance to the evolution of the writ under the Constitution.

First, the writ arose as a mechanism to enforce judicially the king's prerogative (p. 9). The king was presumed to desire that no one be imprisoned but for good cause, and, in enforcing that desire against subordinate servants of the Crown, the judges were implementing the idealized will of their common master, the ultimate source of law. Hence, the central question the judges sought to decide was what right the jailer had to impose the restraint rather than what right the prisoner had to be free of it.

As scholars have already begun to appreciate, ¹ this insight has important implications for an understanding of the trajectory of later developments here. Although it is sometimes loosely said that the English system had no separation of powers, this is imprecise.

"Separation of powers," as we know it today, consists of:

1. a. assigning duties to the government instrumentality best able to perform them, taking into account both efficiency and policy considerations. Thus, for example, courts, not cabinets, should try criminal charges against individuals. This concept, which works on the level of the particular governmental action at issue, might be called "allocation of roles."

2. b. assigning duties to various branches in furtherance of the structural purpose of having them limit each others' power. This concept, which works on the architectural level, is encapsulated in the American term "checks and balances." Its premise is that, in general, requiring interaction between the branches before any problem can be finally disposed of will lead to decision making that is both substantively sounder and more consistent with the goals of a representative non-tyrannical government than giving a single branch the first and last word.

The British system of government, at home and in the colonies, understood allocation of roles. The distribution of powers to particular officials, which habeas enforced, had the effect of insuring that individuals were treated justly and in accordance with law. But because government power ultimately flowed from the king rather than the people, there was no sense that, in controlling the conduct of individual officeholders—whether housed in what we today might call the judicial, executive, or legislative branches—the habeas judges were also reinforcing the overall structure...