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Habeas CorpusMagna Carta and Habeas Corpus – An Untold Relation

May 3, 20200

Magna Carta and Habeas Corpus

Magna Carta and Habeas Corpus was the generic idea of due process of law which comes out of chapter 39 of Magna Carta but it’s really not that vital and instrument for protecting individual liberty until the 1600s that’s when everything changes.

Okay so let’s start with like there’s habeas and forever after there was habeas right.


What is the relationship between the Magna Carta and Habeas Corpus?

Magna Carta sets in motion a series of developments and establishes the idea of due processes.

We have built the anglo-american legal tradition on which we have built that tradition but again due process had to evolve and a lot of larger developments and very important developments had to marry with that backdrop.

So importantly in the early 1600s there are a number of famous cases.

The most famous of all is the case of the five nights.

Otherwise sometimes called Darnell’s case which really rings brings home the point of How due process had to evolve?

Because in that case Charles the first had been cut off financially and he wanted to continue to pursue the 30 Years War.

Parliament wouldn’t give him any money.

So he tried to get all of the English nobility to fund the war for him many refused and he threw five nights in fleet prison when they argued where John Selden argued for them that this was illegal and that due process derived from Magna Carta had a very particularized meaning in the setting.

Selden argued, due process required criminal indictment and presentment and speedy trial.

The court of King’s Bench instead looked to the Attorney General’s argument which was the king as the font of all law and so if he says that they threw them in prison that’s they got due process of law.

And so what you see in the early 1600s is concrete evidence that Magna Carta wasn’t doing enough and that sets in motion.

The most important developments that follow in the remaining decades of that century and John Selden is a big figure in that as is Sir Edward Cooke they push for the petition of right in the immediate wake of the case of the five knights.

And they argue for repudiating the idea that the king is the font of due process or the font of the law.

They argue for this idea that the King cannot arrest and detain people outside of the criminal model but it takes a long time and then the crucial moment in the story is 1679 with the adoption of the English Habeas Corpus Act.

And this is a huge part of the story of the development of habeas jurisprudence in England and in America.

It’s a part of the story that a lot of modern jurisprudence and scholarship, if not all modern jurisprudence and scholarship largely ignores.

When we think of the great moments in the development of Liberty as we know it 1679 not on the tip of a lot of people’s tongues we don’t think about it.

I would venture to say that when you think about the great documents in the history of Liberty, the 17th century document that everybody thinks of is the English Bill of Rights.

That’s right, not the habeas Corpus Act.

What does it say?

Why have we forgotten about it?


What is the English Habeas Corpus Act?

It was part of a movement on the part of Parliament that began and continued after the Glorious Revolution to take power away from the executive and claim it for Parliament itself.

And the English Habeas Corpus Act is part of that larger story.

It’s part of that power struggle and the idea was to limit executive detention and impose constraints on the royal courts and employ them in a way that they would enforce those constraints on the crown and enforce constraints against executive detention.

So specifically among many provisions in the English Habeas Corpus Act, the original acts section 7 required that for the most dangerous of criminals including suspected traitors.

Those who were alleged to commit treason against the crown.

They had to be tried criminally within two terms which during that period that’s 3 to 6 months and if they weren’t then judges were ordered to discharge them that was the required mandated remedy and to put teeth in it.

The English Habeas Corpus Act includes penalties for judges who did not comply.

So, what you get is a very hard and fast rule that the executive cannot detain outside the criminal process those persons who could claim the protection of domestic law. 

And it’s a huge power grab on the part of parliament because it wants to take control of all things. 

And they also want to constrain the executive and the beneficiaries are those who can now claim the protection of the act. 

So, why do we look back and what do we think about? 

I mean this is a big deal right. 

The idea that the executive can’t just kind of lock people up without charge. 

We attach that idea to due process. 

We attach that idea to certain trial rights including the right to have a trial but it actually has an extrinsic life from that in this statute that we’ve largely forgotten about or that we’ve remembered as a feature of Magna Carta 3 centuries earlier.

Why have we forgotten him? 

Why is history just kind of erased this particular law? 

It seems like it kind of belongs somewhere important. 

I think it belongs somewhere very important and I don’t have a good answer for 

Why has history erased it? 

What I can say is when you look at the founding period and you look at the sources of English law to which the founding generation turned, the key sources among others were clearly Blackstone Henrique Airs treatise they championed the Habeas Corpus Act. 

They glorified it, Blackstone called it a second Magna Carta.

So just to be clear the erasure takes place between the founding era and now it’s not something that the founders were unaware of or had deflected the importance of the Habeas Corpus Act. 

Elsewhere they knew how important it was? 

It’s just that we don’t know it. 

I think that’s right and indeed. 

What I would say is I think the English habeas Corpus Act was hugely important to the founding generation because they were reading this as a second Magna Carta because the crown leading up to the revolution denied and vetoed effort in a part of colonies to adopt the act for themselves. 

They were angry,they felt as though they were being denied the jury trial right.

These important protections by the crown and they talked in a manner of speaking as though they were second-class citizens and very much resented that so in the lead-up to the American Revolution. 

It shouldn’t be surprising but we find that the Continental Congress complained specifically about the denial of these protections and levy charges that they were subjects of an arbitrary government. 

And when you look around the legal landscape of the states during this period what you find is a wave of states adopting the English Habeas Corpus Act with the onset of independence constitutionalizing its protections. 

As for example, Georgia did in its 1777 Constitution. 

Georgia included a provision that says it’s habeas provision says the protections of the English Habeas Corpus Act are part of this Constitution and then they added in the first circulation of that Constitution. 

The state of Georgia included four Batum copies of the English Act you know appended to the Constitution. 

It is a central feature of all things habeas at the founding period. 

Okay so before we get into the the transatlantic Habeas movement, 

Let’s talk about the big exception.

The general principle that the king can’t lock people up proves unworkable. 

Yes in some sense and so Parliament starts giving itself and talk us through, 

What was the unworkability ? 

What was out ? 

And what the ABS the actual habeas rule was? 

So it doesn’t take long. 

It takes 10 years after the adoption of the Act. 

William comes to power in the wake of the Glorious Revolution and the Jacobites are trying to reinstate the Stuart line and there’s a belief on the part of William that the threat to the throne is quite substantial that it’s going to be hard to snuff out. 

And he is a new monarch who interestingly and I think particularly as you take the long lens of history and study him was very committed to working within the law.

So he sends an emissary to Parliament and says I need to be able to arrest on suspicion and hold people who I think are plotting the demise of the throne. 

But if I do that, they’re going to get out on habeas corpus. 

So I need some kind of proper legal authority to arrest people in this posture and Parliament responds immediately by creating the concept of suspension. 

And they enact a bill that gives by its terms power to the executive to detain on suspicion alone and relieves the executive of having to comply with the English Habeas Corpus Act for a particular period of time. 

The initial ones are a month or two months or may be three months. 

It’s only much later that they get longer but everyone at the time recognizes this is a very dramatic power. 

So there are a lot of famous quotes if an angel came down from heaven who was a privy counsellor. 

The privy counsellors were given authority to arrest on suspicion. 

One member of parliament says I would not trust my Liberty with him for one moment and everyone recognizes this is a really big deal. 

This is an extremely dramatic power and it’s invoked repeatedly in the decades that follow to deal with the Jacobite rebellion to deal with the French ongoing battles with the French who are working in concert with the Jacobites to try and reinstate the Stuart line and then it is also employed during the American Revolution. 

So we have a principle which is that the king can’t just lock you up unless he suspends the rule that says he can’t just lock you up and unless Parliament suspends the rule.

So the question is, 

At what point does the exception swallow the rule and in English practice how much was the rule?

And how much was it acceptable?

So it’s interesting when you look at this period an important question to ask is, 

Why did Parliament feel the need to do all of this formally?

And I think as you study that period in English history, you see Parliament and a lot of scholars have written about this they are trying to be perceived as making credible commitments across all swathes of law and this is helping the government financially. 

It is helping on a lot of different planes and this is part of that larger story. 

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