‘This in no wise omit’

Tom Bingham

  • Habeas Corpus: From England to Empire by Paul Halliday
    Harvard, 502 pp, £29.95, March 2010, ISBN 978 0 674 04901 7

Cherished for centuries as the great bulwark of British liberty, the remedy of habeas corpus has in recent years lost much of its practical importance. Experienced judges may retire without ever having granted the remedy, or being asked to do so. This is not because today’s judges are less protective of personal liberty than their forebears – perhaps the reverse is true. It is because the function of habeas corpus has, to a large extent, been subsumed within the versatile and extensive coverage of judicial review. To many traditionalists this decline is a source of regret. Not the least merit of Paul Halliday’s enthralling and scholarly historical survey, focusing primarily on the years 1500-1800, is to remind us of what could be seen as the glory days of habeas corpus.

John Anderson was a slave in Missouri. Separated from his wife and family, whom he wished to visit, he came into conflict with his master and owner, who decided to resolve the problem by selling Anderson to another owner. In 1853, Anderson escaped and made for Canada. After three days’ travel, still in Missouri, he encountered a man called Seneca Digges, who suspected he was a runaway and tried to enlist him as one of his own slaves. There was a chase and a scuffle in which Anderson inflicted knife wounds from which Digges died two weeks later. Anderson meanwhile made it across the Canadian border to Windsor, where he established a new life. Not until March 1860 was he recognised as Digges’s fugitive murderer. He was taken into custody, and proceedings were begun for his extradition to Missouri. To avoid extradition he applied for habeas corpus to the Queen’s Bench court of Upper Canada in Toronto. There, one judge found in his favour, holding that a killing committed while fleeing slavery amounted to justifiable homicide by natural law. But a majority, having regard to treaty obligations, ordered that Anderson remain in jail to await extradition to Missouri.

Anderson’s abolitionist supporters considered appealing to the judicial committee of the Privy Council in London, but instead applied for habeas corpus to the court of Queen’s Bench in Westminster. His counsel, engaged by the British and Foreign Anti-Slavery Society, argued that the writ might issue to Canada from England, relying on an earlier precedent when the writ had been directed to Berwick-upon-Tweed. The Queen’s Bench justices acceded to the argument. They ordered issue of a writ that ‘in the absence of any prohibitive enactment, goes to all parts of the queen’s dominions’, as it had to the Isle of Man, Jersey and St Helena. Anderson was soon freed.

This was, on any showing, an astonishing exercise of judicial power and authority. But it was not novel. Two and a half centuries earlier, in 1604, the Council in the Marches of Wales, an offshoot of the Privy Council, ordered its jailkeeper, Francis Hunnyngs, to confine Walter Witherley ‘in little ease’ for his disobedience to its commands. Witherley applied to the court of King’s Bench in London for a writ of habeas corpus so that they might investigate the reason for his detention. The court issued the writ, but nothing happened. So it sent a second writ addressed to the jailer, Hunnyngs, along with an attachment for contempt against him for his failure to answer the first one. There was still no response. More orders followed, each threatening consequences more severe than the one before if Hunnyngs refused to answer the writ and produce Witherley. Released at last, Witherley in 1605 applied for fresh attachments against his jailer. Hunnyngs tried to rally political support, claiming that the Welsh Council was immune from orders of the King’s Bench, but in vain. The chief justice, Sir John Popham, held that disobedience to the writ was ‘a derogation of the royal prerogative of the king’ and Mr Justice Yelverton explained that ‘when anyone is brought into this court with his cause [of imprisonment] by habeas corpus, this court must examine the cause and may remand, bail, or discharge him as his cause deserves, which is much for the liberty of the subject.’ Thus in the result Witherley was free, and his jailer imprisoned for contempt with a fine of £100 for good measure.

The source of this extraordinary power exercised by judges was, as Popham made clear, the royal prerogative, the ultimate judicial power inherent in the person of the king or queen. Without this supercharged authority behind them, the judges could scarcely have acted as they did. And the remedy was of their making. As Halliday says: ‘Habeas corpus did not evolve. Judges made it, transforming a common device for moving people about in aid of judicial process into an instrument by which they supervised imprisonment orders made anywhere, by anyone, for any reason.’

Chief Justice Sir Henry Montagu, writing in 1619, described habeas corpus as a ‘writ of the prerogative by which the king demands account for his subject who is restrained of his liberty’. It was a remedy developed, primarily, in the court of King’s (and Queen’s) Bench, which was not modest in its pretensions. ‘This court,’ Sir Thomas Fleming said, ‘is the jurisdiction of the queen herself. It is so high that in its presence other jurisdictions cease.’ It had, according to Coke in 1615, ‘the survey of all other courts’. Lord Chancellor Ellesmere sought to resist this assertion, contending that the Royal Council, not the King’s Bench, was the ‘chief watch tower for all points of misgovernment’, but a series of assertive chief justices (notably Popham, Fleming and Coke) had by 1615, as Halliday observes, relocated the ‘chief watch tower for all points of misgovernment’ to the King’s Bench. Later chief justices, notably Hale (1671-76), Holt (1689-1710) and Mansfield (1756-88), shared this high view of the court’s function. Halliday comments that ‘results across the whole of Holt’s leadership of King’s Bench show a justice and a court ready to use habeas corpus, confident that they could distinguish the alleged traitor from the actual one, those who needed to be feared from those who did not’. He adds that

judgments like these did not simply happen. Justices like Holt – and Mansfield, Hale, Montagu, Fleming and Popham – made them. They could do so because the prerogative sent this writ forth across all the king’s dominions, making all the king’s officers answerable to the king’s authority, an authority pronounced by the justices on his bench every time they supervised the confinement of one subject by another.

It was a power readily adopted in British territories overseas. Thus in 1839, Justice Joseph-Rémi Vallières de Saint-Réal, at Trois-Rivières in Lower Canada, declared habeas corpus a thing of ‘high prerogative, for it must ever be the right of the sovereign to have the reasons explained to him, why any one of his subjects is deprived of his liberty, wheresoever it may be.’ ‘Personal liberty,’ he said, ‘is a natural right,’ and ‘a British subject carries this natural right, adhering to his person, into every part of the empire. It is the same at Quebec and in London.’ The first chief justice of New South Wales, Sir Francis Forbes, spoke of ‘a high prerogative writ, and so much the right of the subject, as to render it compulsory on the judges’.

It is this writ, generally known simply as habeas corpus, which has been hailed as ‘the Great Writ of Liberty’, the ‘stable bulwark of our liberties’ (Blackstone) and ‘the great palladium of the liberties of the subject’ (Charles James Fox). Technically known as the writ of habeas corpus ad subjiciendum et recipiendum, it was one of a family of writs containing the words ‘habeas corpus’. Other forms (less long-lived and much less well known) required the body of a person already in prison on a criminal charge to be brought into court to pursue specified private pleadings (ad prosequendum), or to summon a witness from captivity to give evidence (ad testificandum), or to move a body from one court to another in a private cause (ad respondendum and ad faciendum et recipiendum). The writ ad subjiciendum et recipiendum (‘to undergo and receive’) takes its name from the form in which the writ was ordinarily issued. Halliday gives, as an example, the text of a 1605 writ issued in the name of the king and addressed to the lord mayor, aldermen and sheriffs of London:

We command you that you have the body of Nicholas Lowe, who is detained in our prison under your custody, as it is said, together with the cause of his detention, by whatever name the aforesaid Nicholas is charged, before us at Westminster on Saturday next after eight days of Saint Michael, to undergo and receive whatever our court should then and there happen to order concerning him in this behalf, and this in no wise omit, upon the peril that may befall, and have there this writ. Witness, Sir John Popham, at Westminster, the eleventh day of October in the third year of our reign in England, France, and Ireland, and in Scotland, the thirty-ninth.

There was, of course, nothing voluntary about compliance with the writ. From the 16th century onwards, clear warning was given of the consequence of disobedience (‘and this in no wise omit, upon the peril that may befall’), a warning that had teeth, as Hunnyngs and others discovered to their cost.

When judges develop new remedies, as has happened in our own time, rules grow up to govern the exercise of the new jurisdiction. What is striking about habeas corpus is how flexible these rules proved in practice to be. Thus in most cases, especially before the 17th century, an applicant for habeas corpus made his case through the mouth of counsel, who would in open court recount the circumstances of the applicant’s allegedly wrongful imprisonment. But the practice of relying on affidavit evidence, used only occasionally before 1689, gradually became the norm. In earlier days it was unusual for a return to be made to an individual judge in chambers, but this became more common, and the average rate of bail or discharge was, it seems, higher when returns were made to judges in chambers, perhaps because the judges found it easier to behave boldly and independently when out of public view. There was a belief, fortified by the authority of Coke in his Institutes, that writs of habeas corpus could not be issued during the law vacations, but this was contradicted by practice, even during the period when Coke practised before, and presided in, the court of King’s Bench. Either the writ was issued bearing the true date of attestation, whether in the vacation or not, or issued giving the last date of the previous term. King’s Bench attorneys were paid more for issuing writs during the vacation, which no doubt made the practice popular with them. Halliday, basing himself on a comprehensive sampling of the records at four-yearly intervals between 1500 and 1800, records that scores of writs from the 15th through to the 18th century had attestation dates outside term. The Habeas Corpus Act of 1679, which purported to authorise the issue of writs during the vacation, merely endorsed existing practice.

The right to apply for habeas corpus was not dependent on nationality but on presence within the dominions of the Crown. Such presence was held to give rise to a duty of allegiance, and that gave rise to a mutual right to protection by the Crown. Thus the writ was available to enemies, even to alien enemies. In 1697, Daniel DuCastre and Francis LaPierre, Frenchmen whose country was then at war with England, after 18 months’ imprisonment as ‘alien enemies and spies’, were bailed and later discharged. In 1798, Joseph Silvy and Peter Fretus, Portuguese sailors, were impressed into the Royal Navy ‘against their wills’ when the merchant ship on which they served was berthed in Port Royal, Jamaica. An affidavit was sworn on their behalf by a London interpreter and they obtained relief without resistance by the Admiralty. It was understood that their alien status, far from barring their claim to relief, provided the very ground for their discharge. When, in an immigration case in 1984 (R v. Secretary of State for the Home Department, ex p Khawaja), Lord Scarman confronted the question whether habeas corpus protection was limited to British nationals, he was able to rely on centuries of precedent in answering with an emphatic ‘no’.

As is clear from the standard wording of the writ, the duty on the addressee was to produce the body of the applicant and, importantly, to certify the cause of his detention. This was the return to the writ, on the validity of which the success or failure of the application turned. The rule originally was that the return could not be controverted: the applicant could not contradict the facts stated in the return. This was a rule with an obvious potential for injustice, making the applicant’s fate dependent on the good faith of the party responsible for his detention. A way had to be found to circumvent the rule, and in the event two ways were found. One was to invite further information from those in court. This was done in 1611, in a case where three men were jailed by justices of the peace for disturbing a preacher in Sheffield. On showing in court that two of them were churchwardens and that the minister they disturbed was not licensed to preach, they were bailed. The alternative course was to issue the order in conditional form, indicating that unless cause were shown the applicant would be released. If the return were held to be invalid or insufficient, an order for discharge would ordinarily follow.

Where an order for imprisonment was made by the Privy Council, the return so stated and did not specify a cause for the detention. This was, notably, the practice followed in the case of the Five Knights in 1627, an orthodox application of the then current way of proceeding. But the furore which followed that decision led to the Petition of Right in 1628, and the exercise of unaccountable royal power became increasingly unacceptable to the common lawyers dominant in Parliament. The Star Chamber Act of 1641 accordingly condemned imprisonment without ‘due process of law’. Declaring that anyone imprisoned by order of the king, the Privy Council or any councillor might use habeas corpus, the act required the returning officer to ‘certify the true cause’ of imprisonment, on pain of large fines.

Halliday’s researches not only illuminate the legal history of habeas corpus but also provide fascinating insights into the social history of the period he studies. During the Seven Years’ War and the War of American Independence, resort to habeas corpus to challenge naval impressment ‘skyrocketed’, as Halliday puts it. He calculates that in all nearly a thousand unfortunate seamen probably used it to challenge their impressment during the last four decades of the 18th century, and many more began proceedings but were released without a struggle before the writ was issued. Mansfield, regularly considering evidence beyond the return, and even contrary to it, released impressed sailors by the score.

Some cases were of a very different character. Nicholas Lowe, the subject of the 1605 writ I quoted earlier, was imprisoned by the City of London authorities because he was said to have violated their trading privileges. It seems that he made guns and crossbows in his shop in Holborn without being a freeman of the City. The judges were unimpressed by this explanation and ordered that Lowe be bailed and later discharged. Similarly fortunate was Robert Fisher, who sold pins. So did the Pinners’ Company of London, which didn’t like Fisher selling pins improperly. So, in October 1637, he was committed to the custody of a royal messenger on the Pinners’ complaint. The company, in its return, recited at length the liberties granted to it as recently as the year before ‘for the well ordering and government of the art or mystery of pin making’. Had Fisher violated the company’s ordinances? Had the company power to make its ordinances? Could a violation of the ordinances result in imprisonment? The issues raised were debated by the judges and resolved in Fisher’s favour.

From the 1690s onwards, habeas corpus was used to determine whether applicants detained as prisoners of war were properly to be treated as such. The court never released a person who, on its findings, had been properly categorised as a POW. But it did release some of those it found to be incorrectly categorised. Others were found to be POWs and proceeded against as suspected traitors. Such was the fate of John Golding, a native of Dublin acting as the second captain of the Sun, a Jacobite vessel flying the French colours. He was captured off the Lizard in 1692 by an English galley, and applied for habeas corpus. These facts were recounted in the return to the writ, which concluded that he was detained as a prisoner of war. He was bailed on giving surety to appear at the next Admiralty sessions, and he was there tried for treason, convicted and in due course executed at Rotherhithe Stairs, between the low and high water marks.

The first instance of resort to habeas corpus in the case of a supposed ‘lunatic’ occurred in the 1670s, after ‘a certain lady, esteeming her husband to be mad, put him out to a doctor to be cured.’ There followed many cases of wives declared by their husbands to be lunatics and then confined. But it was of course necessary for the court to decide whether the person detained was mentally disordered or not. Initially, the judges relied on their own observation of those brought before them, a procedure improved in Mansfield’s time by resort to expert evidence. So, in 1761, in response to a motion for the writ, the court of King’s Bench asked Dr John Monro to visit Deborah D’Vebre in the madhouse where her husband had put her, to assess her mental state. In an affidavit read in court the next day, the doctor deposed that he saw no ground to confine her, and offered further assurances that she was ‘very sensible, and very cool’. The writ was accordingly issued, she was released and it seems that she and her husband agreed to separate. When adverse, as it was in the case of Ann Hunt, Dr Monro’s expert opinion could be damning: he found her to be so ‘disordered … that she is not fit to be brought into this court’. The writ to the doctor in whose custody she was held was withdrawn without further evidence. Cases of this kind were sufficient in number to prompt a parliamentary investigation, which culminated in a 1774 Act for Regulating Madhouses: following this, resort to habeas corpus in cases of alleged insanity largely ended.

The judges showed a surprising willingness to involve themselves in family disputes, as was vividly demonstrated in the case of Bridget Hyde, whose mother, a wealthy heiress, had married Sir Robert Viner when Bridget was three. A dispute arose concerning the child’s custody and residence and a number of writs were issued to Viner, when he was lord mayor of London, requiring him to bring Bridget into court. The applications were made by a man, John Emerton, who claimed that she was his wife. Viner, hoping that Bridget would marry the son of the Earl of Danby, then the king’s principal adviser, prevaricated, eventually stating in his return to the writ that Bridget was not in his custody. Chief Justice Hale, willing to receive evidence from outside the return and that it should be controverted, found it to appear plainly that Bridget had been in Viner’s house since habeas corpus had been granted. She was then invited to choose: ‘My lord [mayor] standing on one side, and Mr Emerton, her husband, on the other, [and] my lord chief justice placing her in the middle, my lord bad[e] her take her choice who she would go with.’ She chose Viner. But the court, concluding that she ‘had been under some restraint’ at home, ordered that her godmother and other relatives (not including Emerton) should have free access to her. In the end, we are told, Bridget did marry Danby’s son, the Viscount Dunblane: the marriage was not a happy one.

Mansfield showed himself as innovative as Hale in exercising what would now be regarded as a family court jurisdiction and routinely negotiated education and maintenance arrangements for children whose parents were estranged. Anne Bissell, in 1774, was one such. Her father had applied for habeas corpus to force her mother to bring her, aged six, into court. The mother had fled owing to her husband’s mistreatment of her. Mansfield, proceeding privately (or, as the media would now say, secretly) in chambers, accepted that ‘the natural right is with the father,’ but his behaviour as well as his bankruptcy weighed against assigning custody to him. So Mansfield, declaring that ‘the court will do what shall appear best for the child,’ prompted the parents to make a settlement under which Anne was placed in a school where both parties could visit her.

During the Cromwellian interregnum, the practice was adopted of sending prisoners to places such as Jersey, Guernsey and the Scilly Isles with a view to thwarting the grant of habeas corpus relief. This was done, it would seem, not because the writ did not run in those places (the Scilly Isles are part of the county of Cornwall) but because of the difficulty of enforcing compliance and punishing non-compliance in such places. In one instance a prisoner was confined in Drake’s Island, off Plymouth, within the realm but difficult of access. After the Restoration, Clarendon followed this practice with enthusiasm: 12 people (including five regicides) were imprisoned on the Channel Islands, and it was later asserted in Parliament, although without much evidence, that prisoners were sent, with the object of barring relief, to Scotland, Ireland and Tangier. It was in due course an article in the impeachment of Clarendon that he had ‘procured divers of his majesty’s subjects to be imprisoned against law, in remote islands, garrisons and other places, thereby to prevent them from the benefit of the law’. During the 1670s there was a prolonged parliamentary battle to outlaw this practice by statute, and a bill was prepared for ‘Better Securing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas’. The measure was eventually enacted in 1679; it was declared that the writ might be sent to all ‘privileged places within the kingdom of England, dominion of Wales, or town of Berwick-upon-Tweed and the islands of Jersey or Guernsey’. This did not change the law. But the Act did, importantly, make it illegal to transport any prisoner out of the realm.

The 1679 Act recognised, but did not significantly alter, the procedure for granting habeas corpus. But Parliament, having intervened once, was induced to do so again, by in effect suspending habeas corpus, a course first adopted during 1689 and justified by necessity and the security of the public. This suspension was achieved by extending powers of detention rather than explicitly suspending operation of the writ. The suspension was for a short and limited period. It was enacted by Parliament, not royal or executive order. It did not preclude grant of the common law writ in all cases. And when the period of suspension ended, those imprisoned were entitled to exercise their full rights. Thus, following this first suspension, between October 1689 and the end of 1690, Holt’s court considered the cases of 251 prisoners, mostly detained for alleged offences against the state, and bailed or discharged four out of every five. Suspensions in 1696 and after the 1745 rebellion followed the same pattern. But during the War of American Independence a much longer suspension (1777-83) was enacted, despite the absence of any threat of invasion or domestic rebellion, and applied only to those taken for high treason or piracy in America, or on the high seas: it was directed only to those ‘as shall have been out of the realm’ when committing their alleged offence. During the French Revolutionary and Napoleonic Wars Parliament passed a string of statutes that suspended habeas corpus, broadened definitions of treason and seditious libel, and outlawed various kinds of public assembly and political association. In times of public tension and alarm, it seems, it is ever thus.

English settlers overseas were held to ‘possess all the liberties, franchises and privileges’ of Englishmen, which included the right to apply for habeas corpus. So in 1692 an order was made by the King’s Bench directed to the governor of Barbados. ‘We cannot deny the writ,’ Mr Justice Dolben said, and his colleagues agreed. But over time pressure grew in favour of a local remedy, and statutes were passed in colonies on the Atlantic coast of America and the Caribbean providing for habeas corpus to be granted by local courts. There was difficulty in Quebec after 1763, when the local court of King’s Bench declared habeas corpus unavailable, but a pertinacious litigant, suing on her husband’s behalf, eventually established, in London in 1787, that the remedy had been available in Quebec all the time. In Calcutta (where the first writ was issued in 1775), Ceylon, New South Wales, New Zealand and elsewhere, courts were invested with authority to issue habeas corpus. In Van Diemen’s Land, the first application for the writ was made in 1824: unusually, if not uniquely, the chief justice visited the cell of the detainee to take his deposition, being praised by the local newspaper for ‘the excellent magisterial example he has set by visiting the captive, and affording him a legal opportunity to move for his deliverance’.

Halliday’s researches yield a rich harvest of human stories which have all the vividness of the common law itself, yet fall into a discernible pattern which he traces with skill and clarity. Three points in particular are striking. The first is the imaginative energy of the judges in transforming a procedure for summoning defendants and suspects into a safeguard of personal liberty. It is currently fashionable to denigrate judicial activism, described by a distinguished Australian judge as ‘the death of the rule of law’, but this was judicial activism of a high order. It was, however, activism directed to the procedure, not the substance, of the law, and like similar procedural innovations in our own time (freezing injunctions and search orders, formerly known as Mareva injunctions and Anton Piller orders), was accepted as promoting the interests of justice. Striking, second, is the contribution to the development of the remedy made by a handful of outstanding judges (Fleming, Popham, Coke, Hale, Holt, Mansfield) as compared with the ruck of their more supine or authoritarian colleagues. The record gives the lie to any notion that judges are colourless and, in effect, interchangeable. The third striking feature is a sombre one: in times of perceived emergency, when the security of the people is trumpeted as the highest political imperative, personal freedom, and with it the remedy of habeas corpus, are the first casualties. But over the 300-year period studied by Halliday the writ earned the eulogistic epithets applied to it: he calculates that more than 11,000 detainees applied for relief, of whom more than half (53 per cent) were released.