Habeas Corpus and English Society, 1500-1800

FAIN: FA-52091-05

Paul Delaney Halliday
University of Virginia (Charlottesville, VA 22903-4833)

A study recasting the history of habeas corpus--the means for testing the legality of imprisonment--through a survey of previously unstudied writ files and an exploration of court records, manuscript case reports, and non-legal texts. Contrary to earlier accounts, local tyrannies proved more dangerous than royal ones. Rather than a threat, the king's prerogative provided the ideological ground on which habeas stood, permitting the writ's defense of the liberty of the subject. Only through the political transformations of Civil War and changes in law wrought by popular use of the writ would ideas about liberty change from a liberty arising from one's subject status to a liberty arising from one's humanity.

Associated Products

Habeas Corpus: From England to Empire (Book)
Title: Habeas Corpus: From England to Empire
Abstract: We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world’s most revered legal device. In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king’s subjects. The key was not the prisoner’s “right” to “liberty”—these are modern idioms—but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ’s history and of English law.
Year: 2010
Primary URL: http://www.hup.harvard.edu/catalog.php?isbn=9780674049017
Primary URL Description: Publisher website.
Type: Single author monograph
ISBN: 9780674049017

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