HABEAS CORPUS AND THE MAGNA CARTA

One of the most effective tools used to enforce subsequent reinterpretations of the substantive core of the Magna Carta's procedural provisions was the writ of habeas corpus. This writ has been so intertwined with our understanding of the Magna Carta that in both Coke's Institutes and Blackstone's Commentaries, it is portrayed in the same lofty terms as the charter itself, as “the great and efficacious writ” that serves to free those who may be “taken, or committed to prison contra legem terrae, against the Law of the land” (Blackstone and Tucker Reference Blackstone and Tucker1803, 131). Reborn together in the early seventeenth century during the battles between the Common Law and Chancery courts of James I, habeas corpus henceforth served as the preferred legal mechanism to enforce substantive readings of the Magna Carta's legem terrae—now read as “due process”—provision of Article 39 (Corwin Reference Corwin1928; Duker Reference Duker1980; Halliday Reference Halliday2010, 15–16). By the eighteenth century, Blackstone felt confident enough to assert that habeas corpus was now “another Magna Carta” (Blackstone and Tucker Reference Blackstone and Tucker1803, 131; Nutting Reference Nutting1960; Meador Reference Meador1966).

But like the great charter that it came to enforce, the origins of habeas corpus suggest that the writ was not always deserving of its modern encomiums. The first recorded appearance of habeas corpus was, in fact, in 1199, predating the Magna Carta by 16 years. Originally part of the mesne process of early legal adjudication, the writ was widely used to ensure the presence of parties in court (Cohen Reference Cohen1938; Duker Reference Duker1980). In the fifteenth century, a distant variant of modern habeas corpus appeared as the King's Chancery courts began to use habeas corpus, along with writs of certiorari, to remove cases from inferior courts into their own. Hardly concerned with the vindication of individual rights or issues of due process as we understand them today, this cum causa version of habeas corpus served to enforce the privilege of certain classes, such as “clergy, members of Parliament, ministers of the King, and officers of superior courts,” to enjoy legal proceedings in more sympathetic jurisdictions (Meador Reference Meador1966, 11).

Increasingly, permutations of habeas corpus developed throughout the sixteenth century that allowed the writ to be used in criminal matters to discharge prisoners if they were held unlawfully (Meador Reference Meador1966).Footnote ² And with the constitutional crises of the early seventeenth century, habeas corpus' prior use both as a tool in jurisdictional conflicts and as a developing legal challenge to unlawful imprisonment quickly set it against monarchical power.

In Darnel's Case in particular, both the Magna Carta and habeas corpus were partially reinvented, with habeas corpus now explicitly enforcing a more capacious reading of the Magna Carta's legem terrae (Halliday Reference Halliday2010, 137–39).Footnote ³ Imprisoned by the Privy Council for failure to pay the king's tax through forced loans, Darnel petitioned the King's Bench for a writ of habeas corpus challenging the jurisdiction of the Council to hold him. The Crown's response to the writ, however, stated that Darnel was being held “per speciale mandatum Domini Regis,” and not as the result of indictment or other established common law legal processes. Darnel argued that habeas corpus served to “return the cause of the imprisonment, that it may be examined in this court.” Although a return was made and a cause provided, substantively, there was “no cause at all expressed in it.” John Selden, one of Darnel's counsels, contended further that the king's return violated Article 39's per legem terrae provision by imprisoning subjects without “presentment or by indictment.” He then went on to argue that if “per speciale mandatum be within the meaning of these words … then this act has done nothing” (Meador Reference Meador1966, 15).

In response, Sir Robert Heath, who argued the Crown's position in the case, agreed that the “fundamental grounds of argument upon this case begins with Magna Carta,” but he argued that the substantive meaning of the legem terrae provision certainly encompassed any command of the King. The King's cause, while not “expressed,” was simply not yet “ripe,” and the “judicature have ever rested satisfied therewith … if a man be committed by the commandment of the king, he is not to be delivered by a Habeas Corpus in this court, for we know not the cause of the commitment.” Although Darnel was ultimately unsuccessful, the very suggestion that habeas corpus was the natural guarantor of Magna Carta's legem terrae provision, along with the increasingly popular assertion that the King's prerogative was no part of the legem terrae, were salient developments (Meador Reference Meador1966, 13–15).Footnote ⁴

The next year, in 1628, Parliament passed the Petition of Right. In the Commons, a version of the Petition was put forward that specifically allowed habeas corpus to challenge detentions (especially by the Crown) that lacked a specific cause of commitment, thus attacking the Darnel decision directly. Leading the debate in Parliament was Sir Edward Coke, who, at the same time, was completing his Institutes on the Law of England. Coke's section on Article 39's Nisi per legem terrae clause not only read it as “without due process of law,” but further asserted that due process simply meant the “Common Law.” Tellingly, he then asked, “what remedy hath a party grieved” under due process to rectify false imprisonment? Coke's answer, in two clauses in this section, was “habeas corpus” (Meador Reference Meador1966, 16–17; Halliday Reference Halliday2010, 137–39).

With habeas corpus' role as the preferred enforcement mechanism for the Magna Carta's legem terrae provision asserted by Coke, the writ received further imprimatur in the Habeas Corpus Act of 1679.Footnote ⁵ The 1679 Act, however, was not the palladium of liberties that some, like Blackstone, would later assert. Although the Act decreased time limitations in returns to the writ, allowed individual judges—not just full courts—to issue the writ during vacation, and sought to prohibit transfers of prisoners out of the realm to avoid the writ's reach, it also contained limitations to the writ that seem inimical to modern sensibilities. Significantly, although the Act was limited to criminal detentions, it excepted from its protections those people detained for “felony or treason plainly expressed in the warrant of commitment or in execution by legal process,” and it did not allow the release of prisoners completely unless the writ challenged the timeliness of an indictment (Oaks Reference Oaks1964; Halliday Reference Halliday2010, 237–46). What the Act did suggest, though, was that the substantive content of the legem terrae, now enforced through habeas corpus, was primarily aimed at correcting the arbitrary nature of royal prerogative, and not providing a wider set of personal rights.

HABEAS CORPUS AND THE MAGNA CARTA IN THE NEW WORLD

The fusion of the Magna Carta's legem terrae and the writ of habeas corpus would, of course, make its way into the nascent American colonies, initially through Coke and then primarily through Blackstone, who, in his Commentaries, proclaimed that the Habeas Corpus Act of 1679 was “another magna carta”(Blackstone and Tucker Reference Blackstone and Tucker1803, 135; see also Stoner Reference Stoner1992, 21). Blackstone asserted that the “glory of the English law consists in clearly defining the times, the causes, and the extent when, wherefore, and to what degree, the imprisonment of the subject may be lawful.” As a “natural inherent right” that is “established on the firmest basis by the provisions of magna carta,” it is best supported and defended by “habeas corpus” (Blackstone and Tucker Reference Blackstone and Tucker1803, 135). But even before Blackstone, and as early as the 1680s, Massachusetts, New York, and Pennsylvania attempted to guarantee the writ modeled on the provisions of the 1679 Act, but these measures were summarily annulled by the Privy Council. In the first few decades of the eighteenth century, royal governors in Virginia, North Carolina, and South Carolina provided for the writ through proclamation, not statute (Oaks Reference Oaks1964).

But in Federalist #84, Alexander Hamilton seemed to suggest that habeas corpus, now enumerated in the proposed Constitution, brought within its protection our most fundamental rights, and did so in a more effective manner than would a Bill of Rights or even the Magna Carta itself.Footnote ⁶ For Hamilton, the protection of fundamental rights was already secured more fully in the Constitution as it stood with no amendments than if specific rights were enumerated. Along with the prohibitions against ex post facto laws, bills of attainder, and grants of nobility, Hamilton proposed that the habeas corpus clause in Article 1 was the primary defense against arbitrary arrests and imprisonments, which, in his words, were the “favorite and most formidable instruments of tyranny” (Alexander Reference Alexander2003, 522). Mere parchment barriers, according to Hamilton, such as those that would eventually be enumerated in the first eight amendments, could never be as powerful in guaranteeing individual liberty as the simple protection of habeas corpus. Hamilton then went on to distinguish the rights guaranteed in the unamended Constitution from “bills of rights” more generally, which he considered to be simply “stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the Barons, sword in hand, from king John” (Hamilton et al. Reference Hamilton, Madison and Jay2003, 523). Here, then, habeas corpus further assumed the burden of the Magna Carta's legem terrae provision through a Whiggish fiction, allowing the Great Writ of Liberty to become a fundamental guarantor of due process in the Constitution.

To be sure, our modern notion of habeas corpus as a remedy that, in the words of Justice Oliver Wendell Holmes, can “cut through all forms and go … to the very tissue” of unconstitutional detention, never crossed the minds of Selden, Coke, or Blackstone (Frank v. Mangum 1915). Important limitations, modeled on the 1679 Act, would continue to constrain both habeas corpus' procedural reach and the set of substantive rights that the writ was now imagined to protect in the United States. Like the Magna Carta before, habeas corpus' power was only ever as large and far-reaching as contemporary notions of due process allowed. Like the Privy Council's acceptance of the King's speciale mandatum as consistent with the legem terrae, habeas corpus would also reflect the limits of substantive rights and legitimate governmental processes.

In antebellum America, for example, habeas corpus was used to enforce substantive rights and limit governmental procedural abuses on both the state and national levels, but what exactly constituted due process was widely divergent. Moreover, procedural limitations to the writ all but prevented national courts from removing cases from state jurisdictions into their own. These limitations in part spurred the development of habeas corpus, as this concept was used in some southern states to vindicate asserted due process rights of slaveholders when their “property” absconded or was stolen. Some northern states, on the other hand, advanced a more capacious notion of due process and aggressively used habeas corpus to thwart the enforcement of the Fugitive Slave Clause of the Constitution (Oaks Reference Oaks1964; Morris Reference Morris1974; Duker Reference Duker1980).

Certainly, the Civil War seemed to redefine some fundamental rights, and, as would be expected, habeas corpus was similarly redefined, both in its procedural reach and in its substantive application, to enforce these rights. Beginning in the first half of the twentieth century, habeas corpus slowly developed into a legal remedy for any due process violation. Covering a catalogue of fundamental rights wider than the Magna Carta ever promised, Zechariah Chafee proclaimed that habeas corpus' substantive reach now included:

ANOTHER MAGNA CARTA

In Fay v. Noia (1963), at the apex of the Supreme Court's liberalization of habeas corpus during the 1960s, Justice Brennan said of modern encomiums for the writ:

Perpetuating the myth of habeas corpus' progressive development as much as anyone before him, Brennan then asserted that as early as the sixteenth century, habeas corpus simply “prefigured the union of the right to due process drawn from Magna Charta” (Fay v. Noia 1963).

What, then, are we to make of the historically inaccurate accounts of the Magna Carta and habeas corpus? One profitable way might be to treat Blackstone's assertion of habeas corpus as “another Magna Carta” not as an account of origins for either the Magna Carta or habeas corpus, but rather as an account of their capacity to develop and change over time. Blackstone's attribution of habeas corpus' new role as successor to the Magna Carta could easily be questioned and then summarily rejected as nothing more than what Alfred Kelly called “law office history,” whereby lawyers pick and choose facts that construct a supposedly inevitable narrative purely in the service of their own position (Kelly Reference Kelly1965). Certainly accounts of both the Magna Carta and habeas corpus fall prey to this vice, as the substantive rights of the barons that the Great Charter most likely sought to protect—like the substantive “rights” of slaveowners that habeas corpus was used to protect—are too often ignored.

Nevertheless, the very fact that the substantive and procedural due process rights that both the Magna Carta and habeas corpus have protected through the centuries have varied considerably—even in negative directions—is proof enough of their liberty-regarding potential. In this sense, our acceptance of less than accurate histories is, at the very least, testament to our normative preference for more capacious notions of personal rights and liberties.

In his 1914 article critiquing Whiggish accounts of Magna Carta, Charles McIlwain came to the conclusion that while some modern rights, like trial by jury, were never implied in the document in the way that we imagine today, “we may still hold, as our fathers did, that the law of the land is there” (McIlwain Reference McIlwain1914, 51). Intentional or not, then, the wisdom of the barons who managed to secure feudal rights at Runnymede was present in the framing of procedural rights—like legem terrae—that were specific enough to protect their most immediate substantive concerns but, fortuitously, general enough to remind us that there is still work left to be done.