habeas corpus

habeas corpus. Before Magna Carta, the writ of habeas corpus constituted a command in the king's name to have a defendant brought physically before the court. It had then no libertarian function. In the 15th and 16th cents. it was used to remove a case from an inferior court to the central courts. By the mid-15th cent. it tested the legality of detention and the common law courts used it to release litigants who had been imprisoned by the Court of Chancery. In the 17th cent. it was employed to challenge arbitrary arrests by the royal government and, as such, played a crucial role in the constitutional disputes. In Darnel's case in 1627, which arose out of a forced loan, the judges refused to allow bail to a person detained ‘at the special command of the king’. The petition of right (1628) protested at the practice, but opponents of the crown such as Sir John Eliot and John Selden (1629) continued to be committed for political purposes.

When the king lost control of the situation in 1640, his adversaries moved to defend habeas corpus. The Act of 1641 which abolished Star Chamber declared that the writ could ensure that a person imprisoned by king and council should be brought before the court without delay with the cause of imprisonment shown, the court should pronounce on the legality of the detention, and should bail, discharge, or remand the prisoner.

After the Restoration, the struggle was resumed, since many loopholes in the law remained. In Bushell's case (1670) habeas corpus was used to release a juryman who had been gaoled for returning what the court regarded as a perverse verdict. After several attempts, the Habeas Corpus Act of 1679 blocked up many of the loopholes and improved the mechanism of enforcement. Though habeas corpus was suspended at many times subsequently, the suspension had to be justified and aroused concern for civil liberty. In Scotland, the equivalent to habeas corpus was obtained by an Act for Preventing Wrongous Imprisonments in 1701. There was considerable agitation throughout the 18th cent. for the extension of habeas corpus to Ireland, but governments insisted that the situation was too volatile. It was one of the concessions gained in 1781 by the Irish Volunteer movement.

J. A. Cannon