Habeas Corpus: From England to Empire
2011; Oxford University Press; Volume: 98; Issue: 1 Linguagem: Inglês
10.1093/jahist/jar018
ISSN1945-2314
Autores Tópico(s)American Constitutional Law and Politics
ResumoThe writ of habeas corpus has at last found its biographer. Paul D. Halliday has gone behind the traditional printed sources and delved into the archives, examining the writs and returns for every fourth year from 1502 to 1798. Viewed from the record office, the conventional picture of the writ as the palladium of individual liberty is shown to be a distortion. The reality is that the writ began as a judicial exercise of the royal prerogative to ensure that local authorities remained within the scope of their delegated powers or franchises—“liberties” in the old sense. In other words, “the judges were less concerned with the liberty claims of jailed individuals than with the liberty claims of jailers” (p. 186). Only toward the end of the period did the fields reverse. Halliday also forces a reconsideration of the role of such iconic statutes as the Habeas Corpus Act (1679). That parliamentary writ paralleled rather than supplanted the earlier prerogative writ, and despite all its accumulated acclaim, the statute actually introduced the principle that the writ was subject to parliamentary control: what Parliament gave, Parliament could take away. “Our own democratic assumptions have encouraged us to imagine Parliament as the court's partner in the development of habeas corpus,” but in fact “the court's work was more seriously restricted by Parliament than by any other institution” (p. 27). Although seen as a threat by Halliday, restraint on the outsourcing of the royal prerogative to the judiciary was probably an inevitable consequence of parliamentary supremacy.
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