Sovereignty and Liberty in William Blackstone's Commentaries on the Laws of England

2010 ◽  
Vol 72 (2) ◽  
pp. 271-297 ◽  
Author(s):  
Howard L. Lubert
Keyword(s):  
Due Process ◽  
Political History ◽  
Common Law ◽  
Habeas Corpus ◽  
Political Liberty ◽  
Arbitrary Power ◽  
Parliamentary Sovereignty ◽  
Arbitrary Rule ◽  
Due Process Of Law ◽  
The Common

AbstractIn this reading of William Blackstone's Commentaries the jurist is neither a conservative promoter of arbitrary power nor a modern liberalizer of the common law. He is a proceduralist who emphasizes due process of law as the way to reconcile political liberty with parliamentary sovereignty. Blackstone's jurisprudence reflects a particular reading of political history, one that sees Parliament at the forefront of the protection of English liberties. While the legislature is capable of tyranny, it is in the king and the courts that historically he finds the greatest examples of arbitrary rule. And it has been the exercise of parliamentary sovereignty that has reinstated and guarded due process—in particular, habeas corpus—thereby preserving and facilitating public liberty.

The Conciliar Courts

2019 ◽  
pp. 126-134
Author(s):  
John Baker
Keyword(s):  
Due Process ◽  
Common Law ◽  
Habeas Corpus ◽  
Life And Death ◽  
The North ◽  
Magna Carta ◽  
The Common ◽  
The Law ◽  
Star Chamber

This chapter examines the courts associated with the king’s council and the residuary prerogative jurisdiction of the Crown. Such courts were not supposed to meddle with the law of property, or with matters of life and death, since they did not follow the ‘due process’ required by Magna Carta and its progeny, but they nevertheless developed extensive jurisdictions alongside the courts of law. Their procedure was close to that of the Chancery. The principal conciliar courts were the Star Chamber and the Court of Requests, at Westminster, but there were provincial counterparts in the Marches of Wales and in the North. The extraterritorial jurisdictions of the admiralty and the constable and marshal were similarly derived from the royal prerogative and operated outside the common law. The King’s Bench watched all these jurisdictions carefully and checked excesses by means of prohibition and habeas corpus.

Knowing Habeas Corpus When You See It

2018 ◽  
pp. 9-11
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Habeas Corpus ◽  
The Supreme Court ◽  
The Common ◽  
The Government ◽  
Enemy Combatant

Viewing habeas corpus through a legal lens frequently misleads. The common law “rule” against controverting the return to writs of habeas corpus was commonly evaded through devices permitting judicial examination of the underlying facts and law. In many cases concluding “writ denied,” the prisoner in fact obtained “habeas corpus without the writ.” Failure to understand this explains why the Fourth Circuit performed so badly in rejecting the challenge of Yaser Hamdi to his detention as an enemy combatant. The Supreme Court very properly reversed that decision in Hamdi v. Rumsfeld (2004), resulting in the prisoner’s speedy release when the government was confronted with having to actually prove in court the claims it had made on paper.

1. The English origins

2021 ◽  
pp. 7-17
Author(s):  
Amanda L. Tyler
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Habeas Corpus ◽  
Individual Liberty ◽  
Simple Idea ◽  
Magna Carta ◽  
The Common

This chapter traces the origins of the common law writ of habeas corpus, finding that it was born out of a simple idea: the need to serve the king and demand justification for the detention of one of his subjects. It was not so much for those courts to question the king himself, for he could do no wrong. This chapter details how all of this changed over the course of the seventeenth century, and specifically the important role that the English Habeas Corpus Act of 1679 played in this shift. As is also explored, Parliament’s objectives in passing the Habeas Corpus Act sprang from its intention to expand its power at the expense of the king much more so than a desire to protect individual liberty. But in time, Blackstone and others came to praise the Act as a “second Magna Carta” for curtailing the detention of so-called “state prisoners.”

John Lilburne: a Revolutionary Interprets Statutes and Common Law Due Process

1983 ◽  
Vol 1 (2) ◽  
pp. 276-296 ◽  
Author(s):  
Diane Parkin-Speer
Keyword(s):  
Due Process ◽  
Common Law ◽  
Public Controversy ◽  
The People ◽  
Individual Judgment ◽  
History Of ◽  
The Common ◽  
Additional Support ◽  
Rump Parliament ◽  
Second Use

In the history of English law and the Puritan Revolution, the Levellers are generally considered opponents of the common law, who increasingly used natural law arguments in their revolutionary propaganda. John Lilburne, one of the foremost Leveller leaders, in the tract The Legall Fundamentall Liberties of the People of England published in June 1649 and at his trial for treason in October 1649 used the common law as presented in Sir Edward Coke's The Institutes of the Laws of England and his report of Dr. Bonham's Case, to support his attack on the Rump Parliament. This was only the second use of Dr. Bonham's Case in public controversy as opposed to in a private law matter. Lilburne's reliance on The Institutes and Dr. Bonham's Case also reveals how Coke's legal thought could be integrated into revolutionary thinking, i.e., the limitation of the powers of parliament, not just through judicial review, but through individual citizens' interpretation of statutory law and their individual judgment of the validity of laws. The tenet of radical Protestantism, the supremacy of individual judgment, finds expression in Lilburne's interpretation of statutes and his belief in the limited powers of Parliament. The idea that radical Protestantism led to democratic theory and shook the foundations of established institutions is given additional support by Lilburne's propaganda and defense of himself.

scholarly journals The Common Law Remedy of Habeas Corpus Through the Prism of a Twelve-Point Construct

2021 ◽  
Vol 14 (2 (incomplete)) ◽  
Author(s):  
Chuks Okpaluba ◽  
Anthony Nwafor
Keyword(s):  
Common Law ◽  
Habeas Corpus ◽  
The Common

The Expansion and Fragmentation of Minor Offense Justice

2016 ◽  
Vol 19 (3) ◽  
pp. 382-411 ◽  
Author(s):  
Dat T. Bui
Keyword(s):  
Due Process ◽  
Common Law ◽  
Civil Law ◽  
Fair Trial ◽  
Adversarial System ◽  
Serious Crime ◽  
Reverse Trend ◽  
Rapid Pace ◽  
The Common ◽  
The Ideal

This article claims that minor offense processes in the common law and the civil law, as examined through two prototypical exemplars of England and Vietnam, have been converging at a more rapid pace and in a reverse trend compared to the convergence in the mainstream, serious crime processes. Because of the notion of nonseriousness, a natural convergence between the two systems in minor offenses is more obvious and less challenging than the convergence in the process for serious crimes. It is commonplace that the goals of regulation, prevention, and efficiency have predominated over the ideal of adversarialism, even in an adversarial system like England’s. This natural convergence is accompanied by a due-process-evading justice, in which criminal fair trial rights could be disproportionately limited by ideas of triviality and the so-called noncriminal character. The article also suggests a convergence in the jurisprudential framework as minor offense justice reflects limitations on fair trial rights in dealing with less serious public wrongs.

scholarly journals Democracy as the legitimating condition in the UK Constitution

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 42-58
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Common Law ◽  
Democratic Legitimacy ◽  
Moral Principles ◽  
Westminster Model ◽  
Normative Conception ◽  
Parliamentary Sovereignty ◽  
The Common ◽  
The Uk ◽  
Law Making ◽  
Do So

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

9. Habeas corpus today

2021 ◽  
pp. 92-121
Author(s):  
Amanda L. Tyler
Keyword(s):  
Great Britain ◽  
Supreme Court ◽  
Common Law ◽  
Armed Conflicts ◽  
Habeas Corpus ◽  
War On Terrorism ◽  
The Us ◽  
Us Supreme Court ◽  
The Common ◽  
Suspension Model

This chapter takes the story of habeas corpus forward to present day, giving special attention to how the writ serves as a vehicle for courts to evaluate a range of immigration matters as well as the legality of the detention of prisoners in modern armed conflicts, including most prominently the war on terrorism. As the chapter reveals, studying how habeas functions in these contexts underscores both the writ’s potential as well as its limitations. The chapter explores in depth how the US Supreme Court has both protected a role for the writ in immigration cases but more recently moved to limiting such a role. It continues by exploring the intersection of terrorism and habeas corpus in both Great Britain and the US, highlighting the continuing influence of the common law writ of habeas corpus and the ever diminishing influence of the English Habeas Corpus Act and suspension model.

Judicial Review of Decisions

2019 ◽  
pp. 145-164
Author(s):  
John Baker
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Present System ◽  
Habeas Corpus ◽  
Law System ◽  
The Face ◽  
History Of ◽  
The Common ◽  
Common Law System

This chapter is concerned with the history of mechanisms for reviewing judicial and administrative decisions. It begins with the writ of error, which was confined to errors on the face of the record of a court of record and therefore not an appeal as now understood. But informal methods were developed for reserving points to be discussed by all the judges of England, usually in the Exchequer Chamber or Serjeants’ Inn. Appeals in a wider sense began in Chancery and were not brought into the common-law system till 1875. The ‘prerogative writs’ of prohibition, habeas corpus, certiorari, and mandamus, enabled the King’s Bench to review inferior jurisdictions and also the exercise of power by officials and ministers. It is explained how this grew into the present system of administrative law. There is also a brief account of the rise of tribunals, and how their decisions came to be reviewable.

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