1. The English origins

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.”

3. Revolution

This chapter details how across the Atlantic, Americans widely studied Henry Care’s treatise and Blackstone’s Commentaries, both of which glorified as the foundation of English law and liberties Magna Carta, the Petition of Right, and the Habeas Corpus Act. Yet, as explored here, Americans did not know many of these rights and protections, being denied them as colonists. Over time, the denial of the protections of the Habeas Corpus Act to the colonists became a major source of complaint regarding British rule. As the chapter explores, the British viewed the American “Rebels” as traitors and therefore not in the service of a foreign sovereign. This meant that once American prisoners started coming to English shores, a suspension was necessary to detain them outside the criminal process. The chapter explores the Revolutionary War suspension that Parliament adopted, as well as its lapsing at the end of the war.

Introduction

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.

8. World War II and the demise of the Great Writ

This chapter explores the role of habeas corpus during World War II in the US and Great Britain. On the American side, the chapter details how suspension ruled in the Hawaiian Territory but the mass incarceration of Japanese Americans on the mainland followed in the absence of a suspension under Executive Order 9066. As the chapter details, this happened even though lawyers counselled President Franklin D. Roosevelt that doing so would violate the Suspension Clause. The chapter continues by contrasting the experience in Britain, where Prime Minister Winston Churchill led the push to retreat from its citizen detention program under Regulation 18B and restore a robust habeas privilege. The chapter also compares habeas decisions rendered by the high courts in both countries while asking larger questions about what can be learned from these events.

9. Habeas corpus today

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.

Conclusion

The book concludes by celebrating aspects of the history of the writ of habeas corpus as a great writ of liberty, observing that the writ has served as a vehicle for securing the freedom of political prisoners and slaves and for the declaration of bedrock constitutional rights in criminal cases. But, the conclusion also notes, it is also the case that habeas corpus has sometimes fallen short, as the World War II mass incarceration of Japanese Americans reveals. Habeas, in other words, is sometimes only as effective as the politics of the time permit. Highlighting the challenges that lie ahead for the future of the storied writ, the conclusion suggests that we would do well to recall the period when the writ earned Blackstone’s praise as a “second magna carta,” for that history tells a story of a habeas writ that could bring even the King of England to his knees before the law.

6. Civil war and suspension

This chapter details the American Civil War and President Abraham Lincoln’s role in acting quickly—and controversially—to protect critical areas in the North by claiming the unilateral power to suspend habeas. As is explored in the chapter, Lincoln proclaimed suspensions on his own and without congressional approval for some two years until the US Congress finally enacted suspension legislation. Along the way, Lincoln’s actions provoked a rebuke from the Chief Justice of the United States in Ex parte Merryman and raised important separation of powers questions. The chapter also explores how after the war, the Supreme Court held in Ex parte Milligan that the laws of war could not be applied to “citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed.” Finally, the chapter discusses the precedent established by Lincoln’s actions.

5. Habeas corpus in the early United States

This chapter details the creation of American federal courts and their vesting with habeas jurisdiction. It likewise explores the failure of Thomas Jefferson to convince his Congress to enact a suspension to address the so-called Burr Conspiracy and how even the return of the British in the War of 1812 did not lead to a suspension, revealing an early reluctance to invoke the dramatic authority. The chapter concludes by exploring the continuing importance of the common law writ as a writ of liberty in slave cases, highlighting how judges in Northern abolitionist states used the common law writ to frustrate fugitive slave laws while often relying upon Lord Mansfield’s opinion in Somerset’s Case as support for a robust habeas writ in this context. The chapter concludes by noting that these cases laid the groundwork for a future expansive role for the writ that would come during the American Reconstruction period.

7. Reconstruction and expansion of the writ

This chapter explores the Reconstruction of the United States as one country following the Civil War. As explored, the Reconstruction Amendments to the US Constitution met dramatic resistance in many of the states that had once comprised the Confederacy from, in particular, the Ku Klux Klan. As detailed in the chapter, to try and put down the Klan and advance the new civil rights of the newly freed slaves, Congress authorized President Ulysses Grant to suspend habeas, which he did in portions of South Carolina. The chapter explores this episode as well as the expansion of habeas in the US during this period to permit review of state criminal convictions, noting how this new vision for habeas was predicated upon the writ’s history as a vehicle in times past for freeing slaves and how it has led to pathbreaking criminal justice decisions and more recently, retreat from this habeas model.

2. The limits and potential of habeas corpus

This chapter details how in the Habeas Corpus Act, Parliament took control of the law of detention and established a powerful check on executive authority. But the Act’s limitations quickly came to light, including geographic limitations and the ability of Parliament to circumvent the Act with bills of attainder. Parliament also created the concept of suspension, by which it passed legislation to displace the Act’s protections for a period of time. This chapter details the early suspensions, their legalization of extra-judicial detentions, and how on their lapsing the habeas privilege sprang back to life. The chapter also highlights the continuing importance of the common law writ in cases to which the Act did not apply, such as slave cases. In particular, as explored in the chapter, Somerset’s Case is an example of just how powerful the common law writ could be not just in protecting—but also expanding—liberty.