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Habeas Corpus: From England to Empire by…

Habeas Corpus: From England to Empire

by Paul D. Halliday

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Halliday’s book tests the traditional image of habeas corpus as a defense of personal freedom from royal abuse against the reality to be found in a sampling of cases over four centuries (1500 to 1800). He finds that the writ originated as a way for the highest royal judges to supervise inferior ones, especially justices of the peace. In the hands of some activist judges like Holt and Mansfield, it expanded from ensuring that conventional imprisonments were justified to intervening in cases of wives and daughters held by husbands or fathers, of impressed seamen in the navy, of slaves (mostly famously Somerset), and even prisoners of war and alleged spies and enemy aliens. This expansion (chiefly from 1680 to 1777) was later cut back by repeated suspensions of the writ during the American and French Revolutions and later colonial conflicts from the Maori to the Maumau. Unfortunately, Halliday chose to tell this story thematically rather than chronologically, leading to a great deal of repetition. Despite this organizational flaw, the book contains much valuable new data and important challenges to conventional scholarly beliefs about the development of this “palladium of liberty.” ( )
  antiquary | Mar 5, 2010 |
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Amazon.com Product Description (ISBN 0674049012, Hardcover)

We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world's most revered legal device.

In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king's subjects. The key was not the prisoner's "right" to "liberty"—these are modern idioms—but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ's history and of English law.

Halliday's work informed the 2008 U.S. Supreme Court ruling in Boumediene v. Bush on prisoners in the Guantánamo detention camps. His eagerly anticipated book is certain to be acclaimed the definitive history of habeas corpus.

(retrieved from Amazon Thu, 12 Mar 2015 18:15:37 -0400)

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A revisionist history of habeas corpus - the world's most revered legal device. Habeas corpus was not established to protect the rights of the individual but rather to protect the individual from abusive judges and jailers.

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