JURIST Special Guest Columnist Paul Halliday of the University of Virginia Department of History says that before signing the Military Commissions Act suspending the writ of habeas corpus for alien "enemy combatants," President Bush should reflect on the English experience with suspending and then reviving the writ in the midst of fear and political crisis over 300 years ago...
Consider the situation of England in 1689. One king â the Catholic James II â had been expelled late the previous year in favor of James's Dutch son-in-law William and his wife Mary. Though much of the country approved the change, political order teetered on edge. Rumored rebellions threatened to knock it over for good. Soon war was declared against France. Invasion seemed imminent, possibly from three directions. Catholics, foreigners, Englishmen too: hundreds were arrested as fear turned into panic.
What to do with all these prisoners? Many in Parliament argued that "the common safety" required suspending habeas corpus in order to keep them all locked up. Supporters of suspension posed a simple question: your security or your liberty? Their answer: liberty must give way. A few replied that this was a false choice. Habeas corpus, they argued, was "the best security of the nation." They understood that habeas did not simply release dangerous people from jail. Rather, it was the means for safely sorting the bad from the good, those imprisoned by law from those imprisoned against it. Courtroom arguments and struggles with the crown throughout the century before 1689 had shown this well enough.
Nonetheless, in March 1689, Parliament suspended the writ's work by statute for the first time. To their credit, they did so in the narrowest terms: only for those jailed on treason charges by orders signed by six or more of the King's Council. More important, Parliament limited suspension to just seven months. So the writ lay dormant, but only briefly. What happened then when it returned to life in October 1689?
Everything and nothing: hundreds of writs and hundreds released, all without danger to the people. Using habeas corpus, the court of King's Bench, Sir John Holt presiding, held the applicable law up to every prisoner and asked whether law or fear had been the reason for imprisonment. And Holt's court considered facts as well as law in habeas hearings, going well beyond the simple matter contained in the official return to the writ. It was a searching inquiry made possible by habeas corpus. After all, only by considering the alleged facts in each case could they decide whether the law had been properly used.
Day after day, during court terms and between them, the justices continued sorting the dangerous from the hapless, until by the end of 1690, they had decided nearly three hundred such cases. Some prisoners were remanded and sent to trial. A few died a traitor's death with all the fury English law could show. It was thought a sign of mercy that Godfrey Cross's dismembered quarters were "delivered to his friends" after his execution for passing secrets to the French. King's Bench showed that the law, carefully applied by independent judges, could certainly spot the traitor in a crowd of innocents.
And what a crowd it was. In all, King's Bench released 82% of those jailed on charges of treason or sedition in 1689 and '90. Apparently, the King's Councilors had played a bit loose with the law as they sent people to the Tower and other keeps in those anxious months. As war continued throughout the 1690s, hundreds more such cases came through King's Bench, with similar results. Despite the fear that produced the suspension of 1689, the justices showed throughout that they were quite capable of protecting the liberty and security of the people by using the habeas corpus well.
Why don't we know about these cases? Because we write legal history â and make courtroom claims about the state of English law before 1789 â from a fistful of case reports rather than from the astonishingly rich records of the court that decided these cases. Yet there they are in the archive: thousands of writs, lying unread since they were written centuries ago. These show us just how rich our heritage is on the writ of habeas corpus. It is a heritage of confident, careful judges allowed to do their work. It is a heritage by which we have sorted fear from reason and lawful imprisonment orders from unlawful ones, thereby protecting those liberties we take to be our inheritance from English law and which we revere as the heart of American ideals.
Americans, like the English, have always needed habeas corpus most when our fears were greatest. When we use habeas corpus, we protect the safety of both our physical selves and our moral selves. Members of Parliament saw this when they allowed their legislative suspension to lapse in October 1689. Englishmen everywhere saw this as King's Bench considered the cases of hundreds of alleged traitors in the months following. For all their fears, political order was maintained and public safety ensured. So too was the safety of law and liberty. Well might the President reflect on this history before his signature makes the Great Writ quite a bit smaller.
Paul Halliday is a history professor at the University of Virginia.