Explore Freedom

Explore Freedom » Civil Liberty and the State: The Writ of Habeas Corpus

FFF Articles

Civil Liberty and the State: The Writ of Habeas Corpus


LIMITING THE POWERS OF GOVERNMENT has been one of the leading struggles in the history of mankind. Through most of man’s time on earth, governments have presumed to rule, command, order, and threaten multitudes of human beings — to make the mass of humanity bend to the will of their political masters.

The political rulers have often considered themselves to be gods, with powers not much less than that of a divine being. In 1609, for example, King James I of England said in a speech before Parliament:

Kings are justly called gods; for they exercise a manner of resemblance of divine power upon earth. For if you will consider the attributes of God, you shall see how they agree in the person of a king. God hath power to create or destroy, make or unmake at His pleasure, to give life or send death, to judge all and to be accountable to none. And the like power have kings. They make and unmake their subjects; they have power of raising up or casting down; of life and death; judges over all their subjects and in all cases, yet accountable to none but God.

A few years later, in 1616, he added,

As it is atheism and blasphemy to dispute what God can do, so it is presumption and high contempt in a subject to dispute what a king can do, or to say that a king cannot do this or that.

The overthrowing of this arrogant pretense by political authority was a long and dangerous task. Men have risked their lives and fortunes to oppose arrogant political power. When they have done so, they have served as examples and set legal precedents that then secured areas of protected liberty for their contemporaries and for future generations.

A shining example of this is the writ of habeas corpus. Habeas corpus means, literally, “You are to have the body,” i.e., “You are to bring the body, the prisoner himself, before us,” so that a court of law may be informed as to why a man has been imprisoned. If there is no legal reason for the man to be held in prison, he is to be set free. Or if there is good reason for him to be held, then court proceedings are to be speedily put in motion to determine his guilt or innocence with respect to the charges brought against him.

The roots of habeas

In English history, the barons had extracted the principle of due process of law from King John, in 1215, in the Magna Carta. Clause 39 of the Magna Carta guaranteed,

No free man may be taken or imprisoned, or ousted of his lands, or outlawed, or banished, or hurt in any way; nor will we [the king] go against him, nor send our officers against him, save by lawful judgment of his peers or by the law of the land.

In other words, under the principles of due process of law (“the law of the land”) no free man could be put in prison and held there without legal justification.

While the fight against the continuing attempt by English kings to hold men indefinitely without charges was fought several times in the 400 years following the signing of the Magna Carta, the battle reached a climax in the 1620s during the reign of Charles I. Twice, in 1625 and in 1626, Charles dissolved the Parliament because the members of the House of Commons refused to grant him the monies he needed to finance a foreign war. Charles drew up a list of names of those persons around the country with the financial ability to lend money to him.

Many were then imprisoned for refusal to lend him the prescribed amounts. Five of them — Sir Thomas Darnel, Sir John Corbet, Sir Walter Earl, Sir John Hevingham, and Sir Edmund Hampden — appealed for writs of habeas corpus in 1627. The counsels for the defendants argued before the court that the Magna Carta and other legal precedents in which kings since then had given their accession to the concept of habeas corpus required for these men to be released or at least released on bail while awaiting trial. Only in January 1628 were they released, but not in deference to a writ of habeas corpus, but as a “gesture” by the king, as he was calling a new Parliament into session and hoped for the goodwill that would lead to the funding of his war expenditures.

Charles warned the new House of Commons that if the members did not give in to his demands for tax revenue, “I must in discharge of my conscience use those other means which God hath put into my hand, in order to save that which the follies of some particular men may otherwise put in danger.” The members of the Commons understood very clearly that this meant, among other things, the threat of discretionary arrest and indefinite imprisonment without charges.

Rather than surrender to the power of the king and his government, the Parliament stood its ground. Sir Edward Coke, the great English legal philosopher of the common law, took on a leadership role in the defense of civil liberty. Francis W. Hirst, in his volume Liberty and Tyranny (1935), pointed out, “In an age of servility, corruption, and treachery he [Coke] never betrayed a friend, never truckled to an enemy, never took a bribe, or tampered with the integrity of judges.”

During the Parliamentary debates over the funding of the king’s expenses, Coke spoke out against compulsory lending to the government and said in reference to those who had been arrested and imprisoned for refusing to lend money to the king, “What is this but to declare upon record that any subject committed by such absolute command may be detained in prison forever? What doth this tend to but the utter subversion of the choice, liberty, and right to every freeborn subject in this kingdom?”

The Habeas Corpus Act

Inspired by Coke’s words, the House of Commons then passed two resolutions, which were later incorporated into the Habeas Corpus Act of 1679:

1. That no freeman ought to be committed or detained in prison, or otherwise restrained by command of the King or Privy Council, or any other, unless some cause of the commitment, detainer, or restraint be expressed, for which by law he ought to be committed, detained, or restrained.

2. That the writ of Habeas Corpus cannot be denied, but ought to be granted to every man that is committed or detained in prison or otherwise restrained by the command of the King, the Privy Council, or any other.

When Charles sent a message that he would respect the principles of the Magna Carta in general, Coke replied,

Did ever Parliament rely on messages?… The King’s answer is very gracious; but what is the law of the realm? That is the question…. Let us put up a Petition of Right; not that I distrust the King, but that I cannot take his trust but in a Parliamentary way.

In other words, even kings had to have their prerogatives specified and clearly limited in law and enforced by law, so that no man’s civil liberty was in doubt or unguarded by the rule and protection of the law.

John Seldon, one of the leading English legal figures of the 17th century made this point clear when he explained the importance of the writ of habeas corpus:

In all cases where any right or liberty belongs to the subject, by any positive law written or unwritten, if there were not also a remedy for the enjoying or regaining this right or liberty when it is violated or taken from him, the positive law were most vain and to no purpose…. In this case of right or liberty of person, if there were not a remedy in law for regaining it when it is restrained, it were of no purpose to speak of laws that ordain it should not be restrained.

When the two resolutions restricting the imprisoning and detaining of individuals without a writ of habeas corpus were returned to the House of Commons from the upper House of Lords with a proviso that “nothing therein contained should be construed to entrench on the sovereign power of the Crown,” Coke stood up and spoke against it. “In my opinion,” Coke declared,

it weakens Magna Carta and all the statutes whereon we rely for the declaration of our liberties; for they are absolute without any saving of ‘sovereign power.’ Should we now add it, we shall weaken the foundation of law, and then the building must fall. If we grant this, by implication we give a sovereign power above all laws.

The House of Commons rejected the proviso and the House of Lords finally withdrew it. Again the king tried to get around Parliament’s insistence by promising a respect for the laws and customs of the country. But the members of the Commons rejected his subterfuge. Coke declared: “Let us palliate no longer; if we do God will not prosper us.”

Finally, the king gave in to a joint statement prepared by the Houses of Commons and Lords insisting that he accede to the two resolutions, and the Petition of Right was passed and read into the Statute Book. According to the Parliamentary Journal, “When these words were spoken, the Commons gave a great and joyful applause, and His Majesty rose and departed.” That night bonfires were lit in various parts of London to celebrate what was said to be “the second Magna Carta.”

Francis Hirst, in his account of the codification of the writ of habeas corpus, points out the important connection between civil liberty and the economic freedom of ownership of property:

It has not, I think, been noticed that in this great affair, property and liberty combined in self-defense. The leading patriots in both Houses were men of property. Seldon was wealthy enough to be independent alike of Court favor and legal emoluments; Coke had a large fortune and great estates in Norwalk and other counties. They pressed the argument that freehold property, as well as freedom, would be endangered if the law and legal remedies were subordinated to the arbitrary will and power of the Crown. Thus the passing of the Petition of Rights provides another illustration and proof, if proof were needed, of the commonplace but neglected truth that the freedom of citizens is inseparable from their freedom to hold property.

In spite of the law and the king’s pledges to respect it, in 1629 Charles again dissolved Parliament and proceeded to arrest and detain a number of members of the House of Commons, including John Seldon. But now the king tried to rationalize their detention by charging “notable contempts … against ourself and our government and for stirring up sedition against us.” After a brief period, the king released most of those arrested and held in the Tower of London. But one, Sir John Elliot, who was particularly resistant to any demands of the king, was held in the Tower until his death in 1632.

A protection from tyranny

Over the four centuries since Coke and the members of the House of Commons codified the writ of habeas corpus in English law, it has served as a protection for people from the arbitrary and vindictive actions of those who hold political authority in government. Article I, Section 9, of the U.S. Constitution says explicitly, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

(In the Constitution of the Confederate States of America the same wording was used in Article I, Section 9.)

Moreover, the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution reflect an intention to protect the individual from search, seizure, imprisonment, and punishment without proper legal cause and due process of law. Indeed, Alexander Hamilton, in Federalist No. 84, insisted,

The writ of habeas corpus [and] the prohibition against ex-post-facto laws … are perhaps greater securities to liberty … than any [other the Constitution] contains.

Governments have oftentimes used the excuse of national emergency, war, or public safety to temporarily abrogate the writ of habeas corpus. Yet in each instance those with calmer minds and longer-term perspectives have warned of the danger of such power in the hands of government officials, whether elected or appointed, who in the zeal of the moment or in the service of political or other misplaced ends, may easily rationalize and abuse their power over the citizens and residents of the country.

Seized by the police power of the government, or thrown into the limiting confines of prison or jail, or denied legal recourse or appeal to demand public charges and a judicial hearing for an indefinite period at the pleasure and caprice of those wielding control over his person, the isolated and powerless individual can more easily be manipulated and psychologically terrorized by those holding the keys to his freedom. He is no longer a free man, a citizen with political rights and civil liberties. He is a detained and incarcerated political subject under the discretionary authority of those who will determine his fate.

Recalling the battles that have been fought in the past to establish our civil liberties and the dangers that are always run when they are violated and denied is never so important as when they are once again under attack. The future of our freedom depends on it.

  • Categories
  • This post was written by:

    Dr. Richard M. Ebeling is the BB&T Distinguished Professor of Ethics and Free Enterprise Leadership at The Citadel. He was formerly professor of Economics at Northwood University, president of The Foundation for Economic Education (2003–2008), was the Ludwig von Mises Professor of Economics at Hillsdale College (1988–2003) in Hillsdale, Michigan, and served as vice president of academic affairs for The Future of Freedom Foundation (1989–2003).