In an era fraught with suspicion surrounding critical functions of society like financing, banking and government, it is an initial surprise to discover something of seeming impermeable value and of historic origin. The margin of human ingenuity has mostly been challenged unforgivably and as equally constrained. What, you ask, might possibly erase that boundary of inventiveness and widen the limit so illustriously?
Allow me to lead with some background. I never tire of reporting my late father’s reaction when he learned of my intention to study philosophy at Glendon Hall. There was a reasonable pause then he stated clearly without being forceful, “Well, it’s your bed: you make it, you sleep in it”. The quip reflects what is commonly considered the truth of the particular industry. It competes for example with the more gripping erudition of economics. No doubt my father was concerned only for my well-being. Indeed after an intense 3-year read of philosophy I was left with the same overall impression.
In Philosophical Investigations Ludwig Wittgenstein says: “If I am inclined to suppose that a mouse has come into being by spontaneous generation out of grey rags and dust, I shall do well to examine those rags very closely to see how a mouse may have hidden in them, how it may have got there and so on. But if I am convinced that a mouse cannot come into being from these things, then this investigation will perhaps be superfluous. But first we must learn to understand what it is that opposes such an examination of details in philosophy.”
I was unaided by that satirical rendition. Convinced that I needed a trade to supplant the ethereal philosophy that had so deliciously entertained me, I undertook an application for graduate studies at law school. The drive behind my attendance at Dalhousie Law School was Nova Scotia. I have forever succumbed to the attraction of the sea including anything connected to it, from the ocean itself to sailing yachts to compasses and a ship’s bell and piers and the horizon. It turned out to be for me an advantage that Dalhousie Law School is the oldest law school in the British Empire including England. I appreciate serendipity.
Aside from the notability of the school I confess even through my thick skull the rudiments of law succeeded to penetrate. I learned for example, “When you want something from a judge, tell him what you want then show him how to get there”. I learned that, “You cannot give what you do not have”. I learned that “He who is delegated cannot delegate further”. Meanwhile underlying the entire education was the bed of philosophy; viz., similar adages of wisdom for example if A = B and B = C then A = C, the so-called deductive reasoning (characterized by or based on the inference of particular instances from a general law). We learned to distinguish axiomatic reasoning. We learned to interpret currency from constitution. But of all the dicta we read and absorbed, nothing in retrospect tops the significance and immutability of habeas corpus. The paramountcy of its importance is that it is not only axiomatic it is also deductive. Barring any supremacy of rule the writ stands as an enduring monument to human intellect and ambition:
The writ of habeas corpus is known as the “great and efficacious writ in all manner of illegal confinement”. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus.
It is a curious evolution that habeas corpus was both loved and hated by British monarchs depending upon the particular oligarchy and rapacity. Like so many other swords in the political forum it is double-edged and dangerous if impeded. Generally speaking there is nothing more elemental to law than the writ of habeas corpus. The American popular passion for “freedom of the individual” has lately arisen rather markedly in the battle against imposed COVID vaccination. It is perhaps a more current rendition of the equally popular gun lobby. However, as important as personal freedom may be, it is not to be confounded with the deprivation from imprisonment.
William Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying “[t]he king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.” The procedure for issuing a writ of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the Habeas Corpus Act 1640) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus. The cornerstone purpose of the writ of habeas corpus was to limit the King’s Chancery’s ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of equity, a process managed by the Chancellor (a bishop) with the King’s authority.
“One of his (King James II) objects was to obtain a repeal of the Habeas Corpus Act, which he hated, as it was natural that a tyrant should hate the most stringent curb that ever legislation imposed on tyranny. This feeling remained deeply fixed in his mind to the last, and appears in the instructions which he drew up, in exile, for the guidance of his son. But the Habeas Corpus Act, though passed during the ascendency of the Whigs, was not more dear to the Whigs than to the Tories. It is indeed not wonderful that this great law should be highly prized by all Englishmen without distinction of party: for it is a law which, not by circuitous, but by direct operation, adds to the security and happiness of every inhabitant of the realm.”
“The Habeas Corpus,” said Johnson, the most bigoted of Tories, to Boswell, “is the single advantage which our government has over that of other countries;” and T. B. Macaulay is the most bigoted of Whigs in his own country but left his whiggism at home when he went to India.”
Excerpt From: Thomas Babington Macaulay Macaulay. “The History of England, from the Accession of James II — Volume 2.”
Habeas corpus Medieval Latin, literally means “you shall have the body”, and in context it means “(we, a Court, command) that you have the body [of the detainee brought before us].” is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.