Guarantee of Personal Liberty
“In the name of the Holy Trinity, these things do I promise to this Christian people my subjects: first, that God’s Church and all the Christian people of my realm hold true peace; secondly, that I forbid all rapine and injustice to men of all conditions; thirdly, that I promise and enjoin justice and mercy in all judgments, that the just and merciful God of his everlasting mercy may forgive us all.”
This was a coronation oath sworn by an English king, not in the twentieth nor in the eighteenth centuries, but at the end of the tenth century; and the coronation oath continued to be taken in this form for two hundred years after the Norman Conquest.
We have set it out here, because of all the coronation oaths taken by grand and petty monarchs throughout Europe in the pre-modern-history period, that is, prior to 1485, the English oath established a relationship between the king and people that was not to be found anywhere else in what many called the civilized world of these times. The people were not required to support the king in all the many aspects of social activity and to receive nothing in return. If they carried out what was demanded of them to make the nation work, the king for his part undertook to see that certain rights and privileges were at all times enjoyed by them. This reciprocal arrangement was expected to function even when the king was a despotic ruler, and much would be forgiven the autocrat who saw to it that the meanest subject within his realm received full justice before the law; though as soon as he deprived men of justice his days would be swiftly numbered unless he saw the light of wisdom in good time.
That such a situation should exist in England and not so completely if at all elsewhere, derived from the rules which the Saxons devised for the smooth and successful organization of their community life. The Saxon administrators realized to the full that to obtain the best results from community life disputes between individuals must be resolved to the satisfaction of the man with right on his side, and that disturbances in a community caused by crimes such as murder and robbery must be kept to an absolute minimum if the community life were to be allowed to develop in the essential atmosphere of confidence engendered by the protection offered to the individual by the community.
By the middle of the tenth century, the judicial structure of England had achieved an amazing measure of sophistication, particularly in the field of local administration. All England was divided Into shires and in each there was a shire-court, in which the most important cases arising locally were tried. Each shire was divided into hundreds. At first the hundred represented one hundred families, but as time passed the term was transferred from the human unit to the territorial unit, that is, to the amount of territory originally held to be necessary for the support of one hundred families, and which later became a fixed region with established boundaries.
Each hundred had its court, which was exactly like the shire-court, and whether a case was heard by the hundred court or the shire-court seems to have been made by the decision of the parties, and particularly of the plaintiff. For example, a man might feel that local prejudice against him might prevent his obtaining justice from men who knew as much about him as he knew himself, and that if he could have his plaint heard by impartial dispensers he stood a better chance of succeeding.
Over and above these two courts was the supreme court of the realm, the Witenagemot. The Witenagemot was, in fact, the national assembly as well as the supreme court, and the modern British parliament still carries this double function in theory, “the High Court of Parliament at Westminster assembled”—though in practice it transfers its judicial functions to the judiciary; however, should the circumstances arise, parliament could quite legally hear, try and issue a verdict.
As president of the Witenagemot, the king represented the source of justice and the fountain-head of administration, and these two (functions were delegated to the inferior courts in the sense that they were used to carry out the king’s commands as affecting the welfare of the state and to mete out justice according to his laws and in his name. Thus each individual was entitled not merely to justice but to the king’s justice; and in like measure each individual was bound, in return for the protection of the king’s justice, to maintain the king’s peace. Monarch and individual subject were, therefore, bound to one another not by ties of service (serfdom) but by abstract ties of justice and the preservation of order.
The practical steps which were now evolved to achieve the latter emphasize still further the responsibility of the individual towards his fellows and towards the king. For maintaining local order, and punishing crime, it was the hundred court which was most frequently used. In so far as police matters were the care of the general government, the hundred court was the police-court of England. About the middle of the tenth century, King Edgar introduced a famous law for the pursuit and arrest of thieves, using the hundred as the main unit; but taxing communal responsibility to an even greater individual level than obtained hitherto, he required every man to have a bohr.
A bohr was a kind of bailee for a man’s good behaviour. If a man did wrong, his bohr must produce him in court, and if he could not do so was required to pay the fine which the wrongdoer would have been required to pay had he submitted to justice. It was, therefore, in the bohr’s interest to see that his ward did not transgress, or, if he did, to make certain that he was brought to justice.
About this time, evidence emerges of the tithe. The tithe was a small group of ten or twelve men, the term itself means a tenth, who, under the leadership of a tithingman, were collectively held responsible for the capture of criminals. These two institutions later formed the basis of the Norman frankpledge system.
Besides these arrangements, the King’s Peace also had a place of great importance in the development of English law. An ordinary offence or misdemeanour was a breach of the nation’s peace, or the peace of the shire; but offences committed against the king, or on his property, or in his immediate vicinity, were breaches of the King’s Peace, and were punished by much heavier penalties. But the King’s Peace constituted a protection which might be extended to a locality, and if this extension were made, any offences committed within the locality were regarded as breaches of the King’s Peace, and carried the higher penalties. In time the King’s Peace was extended to the whole country and served to consolidate further the relation between the king and individual subject, by giving the latter the king’s protection.
As the administration of the country and the evolution of the laws developed, this special relationship between monarch and individual in no whit weakened, and at all times the subject could look for the protection of the monarch provided he did not put himself outside the laws. Even when he infringed the law, and particularly when he was only suspected of infringing the law, he could look to the king for justice. The fact that he could do so, automatically required the king not to inflict injustice upon him. This was particularly necessary when a man was arrested on suspicion of crime, since he might be innocent and his suffering should, in this case, be reduced to the absolute minimum by affording him speedy trial. It was when this right was denied that conflict between king and subjects speedily arose.
This situation came into being in English history when unscrupulous kings, to rid themselves of opponents, ordered their arrest on arbitrary charges and rendered them ineffective by keeping them under restraint in prison, denying them trial and thus violating their ‘liberty of the individual”. The first outstanding example of this kind of attempt to destroy the power of the opponents of the Throne came in the reign of King John. It was one of the major complaints against him that he denied justice to many by denying them trial, and Article 36 of Magna Carta specifically dealt with this point.
It is a widespread but erroneously held view that Magna Carta originated the process known as “the writ of habeas corpus”. In fact, as early as the twelfth century writs were issued to prevent imprisonment without early trial. These early writs were not known as habeas corpus, but as writs de odio et atia, though in effect they amounted to the same thing. What was so important about Magna Carta’s provisions in this connexion was that the writ of habeas corpus should be issued gratuitously and “could not be refused”.
A writ of habeas corpus was, and still is, a writ issued by a judge or a court of justice commanding the person to whom it is directed to bring the body of the person named in the writ, who is in his custody, to the court of the judge issuing the writ, or some other court, for the purpose of acquainting the court of the charges on which the prisoner has been arrested. Should the judge, hearing the answer, decide that the charges are baseless, he may order the immediate release of the prisoner, who may not again be arrested on these same charges. Nowadays, though occasional applications are made for writs of habeas corpus, the laws of England and the judicial system work so rapidly and fairly that circumstances rarely arise warranting the issue of a writ. Nevertheless, it constitutes one of the greatest safeguards of the liberty of the individual in existence, and it is still based on the monarch-subject relationship deriving from Saxon times which we described earlier.
That the Englishman has theoretically, at all events, enjoyed the right of the protection of habeas corpus from the time of Magna Carta makes him unique in this respect, at least among the peoples of Europe. In the fractious periods of English history it proved the great mainstay of the subject in his struggle against arbitrary despotism, and the Englishman appreciated this and saw to it that he was never deprived of its protection. By the time of Charles I it was fully established as the process for checking illegal imprisonment by inferior courts or public officials, and yet it only acquired its present constitutional importance by much later legislation, whereas the struggle for its survival was at times fierce, and Magna Carta’s promise that “no person shall be deprived of life, liberty or property without due process of law” has had to be firmly restated from time to time.
Naturally, even automatically, habeas corpus had to be defended against the despotism of the Stuarts, and, indeed, it was the seventeenth century which was the great age of the perfection of habeas corpus as the means of saving the citizen against arbitrary executive action. Though there had been rumblings of discontent arising out of James’s attitude towards the liberty of the individual as offset by his own ardent belief in the Divine Right of Kings, it was in his successor’s reign that the first determined, concrete step was taken.
Despite the fact that he had occupied the throne for less than three years, in 1628 Charles I was already seriously at loggerheads with Parliament, who took their traditional remedy of refusing to vote him funds. To raise money he demanded benevolences and forced loans, and planned to make the latter a regular method of taxation. When called upon to sign a statement that the forced loan was legal, the judges of the King’s Bench refused to do so, and though payment could not, therefore, be enforced, gentlemen who refused to pay were thrown into prison and poor men were “pressed” into the army which was being formed to go and fight on the Continent.
So great was the outcry that martial law had to be enforced with some security to control the levies, and to make up for the lack of money the troops had to be quartered on the local communities, which further exacerbated the situation. While this was happening a number of knights were arrested, among whom was one named Darnel, who, with four others, sued out writs of habeas corpus in the King’s Bench. Their jailer returned answer that they were held by special command of the king. The prisoners’ lawyers refused to accept this answer, declaring that while the king and the Council undoubtedly had the right to make arrests, the reply to the writ must specify the exact reason for arrest, citing Magna Carta and other statutes. The judges, however, refused to admit the prisoners to bail, which was taken to mean that they upheld the king’s action.
Historically speaking the judges’ decision may have been correct, but it was no necessity of state, the only excuse he might sustain for effecting arbitrary arrest, from which the king was acting, but the necessity of maintaining his illegal and unconstitutional action. The nation had been right in cutting off, one after another, the king’s extra-legal means of raising revenue, so they were right in taking away an effective weapon for defeating their will in this respect.
Whatever may be said of the precedents the king’s opponents brought forward, their logic at least was right, and the point at issue now became: How was their desired end to be obtained?
A simple confirmation of the existing law was not satisfactory to the Commons because it would leave the king free to put his own interpretation on it. What they wanted was a statement which would make their interpretation binding on the courts. Their first reaction was to bring in a Bill which would secure this, but when the king let it be known that he would never consent to such a Bill, both Houses decided to present a Petition of Rights.
Moderating the language they had first proposed using, the Commons eventually “did humbly pray your most excellent Majesty that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by vote of Parliament; that no man be molested for refusal thereof; that no freeman be imprisoned without due process of law, nor detained by the king’s command without being charged with anything to which they might make answer according to law”. To this petition the king gave what the Commons interpreted as an ambiguous answer, and they applied for a different one. Finally, the king gave in, and replied: “Soit droit fait come est desire,”, Let right be done as is desired.
Another half-century was to pass, however, before habeas corpus was placed on an indisputable basis. Charles II’s Chancellor, Clarendon, assumed too autocratic powers, in the Commons’ view. The best way of curbing him, it was decided, would be by firmly establishing the principle of habeas corpus by embodying it in an act of parliament: so the Habeas Corpus Act was put on the statute book in 1679. At the same time, the opportunity was taken to provide for the infliction of heavy penalties on officers holding persons in custody and on judges to make a speedy return of the writ. From this time habeas corpus, and all it implied, was firmly and undeniably planted in the rights of all individual Englishmen. For the first time the individual had a definite guarantee of personal liberty, except in times of extraordinary national danger; and this guarantee he acquired long before any of his fellow-Europeans acquired the same right.
- Habeas Corpus Act The British Library
- The Parliamentary Archives holds the original of this historic record
- Full Habeas Corpus Act (U. of Chicago)
- Other Habeas Corpus materials (U. of Chicago)
- (Partial) Text of the 1679 Habeas Corpus Act
- Images of the original act from the Parliamentary Archives