Magazine article Humanities

Impertinent Questions WITH PAUL D. HALLIDAY

Magazine article Humanities

Impertinent Questions WITH PAUL D. HALLIDAY

Article excerpt

Don your best wig. Court is now in session. For this edition of Impertinent Questions, we talk to Paul D. Halliday, author of Habeas Corpus: From England to Empire (Harvard University Press, 20 1 0). Halliday, a professor of history at the University of Virginia, used an NEH Fellowship to write Habeas Corpus. The book was recently honored with the Inner Temple Book Prize for excellence in legal scholarship.

Your book is about habeas corpus. What does the term mean?

The words "habeas corpus" are a command to have or to produce a body. Courts order bodies brought before them all the time: to serve as witnesses, to answer charges, to pay debts, and so on. The famous version-habeas corpus öd subjidendum - commanded a jailer to produce someone's body before a judge, along with the cause ofthat body's detention. The judge then determined whether a pnsoner was held legally.

Your book revolves around King's Bench. What is it?

England's greatest common law court. People called it Queen's Bench when a queen ruled, and the Upper Bench in the 1 65Os, when there was no monarch. A big part of its work involved supervising the work of lesser courts and other officials.

BBC junkies will be familiar with the Old Bailey. What is its relationship to King's Bench?

The Old Bailey was where trials of accused criminals for London and the surrounding county of Middlesex were held, Judges from many different courts, including King's Bench, presided there. Accused felons awaiting trial at the Old Bailey might be released before trial as a result of a habeas hearing in King's Bench.

When was habeas corpus first used?

Alas, who knows, at least with precision? So many different forms of judicial process contained the phrase "habeas corpus." We can find examples from the thirteenth century forward. The writ only began to acquire some of the qualities for which we praise it - giving judges a vast power to inspect all kinds of detention - in the late sixteenth and early seventeenth centuries.

For what kind of crimes was it used?

Every kind. More remarkable was how the writ was used when no alleged crime was involved: for instance, for battered wives held against their will, for people who may have been incorrectly labeled as "lunatics" - the word used in the eighteenth century - or for wrongly impressed sailors.

How did Parliament alter habeas corpus in the seventeenth century?

In 1679, Parliament passed the so-called Habeas Corpus Act. This seemed to strengthen the writ. But once Parliament showed it might change judicial practices allegedly for the better, it also showed it had power to undermine the writ. Ten years later, Parliament passed the first statute suspending the use of habeas corpus. Ever since then, there has been a tussle between judges and legislators over who controls the kinds of people who might be imprisoned. …

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