BOOK REVIEW

Paul D. Halliday: Habeas Corpus. From Englandto Empire

Belknap Press of Harvard University Press, Cambridge Mass.,London, England, 2010, 502 + ix pp, £29.95/€36.00/$39.95,ISBN: 978-0-674-04901-7

Lindsay Farmer

Published online: 19 February 2012� Springer Science+Business Media B.V. 2012

The idea of habeas corpus is central to the idea of the liberty of the subject in Anglo-

American jurisprudence. The writ of habeas corpus, as is well known, was a means of

preventing the unlawful detention of prisoners. Judges in the Royal courts could order a

prisoner to be brought before them so that the grounds of detention could be examined and

the legality of the detention reviewed. It is often seen historically as the writ that formed

the basis for other civil and political liberties, as both the oldest and the most fundamental

right—the fabled ‘palladium of liberty’. But at the same time its apparent importance as the

foundation of individual liberty against state oppression has led to being surrounded by a

certain mythology. As Halliday points out, the success of the writ gave rise to a kind of

legal narcissism, as Anglo–American judges and jurists congratulated themselves on the

triumph of liberty over tyranny. Its actual history, as he demonstrates, is much less

straightforward.

The book is divided into three sections. The first examines the foundations of the writ in

the struggle for jurisdiction between the Royal Courts and local franchise courts, often

controlled by powerful nobles. Here Halliday studies the use of the writ in the period up to

the early seventeenth century to show how the practice was not animated by ideas about

liberty at all. The story is instead that of how a prerogative writ was a means by which the

king’s courts could consolidate their power and oversight over other courts and jurisdic-

tions—a means of binding subjects to the sovereign. The second part of the book then

looks at the use of habeas corpus in the late seventeenth- and eighteenth-centuries. Here

Halliday shows how the courts, under the influence of certain judges, used the writ to

extend the oversight of the King’s Bench over an increasing range of detentions, thereby

shaping the jurisdiction of the various courts through the regulation of their powers. Thus it

was used to review summary convictions (pp. 119–20, 147–53), the actions of abusive

husbands and the custody of children (pp. 121–33), and naval impressment (pp. 115–6). Its

use extended to the supervision of military jurisdiction in the wake of the English civil war

(pp. 165–74) and then finally, and most famously, to slavery in Lord Mansfield’s decision

in Somerset’s Case (1772)—though, as Halliday points out, the effect of the judgement did

L. Farmer (&)University of Glasgow, Glasgow, Scotland, UKe-mail: Lindsay.Farmer@glasgow.ac.uk

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Crim Law and Philos (2012) 6:273–275DOI 10.1007/s11572-012-9141-5

not free a slave ‘‘so much as it protected him from deportation’’ (p. 175). The final part of

the book then examines the uneven progress of the writ in the period from 1790 onwards.

In England the steady expansion of the power of the writ came to a halt in the wake of the

French Revolution, as Parliament exercised its authority to suspend the writ. And even as

the writ spread outside England, with the growth of the British Empire, so too did the

power to suspend or avoid its effects. Halliday traces this through studies of Barbados (pp.

269–74), Quebec (pp. 274–81), India (pp. 281–90) and beyond. In these places, despite

some notable achievements, he suggests that it had a rather mixed record in protecting

individual liberties. The availability of the writ did not extend to slaves in many British

colonies, where weak local courts were unable to exercise any real supervisory authority

over colonial governors. Distinctions were made between different statuses of subject—

British, alien and native—which limited the extent of the writ. And emergency powers

allowed the writ to be avoided and many thousands were detained in different places across

the Empire during national liberation struggles.

There is much to admire in this book, even if the argument is not always easy to follow

and the style occasionally distracting. It debunks many of the myths that surround habeascorpus and is based on formidable levels of research and scholarship. Halliday covers a

huge range of topics in both time and space, even if this means that certain topics are not

dealt with systematically or in depth. There is a lengthy appendix on the use of the writ

between 1500 and 1800 together with table of cases and manuscript sources that will make

it an invaluable source of reference for future research.

The book also raises two points of more general importance to work in the field of

criminal law and philosophy, and I shall finish with a brief discussion of these. The first is a

question of method. Halliday’s approach is to look at the use of the writ rather than

rhetoric. From this perspective liberty is seen as the end-product of law rather than its

animating belief. This is seen in the origins of the writ, which were not in protecting rights,

but correcting wrongs committed by those who acted in the name of the king. As the writ

developed it was shaped by the practices of lawyers, for whom an ideal of liberty might be

only a secondary consideration. At times it was ambitious judges who sought to extend the

role of the king’s courts; at other times its expansion was driven by lawyers with cases to

win and fees to collect. Even if the ultimate effect was to produce liberty, law was not

Liberty’s subject. Indeed, as Halliday tellingly argues, the reverse was the case. The

meanings of liberty were worked out against the backdrop of disputes concerning relations

between subjects of differing statuses (p. 179). This general point is examined most fully in

chapter 6, which explores different meanings and applications of ideas of liberty—notably

the shift from an understanding of liberty as a power to punish to that of liberty as a place

(to be ‘at liberty’). This is a shift in the meaning of the term from being a way of

expressing a power of jurisdiction, to something closer to the modern understanding of

‘negative’ liberty—a space where the individual is to be free from the interventions of

others. He also shows how the law resisted efforts, such as that of the Leveller John

Lilburne, to recognise a more fundamental, extra-legal, sense of liberty that might shape

the law itself. The more general point here is that this approach demonstrates how we

might misunderstand the historical relationship between concepts such as liberty and law,

and how this kind of historical method can illuminate the development of, and nuances in,

the use of these terms.

The second point relates to the scope of the book, specifically the claim that the story of

habeas corpus, in some ways the most quintessentially English legal procedure, is a history

of empire and cannot be understood without considering the imperial dimension. What this

underlines is the importance of recognising the imperial context as essential to an

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understanding of the history and function of the criminal law. The language of the law, its

conceptual structure, and the even the definition of particular crimes have been exported

from England, as the mother country over many centuries, and used more or less con-

sciously as tools of colonial governance, often before reincorporation in domestic law. To

focus only on the domestic law, or the meaning and application of ideas of liberty in the

domestic courts, is to run the risk of obscuring important elements of their development.

The importance of this book then is as an exemplar of how the study of this history can

throw new light on the functions of the criminal law, and on what are often taken to be the

achievements of criminal theory.

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