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The Origin of Habeas Corpus

“No freeman shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.” — Magna Carta, section 29 The Great Writ. The bedrock of English liberty. The cornerstone of the rule of law — enshrined in the Constitution of the United States and the Bill of Rights. The origin of habeas corpus is unknown, but traceable to Roman civil law and the ancient writs of 12th century England. It was forced upon King John in 1215 by the barons meeting at Runnymede, a bucolic meadow on the banks of the River Thames. And now for the rest of the story…. Magna Carta and the writ of habeas corpus notwithstanding, for the next 464 years, English kings exercised their royal prerogative by ordering warrants of commitment with little restraint by either Parliament or the courts. During this time, the Tower of London never lacked for occupants. The guest list included such notable personages as John Selden, Sir Edward Coke and Sir John Elliot. Four centuries of unrest led to the three-week Short Parliament, which was dissolved by Charles I in 1640; the Long Parliament, which refused to dissolve except by its own consent, from 1640 to 1653; the English civil wars, from 1642 to 1651; Cromwell and the Commonwealth, from 1649 to 1660; and, finally, the restoration of the Crown in 1660 by a chastened but politically astute Charles II (his father, Charles I, lost his head in 1649). Throughout this time, every statute enacted to protect the liberties of English subjects was ineffective in the face of a warrant issued in the name of the king — as distinguished from the courts — until May 26, 1679. On that day, in the House of Lords, Lord Grey and Lord Norris found themselves tellers for a habeas corpus bill passed five years earlier by the House of Commons.

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According to historian William S. Church, “Lord Norris, being a man subject to vapors, was not at all attentive to what he was doing; so a fat lord coming in, Lord Grey counted him for 10, as a jest at first; but seeing Lord Norris had not observed it, he went on with the misreckoning of 10.” Those for the bill were 57; those opposed 55. According to the minute book for the House of Lords, those in attendance totaled 107. Moments later, the House of Commons was summoned to join the House of Lords, where Charles II, the Merry Monarch (with 14 illegitimate children), conceding a political bone to his parliamentary opponents while strenuously opposing the Exclusion Bill which would have prevented his Catholic brother, James II, from ascending to the throne, passed the habeas corpus bill and then dissolved Parliament. As distinguished from past statutes, it specifically applied to warrants issued by the king’s ministers, thereby limiting the king’s prerogative. So now you know the rest of the story behind what Sir William Blackstone described in his Commentaries as the “most celebrated writ in English history.” History lives on in the law library.

Willamette Lawyer | Fall 2006 • Vol. VI, No. 2  

In a Class by Themselves - New Law Faculty at Willamette: Paul A. Diller and W. Warren H. Binford (center), who joined the law faculty in 20...

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