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Chains of Consequences: How the Principle of Habeas Corpus comes from a Seventeenth Century Fat Joke

By Tom Anderson

Habeas Corpus, Latin for ‘you have to have the body’, is one of the most celebrated fundamental principles of liberty in society.

The purpose of this is that someone accused of a crime cannot be imprisoned unlawfully and have their fate decided without their presence in court. If someone is detained, a ‘writ of habeas corpus’ can be issued to order a court to rule on whether that detention if lawful. The guarantee of habeas corpus therefore prevents the powerful from locking up their opponents without trial—although, alone, it does not guarantee any trial will be free and fair.

Nonetheless, habeas corpus has become an important and significant symbol that is used as a diagnostic for a free society. That a country had habeas corpus in law is often invoked as a sign of that country’s freedom; conversely, a common shorthand in fiction to indicate a nasty regime has taken over is that it loudly and publicly declares the right to habeas corpus is suspended (for a recent example, this is used in Disney’s Pirates of the Caribbean films). In fact this is a very modern, hindsight-driven view; in reality the suspension of habeas corpus in that sort of era was not only the act of governments now universally reviled, but was also practiced in time of war or feared revolution by figures which are generally well regarded—such as William Pitt the Younger.

Nonetheless, the principle has taken on a greater public perception because of its important symbolism. It is frequently observed now that members of the public often possess inaccurate ideas about how the law and law enforcement works due to being influenced by TV dramas (particularly if they are made in different countries with different legal systems!) This is nothing new, however, and these sorts of misunderstandings long predate television.

The use of Latin by the legal profession (like some others) creates a form of gatekeeping jargon which excludes the average person and can lead to misunderstandings. Indeed, misinterpreting legal Latin in particular is a longstanding (and slightly classist) joke among educated Britons (particularly in a public school context, such as stating that in loco parentis means ‘my dad’s an engine driver’. (It actually refers to someone being ‘in place of a parent’, i.e. a legal guardian of a child). Similarly there have been examples of people assuming habeas corpus means ‘you have to have the body [of a murder victim]’, or alternatively that the term corpus delicti (‘body of the crime’) is interpreted in a similar light. The British 20th century serial killer John George Haigh disposed of his victims’ remains in acid baths supposedly for this reason, which likely helped create a particular trope in crime fiction. Prior to this time, quicklime had been more often invoked as a means to destroy the evidence of murders, likely inspired by how the earlier notorious murderer Dr Crippen had used it—although, as crime writer R. Austin Freeman later noted along with others, the scientific experts at the Crippen trial had actually misrepresented the chemistry, and quicklime would actually preserve not destroy a body. Despite this, it showed up many times in fiction with incorrect properties ascribed to it—again, one does not need television to mislead the public!

But to return to the principle of habeas corpus: clearly this has underwritten our whole conception of modern liberty—but what if I told you it only exists because someone in the 17th century made a fat joke?

The House of Lords in this era - as shown a couple of decades later in the time of Queen Anne

In 1679 the Parliament of England stood at a crossroads. Following the English Civil War and the republican dictatorship of Cromwell, the monarchy had been restored in the person of Charles II. But Charles had no legitimate heirs, meaning the crown would pass to his brother James, Duke of York (after whom the city of New York was named) on his death. James was openly Catholic and there was a great fear among both the establishment and many ordinary subjects that he would attempt to reimpose ‘popery’ on the country, as well as ruling arbitrarily, as his father Charles I had. A sizeable faction in Parliament, the Exclusionists, wanted to prevent James from taking the throne by any means necessary. The following year this would eventually blow up in the Exclusion Crisis, where the Exclusionists led by Lord Anthony Ashley, 1st Earl of Shaftesbury, attempted (and failed) to pass a bill explicitly preventing James from taking the throne. The Tory backlash against this would lead Shaftesbury to flee the country for the Dutch Republic (where he died soon afterwards) to escape being arrested for High Treason. Shaftesbury is nonetheless remembered, among other things, for his work on the first constitution for the colonies that became North and South Carolina, for which he is thought to have received help on from the great philosopher John Locke. Shaftesbury Avenue in London is named for his descendant the 7th Earl, also a prominent politician for a later age.

To return to 1679, at this stage Shaftesbury and the Exclusionists were still working through indirect means, fearing that James would eventually become King (as he did, though he would eventually be overthrown in the Glorious Revolution when he fled the country). One way in which the damage the Exclusionists feared might be limited would be to place limits on the King’s ability to dispense justice arbitrarily on his terms. (This proved to be a valid concern; in 1685 after James became King, the ‘Hanging Judge’ Judge Jeffreys responded to the Monmouth Rebellion by arbitrarily executing people across the West Country in the ‘Bloody Assizes’, as well as enslaving many more and sending them to die on plantations in the West Indies).

To this end, Shaftesbury asked his supporters in the House of Commons proposed a Habeas Corpus Bill. This was not the first appearance of the idea of habeas corpus, of course; some trace it back Henry II’s Assize of Clarendon legal reforms as far back as 1166. Magna Carta (1215) has also been argued to enshrine the principle—it certainly does so for trial by jury. In 1640 at the start of the Civil War Parliament had passed a Habeas Corpus Act to abolish the arbitrary and capricious legal power of Charles I’s Star Chamber, which had unilaterally executed favourites now out of favour. However, Shaftesbury’s Act—in part because it was portrayed by post-Glorious Revolution historiography as a clash between whiggish Liberty and the arbitrary popish dictatorship of King James—is the one which led to habeas corpus being copied throughout what became the British Empire, including the United States, and elsewhere.

The House of Commons voted in favour of the Habeas Corpus Bill, but when it was sent to the House of Lords, it was clear opponents slightly outnumbered supporters. The accession of James was the polarising issue of the day, and indeed ultimately led to the first organised English political parties, the Whigs and Tories. The Lords attempted to stop the bill with irrelevant wrecking amendments—a common practice of the day and frequently seen today in the United States Congress. The bill went back and forth between the Houses, but it became clear that the King proposed to end the Parliamentary session soon, so the Commons would have to pass the amended bill or give up. The Lords held a vote on whether to have a conference on the bill; if defeated, the bill would remain in the Commons and proceed no further.

The pro- and anti- sides on the bill each appointed a teller to count the Lords going through the doors for ‘aye’ or ‘nay’ (a practice still used in Parliament today, though many long-dead commentators have confidently predicted it will be reformed any day now). One teller counted aloud, the second acted as a check on his count. The pro-habeas corpus side appointed Lord Grey, while the anti- side appointed Lord Norris, who suffered from one of the illnesses collectively at the time described as ‘the vapours’. Shaftesbury’s ally Gilbert Burnet, Bishop of Salisbury, later recounted what happened: a very fat Lord went through the ‘aye’ door, Grey made a joke where he counted the Lord in question as ten votes, expecting Norris to correct him—but due to Norris’ illness, he missed the incident and let the ten votes stand.

This might have not had such an impact on history, except (according to the clerk’s records) the bill was passed by 57 votes to 55. This totalled 112, but only 107 Lords had even been present. However, this was apparently missed at the time. King Charles II arrived and gave Royal Assent before ending the Parliamentary session.

And so, this core fundamental principle of English liberty—later repeated in France’s revolutionary Rights of Man and elsewhere—ultimately owes its enshrinement into law to a fat joke.

This wasn’t the only surprisingly influential decision made in an off-the-cuff manner in this volatile period of English history—stay tuned to the Consequences article series for more...



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