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Many legal observers have likened President George W. Bush’s actions to the deeds of English kings. But the comparison is unfair — to those kings. By signing the Military Commissions Act on Oct. 17, the president did something that no king has ever done: He suspended the writ of habeas corpus indefinitely for a whole class of people. With a few quick strokes of his pen, he cut off a 400-year-long conversation through which we have used law to pronounce and defend our principles every time we send someone to prison. The English experience with habeas corpus in the centuries before our Constitution was written remains central to the American understanding not only of law, but of our moral and political selves. So it is fit that we look back to that history as we consider what the president has done by denying habeas relief. Legal scholars typically tell the tale of the Great Writ by lining up a few leading cases, punctuated by the Habeas Corpus Act 1679. Sprinkle this with some heroic words from Blackstone, and we have a neatly packaged story. But what of the daily experience of the writ in English courts? What of a history we might use to think through the problems that confront us now? Results in recent Supreme Court decisions — and in the litigation sure to come — turn on claims about the writ’s English past. WE WILL TALK ABOUT IT In the three centuries before we put the Great Writ in our Constitution, more than 11,000 people came into the Court of the King’s (or Queen’s) Bench on writs of habeas corpus. These writs said nothing about freedom. They directed jailers to bring in their prisoners and state the “cause of their arrest and detention” so that the prisoners might “undergo and receive” the court’s judgment about what should become of them. Many of these writs involved quite common allegations of statutory violations, from refusing to pay support for illegitimate children to laughing in church. Others addressed cases of more spectacular wrongs against the state during civil war in the 1640s or during spells of feared invasions, foreign wars, and even rebellions at home in the 1700s. The range of allegations and jurisdictions concerned is astonishing; the powers of the judges when using this writ even more so. Habeas ran to all jurisdictions under the English crown, even to those where other writs did not go, because no question needed a sound answer more than, “Why has the prisoner been locked up?” What happened in court was the central act, a conversation in which every legal matter could be explored. Judges peppered lawyers, prisoners, and jailers with the kinds of questions that go to the heart of legal authority: What must an arrest warrant contain? How shall we prevent perpetual imprisonments? May someone be the judge of his own cause? Just what is “the law of the land,” which, under the Magna Carta, must provide the foundation of any proper order of imprisonment? In many ways, all the other questions were just variations of this last one, asked over and over from different angles. The law of the land was English and much more. Common law, statutes, and equitable practices were invoked. The laws of nature and the laws of God were examined. Imprisonment raised the most serious moral problems, to which the law had to provide good answers. So the conversations ranged widely in a way that no legal instrument but the Great Writ would allow. HAST THOU APPEALED UNTO CAESAR? Like President Bush today, English lawyers then read their Bibles carefully. Some of their favorite passages narrate another conversation: the trial of the apostle Paul in the Book of Acts. In Acts 25, Paul, who has been accused of stirring up dissension and trying to desecrate the temple, is brought before Festus, the Roman procurator of Judea. Hundreds of years later English judges looked at his response and admired Roman law, for Festus proceeds to lay out the basic procedural rights that must be available to all. Festus says that prisoners must be told the accusations against them, that all proofs against them must be outlined, and, most importantly, that they must be able to answer charges before a judge and have the opportunity to appeal to the highest authority. As Festus explained, “It is not Roman practice to hand over any accused man before he is confronted with his accusers and given an opportunity of answering the charge.” The English marveled that a “heathen” judge knew so well what was required. They could do no less than to meet the Roman’s example in his care for the accused and then strive to exceed him. As they worked through stacks of writs, one decade after the next, English judges made sure they did just that. To see the meaning of habeas corpus aright, we might think of these 11,000 courtroom conversations as one long conversation. The writ’s history is not just a few leading cases and statutory pronouncements. It is a story of constant engagement with the most important problems lying at the intersection of law and morality. And on every writ, we have talked through the most important issues. We have ensured that we use and maintain law, even toward those who frighten us most. When we do that, we defend those moral concepts that make us a nation with a heritage worth venerating. President Bush concluded a September speech supporting the Military Commissions Act and its habeas-stripping provisions with words of hope: “May God bless you all.” Shall we end the long conversation about habeas with a “God bless you”? No. At least not without asking God’s blessings for St. Paul and all prisoners. Of course, if we still ask for such blessings, then we won’t end the conversation. English judges knew this. Let us listen again to what they can teach us.
Paul Halliday is an associate professor of history at the University of Virginia in Charlottesville. He is writing a book on habeas corpus and English society from 1500 to 1800.

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