Sparks Commentary: The Habeas Corpus Act and the English Bill of Rights influenced our Constitution

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

– Article 1, Section 9, Paragraph 2 of the United States Constitution

It might come as a surprise to say this, but the British have a real “Constitution,” even if it isn't all written down in one document like ours might seem to be. Rather, it would seem to be a constitution built out of multiple documents, such as the Magna Carta and the Petition of Right (both of which I have covered in prior posts). No less important are the Habeas Corpus Act and the English Bill of Rights, which were foundational for the rights of English-speaking countries. Like the other documents mentioned here, they would both have an enormous influence on the United States Constitution. I have covered the other documents mentioned here in some other posts of this series, so I will instead focus my attention here on the Habeas Corpus Act and the English Bill of Rights (both vitally important).

Parliament of England

When people talk about the “Habeas Corpus Act,” they usually mean the one passed in 1679

First of all, what is a “writ of habeas corpus,” and why would the Constitution require it? Basically, it's a document that allows accused persons who are unlawfully imprisoned (or otherwise detained) to petition the courts for a “speedy and public trial.” It thus prohibits them from being detained indefinitely, when there is no trial to authorize this detention by an unfavorable verdict. This sort of thing had been routinely done in prior times, when persons who had never been convicted of anything were thrown into prison for the rest of their lives at the monarch's whim or fancy. Indeed, this sort of thing (sadly) persists in many countries today. When historians of the British Constitution refer to the “Habeas Corpus Act” without specifying a year for it, they are usually referring to the version passed in 1679. The Habeas Corpus Act of 1679 is the law that is deservedly remembered as one of the founding documents of the British Constitution. With some revisions, it is still in force in the United Kingdom today. However, it was not the first law in English history to discuss the concept of “habeas corpus,” since there had also been a Habeas Corpus Act in 1640. Moreover, there had also been an earlier mention of habeas corpus in the “Magna Carta” (as was noted in a previous post of this series). Nonetheless, this is the act that most secured the rights of habeas corpus in practice; so it is well that we remember it as a positive development. Specifically, it influenced the Habeas Corpus Clause of the Constitution; which said that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Source: Article 1, Section 9, Paragraph 2 of the United States Constitution)

United States Constitution

To praise the Habeas Corpus Act, Alexander Hamilton quoted from Sir William Blackstone …

In the same essay where Alexander Hamilton would bad-mouth the Magna Carta, he had praised the Habeas Corpus Act by quoting Sir William Blackstone's “Commentaries on the Laws of England.” This work is better known as Blackstone's “Commentaries,” and was also one of the major influences on the Founding Fathers and the United States Constitution. Here is the passage from the Federalist Papers that quotes Blackstone's “Commentaries.” Alexander Hamilton said that “The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: 'To bereave a man of life,' says he, 'or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls 'the BULWARK of the British Constitution.'2” (Source: Federalist No. 84) The numbers “1” and “2” in the passage above – which I have transcribed here in a smaller font – are just references to Hamilton's sources in the footnotes. Footnote 1 is “Vide Blackstone's 'Commentaries,' vol. 1., p. 136” (Source: Federalist No. 84). Footnote 2 is “Vide Blackstone's 'Commentaries,' vol. iv., p. 438” (Source: Federalist No. 84). Thus Hamilton cited Blackstone's “Commentaries” twice in this paragraph, and referred to the author himself as “the judicious Blackstone” to boot – a high praise from a Founding Father.

Sir William Blackstone

… who had once referred to the Habeas Corpus Act as a “second magna carta”

If I may be allowed a quick aside about “the judicious Blackstone,” the extent of his influence on the Founding Fathers may be somewhat ironic, when you consider that he was back in Britain during the American Revolution. He actually died five years into the Revolutionary War, as it turns out, and had no sympathy for the American rebels when he died in 1780. But as shown above, that didn't stop the Founding Fathers from liking him, or stop Alexander Hamilton from quoting him in the Federalist Papers. They still seem to have liked his work, as these quotations would suggest, even when they disagreed with him about their own right to rebel against Great Britain. Blackstone also praised the Habeas Corpus Act in an earlier part of the “Commentaries” as “that second magna carta, and stable bulwark of our liberties” (Source: Book 1, Chapter 1). Since Hamilton would later bad-mouth the Magna Carta in this essay, I would tend to agree more with Blackstone on this subject than with Hamilton; although I would tend to agree more with Hamilton on another subject – namely, the Americans' right to rebel against the mother country in the first place.

Sir William Blackstone

A “trenchant reference to Blackstone” could quickly end an argument at this time

Despite the areas of disagreement noted here, Hamilton did hold “the judicious Blackstone” in high regard, and agreed with him on many other things. The modern political scientist Donald Lutz said that "The prominence of Blackstone would come as a surprise to many, and he is the prime candidate for the writer most likely to be left out in any list of influential European thinkers. His work is not readily available in inexpensive form, but like Montesquieu he was cited frequently by all sides. A trenchant reference to Blackstone could quickly end an argument. Such a respected writer deserves a much closer look by those studying American political thought." (Source: The American Political Science Review, Vol. 78, No. 1, March 1984, p. 195-196) Mr. Lutz actually estimates that Blackstone was more quoted by the Founding Fathers than any other thinker besides Montesquieu. (Source: the same document, p. 194) His influence upon the Constitutional Convention may have been comparable, in fact, to that of Locke or Montesquieu – or Sir Edward Coke, for that matter, whose influence I have noted elsewhere in this series. (Sir Edward Coke also had a great influence on Sir William Blackstone, but that's a topic for another post.)

Statue of Sir William Blackstone, in front of a federal court in Washington, D. C.

The English Bill of Rights (passed in 1689) had a major influence on our own Bill of Rights

And finally, there is the “English Bill of Rights” (passed in 1689), which reflected the thinking of the philosopher John Locke. Although Locke did not write it himself, his famous “Second Treatise on Government” came out in that same year, and had an influence on the ideas of the English Bill of Rights. (Although William Blackstone would also have some comments on the English Bill of Rights later on in his "Commentaries," I shall not quote further from those commentaries here. Since some have questioned whether Blackstone ever mentioned the 1689 Bill of Rights, see this post for evidence that he did.) The English Bill of Rights contained several complaints against King James the Second of England, who had just been ousted from power the year before because of his Catholic faith, and his attempts to grant religious liberty to Catholics and Protestant nonconformists. As you might imagine, this was something that angered the Anglican establishment of this time. This would eventually lead to the creation of the Act of Settlement in 1701, which made it so that only Protestants could become kings and queens of England. But at the time, the more immediate effect of the ouster of the king was the creation of the English Bill of Rights in 1689. It complained against King James the Second in a number of other ways – and often, accurately so. Although James was still alive when this bill was passed, he had been replaced as monarch by William and Mary of Orange, who had reluctantly agreed to allow this Bill of Rights. As Hamilton noted, it was “a Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights” (Source: Federalist No. 84). With some revisions, the English Bill of Rights is still in effect in the United Kingdom today. Along with documents like the Virginia Declaration of Rights, the English Bill of Rights was one of the biggest influences on the United States Bill of Rights; and many of its provisions found their way into that famous document.

English Bill of Rights (1689)

Specifically, it influenced the First, Second, and Eighth Amendments to the Constitution

For example, one clause said that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” (Source: English Bill of Rights 1689) Another clause said that “it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal” (Source: English Bill of Rights 1689). Although the freedom of speech mentioned here was not as broad as the kind found in our First Amendment, it was nonetheless an influence upon that famous document; which said that Congress shall make no law “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Source: First Amendment) Another clause said that “the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law” (Source: English Bill of Rights 1689). Although the “right to bear arms” here was not as broad as the kind granted by our Second Amendment, it was nonetheless an influence on this later amendment; which said that “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” (Source: Second Amendment) And lastly, another clause said that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (Source: English Bill of Rights 1689). The United States Constitution repeated this almost word-for-word in its Bill of Rights, saying that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Source: Eighth Amendment) With the exception of the change from “ought not to be” to “shall not be,” this wording is exactly identical.