The Online Library of Liberty

A project of Liberty Fund, Inc.

• Associate Editors
• Editorial
• Bibliographical Essay: Economics and Ideology: Aspects of the Post-ricardian Literature
• I: Political Economy
• The Classical Model of Political Economy
• Modernization, Ideology, and Economic Freedom
• Individualism Vs. Collectivism?
• The Industrial Revolution and Literacy
• Parliamentary Enclosure and Uprooted Labor
• Smith's Critique of Monopoly
• Ricardo and the “dual Development”
• Ricardo On Money
• Inflation and Political Crisis: Germany
• Inflation and Unemployment
• Government and Inflation: the Mccracken Report
• II: Concepts of Liberty
• Liberty and Its Components
• Is the Right to Freedom Vacuuous?
• Liberty, Slavery, and Utilitarianism
• Individualism, Freedom, and Society
• Liberty and Habeas Corpus
• Should Britain Have a Bill of Rights?
• Locke, Women, and Freedom
• Locke, Women, Freedom, and Individualism
• Locke, Property, and Individualism
• Children, Freedom, and Individualism
• Liberty and Mental Illness
• Sismondi and Liberty
• Mill: On Liberty
• Mill, Freedom, and Happiness
• Freedom of Speech and Moral Development
• Freedom In Kant, Hegel, and Marx
• Marx, Freedom, and Property
• Neoconservatives, Liberty, and Equality
• Freedom: the Politics of Justice and Existence
• Liberty and the American Revolution
• American Libertarians
• III: Economics and Public Policy
• How Economics Influences Political Theory
• Why Democracies Choose Deficits
• Inflation and the Welfare State
• Monetarism and the Depression
• Asian Monetary History: Gold & Silver
• Specie Money Vs. Antibullionists
• Inflation Effects On Capital
• Consumption of Public Health Services
• Factory Regulation and Vested Interests
• Poverty Programs and Government
• The Costs of Regulating Market Information
• Rent Regulation
• Engels On Economics
• IV: Social Analysis
• The Depoliticization of Society
• Is Philosophy Politically Subversive?
• Plato's Republic As a Political Dystopia
• Cicero and Modern Political Philosophy
• The Roman Jurist Gaius and Social Thought
• The Myth of Social Hierarchy
• Contract and Political Thought
• Private Vs. Public: the Domain of Freedom
• Montaigne and the Value of Tolerance
• Commerce, Utility, Character, and Republicanism
• Quintin Skinner and Western Political Thought
• Public Choice
• Editorial Board
• Contents of Vol. 33 No. 2
• Contents of Vol. 33 No. 3

Liberty and Habeas Corpus

Linda S. Popofsky

“Habeas Corpus and ‘Liberty of the Subject’: Legal Arguments for the Petition of Right in the Parliament of 1628.” The Historian: A Journal of History 41 (February 1979): 257–274.

The debates taking place at the time of the adoption of the Petition of Right in 1628 made an important contribution to individual liberty. Specifically, the arguments of a small group of common lawyers, led by Sir Edward Coke, in the House of Commons rested on the assumption that the common law was inviolable. These arguments supporting legally sacrosanct human rights constitute the lasting significance of the 1628 Petition. Although the lawyers' arguments may well have relied on a questionable reading of Magna Carta and other common law precedents, their willingness to stretch the law did not lead them to advance a theory of judicial supremacy in England's government. Rather, they persisted in the traditional view that the rights of subjects and the powers of the Crown were both secured by the common law as reaffirmed by the judiciary.

The immediate occasion for the dispute arose over Darnel's Case, also known as the Five Knight's Case. The knights in question had been imprisoned by special mandate of the king for refusing to consent to a forced loan. Their lawyer, John Selden, claimed that imprisoning them before indictment violated Magna Carta. By such imprisonment, persons might be condemned to “legal death,” languishing in prison indefinitely without ever being brought to trial.

In the parliamentary debates on the bill, Coke and the other common lawyers attempted to tie the privileges, rights, and immunities of Magna Carta to freedom from arbitrary arrest and imprisonment before trial. After the Petition of Right was passed in 1628, the king attempted to circumvent its provisions by requiring high sureties for bail and by refusing defendants the right to be present when their petitions came up for consideration. Although the king imprisoned several members of parliament in 1629, the principles of the Petition of Right were important precedents for later legislation.