How the Law Came to Rule, Part II

Dear readers,

in this post, we continue to talk about the historical context of the rule of law from the book titled The Rule of Law by Tom Bingham.

Historical context: Part II

II. Habeas Corpus (the challenge to unlawful detention)

Specifically the old writ (a formal document ordering action or cease of action in a matter) of habeas corpus. The accused party is to be present at the court process along with a representative of the institution or authority detaining them. This representative is then required to prove that the detainment is lawful and necessary. If they fail to do so, the detainee is released. If they give sufficient reason for the detainment in the eyes of court, the detainee remains in detainment. Due to its simplicity it’s been adopted by other countries as well, e.g. the USA.

III. The abolition of torture

In the past, it was not uncommon to witness torture during the trial (e.g. the accused being forced to hold molten iron or being forcefully immersed in water). If the accused survived, it was perceived as a sign of their innocence from God.

In 1215 the Lateran Council (council created by Pope Innocent III) viewed the practice as cruel. As a result of the disapproval of this authority, many countries in Europe began making changes.

The following versions of procedure were adopted:

England and Wales

Basically the predecessor of the jury trial. The defendant was put before a jury (group of 12 men in this case) and evidence was called against them. One witness, if believed, was enough. The defendant couldn’t testify themselves, but could call witnesses. The jury made the decision.

Continental Europe

In theory, for a defendant to be convicted, there had to either be two witnesses corroborating each other or a confession from the accused.

In practice however, it was difficult to find the two witnesses and the defendant very often refused to confess. Because of that, the officials often resorted to torture as a means to getting a conviction. This was very common, thus making the whole idea pointless.

The English courts completely rejected torture during trials no latter than the 15th century. This set them apart from continental Europe and earned them praise from authorities such as Voltaire. English common law (law created and administered by judges on a case to case basis) adamantly set its rules against torture, considering the following reasons:

1. The cruelty of the torture in relation to those who are in the end not convicted of any crime.

2. The unreliability of the evidence obtained in this way.

3. The belief that the practice degraded all involved in it, the practitioners, the people receiving it as well as any institutions utilising its fruits.

Despite that there were cases of torture being used (or attempts to use it having been made) in England after its rejection by common law courts. This issue posed a point of disagreement between the Crown and the parliamentary lawyers.

E.g (unverified) . In 1628, in the case of a naval officer, J. Felton, the story is that King Charles I asked for the accused (Felton) to be put to the rack (a form of mediaeval torture) to reveal his accomplices in his crime of stabbing George Villiers, the Duke of Buckingham (King Charles I’s close friend) and Lord High Admiral of England.

In the year 1640, the Court of Star Chamber was abolished, as it was proven that it had accepted proof obtained by torture. In fact, most European countries officially (and usually in practice) abolished torture by the 19th century.

IV. The Petition of Right (1628)

In the famous case of the five knights, a case where five knights were taken into custody for not paying back loans which were forced on them by King Charles I, the rule of law in England was solidified even more. These knights weren’t paying the loans back, so they were taken into custody. The problem was that after they invoked the habeas corpus writ (see above), their request was denied and the reason given was that they were being detained under his majesty’s special command. In the end the knights were released, after the loans had been paid off.

The whole case posed the question of whether the king’s actions should be above law or fall under it. The Petition of Right was accepted, making it clear that to detain and prosecute someone for a legal reason, a breach of law, had to be stated and proven. The word of those in power was no longer enough.

V. Sir Mathew Hale's resolutions

Sir Mathew Hale was Chief Justice of the King’s Bench from 1661-1667. These resolutions date to the 1660s and are thought to be a guide for his work as a judge.

He sets out to be focused on the work, impartial, just, conscientious, not swayed by the public opinion and a few others. Many of his resolutions are still relevant today and are the framework for judges of the modern age.

VI. The Habeas Corpus Amendment Act 1679

When monarchy was restored after the civil war and Cromwellian Commonwealth, the Earl of Calderon became King Charles II’s chief minister. In the execution of his power, he sent prisoners to the outlying parts of the United Kingdom to serve their sentence there. The reason for this was simple: the writ of habeas corpus (the opportunity for the detained to ask for release and to be given a lawful reason for their detainment) was only used in the territory of England and Wales at the time, thus making it possible for people to be imprisoned without any legitimate reason.

After multiple unsuccessful attempts from the House of Commons to rectify this abuse, finally, in 1979 The Habeas Corpus Amendment Act was successfully passed by both the House of Commons and the House of Lords. This only happened thanks to a close majority in favour.

Unfortunately it’s possible to find instances similar to those under Calderon in more recent history. The United States Government may have been influenced by them in their detainment of terrorist suspects at Guantanamo Bay - a US military base in Cuba.

READ MORE IN PART III, COMING SOON

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*