CRF Blog

‘This in no wise omit’

by Bill Hayes

In ‘This in no wise omit’ for the London Review of Books, Tom Bingham reviews Habeas Corpus: From England to Empire by Paul Halliday.

Cherished for centuries as the great bulwark of British liberty, the remedy of habeas corpus has in recent years lost much of its practical importance. Experienced judges may retire without ever having granted the remedy, or being asked to do so. This is not because today’s judges are less protective of personal liberty than their forebears – perhaps the reverse is true. It is because the function of habeas corpus has, to a large extent, been subsumed within the versatile and extensive coverage of judicial review. To many traditionalists this decline is a source of regret. Not the least merit of Paul Halliday’s enthralling and scholarly historical survey, focusing primarily on the years 1500-1800, is to remind us of what could be seen as the glory days of habeas corpus.

John Anderson was a slave in Missouri. Separated from his wife and family, whom he wished to visit, he came into conflict with his master and owner, who decided to resolve the problem by selling Anderson to another owner. In 1853, Anderson escaped and made for Canada. After three days’ travel, still in Missouri, he encountered a man called Seneca Digges, who suspected he was a runaway and tried to enlist him as one of his own slaves. There was a chase and a scuffle in which Anderson inflicted knife wounds from which Digges died two weeks later. Anderson meanwhile made it across the Canadian border to Windsor, where he established a new life. Not until March 1860 was he recognised as Digges’s fugitive murderer. He was taken into custody, and proceedings were begun for his extradition to Missouri. To avoid extradition he applied for habeas corpus to the Queen’s Bench court of Upper Canada in Toronto. There, one judge found in his favour, holding that a killing committed while fleeing slavery amounted to justifiable homicide by natural law. But a majority, having regard to treaty obligations, ordered that Anderson remain in jail to await extradition to Missouri.

Anderson’s abolitionist supporters considered appealing to the judicial committee of the Privy Council in London, but instead applied for habeas corpus to the court of Queen’s Bench in Westminster. [more]