Harvard University Press has assembled some exceptionally complimentary remarks from eminent scholars for the back cover of Paul D. Halliday's book on habeas corpus. The comments are all true. Halliday has written a stunningly good book based on an astonishing range and depth of research. The learning is worn lightly in the text itself, which is highly readable and makes strikingly effective use of case narratives both to introduce chapters and to illustrate points. This is a book accessible to the educated lay reader as well as to the professional historian.

The scope of the research is apparent from the book's chronological range, from 1500 to the twentieth century, and its geographical range, that of the furthest reaches of the British Empire at its height. Its depth is only obvious to the reader who consults the short appendix (319–33) which summarizes one of the core elements of the book's argument, a statistical survey of habeas corpus cases in the King's Bench records in every fourth year from 1502 to 1798; or who follows references to the 117 pages of endnotes (336–453).

The result is that Habeas Corpus: From England to Empire is pretty much certain to become the standard reference on the history of habeas corpus. It will be necessary reading for anyone who proposes to write on more general topics of English constitutional history and/or, the relationship of law and politics in England and its Empire between the late sixteenth century and the twentieth century. This implies that it will also be necessary reading for writers on United States constitutionalism.

Having therefore joined the chorus of endorsement for a book that will certainly become a classic of legal and constitutional history, I would like also to raise a question about the book's argument.

As Halliday himself identifies at the beginning of the book, his book is to a considerable extent a revisionist project: a critique of the “Whig interpretation” of history, in which legal control of imprisonment, primarily by habeas corpus, was a part of a historical process whose natural outcome was nineteenth- and twentieth-century liberalism.

This critique is reflected in several aspects of the book. In the first place, the writ itself and its power and reach are made to grow out of its “prerogative” character: the liberties of the subject, and control over imprisonment, are rights of the Crown enforced through King's / Queen's Bench. This character accounts also for the identification of the “subjects” who can apply for habeas corpus as all those, whether English-born or alien-born, who are in the protection of the King or Queen—therefore including aliens detained by the monarch's jailers.

Secondly, Halliday sees parliament largely as an (initially perhaps unintentional) enemy of the writ. The judicial practice extended the writ, making parliamentary reform unnecessary; parliamentary reform, when it came, had the effect of limiting the “common law” scope of the writ; it also created conditions where parliament could and did restrict the operation of the writ, whether by parliamentary “suspensions” of habeas corpus, by aliens legislation, or by the creation of forms of statutory authority for detention without trial. In the conditions of empire, these often involved a scale of mass detentions and deportations that would have been unthinkable for the Tudor or Stuart governments, who are the villains of the Whig narrative.

Halliday's framing narrative, then, falls within the “Revisionist” school of seventeenth–eighteenth century English political history; and this is to a considerable extent reflected in the secondary literature on this period he cites. “Post-revisionist” authors, who have returned to a narrative of real constitutional conflicts in the period, play a considerably less significant role. Nor (perhaps understandably) does he use “new institutionalist” economic historians’ treatments of England's (and the Netherlands’) economic development in comparison with that of the “absolutist” regimes elsewhere in Europe, which have again pointed to real constitutional changes, away from personal monarchy, as enabling economic take-off.

The question this poses is whether Halliday's choice of a “Revisionist” framing narrative is one actually forced upon him by his evidence (as he hints in the Acknowledgements at p. vii) or whether it is merely an interpretive choice based on the context of the general literature chosen.

It is here that the literary quality of the book becomes in an odd way a problem. The chapters are partly thematic and partly chronological. The result is that they are neither strictly analytical nor strictly chronological. In terms of readability the result works brilliantly. It does, however, make it hard to make a critical assessment of the extent to which the framing narrative itself is required by the evidence used.