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To Render, to Impeach, to Habeas Corpus


In 1667 Edward Hyde, the earl of Clarendon, and King Charles II’s principle advisor, received seventeen Articles of Impeachment from Parliament.

Many of these articles would be tempting to employ in drafting impeachment articles against Bush-Cheney. The eighth article in particular seems designed both for those tools as well as their masters in the current crop of CEOs, "That he hath in short time gained to himself a greater estate than can be imagined to be lawfully gained in so short a time." Of course you may object: what is a short time? Then, it took a diamond for example more than a year to reach England from where it was robbed in India, whereas nowadays robberies of surplus value are done in a twinkling. I will admit that to retain its usefulness the article requires modification.

This is not the case with the fourth article of impeachment which, in light of the American practice of what it is pleased to call "rendition" and the current attempt to "render" the prisoners at Guant·nomo Bay, needs hardly any modification at all.

The fourth article reads "That he hath advised and procured divers of his Majesty’s subjects to be imprisoned, against law, in remote islands, garrisons and other places, thereby to prevent them from the benefit of the law, and to introduce precedents for imprisoning any other of his Majesty’s subjects in like manner."

It was the practice of whisking people off to remote islands, garrisons and other places without any sort of judicial by-your-leave of the Magna Carta type ("no free man shall be taken, or imprisoned, or deisseised, or be outlawed, or exiled, or any otherwise destroyed … but by lawful judgment of his peers, or by the law of the land") which led to the enactment in 1679 of "An Act for the Better Securing the Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas," more familiarly known as The Habeas Corpus Act.

It was allusion to that Act which led to the habeas corpus provision in the U.S. Constitution. We might just as well note that it was "cruel and unusual punishment" provision of the English Bill of Rights (1689) which was included in the first ten amendments to the U.S. Constitution.

While one hopes, with Scalia preening in the wings, that Rehnquist’s tracheotomy will enable him to continue breathing and sitting in his present position as Chief Justice, nevertheless one has to point out that his book on the history of habeas corpus (not well served either by his research clerks or his editors) omits these crimes of rendition which provided the immediate background to the passage of the first modern legislation of ëthe great writ of liberty.’ CounterPunchers must discover the law to the appropriate justices in the lower courts who are considering the legality of American rendition lest they take it from one of the Supremes, the one who roars or the one who wheezes. Rendition is a foul, base, illegal, unconstitutional, pea-brained practice which once led to impeachment and ought to again.

And Clarendon? As a kind of poetic justice, though not exactly "rendered" himself, he was banished from his homeland to Calais where he suffered the rough justice of some English sailors in French service who robbed and assaulted him for arrears of pay, and then, ailing from advanced stages of gout, the poor wretch wandered from court to court in Europe penning his interminable history of church and king.

The impeachment of Clarendon, the Habeas Corpus Act, the Bill of Rights, not to mention Magna Carta, were milestones in the constitutional limitations upon the Stuart monarchy later much venerated by the working class movement whom Shelley, author of "The Revolt of Islam," advised to rise like lions after slumber, &c., to rub the sleepers from our eyes and stuff like that, before concluding with the important strategic observation, "Ye are many, they are few," which works alright in the abstract but not so well yet in our actuality.

PETER LINEBAUGH teaches history at the University of Toledo. He is the author of two of CounterPunch’s favorite books, The London Hanged and (with Marcus Rediker) The Many-Headed Hydra: the Hidden History of the Revolutionary Atlantic. He can be reached at: plineba@yahoo.com


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