When we left off at the conclusion of the first installment of this article, we had traced bail from ancient Rome, through medieval England, and into the Renaissance and Age of Exploration, seeing the law as it stood in the 16th century.

From a chronological perspective, the next significant development pertinent to our discussion was the English Petition of Right of 1628, which, among other things, prohibited imprisonment without a charge. The Habeas Corpus Act of 1640, as amended in 1679, codified the common law writ of the same name, to compel a court inquiry into the lawfulness of detention; the act(s) additionally provided for speedy resolution, stipulating that the prisoner be produced and the writ heard within specified time limits (three, ten, or twenty days), depending on the distance needed to travel to court. It should be noted that the writ, which first appears in the records in the 11th century under William the Conqueror, was originally the opposite of what we think of today: it was a device to bring a resistant defendant into court, known as the writ of habeas corpus ad responendum (have the body to answer). By the 14th century, however, prisoners were combining it with other writs, such as certiorari, which sought to bring the case (and the defendant) from a lower court to a higher tribunal. Eventually, that stitched together process evolved into a writ in its own right, habeas corpus cum causa (with cause), which asked the higher court to look into whether the detention was justified.

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