More Little-known Law

From Gray's Law Dictionary:

On the Hilarious History of Habeas Corpus

The term habeas corpus enjoys a lofty stature among jurists, commonly known as the "great writ." It is often trod out as the ultimate item of appeal, when a lawyer questions the legality of his client's imprisonment. Classicists will often relate the literal translation, "you have the body," as an explanation for the term's origin. This is a fair enough translation, but the term's actual conception occurred well after the Roman Empire's demise - 1500s London, to be exact.

Christopher Marlowe is sometimes credited as the "Real Shakespeare," but it was early London playwright Bartleby Cruikshank that might be described as the "Real Marlowe." It was Cruikshank's experiences in London gaols - he being a constant debtor - that gave rise to "Marlowe's" first popular play in 1581, a comedy of errors entitled, "The Forgetful Warden."

The play revolved around Hollis Borden, keeper of Newgate Prison. Borden was the cause of several comedic episodes within the prison because his constantly failing memory meant some prisoners, intended to stay for one night, would often languish in the cells indefinitely.

In one instance, Jenny Prattleswell pleads to Borden for the release of her lover, William. Borden, after finding William dead for want of food, serves up his long-lost and newly imprisoned twin, Hampton. Jenny is oblivious to the swap, attributing William's memory loss to a stay in gaol - Hampton merely happy to be free. Keen audience members, however, recognize that where William was missing his left ear, Hampton misses a right one.

The raucous appeal of the play usually peaked at the end of every act when Borden would, at the behest of the inquiring families, retreat to his prison officials and deliver the refrain:

"Have we his corpse?!"

Thus, the more familiar and Latin-ized term habeas corpus devolved from the Cockney pronunciation of this catchphrase, as the play was performed at the Rose Theatre, frequented with the more slovenly-tongued, lower-income crowds of Southwark.

We, of course, would find this warden's practice repulsive today. However, it seemed quite parodical to denizens of London at the time. It was quite common practice for family members to inquire at local gaols and have the existence of their imprisoned loved ones denied entirely.

Indeed, Alexandre Dumas romanticized this longstanding tradition in 1845 with The Count of Monte Cristo, seemingly offering hope to thousands of families that their relatives might one day return from prison. We know now, of course, that Dumas was doing no such thing, having instead been commissioned by the real Count of Monte Cristo to write the novel as a promotional tool for his many elaborate fêtes.

As for the term's legal inception, it was only when the play's revival nearly 300 years later grew in popularity among the learned - and therefore political - crowd that questions about the legality of this habit started being asked. Member of Parliament Lord Hailsham remarked to the House, "You may, my lords, have seen Shakespeare's recent play 'The Forgetful Warden,' and asked, much like myself - what if we were to produce a corpse!"

Eventually, the sentiment gained momentum and found its way into courts as a useful tool for resourceful lawyers. Stories are often told of barristers of the late 20th century serving the writ in front of Lord Denning - a lover of the theatre - and hearing him reply with another of Borden's famous phrases:

"Jenny Prattleswell but her lover don't 'ear it!"