Habeas Corpus Act 1679

The Habeas Corpus Act 1679 is an Act of Parliament in England (31 Cha. 2 c. 2) during the reign of King Charles II.[2] It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus, which required a court to examine the lawfulness of a prisoner's detention and thus prevent unlawful or arbitrary imprisonment.[3]

Habeas Corpus Act 1679[1]
Long titleAn Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas
Citation31 Cha. 2. 2
Dates
Royal assent27 May 1679
Other legislation
Amended by
Status: Amended
Text of the Habeas Corpus Act 1679 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

Earlier and subsequent history

The Act is often wrongly described as the origin of the writ of habeas corpus. But the writ of habeas corpus had existed in various forms in England for at least five centuries before and is thought to have originated in the 12th Century Assize of Clarendon.[4] It was guaranteed, but not created, by Magna Carta in 1215, whose article 39 reads: "No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land."[3] The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the Privy Council was no answer to a petition of habeas corpus. Further Habeas Corpus Acts were passed by the British Parliament in 1803, 1804, 1816, and 1862, but it is the Act of 1679 which is remembered as one of the most important statutes in English constitutional history. Though amended, it remains on the statute book to this day.[5]

Content

In criminal matters other than treason and felonies (a distinction which no longer exists), the act gave prisoners or third parties acting on their behalf the right to challenge their detention by demanding from the Lord Chancellor, Justices of the King's Bench, and the Barons of the Exchequer of the jurisdiction a judicial review of their imprisonment. The act laid out certain temporal and geographical conditions under which prisoners had to be brought before the courts. Jailors were forbidden to move prisoners from one prison to another or out of the country to evade the writ. In case of disobedience jailers would be punished with severe fines which had to be paid to the prisoner.[6][7]

Parliamentary history

The Act came about because the Earl of Shaftesbury encouraged his friends in the Commons to introduce the Bill where it passed and was then sent up to the House of Lords. Shaftesbury was the leading Exclusionist—those who wanted to exclude Charles II's brother James, Duke of York from the succession—and the Bill was a part of that struggle as they believed James would rule arbitrarily. The Lords decided to add many wrecking amendments to the Bill in an attempt to kill it; the Commons had no choice but to pass the Bill with the Lords' amendments because they learned that the King would soon end the current parliamentary session.

The Bill went back and forth between the two Houses, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each side—those voting for and against—appointed a teller who stood on each side of the door through which those Lords who had voted "aye" re-entered the House (the "nays" remained seated). One teller would count them aloud whilst the other teller listened and kept watch to know if the other teller was telling the truth. Shaftesbury's faction supported the motion, so they went out and re-entered the House. Gilbert Burnet, one of Shaftesbury's friends, recorded what then happened:

Lord Grey and Lord Norris were named to be the tellers: Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so, a very fat lord coming in, Lord Grey counted him as ten, as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported that they that were for the Bill were in the majority, though indeed it went for the other side: and by this means the Bill passed.[8]

The clerk recorded in the minutes of the Lords that the "ayes" had fifty-seven and the "nays" had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.[8]

The King arrived shortly thereafter and gave Royal Assent before proroguing Parliament. The Act is now stored in the Parliamentary Archives.

Application in New Zealand

The Habeas Corpus Act 1679[9] and the later acts of 1803, 1804, 1816 and 1862 were reprinted in New Zealand as Imperial Acts in force in New Zealand in 1881.[10]

Notes
  1. The citation of this Act by this short title was authorised by the Short Titles Act 1896, section 1 and first schedule. Due to the repeal of that provision it is now authorised by the Interpretation Act 1978, section 19(2)
  2. "Charles II, 1679: An Act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas". Statutes of the Realm: volume 5: 1628–80 (1819). British History Online. pp. 935–938. Retrieved 6 March 2007.
  3. "A brief history of habeas corpus". BBC News. 9 March 2005. Retrieved 25 October 2014.
  4. "Assize of Clarendon, 1166". The Avalon Project. Retrieved 2 October 2016.
  5. "Habeas Corpus Act 1679". Legislation.gov.uk. Retrieved 2 October 2016.
  6. Acevedo, John Filipe (212). Miller, Wilbur R. (ed.). The Social History of Crime and Punishment in America: An Encyclopedia. London, United Kingdom: SAGE Publications Ltd. p. 729.
  7. Jon. E. Lewis., ed. (2003). A Documentary History of Human Rights. New York: Carroll & Graf Publishers. p. 267. Habeas Corpus Act (1679). In 1660, the Stuarts re-ascended the throne of England. Old tendencies towards Catholicism and absolutism proved little diminished, however, and a prudently watchful parliament determined to pass an Act enshrining Habeas Corpus. This was an ancient English right that, if a man was imprisoned by a local lord, his friends could request the king to issue a writ commanding the man who 'have the body' (Habeas Corpus) of the prisoner to bring the prisoner before a magistrate for a proper trial. Under a tyrannous king, such as Charles I, the process could be wilfully ignored. In 1679, Parliament passed the Habeas Corpus Act against future abuse.
  8. Quoted in J. E. Powell, Great Parliamentary Occasions 1966: The Queen Anne Press. p. 65.
  9. "Habeas Corpus Act 1679". New Zealand Law online.
  10. "Habeas Corpus Acts". New Zealand Law online.

See also
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