The Habeas Corpus Act 1679 is an

Act of Parliament Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliame ...

in England (31 Cha. 2 c. 2) during the reign of King Charles II. It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...

'', which required a court to examine the lawfulness of a prisoner's detention and thus prevent unlawful or arbitrary imprisonment.

Earlier and subsequent history

The Act is often wrongly described as the origin of the writ of ''

''. 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

Assize of Clarendon The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts. Prior systems for deciding the winning ...

of 1166. It was guaranteed, but not created, by Magna Carta in 1215, whose article 39 reads (translated from Latin): "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." The Act of 1679 followed an earlier Habeas Corpus Act of 1640, which established that the command of the King or the

Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mo ...

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.

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 The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. Th ...

Justices of the King's Bench A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...

, and the

Barons of the Exchequer The Barons of the Exchequer, or ''barones scaccarii'', were the judges of the English court known as the Exchequer of Pleas. The Barons consisted of a Chief Baron of the Exchequer and several puisne (''inferior'') barons. When Robert Shute was a ...

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.

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 James VII and II (14 October 1633 16 September 1701) was King of England and King of Ireland as James II, and King of Scotland as James VII from the death of his elder brother, Charles II, on 6 February 1685. He was deposed in the Glorious ...

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 amendment In legislative debate, a wrecking amendment (also called a poison pill amendment or killer amendment) is an amendment made by a legislator who disagrees with the principles of a bill and who seeks to make it useless (by moving amendments to eithe ...

s 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 A legislative session is the period of time in which a legislature, in both parliamentary and presidential systems, is convened for purpose of lawmaking, usually being one of two or more smaller divisions of the entire time between two election ...

. 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 Gilbert Burnet (18 September 1643 – 17 March 1715) was a Scottish philosopher and historian, and Bishop of Salisbury. He was fluent in Dutch, French, Latin, Greek, and Hebrew. Burnet was highly respected as a cleric, a preacher, an academi ...

, 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.Quoted in J. E. Powell, ''Great Parliamentary Occasions'' 1966: The Queen Anne Press. p. 65.

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. The king arrived shortly thereafter and gave

royal assent Royal assent is the method by which a monarch formally approves an act of the legislature, either directly or through an official acting on the monarch's behalf. In some jurisdictions, royal assent is equivalent to promulgation, while in oth ...

before proroguing Parliament. The Act is now stored in the

Parliamentary Archives A parliamentary system, or parliamentarian democracy, is a system of democratic governance of a state (or subordinate entity) where the executive derives its democratic legitimacy from its ability to command the support ("confidence") of t ...

Application in New Zealand

The ''Habeas Corpus Act 1679'' 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.

Notes

External links