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Habeas Corpus Act 1679^[1]
Act of Parliament
	Parliament of England
Long title	An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonment beyond the Seas.
Citation	31 Cha. 2. c. 2
Dates
Royal assent	27 May 1679
Other legislation
Amended by	Statute Law Revision Act 1863; Statute Law Revision Act 1888; Public Authorities Protection Act 1893; Short Titles Act 1896; Supreme Court of Judicature (Consolidation) Act 1925; Statute Law Revision Act 1948; Criminal Law Act 1967; Decimal Currency Act 1969; Courts Act 1971; Bail Act 1976; Criminal Justice and Public Order Act 1994; Constitutional Reform Act 2005;
Text of statute as originally enacted
Text of the Habeas Corpus Act 1679 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

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]

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 Assize of Clarendon of 1166.^[4] 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."^[3] The Act of 1679 followed an earlier Habeas Corpus Act 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 amendments to the Bill in an attempt to limit it, designed to protect the Lords from arrest by members of the Commons.^[8] However, 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 and they desired to see the Act enacted, even with limitations.^[8]

A popular but likely untrue anecdote holds claims that the Act only passed because the votes in favour were miscounted as a joke.^[9]^[10] When a parliamentary house votes on legislation, each side—those voting for and against—appoints a teller who stands on each side of a door through which those Lords who vote "aye" re-enter the House (the "nays" remain seated). One teller counts aloud whilst the other teller listens and keeps watch to verify the count.^[11] Of the Habeas Corpus Act count, Gilbert Burnet wrote,

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.^[12]

In the words of historian Helen Nutting, this miscount story is "highly improbable".^[9] Proponents of the story cite as supporting evidence a discrepancy between the vote total and the attendance count in the parliamentary minutes: 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. However, the attendance counts in the minute book were frequently inaccurate, and the attendance count is off by five rather than nine, undermining rather than supporting Burnet's reminiscence.^[13] According to Nutting, had the vote been miscounted, King James II would almost certainly have "taken advantage of a real miscount to overturn the act", since he opposed it.^[9]

King Charles II assented to the Act in 1679 since, Nutting explains, "it was no longer controversial".^[9] The Act is now stored in the Parliamentary Archives.

Application in New Zealand

The Habeas Corpus Act 1679^[14] 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.^[15] The 1679 act, along with the 1640 and 1816 acts, was retained in New Zealand law by the Imperial Laws Application Act 1988. They were later repealed and replaced by the Habeas Corpus Act 2001.^[16]^[17]

Notes

^ 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)
^ "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.
^ ^a ^b "A brief history of habeas corpus". BBC News. 9 March 2005. Retrieved 25 October 2014.
^ "Assize of Clarendon, 1166". The Avalon Project. Retrieved 2 October 2016.
^ "Habeas Corpus Act 1679". Legislation.gov.uk. Retrieved 2 October 2016.
^ 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.
^ 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.
^ ^a ^b Gregory, Anthony (15 April 2013). The Power of Habeas Corpus in America. Cambridge: Cambridge University Press. p. 35-36. ISBN 978-1-107-03643-7.
^ ^a ^b ^c ^d Nutting, Helen A. (April 1960). "The Most Wholesome Law—The Habeas Corpus Act of 1679". American Historical Review. 65 (3): 527–543. doi:10.2307/1849620. JSTOR 1849620.
^ Clark & McCoy (2000, p. 37).
^ Silk, Paul; Walters, Rhodri (1998). How Parliament Works (4th ed.). Harlow, England: Longman. pp. 92–93. ISBN 0-582-32745-8. OL 352444M.
^ Quoted from Burnet's The History of My Own Time in Davies, Godfrey; Klotz, Edith L. (July 1940). "The Habeas Corpus Act of 1679 in the House of Lords". Huntington Library Quarterly. 3 (4): 469–470. doi:10.2307/3815721. JSTOR 3815721.
^ Davies, Godfrey; Klotz, Edith L. (July 1940). "The Habeas Corpus Act of 1679 in the House of Lords". Huntington Library Quarterly. 3 (4): 469–470. doi:10.2307/3815721. JSTOR 3815721. Godfrey and Klotz explain, "Simple arithmetic would seem to show that Burnet's story cannot be literally correct, for clearly, if 112 peers voted in the division and only 107 were present, counting one fat peer as ten would not explain the difference of five in the totals" and "the list of members present on any day in the House of Lords cannot be accepted implicitly as evidence that no more were present on that day."
^ "Habeas Corpus Act 1679". New Zealand Law online.
^ "Habeas Corpus Acts". New Zealand Law online.
^ "Imperial Laws Application Act 1988 | Schedule 1". legislation.govt.nz. Parliamentary Counsel Office. Retrieved 17 September 2023.
^ "Habeas Corpus Act 2001, section 22". legislation.govt.nz. Parliamentary Counsel Office. Retrieved 17 September 2023.

References

Clark, David; McCoy, Gerard (2000). The Most Fundamental Legal Right: Habeas Corpus in the Commonwealth. New York: Oxford University Press. doi:10.1093/acprof:oso/9780198265849.001.0001. ISBN 9780198265849.