Habeas Corpus Act 1679

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Habeas Corpus Act 1679
31 Cha. 2. c. 2
Dates
Royal assent27 May 1679
Other legislation
Amended by
Text of statute as originally enacted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

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

See also: Habeas corpus § Origins in England

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

parliamentary session.[citation needed
]

A popular but likely untrue anecdote holds claims that the Act only passed because the votes in favour were miscounted as a joke.

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.[12] 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.[8]

King Charles II assented to the Act in 1679 since, Nutting explains, "it was no longer controversial".[8] The Act is now stored in the Parliamentary Archives.

Application in New Zealand

The Habeas Corpus Act 1679[13] 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.[14] 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.[15][16]

See also

Notes

  1. 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 b "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. ^
    JSTOR 1849620
    .
  9. ^ Clark & McCoy (2000, p. 37).
  10. OL 352444M
    .
  11. doi:10.2307/3815721
    .
  12. doi:10.2307/3815721
    . 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."
  13. ^ "Habeas Corpus Act 1679". New Zealand Law online.
  14. ^ "Habeas Corpus Acts". New Zealand Law online.
  15. ^ "Imperial Laws Application Act 1988 | Schedule 1". legislation.govt.nz. Parliamentary Counsel Office. Retrieved 17 September 2023.
  16. ^ "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.
    ISBN 9780198265849
    .

External links

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