“Produce the Body”
Habeas Corpus Act of 1679
With Charles II increasingly concentrating power in the hands of the monarchy, and English liberties seemingly at risk at every turn, Parliament takes the step to enshrine the right to the writ of habeas corpus into law.
Introduction
“An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas,” otherwise known as the Habeas Corpus Act of 1679 was an act of Parliament that was passed in May of 1679, during the reign of Charles II. In Latin, “Habeas Corpus” means “you may have the body,” and is used to determine the legality of a person’s detention and as a guard against unlawful imprisonment. The writ of Habeas Corpus had ancient beginnings in the common law of England and dates back before the creation of the Magna Carta.
Though the writ of Habeas Corpus had existed far before the Act of 1679 (in fact the option to apply for a writ of Habeas Corpus had been the focal point of the now repealed Habeas Corpus Act of 1640), the ease of getting a writ of Habeas Corpus had diminished under the rule of Charles II which quite often prevented those who were imprisoned from receiving due process, which frequently resulted in lengthy imprisonments. The growing fear of arbitrary government under Charles II and the anxiety over the likelihood of the ascent of his Catholic brother James, Duke of York, to the throne of England, led to efforts to strengthen the writ of Habeas Corpus in an attempt to protect the rights of political prisoners. The leading proponent of the bill was Anthony Ashley Cooper, Earl of Shaftsbury, a Whig politician (and patron of John Locke) who was also a leader in the efforts to exclude James, Duke of York, from succeeding to the throne of England. Shaftsbury had spent a year in prison from February 1677 to February 1678 for being in Contempt of Parliament. He had requested a writ of Habeas Corpus during his imprisonment, which was denied, likely contributing to his strong desire to pass the Habeas Corpus Act.
The portion of the Act’s title, “for prevention of imprisonments beyond the seas” was an important point made in section XI of the bill which states that prisoners could not be subject to transportation to “Scotland, Ireland, Jersey, Gaurnsey, Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter within or without the Dominions of His Majestie His Heires or Successors,” before conviction. Other important elements of the document concluded that prisoners who neglected to appeal for a writ of Habeas Corpus by the space of two terms of their imprisonment would be denied it, that the writ of Habeas Corpus would not be given to those accused of felony or treason, and that jailors were forbidden to move prisoners around from jail to jail to avoid the writ, among other provisions. Despite the advances made in the Act, it was still severely limited by six amendments made to it by members of the House of Lords, which included the aforementioned limitations for those who neglected to appeal for Habeas Corpus in time and for those who committed felonies. Indeed, the divisiveness of the bill is evidenced in a story told by Gilbert Burnet, who maintained that the bill was only passed through trickery: the purposeful miscount of affirming votes. Nonetheless, the bill was given the royal assent on May 27, 1679, shortly before the Parliament was prorogued. The determination to pass this bill by select members of Parliament evidences the fear of the growth of arbitrary government after the Restoration. The bill, though amended, still remains on the statute book today.
Rachael Edmonston
Further Reading
- http://www.bl.uk/learning/timeline/item104236.html
- Nutting, Helen A. “The Most Wholesome Law– The Habeas Corpus Act of 1679.” The
- American Historical Review 65, no. 3 (1960): 527-43. doi:10.2307/1849620.
- Davies, Godfrey, and Edith L. Klotz. “The Habeas Corpus Act of 1679 in the House of Lords.” Huntington Library Quarterly 3, no. 4 (1940): 469-70. doi:10.2307/3815721.
- http://www.legislation.gov.uk/aep/Cha2/31/2/contents
Sources
Cite this page
Content Warning
Some of the works in this project contain racist and offensive language and descriptions that may be difficult or disturbing to read. Please take care when reading these materials, and see our Ethics Statement and About page.
Habeas Corpus Act 1679
Anno Tricefimo primo Caroli Secundi Regis CHAP. II. An Act for the better securing the Liberty of the Subjest, and for prevention of Imprisonments beyond Seas. Comonly called the Habeas Corpus Act.
1. WHereas great delays have been used by Sheriffs, Goalers, and other Officers to whose Custody any of the Kings Subjects have been committed for Criminal, or supposed Criminal matters, in making Returns of Writs of Habeas Corpus to them directed, by standing out an Alias, and Pluries, Habeas Corpus, and sometimes more, and by other shifts, to avoid their yielding obedience to such Writs, contrary to their duty, and the known Laws of the Land, whereby many of the Kings Subjects have been, and hereafter may be long detained in Prison, in such Cases where by Law they are Bailable, to their great Charges and Vexation.
2. For the prevention whereof, and the more speedy relief of all persons Imprisoned for any such Criminal, or supposed Criminal matters. (2) Be it Enacted by the Kings most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual, and Temporal, and Commons in this present Parliament Assembled, and by the Authority thereof, That whensoever any person or persons shall bring any Habeas Corpus directed unto any Sheriff or Sheriffs, Goaler, Minister or other person whatsoever, for any person in his or their Custody, and the said Writ shall be served upon the said Officer, or left at the Goal or Prison with any of the under Officers, under Keepers, or Deputy of the said Officers or Keepers, that the said Officer or Officers his or their under Officers or Keepers or Deputies, shall within three days after the service thereof, as aforesaid (unless the Commitment aforesaid were for Treason or Felony, plainly and specially expressed in the Warrant of Commitment) upon payment or tender of the Charges of bringing the said Prisoner to be Ascertained be the Judge or Court that awarded the same, and Endorsed upon the said Writ, not exceeding twelve pence per Mile, and upon security given by his own Bond to pay the Charges of carrying back the Prisoner, if he shall be Remanded by the Court or Judge, to which he shall be brought, according to the true intent of this present Act, and that he will not make any Escape by the way, make Return of such Writ. (3) And bring or cause to be brought the Body, of the party so Committed or Restrained, unto, or before, the Lord Chancellor, or Lord Keeper of the Great Seal of England for the time being, or the Judges or Barons of the said Court from whence the said Writ shall Issue, or unto and before such other person or persons before whom the said Writ is made returnable, according to the Command thereof: (4) And shall then likewise certifie the true Causes of his Detainer, or Imprisonment, unless the Commitment of the said party be in any place beyond the distance of twenty Miles from the place or places, where such Court or Person is or shall be Residing: and if beyond the distance of twenty Miles, and not above one hundred Miles, than within the space of twenty days after such the delivery aforesaid, and not longer.
III. And to the Intent that no Sheriff, Goaler, or other Officer may pretend ignorance of the import of any such Writ. (2) Be it Enacted by the Authority aforesaid, That all such Writs shall be marked in this manner, Perstatutum Tricesimo primo Caroli Secundi Regis, and shall be signed by the person that Awards the same. (3) And if any person or persons shall be, or stand Committed or Detained as aforesaid, for any Crime, unless, for Felony or Treason, plainly expressed in the Warrant of Commitment, in the Vacation time, and out of Term, it shall and may be lawful to and for the person or persons so Committed or Detained (other than persons Convict, or in Execution) by Legal Process, or any one on his or their behalf to Appeal, or complain to the Lord Chancellor, or Lord Keeper, or any one of His Majesties Justices either of the one Bench, or of the other, or the Barons of the Exchequer of the degree of the Coif. (3) And the said Lord Chancellor, Lord Keeper, Instices, or Barons, or any of them, upon view of the Copy or Copies of the Warrant or Warrants of Commitment and Detainer, or otherwise upon Oath made, that such Copy or Copies were denied to be given by such person or persons, or any on his, her, or their behalf, attested and subscribed by two Witnesses, who were present at the delivery of the same, to award and grant an Habeas Corpus under the Seal of such Court whereof he shall then be one of the Judges. (5) To be directed to the Officer or Officers in whose Custody the party so Committed or Detained, shall be returnable immediately before the said Lord Chancellor or Lord Keeper, or such Justice, Baron, or any other Justice or Baron of the Degree of the Coif of any of the said Courts. (6) And upon service thereof as aforesaid, the Officer or Officers, his or their under Officer or under Officers, under Keeper or under Keepers, or Deputy to whose Custody the party is so Committed or Detained, shall within the times respectively before limited, bring such Prisoner or Prisoners before the said Lord Chancellor or Lord Keeper, or such Justices, Barons, or one of them, before whom the said Writ is made Return able, and in case of his absence, before any other of them, with the Return of such Writ, and the true Causes of the Commitment, and Detainer. (7) And thereupon within two days after the party shall be brought before them, the said Lord Chancellor or Lord Keeper, or such Justice or Baron before whom the Prisoner shall be brought as aforesaid, shall discharge the said Prisoner from his Imprisonment, taking his or their Recognizance, with one or more surety or sureties in any sum, according to their discretion, having regard to the Quality of the Prisoner, and Nature of the Offence, for his or their appearance in the Court of Kings Bench the Term following, or at the next Assizes, Sessions, or General Goal-delivery of and for such County, City, or Place, where the Commitment was, or where the Offence was Committed, or in such other Court where the said Offence is properly Recognizable, as the Case shall require, and then shall Certifie the said Writ, with the Return thereof, and the said Recognizance or Recognizances, into the said Court, where such appearance is to be made. (6) Unless it shall appear, unto the said Lord Chancellor, or Lord Keeper, or Justice or Justices, Baron or Barons, that the party so Committed is Detained upon a Legal Process, Order, or Warrant out of some Court that hath Jurisdiction of Criminal matters, or by some Warrant Signed and Sealed with the Hand and Seal of any of the said Justices or Barons, or some Justice or Justices of the Peace, for such matters or offences for the which by the Law the Prisoner is not Bailable.
1. Provided always, and be it Enacted, That if any person shall have wilfully neglected by the space of two whole Terms after his Imprisonment, to pray a Habeas Corpus for his Enlargement, such person so wilfully neglecting, shall not have any Habeas Corpus to be granted in Vacation time in pursuance of this Act.
2. Be it further Enacted by the Authority aforesaid, That if any Officer or Officers, his or their Under-Officer, Under-Officers, Under-Keeper, or Under-Keepers, or Deputy, shall neglect or Refuse to make the Returns aforesaid, or to Bring the Body or Bodies of the Prisoner or Prisoners according to the Command of the said Writ, within the Respective times aforesaid, or upon demand made by the Prisoner, or Person in his Behalf; shall Resuse to deliver or within the space of six hours after demand, shall not deliver to the Person so demanding, a true Copy of the Warrant or Warrants of Commitment and detainer of such Prisoner, which he or they are hereby Required to deliver accordingly, all and every the Head Gaolers, and Keepers of such Prisons, and such other Person, in whose Custody the Prisoner shall be detained, shall for the first Offence forfeit to the Prisoner or Party Grieved. the sum of one hundred pounds; (2.) And for the second Offence, the sum of two hundred pounds, and shall and is hereby made Incapable to Hold or Execute his said Office; (3.) the said penalties to be Recovered by the Prisoner or Party grieved, his Executors or Administrators, against such Offenders, his Executors or Administrators, by any Action of Debt, Suit, Bill, plaint or Information, in any of the King’s Courts at Westmin. wherein no Essoign, Protection, priviledge Injunction, Wager of Law, or stay of Prosecution by Non vult ulterius prosequi, or otherwise, shall be Admitted or Allowed, or any more than one Imparlance (4.) And any Recovery or Judgment at the Suit of any Party Grieved, shall be a sufficient Conviction for the first Offence; and any after Recovery or Judgment at the suit of a Party Grieved for any Offence after the first Judgment, shall be a sufficient Conviction to Bring the Officers or Person within the said penalty for the second Offence.
3. And for the prevention of unjust Vexation by Reiterated Commitments for the same; (2.) Be it Enacted by the Authority aforesaid, That no Person or Persons which shall be delivered or set at Large upon any Habeas Corpus, shall at any time hereafter be again Imprisoned or Committed for the same Offence, by any Person or Persons whatsoever, other than by the Legal order, and process of such Court wherein he, or they shall be Bound by Recognizance to appear, or other Court having Jurisdiction of the Cause; (3.) And if any other Person or Persons shall knowingly contrary to this Act Recommit, or Imprison, or knowingly procure or Cause to be Recommitted or Imprisoned for the same Offence, or pretended Offence, any Person or Persons delivered or set at Large as aforesaid, or be knowingly aiding or Assisting therein, then he or they shall forfeit to the Prisoner or Party Greived, the sum of five hundred pounds, any colourable pretence or variation in the Warrant or Warrants of Commitment notwithstandin, to be Recovered as aforesaid.
4. Provided alwayes, and be it further Enacted, That if any Person or Persons shall be Committed for High Treason or Felony, Plainly and specially Expressed in the Warrant of Commitment, upon his prayer or petition in open Court the first week of the Term, or first day of the Sessions of Oyer and Terminer, or General Gaol delivery, to be Brought to his Tryal, shall not be indicted sometime in the next Term, Sessions of Oyer and Terminer, or General Gaol delivery after such Commitment, It shall and may be Lawful to and for the Judges of the Court of Kings Bench, and Justices of Oyer and Terminer, or General Gaol delivery, and they are hereby Required upon motion to them made in open Court the last day of the Term, Sessions, or Gaol delivery, either by the Prisoner, or any one in his Behalf, to set at Liberty the Prisoner upon Bail, unless it appear to the Judges and Justices upon Oath made, that the Witnesses for the King could not be produced the same Term, Sessions or General Gaol delivery; (2.) And If any person or persons Committed as aforesaid, upon his prayer or petition in open Court, the first week of the Term, or first day of the Sessions of Oyer and Terminer,and General Gaol delivery, to be Brought to his Tryal, shall not be Indicted and Tryed the second Term, Sessions of Oyer and Terminer, or General Gaol delivery after his Commitment, or upon his Tryal shall be Acquitted, he shall be discharged from his Imprisonment.
5. Provided alwaies, That nothing in this Act shall Extend to discharge out of prison any person charged in debt, or other Action, or with process in any Civil Cause, but that after he shall be discharged of his Imprisonment for such his Criminal Offence, he shall be kept in Custody according to Law, for such other suit.
6. Provided alwaies, and be it Enacted by the Authority aforesaid, That if any person or persons subjects of this Realm, shall be Committed to any prison, or in Custody of any Officer or Officers whatsoever, for any Criminal, or Supposed Criminal matter, That the said person shall not be Removed from the said prison and custody, into the custody of any other Officer or Officers, (2.) unless it be by Habeas Corpus, or some other Legal writ; or where the prisoner is delivered to the Constable or other Inferiour Officer to carry such prisoner to some common Gaol; (3.) or where any person is sent by order of any Judge of Assize, or Justice of the peace to any Common workhouse, or house of Correction; (4.) or where the prisoner is Removed from one prison or place to another within the same County, in order to his or her Tryal or discharge in due Course of Law; (5.) or in case of sudden fire or Infection, or other Necessity; (6.) And if any person or persons shall after such Commitment aforesaid, make out and sign, or Countersign any Warrant or Warrants for such Removal aforesaid, contrary to this Act, as well •e that makes or signs or Countersigns such Warrant or Warrants as the Officer or Officers, that obey or Execute the same, shall suffer, and Incur the pains, and Forfeitures in this Act before-mentioned, both for the first and second Offence Respectively, to be Recovered in manner aforesaid by the party Grieved.
7. Provided also, and be it further Enacted by the Authority aforesaid, That it shall and may be Lawful to and for any prisoner and prisoners as aforesaid, to move, and obtain his or their Habeas Corpus, as well out of the High Court of Chancery, or Court of Exchequer, as out of the Courts of Kings Bench, or common pleas, or either of them; (2.) And if the said Lord Chancellour, or Lord Keeper, or any Judge or Judges, Baron or Barons for the time being, of the degree of the Coif of any of the Courts aforesaid in the Vacation time, upon view of the Copy or Copies of the Warant or Warants of Commitment or Detainer, or upon Oath made, that such Copy or Copies were denied as aforesaid, shall deny any writ of Habeas Corpus by this Act Required to be Granted, being moved for as aforesaid, they shall severally Forfeit to the prisoner or party Grieved, the sum of five hundred pounds, to be Recovered in manner aforesaid.
8. And Be it Enacted, and declared by the Authority aforesaid, That an Habeas Corpus according to the true Intent and meaning of this Act, may be directed, and Run into any County Palatine, the Cinqu•… ports or other priviledged places within the Kingdom of Engl. Dominion of Wales, or Town of Berwick upon Tweed, and the Isles of Jersey, or Guernsey; any Law or Usage to the Contrary notwithstanding.
9. And for preventing Illegal Imprisonments in prisons beyond seas (2.) Be it further Enacted by the Authority aforesaid, That no subject of this Realm that now is, or hereafter shall be an Inhabitant or Resiant of this Kingdom of England, Dominion of Wales or Town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into any parts, Garrisons, Islands, or places beyond the seas, which are, or at any time hereafter, shall be within or without the Dominions of His Majesty, His heirs or successours, (3.) And that every such Imprisonment is hereby Enacted and adjudged to be Illegal; (4.) and that, If any of the said subjects now is, or hereafter shall be so Imprisoned, every such person and persons so Imprisoned, shall and may for every such Imprisonment, maintain by vertue of this Act, an Action or Actions of false Imprisonment, in any of his Majesties Courts of Record, against the person or persons by whom he or she shall be so Committed, detained, Imprisoned, sent prisoner, or Transported Contrary to the true meaning of this Act, and against all or any person or persons that shall frame, Contrive, Write, Seal, or Countersign any Warrant or Writing for such Commitment, detainer, Imprisonment, or Transportation, or shall be Advising, Aiding, or Assisting in the same, or any of them; (5.) And the plaintiff in every such Action shall have Judgment to Recover his Treble Costs, besides damages; which damages so to be Given, shall not be less than five hundred pounds; (6.) in which Action, no delay, stay or stop of proceeding, by Rule, order, or Command, nor no Injunction, protection, or priviledge whatsoever, nor any more than one Imparlance shall be allowed, Excepting such Rule of the Court wherein the Action shall depend, made in open Court, as shall be thought in Justice necessary, for special cause to be Expressed in the said Rule; (7.) And the person or persons who shall Knowingly Frame, Contrive, write, seal or Countersign any Warrant for such Commitment, detainer, or Transportation, or shall so Commit, detain, Imprison, or Transport any person or persons Contrary to this Act, or be any waies Advising, aiding or Assisting therein being Lawfully Convicted thereof, shall be disabled from thenceforth to Bear any Office of Trust or Profit within the said Realm of England, Dominion of Wales, or Town of Berwick upon Tweed,or any of the Islands, Territories or Dominions thereunto Belonging. (8.) And shall Incur and sustain the pains, Penalties and Forfeitures Limited, ordained, and provided in and by the statute of Provision and Premunire, made in the sixteenth year of King Richardthe Second. (9.) And be incapaple of any pardon from the King, His Heirs or Successours, of the said Forfeitures, Losses, or disabilities, or any of them.
10. Provided alwaies, That nothing in this Act extend to give Benefit to any person who shall by Contract in Writing agree with any Merchant, or Owner, of any plantation, or other person whatsoever, to be transported to any parts beyond the Seas, and receive Earnest upon such Agreement, although that afterwards such person shall Renounce such Contract.
11. Provided alwaies, and be it Enacted, That If any person or persons Lawfully Convicted of any Felony, shall in open Court pray to be Transported beyond the seas, and the Court shall think fit to leave him or them in prison, for that purpose such person or persons may be Transported into any parts beyond the seas; This Act or any thing therein Contained to the contrary notwithstanding.
12. Provided also, and be it Enacted, That nothing herein Contained, shall be deemed, Construed, or taken to Extend to the Imprisonment of any person before to first day of June, one thousand six hundred seventy and nine, or to any thing Advised, procured, or otherwise done, Relating to such Imprisonment; Any thing herein Contained to the Contrary notwithstanding.
13. Provided also, That If any person or persons at any time Resiant in this Realm, shall have committed any Capital Offence in Scotl. or Ireland,or any of the Islands, or Foreign Plantations of the King His Heirs or Successours, where he or she, ought to be Tryed for such Offence, such person or persons may be sent to such place there to Receive such Tryal, in such manner as the same might have been used before the making of this Act; any thing herein contained to the contrary notwithstanding.
14. Provided alwayes, and be it Enacted, That no person or persons shall be sued, Impleaded, Molested or Troubled for any Offence against this Act, unless the party offending be Sued or Impleaded for the same within two years at the most after such time wherein the Offence shall be Committed in Case the party Grieved shall not be then in Prison, and if he shall be in Prison, then within the space of two years after the decease of the Person Imprisoned, or his, or her delivery out of Prison, which shall first happen.
15. And to the intent no person may Avoyd his Tryal at the Assizes, or General Gaol delivery, by procuring his Removal before the Assizes at such time as he cannot be brought back to receive his Tryal there; (2.) Be it Enacted, That after the Assizes proclaimed for that County where the Prisoner is detained, no person shall be Removed from the common Gaol upon any Habeas Corpus granted in pursuance of this Act, but upon any such Habeas Corpus, shall be brought before the Judge os Assize in open Court, who is thereupon to do what to Justice shall appertain.
16. Provided nevertheless, That after the Assizes are Ended, any person or persons detained may have his or her Habeas Corpus according to the direction and Intention of this Act.
17. And be it also Enacted by the Authority aforesaid, That if any Information, Suit, or Action shall be Brought or Exhibited against any person or persons for any Offence committed, or to be committed against the form of this Law, it shall be Lawful for such defendants to plead the General Issue, that they are not Guilty, or that they own nothing, and to give such special matter in Evidence to the Jury that shall Try the same, which matter being pleaded, had been good & sufficent in Law to have discharged the said Defendant or Defendants against the said Information, Suit or Action, & the said matter shall be then as available to him or them, to all Intents and purposes, as if he or they had sufficiently pleaded, set forth or Alledged the same matter in Bar or Discharge of such information, Suit or Action.
18. And because many times persons charged with petty Treason or Felony, or as Accessaries thereunto are Committed upon suspition only, whereupon they are Bailable, or not, according as the Circumstances making out that suspition are more or less weighty, which are best known to the Justices of Peace that committed the persons, and have the Examinations before them, or to other Justices of the Peace in the County: (2.) Be it therefore Enacted, That where any person shall appear to be Committed by any Judge, or Justice of the Peace, and charged as Accessary before the Fact, to any petty Treason or Felony, or upon suspicion thereof, or with suspicion of petty Treason or Felony, which petty Treason or Felony shall be plainly & specially expressed in the Warrant of Commitment, that such person shall not be Removed or Bailed by vertue of this Act, or in any other manner than they might have been before the making of this Act.
References
Collections
Tags
EARLY ACCESS: Transcription is under editorial review and may contain errors.
Please do not cite or otherwise reproduce without permission.
- http://www.bl.uk/learning/timeline/item104236.html
- Nutting, Helen A. “The Most Wholesome Law– The Habeas Corpus Act of 1679.” The
- American Historical Review 65, no. 3 (1960): 527-43. doi:10.2307/1849620.
- Davies, Godfrey, and Edith L. Klotz. “The Habeas Corpus Act of 1679 in the House of Lords.” Huntington Library Quarterly 3, no. 4 (1940): 469-70. doi:10.2307/3815721.
- http://www.legislation.gov.uk/aep/Cha2/31/2/contents