A writ of habeas corpus is a judge’s order for law enforcement officials to bring prisoners before the court to determine the legality of their imprisonment. The parliamentary statute of 1679 significantly expanded the ability of prisoners to petition for habeas corpus relief and of judges to grant such relief. It therefore enlarged a fundamental protection in England against arbitrary or illegal arrests.

The writ of habeas corpus is often called “the great writ of liberty.” Literally Latin for “you have the body,” this writ had its origins in the judicial decisions of the English common law system. Although not mentioned in the Magna Carta of 1215, the writ became a major component of the charter’s requirement that a freeman must not be deprived of liberty contrary to “the law of the land.” Use of the writ actually began in the 1230’s as a way for judges to force defendants to respond to summonses. A century later, the Court of King’s Bench was issuing writs of habeas corpus cum causa (to have the body with cause), demanding that sheriffs show cause for holding prisoners in custody. By the early seventeenth century, writs were an established way for judges to defend their prerogatives and to ascertain whether sheriffs were holding prisoners contrary to the principles of due process. [kw]Habeas Corpus Act (1679)
[kw]Act, Habeas Corpus (1679)
Laws, acts, and legal history;1679: Habeas Corpus Act[2680]
Government and politics;1679: Habeas Corpus Act[2680]
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Habeas Corpus Act
Law;England

In the 1620’, habeas corpus became an issue in the bitter dispute between Charles I Charles I (king of England);Parliament and and Parliament. A number of wealthy English citizens were imprisoned by order of the king’s Privy Council for refusing to loan the Crown money to raise an army. The forced loans were themselves a royal ruse to circumvent Parliament, which had the sole power to authorize new taxes—the normal source of funding for warfare. In 1627, Sir Thomas Darnel and four other prisoners applied to the Court of King’s Bench for a writ of habeas corpus. When the five prisoners were taken before the court, their lawyers argued that they were imprisoned contrary to principles of due process. The Court, however, held that the king’s order was sufficient grounds for imprisonment, because all justice flowed from the king. The holding angered members of Parliament who believed in limiting the powers of the monarchy.

When Parliament next assembled, its members included jurist Sir Edward Coke Coke, Sir Edward and other strong defenders of popular rights. Coke was the main member of a special commission that questioned the judges about Darnel’s Case Darnel’s Case[Darnels Case] (also known as the Five Knights’ Case). Dissatisfied with the judges’ replies, Coke participated in the drafting of the Petition of Right Petition of Right (1628) , a statement of civil liberties sent to the king in 1628. Among its principles, the petition asserted that no subject was to be imprisoned without a show of cause and that a writ of habeas corpus must not be denied for any person detained for any reason. Although the king was forced to declare that he accepted the petition, he ignored its provisions, and the following year he dissolved Parliament, inaugurating the period of Personal Rule Personal Rule (1629-1640) . A year after the Personal Rule had ended, in 1641, the Long Parliament passed a Habeas Corpus Act, which authorized the judges of the high courts to issue writs. The act of 1641, however, proved too weak to restrain executive power during the turbulence of the English Civil Wars and the Protectorate.

When the monarchy was restored in 1660, Charles II Charles II (king of England);Restoration of was committed to preserving and expanding royal prerogatives. Responding to the arbitrary proceedings of his lord chancellor, the first earl of Clarendon, Clarendon, first earl of liberal members of Parliament tried to expand English subjects’ right to petition for a writ of habeas corpus. In 1668, a bill failed in the House of Commons, and the next year another bill failed in the House of Lords.

In 1670, Bushell’s Case Bushell’s Case[Bushells Case] did much to raise public awareness about the significance of the writ. Edward Bushell Bushell, Edward and his fellow jurors were imprisoned for refusing to convict William Penn and William Mead of taking part in an unlawful assembly. When Lord Chief Justice Sir John Vaughan Vaughan, Sir John of the Court of Common Pleas granted Bushell’s petition for a writ, he declared that the habeas corpus writ was the “most usual remedy” for preventing an illegal deprivation of liberty. Bushell’s Case was doubly significant: It not only helped to establish the importance of habeas corpus, but it also stood as a landmark in protecting the independence of juries as determiners of guilt or innocence, rather than mere mouthpieces of judges.

In 1675, the Lords and Commons had a strong disagreement about the circumstances in which habeas corpus might be used. Following termination of the 1675 session, an “obscure individual” named Francis Jenkes Jenkes, Francis was imprisoned because of a treasonous speech he had made at Guildhall. When his case reached the King’s Bench, Lord Chief Justice Sir Richard Raynsford Raynsford, Sir Richard refused to consider a writ of habeas corpus, because the court was on vacation. Jenkes’s friends took the case to Lord Chancellor Heneage Finch, Finch, Heneage later the first earl of Nottingham, who also reported that writs could not be issued during times of vacation. The case of Jenkes underscored the limited protection that habeas corpus afforded.

When Parliament met in 1677, the House of Commons passed a bill designed to make the writ of habeas corpus more effective. As the House of Lords began debating the bill, the High Court of Peers ordered the first earl of Shaftesbury Shaftesbury, first earl of to be imprisoned on unspecified charges of contempt. When Shaftesbury appealed to the King’s Bench for a writ of habeas corpus, the responding judge found that the imprisonment was illegal but nevertheless ruled that the King’s Bench had no authority to interfere with the proceedings of the High Court of Peers in Parliament. Shortly thereafter, a priest named Titus Oates Oates, Titus created a frenzy of anti-Catholic fears with his fabricated stories of a Jesuit plot to assassinate the king. Shaftesbury took advantage of the so-called Popish Plot Popish Plot (1678-1681) to attack the king’s ministers and to promote further limitations on royal prerogatives. The plot helped him to build up an organization of followers within Parliament, later called Whigs Whigs .

The majority of the commoners in the “Whig” Parliament of 1679, elected at the height of the Popish Plot, were highly critical of executive power. The stormy session was devoted to two major issues, the writ of habeas corpus and the impeachment of the lord treasurer, Thomas Osborne, first earl of Danby Leeds, first duke of and later first duke of Leeds. Following Danby’s impeachment, the House of Commons passed a strong habeas corpus bill after caustic debates and several compromises. In the House of Lords, the bill was approved by a margin of a single vote, reportedly by counting the vote of an elderly peer twice. Charles II then reluctantly gave his approval.

The statute of 1679 required that a speedy judicial hearing be conducted to determine the legality of a subject’s imprisonment on a criminal charge. The law specified that the lord chancellor or any of the judges of the three common-law courts might issue a writ of habeas corpus “at all times and in all cases.” It explicitly included writs for persons that the king considered as threats to national security. It disallowed re-committal for the same offense after a person was released by a writ, and it prohibited evasion by transferring a prisoner to another jurisdiction. Very harsh penalties were provided for judges who failed to follow the requirements of the law, but there were limitations as well. The law did not prevent a judge from requiring excessive bail for release, and it did not apply to commitments ordered by the House of Commons, as was Danby’s unfortunate situation. In addition, the writ could be used only in criminal cases, not for imprisonment resulting from civil suits or debt.

The famous jurist William Blackstone referred to the Habeas Corpus Act as a “second Magna Carta and stable bulwark of our liberties.” Although few of its provisions were original, the act corrected important defects that had frequently allowed the Crown to disregard the writ of habeas corpus in the past. Thenceforth, the Crown’s law-enforcement officials would find it much more difficult to deprive a person of liberty based on ill-founded charges. One indication of the act’s effectiveness was the fact that James II James II (king of England);haveas corpus and asked Parliament for its repeal, which was refused. Since the act resulted from the conflict between the Crown and the Parliament, however, it is not surprising that it did little to prevent abuses by the legislative branch.

The protections of habeas corpus writs would continue to expand in subsequent years. English settlers in North America and elsewhere adopted the writs as part of their judicial systems. The United States Constitution, for example, stipulates that the right of citizens to petition for a writ of habeas corpus can be suspended only in times of rebellion or insurrection. The British parliament in 1814 and 1869 eliminated many of the limitations of the 1679 law.

• Blackstone, William. Commentaries on the Laws of England. Vol. 3. Reprint. Oxford, England: Oxford University Press, 1970. Available in many editions, the third volume of this classic work includes a clear summary of the writ of habeas corpus as understood in the eighteenth century.
• Coote, Stephen. Royal Survivor: A Life of Charles II. New York: St. Martin’s Press, 1999. A succinct and clearly written biography that provides the historical context for the passage of the law.
• Duker, William. A Constitutional History of Habeas Corpus. Westport, Conn.: Greenwood Press, 1980. The first chapter presents an excellent history of the writ, although the English terminology is confusing for people not familiar with the English legal system.
• Hurd, Rollin. A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus. New York: Da Capo Press, 1972. Includes a great deal of valuable material, although its organization and writing style are intimidating.
• Hutton, Roland. Charles the Second: King of England, Scotland, and Ireland. New York: Oxford University Press, 1989. An excellent introduction to his life, with excellent analysis of the political controversies of the time.
• Kutler, Luis. World Habeas Corpus. Dobbs Ferry, N.Y.: Oceana, 1962. A general history of the writ, with only a short summary of the passage of the 1679 law.
• Sharpe, Robert J., and D. R. Zellick. Law of Habeas Corpus. New York: Oxford University Press, 2004. A standard work by two Canadian jurists, emphasizing modern law but providing a good summary of the historical development of the writ.
• Walker, Robert. The Constitutional and Legal Development of Habeas Corpus as the Writ of Liberty. Stillwater: Oklahoma State University Publications, 1960. An excellent work of legal history, although like most American writers, Walker is more interested in U.S. law than in the English background.

Charles I; Charles II (of England); First Earl of Clarendon; Sir Edward Coke; First Duke of Leeds; Titus Oates; William Penn; First Earl of Shaftesbury. Habeas Corpus Act
Law;England