Habeas Corpus Act 1679

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. 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 1679 act followed an earlier Habeas Corpus Act 1640 (16 Cha. 1. c. 10), 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, including the Habeas Corpus Act 1803 (43 Geo. 3. c. 140), the Habeas Corpus Act 1804 (44 Geo. 3. c. 102), Habeas Corpus Act 1816 (56 Geo. 3. c. 100), the Habeas Corpus Act 1862 (25 & 26 Vict. c. 20), but it is the 1679 act 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, 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. == Parliamentary history ==

The act came about because Anthony Ashley-Cooper, 1st 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. 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. 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. 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.In the words of historian Helen Nutting, this miscount story is "highly improbable". 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. King Charles II assented to the act in 1679 since, Nutting explains, "it was no longer controversial". The act is now stored in the Parliamentary Archives. == 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. The 1679 act, along with the Habeas Corpus Act 1640 (16 Cha. 1. c. 10) and the Habeas Corpus Act 1816 (56 Geo. 3. c. 100), 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. == Subsequent developments ==

Section 14 of the act was repealed by section 1 of, and the schedule to, the Statute Law Revision Act 1863 (26 & 27 Vict. c. 125), which came into force on 28 July 1863. The words " or felony " in sections 1, 2, 6 and 11, and section 20, of the act, were repealed by section 10(2) of, and part III of schedule 3 to, the Criminal Law Act 1967, which came into force on 1 January 1968. == See also ==