Habeas Corpus Act of 1679

Although Parliament in the seventeenth century was loath to tamper with the common law, in a few instances it did intervene. The most notable example was the Habeas Corpus Act of 1679.

Until that time, the writ of habeas corpus (literally ‘‘produce the body’’) had been a discretionary matter for courts responding to petitions from people who claimed that they had been illegally jailed and held. Because judges did have wide discretion in the matter, Parliament worried that the writ did not serve as sufficient protection against arbitrary imprisonment by the Crown. Moreover, the Crown often evaded the matter by charging persons with misdemeanors, since habeas corpus only applied to felonies and treason, or moving the prisoners to the Channel Islands, land technically outside the realm where the writ did not run. The final straw seems to have been the imprisonment of Francis Jenkes for urging that a new Parliament be called. When he sought his release through habeas corpus, the Lord Chief Justice denied it, on no grounds other than that the courts were on vacation; Jenkes received a similar answer from the Lord Chancellor.

The Act of 1679 greatly reduced judicial discretion in whether to issue the writ, made it applicable to misdemeanors as well as felonies, and empowered as well as required individual justices to issue the writ and hear its return at any time. Justices and jailors not complying with the statute or removing prisoners beyond the reach of the writ were subject to heavy fines.

The act strongly influenced the American colonists, who later wrote habeas corpus into the Constitution; it has been known ever since as the ‘‘Great Writ.’’

MELVIN I. UROFSKY

References and Further Reading

• Mian, Badsah K. English Habeas Corpus: Law, History, and Politics. San Francisco: University of California Press, 1984.