Habeas Corpus Act of the Restoration

Context

The Habeas Corpus Act did not emerge and crystallize overnight. Versions of the bill containing all the key elements of the 1679 act passed through the House of Commons with little difficulty in 1668, 1674, 1675, and 1677 before stalling in the House of Lords. The preexistence of the common-law writ, a well-established legal principle, raised questions about why an act securing it was really necessary. The foremost reason was that the early years of the Restoration—which commenced when Charles II's enthronement reinstated the monarchies of England, Scotland, and Ireland in 1660—were years in which the Stuart monarchs sought to reestablish the royal prerogative, including the detention of people for seditious libel under the king's name simply on the ground of suspicion. Thus, protecting the basic rights of individuals under these conditions came to be considered of fundamental importance by many members of Parliament. There already existed statute legislation from the reign of Charles I that, to some extent, protected the subject's right to habeas corpus, but it was ineffective because it did not provide full guidance regarding the duties and responsibilities of the judges or custodians nor did it set out punishment for breaches.

Throughout the 1660s, there were vast disparities concerning the duration of a prisoner's detention without trial. However, a wait of a year was not considered uncommon. In addition, during this decade there was a substantial increase in the number of unlawful detentions of subjects even after a writ of habeas corpus had been served. Four famous cases in 1666 and 1667 offer real evidence of the prevailing and often ambivalent attitude of judges and custodians toward the writ before enactment of the act securing it. The case of William Taylor, surveyor of Windsor Castle, who was unlawfully detained by John Mordaunt, 1st Viscount Mordaunt of Avalon, and whose appeal for issue of a writ of habeas corpus was turned down on arbitrary grounds (while his daughter was allegedly raped by Mordaunt) is often cited as one of the more notorious infractions. The case of Samuel Moyer, who was imprisoned for five years without trial, caused a scandal when his five-hundred-pound bribe to his two jailers to obtain his release became the subject of a quarrel between them. The third case involved Edward Hyde, 1st Earl of Clarendon, who was alleged to have advocated that prisoners should be sent to outlying dominions to avoid the serving of a writ of habeas corpus. Finally, Lord Chief Justice Sir John Kelynge was charged with refusing to issue a writ of habeas corpus and forcing the detainee concerned to appeal directly to the king.

These four cases contributed to the persuading of some in the House of Lords that a habeas corpus act was really necessary. In addition, it became apparent that even if a writ was speedily issued, executing the writ was still sometimes problematic. Under the common law as it stood, jailers or custodians were under no legal obligation to accept the first or second (alias) writs, and only on the third (pluries) writ were they obligated to take action. This could mean a delay of weeks or even months before a writ would be enforced. The Whig-inclined Sir Henry Care, in his much cited work English Liberties; or, The Free-Born Subject's Inheritance (1680), attributed the bill primarily to the abuses of jailers whose efforts to extort money to accept the writ, or in many cases simple negligence, caused the common law to be ineffective. Custodial and judicial indiscretion alike therefore contributed greatly to the need for a statute.

Yet abuse of the common law was not the only motive force behind the habeas corpus bill. Alongside the high-profile cases of abuse, the bill was very much influenced by the politics of Anthony Ashley Cooper, 1st Earl of Shaftesbury, and his coterie of followers, who sought to weaken the royal prerogative and bolster parliamentary sovereignty. Individual liberties, they argued, could not be guaranteed under existing laws. The habeas corpus bill was framed at the height of Shaftesbury's politically incendiary “exclusion bill” campaign, which sought to prevent James, Charles II's Catholic brother, from acceding to the throne upon Charles's death. It was popularly believed that James would use the royal prerogative much more widely and arbitrarily. However, despite significant support in the House of Commons, many in the House of Lords and among Country Whigs felt that the habeas corpus bill encroached too far on the royal prerogative, which was the basis of the Lords' continued rejection of the bill as passed by the Commons on four separate occasions. In turn, the bill was very unfavorably received by the king himself.

After so many readings of the bill over several years, the need to buttress the broad principle of habeas corpus with statutory force was largely ingrained within members of the House of Commons. In order to gain more traction in the House of Lords, members of the Commons saw fit to redraft the bill. The long Shaftesburian preamble, which many lords found offensive, was dropped, making the bill much leaner and more palatable. Throughout the mid-1670s there had actually been two proposed bills relating to detainees' rights: the habeas corpus bill and the transportation bill. The latter was proposed as a specific remedy to prevent those detained without trial from being deported to the colonies, at a time when deportations to Jamaica were at their peak. The decision to make this a separate bill was based on the political calculation that it would overload the habeas corpus bill and potentially jeopardize it. However, those in the Commons opted to amalgamate the two for the bill of 1679.

In April 1679 the redrafted habeas corpus bill passed through the Commons and up to the House of Lords. After two readings to the house, the bill was read to the whole house sitting in committee, a procedure that allowed greater scrutiny and the opportunity for individual members to pass comment before the bill was subjected to examination by a smaller select committee. The select committee made several important amendments before sending it back to the Commons on May 2. These amendments were finally accepted by the House of Commons, more or less verbatim, in a compromise to ensure that the bill became law before the end of the parliamentary session. The amendments by the Lords appear in the final act as clauses IV, VIII, XIII, XVIII, XX, and XXI. The Commons did add its own amendment to one of the Lords' amendments—clause XIX—and the bill finally became law on May 27, 1679, although the provisions of the act would not take force until June 1 and were not retroactive.

There have been persistent rumors, first attributed to the historian Gilbert Burnet soon after the passage of the act, that it was not legally passed into law owing to a deliberate miscount of votes by Ford Grey, 3rd Baron Grey of Warke, who counted in a very rotund member of Parliament as ten votes—a jest not picked up by the second teller, James Bertie, 1st Earl of Abingdon (Lord Norreys), and allowed to stand. Fueling this rumor, the minutes of the session state that 112 votes were cast in total, while the official attendance list records only 107 House of Lords members present. However, recent scholarship has explained this discrepancy and shown that attendance lists of this period were notoriously unreliable. There is now broad consent that the story has no foundation in fact.

The cause of the favorable change of attitude toward the habeas corpus legislation by members of the House of Lords has been the subject of some debate. Helen A. Nutting has attributed the shift to the lessening of post-Restoration paranoia and, more important, has suggested that the courts, especially the King's Bench Division—where the common-law writ of habeas corpus was most applied for—had made significant improvements to the efficiency of the judicial system and records, such that there was less resistance on the part of justices. In fact, in the years immediately prior to the passing of the act, the long pretrial detentions typical of the 1660s were uncommon.