Habeas Corpus Act of the Restoration

Explanation and Analysis of the Document

The final Habeas Corpus Act passed in 1679 contains twenty-one separate clauses. The clauses can be broadly grouped into three categories: those outlining the procedures, duties, and responsibilities for compliance with the act by all parties involved as well as penalties for noncompliance; those relating to the transportation of detainees pretrial or of those convicted of crimes after sentencing; and those supplied as amendments to the bill by the House of Lords.

Procedures, Duties, and Responsibilities and Penalties for Noncompliance

Since the purpose of giving statutory force to the preexisting common-law writ was largely to ensure the establishment of clear procedures for observing habeas corpus, the most important clauses relate to duties of compliance, as well as to remedies for noncompliance with the measures of the act. The act stipulates in clause III that upon receiving a witnessed written request for the writ of habeas corpus by a detainee or his agents, judges are “authorized and required” to issue a writ of habeas corpus signed by them. From clause X, failure to comply with this clause during “vacation time” would result in a £500 fine. Detainees could request the writ at the High Court of Chancery, the Court of Exchequer, the King's Bench, or the Court of Common Pleas. The act requires in clause II that upon receiving the writ, the custodian or warder must bring the prisoner before the court within three days if he or she is held within twenty miles of the issuing court, within ten days if within one hundred miles, and within a maximum of twenty days for still greater distances.

Furthermore, as noted in clause V, the custodian or police officer to whom the request for a warrant of arrest was made had to issue one to the detainee within six hours of the request, and the custodian could not shift the custody of the prisoner. Failure to comply with this part of the act was punishable for the first offense by a £100 fine (payable to the detainee) and, for the second offense, by a £200 fine and ineligibility to hold “his said office” any longer. After the prisoner appeared before the court, the reason for his detention was to be considered by the judge if submitted by the custodian; otherwise the detainee had to be released. Where a warrant attended the prisoner, the judge had three options: to release the prisoner on the ground of insufficient cause, to bail the prisoner to appear at a later date, or to remand the prisoner in custody. If the custodian neglected or refused to bring the prisoner before the court, it was also punishable by a £100 fine. Clause VI adds that no person could be detained twice for the same offense, including through “colourable pretence or variation”—that is, slightly changing the charge to avoid the spirit of the act—with a breach punishable by a £500 fine. The penalties were, in general, considered by the Lords as harsh, but there is not much evidence of serious breaches of the act before its first suspension in 1689.

Transportation of Detainees and Prisoners

Clauses XI–XVI of the act relate to the practice of pretrial transportation of detainees to English colonies such as Jamaica or English territories such as Jersey and Guernsey in deliberate maneuvers to avoid the possibility of habeas corpus. Clauses XI, XII, and XIV had been the central features of the transportation bill that never passed separately. The practice of what amounted to extraterritorial rendition was notoriously highlighted by Edward Hyde, 1st Earl of Clarendon, who was impeached by the House of Commons in 1667 and forced to flee to France for flagrantly flouting the principle of habeas corpus by sending prisoners to Jersey and then to places farther afield. The problem was that the legal status of the common-law writ within Crown colonies was not altogether clear, and while it was thought to apply, the practical difficulties of applying for writs from afar and having them properly served effectively denied the detainees habeas corpus. It is important, however, to distinguish the illegal transportation of prisoners covered by the act from the legal transportation of those sentenced to penal servitude having been through the due process of law. For example, in 1686, 306 individuals who had taken part in the failed Monmouth Rebellion to overthrow James II were sent to Barbados, while another 159 were sent to Jamaica, all without infringing upon the provisions of the Habeas Corpus Act.

Clause XI declares that the act was to be enforceable in all places within the kingdom of England and the dominion of Wales, including places with unusual legal and constitutional statuses, “privileged places” such as the Cinque Ports (coastal towns in Kent and Sussex on the English Channel), the border town Berwick-upon-Tweed (for which English or Scottish jurisdiction had not been settled), and the Channel Islands of Jersey and Guernsey. Clause XII addresses the issue of unlawful transportation to and detention in places overseas, such as in the plantation colonies of the Caribbean. The act forbids all residents of England, Wales, and Berwick-upon-Tweed from being sent as prisoners to Scotland, Ireland, Jersey, Guernsey, or Tangier or any other of his majesty's dominions and territories. The act also states that breaches of the act would allow the plaintiff to bring an action of false imprisonment and to recover treble costs and at least £500 damages.

Clauses XIII (added by the Lords) and XIV protect against abuse of the act by detainees in the event that they consent to being sent to the colonies pretrial or after sentencing but then renege and try to bring an action of unlawful imprisonment under habeas corpus. Finally, clause XVI clarifies that the Habeas Corpus Act does not interfere with the ancient principle of judicial jurisdiction, by which any subject charged with a capital offense committed within the king's realm could be sent to the place where the crime was committed to face trial. This principle is still broadly in force.

Amendments by the House of Lords

During the Easter parliamentary recess of 1679, a small select committee of the House of Lords set to work drafting amendments to the habeas corpus bill. Lord North, long the most outspoken and eloquent opponent of the bill, was the motive force behind many of the amendments. The main revisions form the substantial parts of clauses IV, VIII, XIII, XVIII, XX, and XXI. It has been suggested that these clauses significantly weaken the act, but they mainly provide safeguards against abuse of the act by detainees or potential conflicts of interest with other laws and judicial proceedings.

Although ordinarily application for the writ of habeas corpus could be made at any time, including during vacation time or parliamentary recess, clause IV adds the caveat that if a prisoner had neglected to seek the writ within two terms of detention, habeas corpus would not be granted during vacation time. Clause VIII makes clear that the act only applied in criminal cases and could not be extended to civil cases or debtors, while the aforementioned clause XIII protects merchants who had contractual agreements for immigration.

Perhaps the most important amendment is clause XVIII, which anticipated potential abuse of the law by detainees seeking to use its provisions to evade or preempt trial at the scheduled assizes, The assizes were criminal courts that moved around the country periodically to try more serious cases referred to them by the Quarter Sessions. They were abolished along with the Quarter Sessions by the Courts Act of 1791. Once the date of the assizes was announced, no habeas corpus writs could be served, but the detainee could present the writ at the assizes when they were in session. This amendment solicited a further amendment by the House of Commons, clause XIX, which allowed habeas corpus to be served after the assizes, presumably if the assizes did not make the writ redundant.

The penultimate amendment, clause XX, secured the right of a general plea against any accusation of an infraction or breach of the act. This was a vital check on unwarranted accusations. The final amendment, clause XXI, relates to detentions based on the suspicion of felony or treason; it confirmed that these were still detainable offenses and that the act itself should not induce courts to release on bail such detainees who would not have been bailed prior to the act.