Forums Forums Wirral Information Law And Your Rights The Habeas Corpus Act thanks to the fat guy

The Habeas Corpus Act

This Act, passed in May 1679, allowed a prisoner to demand that he should

be brought before a court and have his case examined. It was passed during

the reign of Charles II and meant that even a political prisoner, an

opponent of the king, as well as a common criminal, could have a fair

trial and not just be thrown into prison to be forgotten about. It

provided a dramatic contrast to the notorious "lettres de cachet" of Louis

XIV which existed in France at the same time and allowed the French king

to imprison someone indefinitely, without any legal redress.

Habeas Corpus literally means "bringing the body of an individual before a

court of justice". This right had existed in England in early Norman

times. (Article 36 of the Magna Carta of 1215 says that this right should

"not be refused". At that time it meant that an accused person could avoid

a terrible trial by ordeal.) Once before a court, an accused person has

his case examined and is then allowed bail (is freed on condition that he

leaves a sum of money and promises to return for further hearings), or he

is imprisoned again because the evidence against him is so great.

By the time of Charles I kings were saying that a simple royal order was

sufficient to overrule a writ of Habeas Corpus. It was for this reason

that, in the late 17th century, Parliament wanted the law clearly and

irrevocably written down.



The Habeas Corpus Act of 1679 was largely the work of Lord Shaftesbury,

after whom it was named. Occasionally, it is suspended, for example in

time of war or when there is a terrorist threat, but suspension of Habeas

Corpus has to be voted by Parliament and for a limited period only.

All modern democracies have a law equivalent to Habeas Corpus written into

their constitutions.

The Act of Habeas Corpus was only just passed in the House of Lords in May

1679. When the votes were counted, there were not enough Lords in favour,

so it was decided that one of the Lords, because he happened to be fat,

was worth ten votes. It started as a joke, but in fact remained on the

statutes.
The Bill went back and forth between the two Houses, and then the Lords voted on whether to set up a conference on the Bill. If this motion was defeated the Bill would stay in the Commons and therefore have no chance of being passed. Each side—those voting for and against—appointed a teller who stood on each side of the door through which those Lords who had voted "aye" re-entered the House (the "nays" remained seated). One teller would count them aloud whilst the other teller listened and kept watch in order to know if the other teller was telling the truth. Shaftesbury's faction had voted for the motion, so they went out and re-entered the House. Gilbert Burnet, one of Shaftesbury's friends, recorded what then happened:

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.[2]

The clerk recorded in the minutes of the Lords that the "ayes" had fifty-seven and the "nays" had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that sitting.[3]

112 votes 107 attended take off 9 from the fat lord should have been 103 votes?

Nice work Derek. I have to say that the history of Law fascinates me, but then I am a geek

Could be losing Habeas Corpus soon though, the dreaded Lisbon Treaty rears its ugly head again.