The Habeas Corpus Act of 1679

The Habeas Corpus Act of 1679

The Habeas Corpus Act of 1679
The Habeas Corpus Act of 1679 – King Charles II of England, shown in this c. 1683 portrait by John Reilly (1646–1691), presided over the passage of the Habeas Corpus Act.

The common-law writ of habeas corpus, sometimes known as the “Great Writ,” was first used in England in the Assize of Clarendon in the eleventh century to surrender a prisoner to court.

“Habeas corpus” literally translates to “you may have the body.” Originally, only the monarch could give a high prerogative writ, which was known as a high prerogative writ. Although first ineffectual, the writ eventually evolved into a tool that allowed a prisoner to contest the legality of his or her detention.

“Delays and evasions almost negated the effect of the writ,” historian Helen Nutting explains, because “courts had no means of forcing obedience to the first writ” and penalties “only accompanied the third… so that a jailer was perfectly within the limits of accepted procedure in not bringing the prisoner to court until he received the third writ.” The Habeas Corpus Act of 1679 was enacted in the hopes of resolving that tangled issue.

This new writ, according to political scientist Neil Douglas McFeeley, is “the most effective weapon yet devised for the protection of… liberty,” as it allows for “a speedy judicial inquiry into the validity of any imprisonment on a criminal charge, as well as a speedy trial of prisoners incarcerated while awaiting trials.” It stipulated that a prisoner must be presented within three days unless he or she could prove that he or she was “detained according to a lawful procedure, order, or warrant issued by some court having authority over criminal issues.” Notably, the writ did not apply to people who were incarcerated due to a criminal conviction.

Although the 1679 Act did not apply to the American colonies, English common law did, and several of them incorporated the writ into their own constitutions. Indeed, the writ was so vital that it was incorporated in Article I of the United States Constitution with minimal debate and no dissent: “the privilege of the writ of habeas corpus shall not be interrupted, save where the public safety may demand it in instances of insurrection or invasion.” “The founders intended to make it clear that jailed individuals would continue to be able to dispute their detention,” writes legal historian G. Edward White.


The Assize of Clarendon (1166);

Bushel’s Case (1670);

The U.S. Constitution (1787).


The Habeas Corpus Act of 1679

The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (Sterling Milestones) Hardcover – Illustrated, 22 Oct. 2015, English edition by Michael H. Roffer (Autor)