Habeas Corpus (1679)

Habeas Corpus Act 31 Car. 2, c. 2 , 27 May 1679

An Act for the better secureing the liberty of the subject, and for Prevention of Imprisonments beyond the seas.

Recital that Delays had been used by Sheriffs in making Returns of Writs of Habeas Corpus, &c.

WHEREAS great Delayes have beene used by Sheriffes Goalers and other Officers to whose Custody any of the Kings Subjects have beene committed for criminall or supposed criminall Matters in makeing Returnes of Writts of Habeas Corpus to them directed by standing out an Alias and Pluries Habeas Corpus and sometimes more and by other shifts to avoid their yeilding Obedience to such Writts contrary to their Duty and the knowne Lawes of the Land whereby many of the Kings Subjects have beene and hereafter may be long detained in Prison in such Cases where by Law they are baylable to their great charge and vexation.

I. Sheriff, &c. within Three Days after Service of Habeas Corpus, with the Exception of Treason and Felony, as and under the Regulations herein mentioned, to bring up the Body before the Court to which the Writ is returnable; and certify the true Causes of Imprisonment. Exceptions in respect of Distance.

For the prevention whereof and the more speedy Releife of all persons imprisoned for any such criminall or supposed criminall Matters whensoever any person or persons shall bring any Habeas Corpus directed unto any Sheriffe or Sheriffes Goaler Minister or other Person whatsoever for any person in his or their Custody and the said Writt shall be served upon the said Officer or left at the Goale or Prison with any of the Under Officers Underkeepers or Deputy of the said Officers or Keepers that the said Officer or Officers his or their Under Officers Under-Keepers or Deputyes shall within Three dayes after the Service thereof as aforesaid (unlesse the Committment aforesaid were for Treason [F1 or Felony ], plainely and specially expressed in the Warrant of Committment) upon Payment or Tender of the Charges of bringing the said Prissoner to be ascertained by the Judge or Court that awarded the same and endorsed upon the said Writt not exceeding Twelve pence per Mile, and upon Security given by his owne Bond to pay the Charges of carrying backe the Prisoner if he shall bee remanded by the Court or Judge to which he shall be brought according to the true intent of this present Act and that he will not make any escape by the way make Returne of such Writt or bring or cause to be brought the Body of the Partie soe committed or restrained unto or before [F2 the lord chancellor, or lord keeper of the great seal of England for the time being, or ] the Judges or Barons of the said Court from whence the said Writt shall issue or unto and before such other person and persons before whome the said Writt is made returnable according to the Command thereof, and shall likewise then certifie the true causes of his Detainer or Imprisonment unlesse the Committment of the said Partie be in any place beyond the distance of Twenty miles from the place or places where such Court or Person is or shall be resideing and if beyond the distance of Twenty miles and not above One hundred miles then within the space of Ten dayes and if beyond the distance of One hundred miles then within the space of Twenty dayes after such delivery aforesaid and not longer. miles, then within the space of twenty days, after such delivery aforesaid, and not longer.

II. How Writs to be marked. Persons committed, except for Treason and Felony, &c. may appeal to the Lord Chancellor, &c. Proceedings thereon. Habeas Corpus may be awarded; and upon Service thereof the Officer to bring up the Prisoners as before mentioned; and thereupon within Two Days Lord Chancellor, &c. may discharge upon Recognizance; and certify the Writ with the Return and Recognizance. Proviso for Process not bailable.

And to the intent that noe Sheriffe Goaler or other Officer may pretend ignorance of the import of any such Writt all such Writts shall be marked in this manner Per Statutum Tricesimo primo Caroli Secundi Regis and shall be signed by the person that awards the same] And if any person or persons shall be or stand committed or detained as aforesaid for any Crime unlesse for [F3 Felony or ] Treason plainely expressed in the Warrant of Committment in the Vacation time and out of Terme it shall and may be lawfull to and for the person or persons soe committed or detained (other then persons Convict or in Execution) by legall Processe or any one in his or their behalfe to appeale or complaine to [F4 the lord chancellor or lord keeper, or ] any one of His Majesty's Justices, either of the one Bench or of the other or the Barons of the Exchequer of the Degree of the Coife and the said [F5 lord chancellor, lord keeper, ] Justices or Barons or any of them upon view of the Copy or Copies of the Warrant or Warrants of Committment and Detainer or otherwise upon Oath made that such Copy or Copyes were denyed to be given by such person or persons in whose Custody the Prisoner or Prisoners is or are detained are hereby authorized and required [X1upon Request made in Writeing by such person or persons or any on his her or their behalfe attested and subscribed by two Witnesses [X4that] were present at the delivery of the same] to award and grant an Habeas Corpus under the Seale of such Court whereof he shall then be one of the Judges to be directed to the Officer or Officers in whose Custodie the Party soe committed or detained shall be returnable immediate before [F6 the said lord chancellor or lord keeper, or ] such Justice Baron or any other Justice or Baron of the Degree of the Coife of any of the said Courts and upon Service thereof as aforesaid the Officer or Officers his or their Under-Officer or Under Officers Under Keeper or Under Keepers or their Deputy in whose custodie the Partie is soe committed or detained shall within the times respectively before limitted bring such Prisoner or Prisoners beforethe said [F7 lord chancellor or lord keeper, or ] such Justices Barons or one of them before whome the said Writt is made returnable and in case of his absence before any other of them with the Returne of such Writt and the true Causes of the Committment and Detainer and thereupon within two dayes after the Partie shall be brought before them the said Lord Chauncellor or Lord Keeper or such Justice or Baron before whome the Prisoner shall be brought as aforesaid shall [F8, subject to section 25 of the Criminal Justice and Public Order Act 1994, ] [F9 discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or sureties, in any sum according to their discretions, having regard to the quality of the prisoner and nature of the offence, for his or their appearance in the court of King’s bench the term following, or at the next assizes, sessions or general gaol-delivery of and for such county, city or place where the commitment was, or where the offence was committed, or in such other court where the said offence is properly cognizable, as the case shall require, ] and then shall certifie the said Writt with the Returne thereof, and the said recognizance or recognizances into the said court where such Appearance is to be made unlesse it shall appeare unto the said [F10 lord chancellor or lord keeper, or ] Justice or Justices or Baron or Barons that the Party soe committed is detained upon a legall Processe Order or Warrant out of some Court that hath Jurisdiction of Criminall Matters or by some Warrant signed and sealed with the Hand and Seale of any of the said Justices or Barons or some Justice or Justices of the Peace for such Matters or Offences for the which by the Law the Prisoner is not Baileable.

III. Habeas Corpus not granted in Vacation to Prisoners who have neglected to pray the same.

Provided alwayes if any person shall have wilfully neglected by the space of two whole Termes after his Imprisonment to pray a Habeas Corpus for his Enlargement such person soe wilfully neglecting shall not have any Habeas Corpus to be granted in Vacation time in pursuance of this Act.

IV. Officer neglecting, &c. to make the said Returnes, &c. or upon Demand to deliver a Copy of Warrant of Commitment; First Offence, Penalty £100. Second Offence, £200 and Incapacity. Judgment at Suit of Party sufficient Conviction.

And if any Officer or Officers his or their Under-Officer or Under-Officers Under-Keeper or Under-Keepers or Deputy shall neglect or refuse to make the Returnes aforesaid or to bring the Body or Bodies of the Prisoner or Prisoners according to the Command of the said Writt within the respective times aforesaid or upon Demand made by the Prisoner or Person in his behalfe shall refuse to deliver or within the space of Six houres after demand shall not deliver to the person soe demanding a true Copy of the Warrant or Warrants of Committment and Detayner of such Prisoner, which he and they are hereby required to deliver accordingly all and every the Head Goalers and Keepers of such Prisons and such other person in whose Custodie the Prisoner shall be detained shall for the first Offence forfeite to the Prisoner or Partie grieved the summe of One hundred pounds and for the second Offence the summe of Two hundred pounds and shall and is hereby made incapeable to hold or execute his said Office, the said Penalties to be recovered by the Prisoner or Partie grieved his Executors or Administrators against such Offender his Executors or Administrators by any Action or Information in any of the Kings Courts at Westminster wherein noe [F11 essoin, protection, privilege, ] injunction, [ wager of law, ] or stay of prosecution by Non vult ulterius prosequi, or otherwise, shall be admitted or allowed, [ or any more than one imparlance ] and any Recovery or Judgement at the Suite of any Partie grieved shall be a sufficient Conviction for the first Offence and any after Recovery or Judgement at the Suite of a Partie grieved for any Offence after the first Judgement shall bee a sufficient Conviction to bring the Officers or Person within the said Penaltie for the second Offence.

V. Proviso as to Imprisonment of Party after having been set at large upon Habeas Corpus. Unduly recommitting such discharged Persons or assisting therein; Penalty to the Party £500.

And for the prevention of unjust vexation by reiterated Committments for the same Offence noe person or persons which shall be delivered or sett at large upon any Habeas Corpus shall at any time hereafter bee againe imprisoned or committed for the same Offence by any person or persons whatsoever other then by the legall Order and Processe of such Court wherein he or they shall be bound [F12 by recognizance ] to appeare or other Court haveing Jurisdiction of the Cause and if any other person or persons shall knowingly contrary to this Act recommitt or imprison or knowingly procure or cause to be recommitted or imprisoned for the same Offence or pretended Offence any person or persons delivered or sett at large as aforesaid or be knowingly aiding or assisting therein then he or they shall forfeite to the Prisoner or Party grieved the summe of Five hundred pounds. Any colourable pretence or variation in the Warrant or Warrants of Committment notwithstanding to be recovered as aforesaid.

VI. Provided always, and be it further enacted, That if any person or persons shall be committed for high treason or felony, plainly and specially expressed in the warrant of commitment, upon his prayer or petition in open court the first week of the term, or first day of the sessions of oyer and terminer or general gaol-delivery, to be brought to his trial, shall not be indicted some time in the next term, sessions of oyer and terminer or general gaol-delivery, after such commitment; it shall and may be lawful to and for the judges of the court of King's bench and justices of oyer and terminer or general gaol-delivery, and they are hereby required, upon motion to them made in open court the last day of the term, sessions or gaol-delivery, either by the prisoner or any one in his behalf, to set at liberty the prisoner upon bail, unless it appear to the judges and justices upon oath made, that the witnesses for the King could not be produced the same term, sessions or general gaol-delivery, and if any person or persons committed as aforesaid, upon his prayer or petition in open court the first week of the term or first day of the sessions of oyer and terminer and general gaol-delivery, to be brought to his trial, shall not be indicted and tried the second term, sessions of oyer and terminer or general gaol-delivery, after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.

VII. Proviso respecting Persons charged in Debt, &c.

Provided alwayes That nothing in this Act shall extend to discharge out of Prison any person charged in Debt or other Action or with Processe in any Civill Cause but that after he shall be discharged of his Imprisonment for such his Criminall Offence he shall be kept in Custodie according to Law for such other Suite

VIII. Persons committed for criminal Matter not to be removed but by Habeas Corpus or other legal Writ. Unduly making out, &c. Warrant for Removal; Penalty.

Provided alwaies That if any person or persons Subject of this Realme shall be committed to [X1any] Prison or in Custodie of any Officer or Officers whatsoever for any Criminall or supposed Criminall matter That the said person shall not be removed from the said Prison and Custody into the Custody of any other Officer or Officers unlesse it be by Habeas Corpus or some other Legall Writt or where the Prisoner is delivered to the Constable or other inferiour Officer to carry such Prisoner to some Common Goale or where any person is sent by Order of any judge [F13 or assize ] or Justice of the Peace to any common Worke-house or House of Correction or where the Prisoner is removed from one Prison or place to another within the same County in order to his or her Tryall or Discharge in due course of Law or in case of suddaine Fire or Infection or other necessity and if any person or persons shall after such Committment aforesaid make out and signe or countersigne any Warrant or Warrants for such removeall aforesaid contrary to this Act as well he that makes or signes or countersignes such Warrant or Warrants as the Officer or Officers that obey or execute the same shall suffer and incurr the Paines and Forfeitures in this Actbefore-mentioned both for the first and second Offence respectively to be recovered in manner aforesaid by the Partie grieved.

IX. Proviso for Application for and granting Habeas Corpus in Vacation-time. Lord Chancellor, &c. unduly denying Writ; Penalty to Party £500.

Provided alsoe That it shall and may be lawfull to and for any Prisoner and Prisoners as aforesaid to move and obtaine his or their Habeas Corpus as well out of the High Court of Chauncery or Court of Exchequer as out of the Courts of Kings Bench or Common Pleas of either of them And if [F14 the said lord chancellor or lord keeper, or ] any Judge or Judges Baron or Barons for the time being of the Degree or the Coife of any of the Courts aforesaid in the Vacation time upon view of the Copy or Copies of the Warrant or Warrants of Committment or Detainer or upon Oath made that such Copy or Copyes were denyed as aforesaid shall deny any Writt of Habeas Corpus by this Act required to be granted being moved for as aforesaid they shall severally forfeite to the Prisoner or Partie grieved the summe of Five hundred pounds to be recovered in manner aforesaid.

X. Habeas Corpus may be directed into Counties Palatine, &c.

And be it declared and enacted by the authority aforesaid, That an Habeas Corpus according to the true intent and meaning of this Act may be directed and runn into any County Palatine The Cinque Ports or other priviledged Places within the Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede and the Islands of Jersey or Guernsey Any Law or Usage to the contrary notwithstanding.

XI. No subject to be sent Prisoner into Scotland, &c. or any Parts beyond the Seas. Persons so imprisoned may maintain Action against the Person committing or otherwise acting in respect thereof, as herein mentioned; Treble Costs and Damages; and the Person so committing or acting disabled from Office, and incur Premunire 16 R. 11. c. 5. and be incapable of Pardon.

And for preventing illegall Imprisonments in Prisons beyond the Seas noe Subject of this Realme that now is or hereafter shall be an Inhabitant of Resiant of this Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede shall or may be sent Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter shall be within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall and that if any of the said Subjects now is or hereafter shall bee soe imprisoned every such person and persons soe imprisoned shall and may for every such Imprisonment maintaine by vertue of this Act an Action or Actions of false Imprisonment in any of His Majestyes Courts of Record against the person or persons by whome he or she shall be soe committed detained imprisoned sent Prisoner or transported contrary to the true meaning of this Act and against all or any person or persons that shall frame contrive write seale or countersigne any Warrant or Writeing for such Committment Detainer Imprisonment or Transportation or shall be adviseing aiding or assisting in the same or any of them and the Plaintiffe in every such Action shall have Judgement to recover his [F15 treble ] Costs besides Damages which Damages soe to be given shall not be lesse then Five hundred pounds In which Action noe delay stay or stopp of Proceeding by Rule Order or Command nor noe Injunction, [F16 protection or privilege ] whatsoever, [ nor any more than one imparlance ] shall be allowed, excepting such Rule of the Court wherein the Action shall depend made in open Court as shall bee thought in Justice necessary for speciall cause to be expressed in the said Rule] and the person or persons who shall knowingly frame contrive write seale or countersigne any Warrant for such Committment Detainer or Transportation or shall soe committ detaine imprison or transport any person or persons contrary to this Act or be any wayes adviseing aiding or assisting therein being lawfully convicted thereof shall be disabled from thenceforth to beare any Office of Trust or Proffitt within the said Realme of England Dominion of Wales or Towne of Berwicke upon Tweede or any of the Islands Territories or Dominions thereunto belonging and [F17 shall incur and sustain the pains, penalties and forfeitures limited, ordained and provided in and by the statute of provision and praemunire made in the sixteenth year of King Richard the Second, ] and be incapeable of any Pardon from the King His Heires or Successors of the said [F18 Forfeitures, Losses or ] Disabilities, or any of them.

XII. Provided always, That nothing in this Act shall extend to give benefit to any person who shall by contract in writing agree with any merchant or owner of any plantation, or other person whatsoever, to be transported to any parts beyond the seas, and receive earnest upon such agreement, although that afterwards such person shall renounce such contract.

XIII. Provided always, and be it enacted, That if any person or persons lawfully convicted of any felony, shall in open court pray to be transported beyond the seas, and the court shall think fit to leave him or them in prison for that purpose, such person or persons may be transported into any parts beyond the seas, this act or any thing therein contained to the contrary notwithstanding.

XIV. Provided alsoe, and be it enacted, That nothing herein contained shall be deemed, construed or taken, to extend to the imprisonment of any person before the first day of June one thousand six hundred seventy and nine, or to any thing advised, procured, or otherwise done, relating to such imprisonment; any thing herein contained to the contrary notwithstanding.

XV. Proviso for sending Persons to be tried in Places where any Capital Offence committed.

Provided alsoe That if any person or persons at any time resiant in this Realme shall have committed any Capitall Offence in Scotland or Ireland or any of the Islands or Forreigne Plantations of the King His Heires or Successors where he or she ought to be tryed for such Offence such person or persons may be sent to such place there to receive such Tryall in such manner as the same might have beene used before the makeing of this Act Any thing herein contained to the contrary notwithstanding.

XVI. Limitation of Prosecution for Offences against this Act.

Provided alsoe That noe person or persons shall be sued impleaded molested or troubled for any Offence against this Act unless the Partie offending be sued or impleaded for the same within Two yeares at the most after such time wherein the Offence shall be committed in case the partie grieved shall not be then in Prison and if he shall be in Prison then within the space of Two yeares after the decease of the Person imprisoned or his or her delivery out of Prison which shall first happen.

XVII. And to the intent noe person may avoid his trial at the assizes or general gaol-delivery, by procuring his removal before the assizes, at such time as he cannot be brought back to receive his trial there, be it enacted, That after the assizes proclaimed for that county where the prisoner is detained, no person shall be removed from the common gaol upon any Habeas Corpus granted in pursuance of this Act, but upon any such Habeas Corpus shall be brought before the judge of assize in open court, who is thereupon to do what to justice shall appertain.

XVIII. Provided nevertheless, That after the Assizes are ended, any person or persons detained, may have his or her Habeas Corpus according to the direction and intention of this Act.

XIX. And be it also enacted by the Authority aforesaid, That if any information, suit or action shall be brought or exhibited against any person or persons for any offence committed or to be committed against the form of this law, it shall be lawful for such defendants to plead the general issue, that they are not guilty, or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded had been good and sufficient matter in law to have discharged the said defendant or defendants against the said information, suit or action, and the said matter shall be then as available to him or them, to all intents and purposes, as if he or they had sufficiently pleaded, set forth or alledged the same matter in bar or discharge of such information suit or action.

XX. And because many times persons charged with petty treason or felony, or as accessories thereunto, are committed upon suspicion only, whereupon they are bailable, or not, according as the circumstances making out that suspicion are more or less weighty, which are best known to the justices of peace that committed the persons, and have the examinations before them, or to other justices of the peace in the county, be it therefore enacted, That where any person shall appear to be committed by any judge or justice of the peace and charged as accessary before the fact, to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of commitment, that such person shall not be removed or bailed by virtue of this act, or in any other manner than they might have been before the making of this Act.

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Amendments in Text

F1  Words repealed by Criminal Law Act 1967 (c. 58), Sch. 3 Pt. III
F2  Words in s. 1 repealed (3.4.2006) by virtue of Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 3, Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F3  Words repealed by Criminal Law Act 1967 (c. 58), Sch. 3 Pt. III
F4  Words in s. 2 repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 4(a), Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F5  Words in s. II repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 4(a), Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F6  Words in s. II repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 4(c), Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F7  Words in s. II repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 4(c), Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F8  Words in s. II inserted (10.4.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 1; S.I. 1995/721, art. 2, Sch. Appendix A
F9  Replaced by “grant bail in accordance with the Bail Act 1976 to the said prisoner subject to a duty to appear before the Crown Court” in the words substituted by Bail Act 1976 (c. 63), Sch. 2 para. 1 and Courts Act 1971 (c. 23), Sch. 8 para. 4(1).
F10  Words in s. II repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 4(c), Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F11  Words repealed by virtue of Statute Law Revision Act 1948 (c. 62), s. 4(a)
F12  Words repealed by Bail Act 1976 (c. 63), Sch. 3
F13  Replaced by “of the Crown Court” by Courts Act 1971 (c. 23), Sch. 8 para. 4(2)
F14  Words in s. IX repealed (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 146, 148, Sch. 4 para. 5, Sch. 18 Pt. 2; S.I. 2006/1014, art. 2(a), Sch. 1 para. 30(b)
F15  Words repealed by Statute Law Revision Act 1948 (c. 62)
F16  Words repealed by virtue of Statute Law Revision Act 1948 (c. 62), s. 4(a)
F17  Replaced by “be liable to imprisonment for life” by Criminal Law Act 1967 (c. 58), Sch. 4 Pt. III para. 1
F18  Words repealed by Criminal Law Act 1967 (c. 58), Sch. 3 Pt. III

VI  Repealed by Courts Act 1971 (c. 23), Sch. 11 Pt. IV
XII XIII  Repealed by Statute Law Revision Act 1948 (c. 62)
XIV  Repealed by Statute Law Revision Act 1863 (c. 125)
XVII XVIII  Repealed by Courts Act 1971 (c. 23), Sch. 11 Pt. IV
XIX  Repealed by Public Authorities Protection Act 1893 (c. 61), Sch
XX  Repealed by Criminal Law Act 1967 (c. 58), Sch. 3 Pt. III