The Fat Peer's Tally

Lord Shaftesbury, the Habeas Corpus Act of 1679, and the Body in Court

Francis Jenkes, a London linen draper from Cornhill, stood up in the Guildhall on Midsummer Day, June 24, 1676, and made the mistake of demanding in front of the Lord Mayor that King Charles II recall Parliament to protect English trade against French competition. Within forty-eight hours, the King's Privy Council summoned Jenkes to Whitehall, interrogated him without charging him with a crime, and locked him inside the Gatehouse Prison at Westminster. Every English law student knew that Chapter 39 of Magna Carta (1215) forbade imprisoning any free man save by the law of the land, and that the ancient common-law writ of habeas corpus ad subjiciendum (meaning that you have the body to submit to the court) commanded a jailer to bring a prisoner before a judge to test the legality of his detention.

When Jenkes's friends petitioned England's highest judges for a writ of habeas corpus that summer, however, they collided with a wall of procedural traps that rendered the Great Charter useless in practice. First, King's Bench Chief Justice Sir Richard Rainsford refused to issue the writ because the common-law courts were in their four-month Long Vacation between Trinity Term and Michaelmas Term; as Rainsford informed Jenkes's lawyers, royal judges had no statutory duty to sign a writ while out of term. Second, when Jenkes turned to Lord Chancellor Heneage Finch in the Court of Chancery, Finch declined to act because Jenkes had been committed by the King's Privy Council rather than an ordinary magistrate.

Even when a prisoner applied during court term, seventeenth-century Stuart crown lawyers exploited three further loopholes. Under medieval procedure, a jailer who received a habeas corpus writ could ignore it until the court issued a second writ (an alias writ) and then a third writ (a pluries writ), buying months of unlawful detention. Worse, if a prisoner was about to be brought before a judge in Westminster, the Privy Council simply transferred him overnight to another prison—repeating the shell game indefinitely—or shipped him across the water to royal island fortresses in Jersey, Guernsey, or the North African garrison of Tangier, where English common-law writs did not run. Jenkes rotted in the Gatehouse all summer until autumn term resumed.

Observing Jenkes's ordeal—and having spent a full year locked inside the Tower of London himself between 1677 and 1678—Anthony Ashley Cooper, 1st Earl of Shaftesbury, resolved to build a self-executing statutory machine that no royal judge or jailer could evade. As leader of the parliamentary opposition during the crisis of 1679, Shaftesbury drafted what parliamentarians called Lord Shaftesbury's Act and placed it before Westminster as An Act for the better securing the Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas. Instead of repeating declarations about human liberty, Shaftesbury attacked the administrative incentives of judges and turnkeys through four mechanical clauses:

1. 1. Elimination of the Vacation Loophole: Any prisoner detained for a criminal or supposed criminal matter (other than treason or felony plainly expressed in the warrant) could demand a writ of habeas corpus from the Lord Chancellor or any judge of King's Bench, Common Pleas, or the Exchequer during court vacation just as in term time.
2. 2. A Ruinous 500-Pound Judicial Penalty: If any judge refused or delayed issuing the writ during vacation upon viewing a copy of the commitment warrant (or an oath that the jailer refused to provide a copy), that judge became personally liable to pay 500 pounds directly to the aggrieved prisoner—a sum equal to half a judge's annual salary, collectible by personal lawsuit in which the King could not issue a pardon or stay.
3. 3. *A Strict Three-Day Delivery Clock and Abolition of Alias Writs: Upon receiving the first writ, the jailer had to produce the living physical body of the prisoner in court and certify the true cause of detention within three days* (up to twenty days if the prison lay more than a hundred miles away), under penalty of a 100-pound fine for a first offense and 200 pounds plus forfeiture of office for a second.
4. 4. Prohibition of Prison Hopping and Offshore Black Sites: Once detained, a prisoner could not be shifted between prisons to evade a writ, and sending any inhabitant of England as a prisoner to Scotland, Ireland, Jersey, Guernsey, Tangier, or any place beyond the Seas was outlawed as an unpardonable offense carrying triple costs, a minimum 500-pound fine, and lifetime disqualification from office under the Statute of Praemunire.

When the bill returned to the House of Lords on May 27, 1679—the morning King Charles II arrived at Westminster to prorogue Parliament—the royal court party moved to block the Commons' final conference report. According to Bishop Gilbert Burnet's eyewitness memoir, the crucial final conference vote in the House of Lords passed 57 to 55 only because teller Lord Grey jokingly counted the massively corpulent Lord Norris as ten votes, saw that rival teller Lord Brook had missed the prank, and locked the tally into the official parliamentary journal.