Habeas Corpus Act, Charles II, and Francis Jenkes

habeas corpus act

habeas corpus act

My Country – The Habeas Corpus Act of 1679

In 1215, Article 39 of Magna Carta read: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.” However, Habeas Corpus as we know it today came into law on May 27, 1679. We first discussed habeas corpus in regards to the “next friend doctrine.” The example that Justice Douglas used was the status of the Rosenbergs, who could not speak in their defense. Next, we looked into the story of William H. McCardle. William H. McCardle claimed that the military had no right to try him. He argued that only a civil court should have jurisdiction, so he asked the federal court to discharge him under habeas corpus.

However, neither of these stories would matter if not for the Habeas Corpus Act.

King Charles II

Charles II took over the throne, in name only, after the House of Commons found him guilty of treason and then executed him. In reality, Charles fled and Oliver Cromwell took the throne. We also ran into King Charles II before when we read about the Popish Plot.

All in an attempt to play politics, the Earl of Shaftesbury used the Popish Plot and other fear to pass a bill to neutralize Charles’s brother, James in case he would take over. Parliament passed the law and the King gave it Royal Assent.

But Why?

According to Justice Douglas and Herbert Broom (Constitutional Law Viewed in Relation to Common Law: And Exemplified by Cases), the case of Francis Jenkes led to the passing of the Habeas Corpus Act. Jenkes was a trader who made a speech concerning the decline of trade in London – with a little Protestant flair. He urged that Parliament convenes to consider the problem. But instead, the King and his Council summoned him. According to An Almanac of Liberty, the exchange went like this.

Lord: How came youthen to meddle with matters of state?

Jenkes: I thought any of his Majesty’s subjects, in an humble manner, might petition his Majesty for a remedy of any grievance whatsoever.

King: I will take care that none such as you shall have to do with the government

Jenkes: I think my expression was no great absurdity. Yet, if I have failed in due expression, I beg his Majesty’s pardon.

Lord: Sir, pray tell us, who advised you in this matter?

King: Who advised you?

Jenkes: To name a particular person (if there were such) would be a mean and unworthy thing, therefore I desire to be excused all farther answer to such questions, since the law doth provide that no man be put to answer to this own prejudice.

After several months in jail, they released Jenkes on bail. But this difficulty in obtaining habeas corpus led to the reform.

The Habeas Corpus Act of 1679

Overall, the act reads like something out of Shakespeare. But the focus of the act remains the delays used by sheriff and officers. The Parliament wanted to end these long detentions. It asked for speedy relief of all persons in criminal matters.  The subtitle of that Act stated its design: an act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas.

To this day, habeas corpus remains one of the greatest civil rights available. We take for granted the right to know that we cannot be imprisoned for no reason.

Tomorrow’s story looks into when President Lincoln suspended habeas corpus in one of the darkest periods in our history.


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.