Habeas Corpus Act,1679

I

WHEREAS great delays have been used by sheriffs, gaolers and other officers, to whose custody, any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs 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 yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the King's subjects have been, and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation.

II

For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters; be it enacted by the King's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority thereof.That whensoever any person or persons shall bring any habeas corpus directed unto any sheriff or sheriffs, gaoler, minister or other person whatsoever, for any person in his or their custody, and the said writ shall be served upon the said officer, or left at the gaol or prison with any of the underofficers, under-keepers, or deputy of the said officers or keepers, that the said officer or officers, his or their under-officers, under-keepers or deputies, shall, within three days after the service thereof as aforesaid, (unless the commitment aforesaid were for treason or felony, plainly and specially expressed in the warrant of commitment), upon payment or tender of the charges of bringing the said prisoner, to be ascertained by the Judge or Court that awarded the same, and endorsed upon the said writ, not exceeding twelve pence per mile, and upon security given by his own bond to pay the charges of carrying back the prisoner, if he shall be 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 return of such writ; and bring, or cause to be brought, the body of the party so committed or restrained, unto or before 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 which the said writ shall issue, or unto and before such other person or persons before whom the said writ is made returnable, according to the command thereof; and shall then likewise certify the true causes of his detainer or imprisonment, unless the commitment of the said party be in any place beyond the distance of twenty miles from the place or places where such Court or person is or shall be residing; and if beyond the distance of twenty miles, and not above one hundred miles, then within the space of ten days, and if beyond the distance of one hundred miles, then within the space of twenty days, after such delivery aforesaid, and no longer.

III

And to the intent that no sheriff, gaoler or other officer, may pretend ignorance of the import of any such writ; be it enacted by the authority aforesaid, That all such writs 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, unless for felony or treason plainly expressed in the warrant of commitment, in the vacation-time, and out of term, it shall and may be lawful to and for the person or persons so committed or detained (other than persons convict or in execution of legal process) or any one on his or their behalf, to appeal or complain to 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 coif; and the said Lord Chancellor, Lord Keeper, Justices or Barons or any of them, upon view of the copy or copies of the warrant or warrants of commitment and detainer, or otherwise upon oath made that such copy or copies were denied to be given by such person or persons in whose custody the prisoner or prisoners is or are detained, are hereby authorized and required, upon request made in writing by such person or persons, or any on his, her, or their behalf, attested and subscribed by two witnesses who were present at the delivery of the same,to award and grant an habeas corpus under the seal of such Court whereof he shall then be one of the Judges, to be directed to the officer or officers in whose custody the party so committed or detained shall be,returnable immediate before the said Lord Chancellor or Lord Keeper or such Justice, Baron or any other Justice or Baron of the degree of the coif 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 custody the party is so committed or detained, shall, within the times respectively before limited, bring such prisoner or prisoners before the said Lord Chancellor or Lord Keeper, or such Justices, Barons or one of them, before whom the said writ is made returnable, and in case of his absence before any other of them, with the return of such writ, and the true causes of the commitment and detainer; and thereupon, within two days after the party shall be brought before them, the said Lord Chancellor or Lord Keeper, or such Justice or Baron before whom the prisoner shall be brought as aforesaid, shall 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 offense, for his or their appearance in the Court of the 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 offense was committed, or in such other court where the said offense is properly cognizable, as the case shall require, and then shall certify the said writ with the return thereof, and the said recognizance or recognizances unto the said Court where such appearance is to be made; unless it shall appear unto the said Lord Chancellor or Lord Keeper or Justice or Justices, or Baron or Barons, that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said Justices or Barons, or some Justice or Justices of the Peace, for such matters or offenses for the which by the law the prisoner is not bailable.

IV

Provided always, and be it enacted, that if any person shall have willfully neglected by the space of two whole terms after his imprisonment, to pray a Habeas Corpus for his enlargement,such person so willfully neglecting shall not have any Habeas Corpus to be granted in vacation time,in pursuance of this act.

V

And be it further enacted by the authority aforesaid, that if any officer or officers, his or their under-officer or under-officers, under-keeper or underkeepers, or deputy, shall neglect or refuse to make the returning aforesaid, or to bring the body or bodies of the prisoner or prisoners according to the command of the said writ, within the respective times aforesaid, or upon demand made by the prison or person in his behalf, shall refuse to deliver, or within the space of six hours after demand shall not deliver to said person so demanding, a true copy of the warrant or warrants of commitment and detainer of such prisoner, which he and they are hereby required to deliver accordingly; all and every the head gaolers and keepers of such prisoner, and such other person in whose custody the prisoner shall be detained, shall for the first offense forfeit to the prisoner or party grieved the sum of one hundred pounds; and for the second offense the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office; the said penalties to be recovered by the prisoner or party grieved, his executors or administrators, against such offender, his executors, or administrators, by any action of debt, suit, bill, plaint or information, in any of the King's Courts at Westminster,wherein no 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 on one imparlance; and any recovery or judgment at the suit of any party grieved, shall be a sufficient conviction for the first offense; and any after recovery or judgment at the suit of a party grieved for any offense after the first judgment, shall be a sufficient conviction to bring the officers or person within the said penalty for the second offense.

VI

And for the prevention of unjust vexation by reiterated commitments for the same offense; be it enacted by the authority aforesaid, that no person or persons which shall be delivered or sit at large upon any Habeas Corpus shall at any time hereafter be again imprisoned or committed for the same offense by any person or persons whatsoever, other than by the legal order and process of such Court wherein he or they shall be bound by recognizance to appear, or other Court having jurisdiction of the cause; and if any other person or persons shall knowingly, contrary to this act, recommit or imprison, or knowingly procure or cause to be recommitted or imprisoned, for the same offense or pretended offense, any person or persons delivered or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved the sum of five hundred pounds; any colourable pretense or variation in the warrant or warrants of commitment notwithstanding, to be recovered as aforesaid.

VII

Provided always, and be it further enacted, that if any person or persons shall be committed for high treason or felony, plainly andspecially 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, Session 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, Session 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, Session 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 Session of Oyer and Terminer and general gaol delivery,to be brought to his trial, shall not be indicted and tried the second term, Session 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.

VIII

Provided always, that nothing in this act shall extend to discharge out of prison any person charged in debt, or other action, or with process in any civil cause, but that after he shall be discharged of his imprisonment for such his criminal offense, he shall be kept in custody according to the law, for such other suit.

IX

Provided always, and be it enacted by the authority aforesaid, that if any person or persons, subjects of this realm, shall be committed to any prison, or in custody of any officer or officers whatsoever, for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and custody into the custody of any other officer or officers; unless it be by Habeas Corpus or some other legal writ;or where the prisoner is delivered to the constable or other inferior officer to carry such prisoner to some common gaol; or where any person so sent by order of any Judge or Assize or Justice of the Peace, to any common workhouse 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 trial or discharge in due course of law; or in case of sudden fire or infection, or other necessity; and if any person or persons shall, after such commitment aforesaid, make out and sign, or countersign any warrant or warrants for such removal aforesaid, contrary to this act; as well he that makes or signs or countersigns such warrant or warrants to as the officer or officers that obey or execute the same, shall suffer and incur the pains and forfeitures in this act before mentioned, both for the first and second offenses respectively, to be recovered in manner aforesaid by the party grieved.

X

Provided also, and be it further enacted by the authority aforesaid, that it shall and may be lawful to and for any prisoner and prisoners as aforesaid, to move and obtain his or their Habeas Corpus,as well out of the High Court of Chancery or Court of Exchequer, as out of the Courts of King's Bench or Common Pleas,or either of them; and if the said Lord Chancellor or Lord Keeper, or any Judge or Judges, Baron or Barons for the time being of the degree of the coif, of any of the Courts aforesaid, in the vacation time, upon such of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that such copy or copies were denied as aforesaid,shall deny any writ of Habeas Corpus by this act required to be granted, being moved for as aforesaid, they shall severally forfeit to the prisoner or party grieved the sum of five hundred pounds, to be recovered in manner aforesaid.

XI

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 seen in any county Palatine, the Cinque Ports, or other privileged places within the Kindgom of England,dominion of Wales,or town of Berwick upon Tweed,and the islands of Jersey and Guernsey;any law or usage to the contrary notwithstanding.

XII

And, for preventing illegal imprisonments in prisons beyond the seas, be it further enacted by the authorities aforesaid that no subject of this realm that now is, or hereafter shall be an inhabitant or resiant Of this Kingdom of England,dominion of Wales,or town of Berwick upon Tweed,shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into forts, garrisons, islands, or places beyond the seas, which are or at any time hereafter shall be within or without the dominions of His Majesty, his heirs, or successors;and that every such imprisonment is hereby enacted and adjudged to be illegal;and that if any of the said subjects now is or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may, for every such imprisonment, maintain, by virtue of this act, an action or actions of false imprisonment, in any of His Majesty's Courts of record, against the person or persons by whom he or she shall be so 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, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them; and the plaintiff in every such action shall have judgment to recover his treble costs, besides damages, which damages so to be given shall not be less than five hundred pounds; in which action no delay, stay, or stop of proceeding by rule, order, or command, nor no injunction, 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 be thought in justice necessary, for special cause to be expressed in the said rule;and the person or persons who shall knowingly frame, contrive, write, seal or countersign any warrant for such commitment, detainer, or transportation, or shall so commit, detain, imprison, or transport any person or persons contrary to this act, or be any way advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England,dominion of Wales,or town of Berwick upon Tweed,or any of the islands,territories,or dominions thereunto belonging, and shall incur and sustain the pains, penalties and forfeitures limited, or denied, and provided, in and by the statute of Provision and Praemunire made in the sixteenth year of King Richard the Second;and be incapable of any pardon from the King, his heirs or successors, of the said forfeitures, losses or disabilities or any of them.

XIII

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.

XIV

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 anything therein contained to the contrary notwithstanding.

XV

Provided also, 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.

XVI

Provided also, that if any person or persons at any time resiant in this realm, shall have committed any capital offense in Scotland or Ireland,or any of the islands, or foreign plantation of the King, his heirs or successors, where he or she ought to be tried for such offense, such person or persons may be sent to such place, there to receive such trial, in such manner as the same might have been used before the making of this act; any thing herein contained to the contrary notwithstanding.

XVII

Provided also, and be it enacted, that no person or persons shall be sued,impleaded, molested, or troubled for any offense against this act, unless the party offending be sued or impleaded for the same within two years at the most after such time wherein the offense shallbe committed, in case the party grieved shall not be then in prison; and if he shall be in prison, then within the space of two years after the decease of the person imprisoned, or his or her delivery out of prison, which shall first happen.

XVIII

And, to the intent no person may avoid his trial – 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 under any Habeas Corpus granted in pursuance of this act, but upon any such Habeas Corpus shall be brought before the Judge of Assizes in open Court, who is thereupon to do what to justices shall appertain.

XIX

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.

XX

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 offense committed or to be committed against the form of this law, it shall be lawful for such defendant 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 by 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 difficiently pleaded, set forth, or alledged, the same matter in bar or discharge of such information, suit, or action.

XXI

And because many times persons charged with petty treason or felony, or as acceptances thereunto, are committed upon suspicion only, whereupon they are bailable, or not, according as the circumstances making out that suspicions 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 when any person shall appear to be committed by any Judge or Justice of the Peace, and charged as accessory 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.

一 文獻出處

Statutes of the Realm,Volume 5:1628-1680,London,1819,pp.935-938.

二 文獻導讀

《人身保護法》是1679年英國頒布的保護人身權利的立法，被英國人譽為“人身自由的基石”。

其實《人身保護法》的前身《人身保護令》可以追溯到中世紀。早在公元12世紀的時候，國王亨利二世就簽發了類似的法庭手令。在法庭手令中規定人民有向皇室申訴的權利。如果有百姓被貴族法庭拘押，那么英國國王就可以發出手令，將受押者交給皇室法庭，直接接受國王的審判。這在當時的條件下可以一定程度地保護平民百姓的利益，雖然國王的初衷是限制貴族權力。到了1640年英國首次通過了《人身保護令》，到1679年正式通過了《人身保護法》。

《人身保護法》的頒布有著深刻的背景。在17世紀前期，英國爆發內戰，最終國王戰敗并被押上斷頭臺，克倫威爾上臺執政并建立英吉利共和國。但是當時實行共和國制在英國的基礎并不那么穩固，許多人還是很懷念帝制時代。因此，當護國主克倫威爾去世后，整個英國馬上陷入動蕩之中。最終大部分人傾向于恢復帝制，于是斯圖亞特王朝復辟，查理二世上臺，可是他卻違背了之前承諾的《布雷達宣言》，開始大肆迫害新教徒和反王權派，要求他們償還在內戰期間占領的皇室和貴族土地，并且隨意逮捕人民，造成恐慌。為了維護利益，保證英國革命的成果，代表新興工商業資產階級的輝格黨援引舊例，通過議會制定《人身保護法》，迫使英王查理二世簽署生效。

《人身保護法》共20條，主要內容是：

第一條規定被逮捕的臣民及其親友有權請求法院發給人身保護令狀，要求限期將被捕者移交給審判機關，也就是說，規定了人身保護令狀要及時發放。

第二條規定除叛國罪及遭遇戰爭或在其他緊急情況下，若沒有法院簽發的寫明理由的逮捕證，不得逮捕和羈押任何人。

第三條規定凡羈押后兩季內，故意不呈請頒發人身保護令狀而申請停止羈押者，在假期內不得依據本律簽發此項令狀。

第四條規定各官吏，或其屬員，或管獄員，或助理員，延誤或拒絕上呈，或在上列規定各期間內不依令狀之規定解送在押人犯者，或經羈押之被告本人或他人請求抄發押票或拘留狀而不于六小時內依本律規定抄給者，其主管獄官應當受到處罰。首次一百鎊罰金交給各被告或受害人。再犯時應處罰金二百鎊，并褫奪其任職及執行職務之權。也就是說，如果人身保護令狀沒有得到及時的頒發，就可以從國家那里獲得補償。

第五條規定不得以同一罪名再度逮捕已準予保釋的人犯；如果這么做，當事人可以從國家那里同樣獲得賠償。

第六條規定審判機關應盡快審核逮捕的理由，若理由不成立，則立即放人；若理由成立，則審判機關應決定保釋或繼續羈押，以待審判。

第七條規定排除范圍：本條例不適用因民事案件而被羈押的被告。

第八條規定除非特殊原因，不得將被羈押者移交到其他監獄或者看守所。如果國家這么做，就要對被羈押者給予賠償，賠償根據初犯還是再犯有所不同。

第九條規定被羈押者請求頒發人身保護令狀，而沒有被允許，那么可以向最高裁判法院、司稅大臣裁判院、皇座法院或民訴法院起訴，索要賠償。

第十條規定人身保護法的空間范圍，凡皇權直轄各郡，南海岸之五港，或英吉利帝國境內各特許地，威爾士自治區，特威德河旁之貝里克郡，澤西島或根西島，不論當地之習慣如何，概適用人身保護令狀。

第十一條規定英國臣民不得被送往海外領地拘禁。為防止海外非法監禁起見，特規定如下：凡帝國人民現在或將來居住于英吉利帝國，威爾士自治區及特威德河旁之貝里克郡者，不得監禁于蘇格蘭、愛爾蘭、澤西、根西、丹吉爾，或隸屬于國皇及其繼承人與后裔之海外殖民地領域內外各部、各兵房、各島嶼或處所。此項監禁一律認為非法。

第十二條規定凡以書面與商人，或殖民地所有人，或他人簽訂以移送其本人至海外為目的之契約，并預交定金者，雖嗣后經本人否認所訂契約，仍不得享受本律規定之利益。

第十三條規定重罪犯依法審判后，當庭請求移送海外，經法院認為適當者，本律雖有相反之規定，仍得移送之。

第十四條規定時間效力，即監禁在1679年6月1日以前者，不適用本律。

第十五條規定被判處死刑者只能在其居住地處死。

第十六條規定被羈押追索賠償的訴訟時效為2年。自其出獄時起開始計算。

第十七條規定為了防止審判不能如期進行，在審判期規定之后，在押犯就不能申請將自己移交到公共監獄。

第十八條規定審判期終止之后，在押人根據法律規定可以請求簽發人身保護令狀。

第十九條規定被告的辯護權。

第二十條規定重犯不能保釋。

但上述規定不適用于叛國犯和重罪犯；戰時或遇緊急狀態須停止《人身保護法》的效力。此法令最初在英格蘭頒布實施，蘇格蘭和愛爾蘭分別于1701年和1782年頒布同樣法令。1816年英格蘭又增加規定，可在巡回法院和季度法庭休庭期間簽發人身保護令狀。1862年擴大《人身保護法》的適用范圍。1960年又做了進一步修改。

《人身保護法》目的在于限制王權和司法機關的專橫，該法頒布之后，不僅對維護司法審判活動中的人身權利起過一定作用，而且為英國后來的司法制度的建立提供了法律基礎和根據。由于人們對濫用審前羈押的不滿，英國因此創設了救濟性措施。人身保護令制度被英國人譽為“人身自由的基石”，并成為國際上解決超期羈押問題的通行做法。《人身保護法》將早在公元12世紀就已開始存在的保護人身權利的制度法律化，確立了近代意義上的人身自由權利，可以說是標志著人類對個人人權的法律保護的真正開始，產生了十分深遠的影響，成為人權史上濃墨重彩的一筆。《人身保護法》在世界憲法史上占有重要地位。它和1689年的《權利法案》、1700年的《王位繼承法》等幾個文件一起，確立了后來英國的君主立憲制度，它是17世紀英國“光榮革命”的一個至關重要的階段性成果。實際上，《人身保護法》并沒有列舉和肯定任何實在的權利，而是著重于闡述如何限制司法機關非法逮捕拘禁的法律程序。盡管如此，這項法律，對于限制行政和司法機關的專橫，加速法院審判，維護剛剛建立的資產階級法律程序，具有進步意義。人身保護令制度的產生得力于資產階級革命的推動，民主、自由、天賦人權等進步思想推動了人們對人權的重視，充分體現了英國自由主義者保護人權的初衷。這一法案，對我國今天的法制建設還有借鑒意義。

三 延伸閱讀

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Carpenter, A.H.,“Habeas Corpus in the Colonies”, The American Historical Review,Vol.8,No.1,1902,pp.18-27.

Dobbs,Michael,Saboteurs:The Nazi Raid on America,Vintage,2005.

Freedman,Eric M.,Habeas Corpus:Rethinking the Great Writ of Liberty, NYU Press, 2003.

Fisher,Louis,Nazi Saboteurs on Trial:A Military Tribunal and American Law,University Press of Kansas,2005.

Federman, Cary,The Body and the State:Habeas Corpus and American Jurisprudence,State University of New York Press,2007.

Nutting, Helen A., “The Most Wholesome Law-The Habeas Corpus Act of 1679”, The American Historical Review,Vol.65,No.3,1960,pp.527-543.

Stone, Geoffrey R.,Perilous Times,Free Speech in Wartime From the Sedition Act to the War on Terrorism,Norton,2005.