Habeas corpulent

Habeas corpus formally entered English law because of a parliamentarian’s fat joke in 1679.

The 1st Earl of Shaftesbury
After John Greenhill, Public domain, via Wikimedia Commons

Habeas corpus is one of law’s great checks against abuses of power. It requires anyone holding someone prisoner to front up to a court, with that person, to establish that they have the legal right to hold them prisoner. Literally, they must “produce the body.” It has existed in some form in English law since 1166, when it formed part of the Assize of Clarendon. (That same act, by the way, is why common law countries have jury trials today.) Habeas corpus also famously appeared in the Magna Carta in 1215. But the most important act that introduced this writ, in 1679, only succeeded because a fat joke got out of control.

The parliament known today as the Habeas Corpus Parliament only ever sat for two sessions. As with many early English parliaments, it had clashes with the king. In this case, the parliament sought to exclude the king’s (Catholic!) brother from the line of succession. The king responded by dissolving parliament…. but not before it passed an act formally enshrining habeas corpus in the law of the land.

On one side, King Charles II and the king’s brother, Mr. “I love popery” Duke of York. On the other side, the 1st Earl of Shaftesbury (pictured above), later a founder of the Whig Party. The Habeas Corpus Act 1679 bounced between the House of Lords and the House of Commons. But it still hadn’t passed when the spectre of imminent dissolution threatened. It came down to a vote in the House of Lords. Pass, and it would enter conference and then become law. Fail, and it was dead.

This is how they counted votes: all the aye votes would leave the House, and then come back in. As they passed back through the parliamentary doors, two lords (the “tellers”) counted each person. To keep everyone honest, those two tellers must have opposing views – one in favour and one against the law.

So, two lords on either side of the entryway, counting the aye votes as they re-entered the House of Lords. And this is where the fat joke comes in. One particularly corpulent lord re-entered the chamber. The teller allied with the earl (and thus in favour of the law) counted him as ten people rather than one. The other side’s teller, thanks to an attack of the vapours, did not notice the joke – and the other teller did not correct him.

The final count came in: 57 in favour of the law, 55 against. It passed, and habeas corpus was enshrined in English law. Just one thing to note here: 57+55=112 votes cast. But only 107 lords were present… so the teller’s fat joke actually swung the result. Without it, the act would not have passed.

[Thanks to Gareth E.]

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