On 15 May 1679, the supporters of Anthony Ashley Cooper, 1st Earl of Shaftesbury, introduced the Exclusion Bill in the Commons. The intention was to exclude James from the succession to the throne. Professor Michael Braddick tells us more about the Exclusion Crisis and the role of Magna Carta.
In 1678 Titus Oates and Israel Tongue revealed what they claimed was a plot to assassinate Charles II, England’s protestant king, replace him with James, his catholic brother, and wipe out English Protestantism. It caused a political crisis marked by acute religious tensions, a series of elections and dissolutions of parliament and open discussion about whether to exclude James from the succession. This latter issue gave these events their conventional name—the Exclusion Crisis.
During the crisis there were numerous political arrests, many of them without showing cause. It was accepted that under Magna Carta people arrested without charge had the right to sue a writ of Habeas Corpus, forcing the courts to either charge or release them. An Act of 1640, passed at another moment of acute political crisis, had extended this right explicitly to people imprisoned by the King and Privy Council, and during the 1670s further legislation had been proposed to give the writ statutory backing.
At the height of the Exclusion Crisis, in 1679, another Act was passed, with the co-operation of all sides. It was a difficult process, against the background of the successful use of Habeas Corpus by many Catholic prisoners, and continuing imprisonments ordered by both Houses, but it was not a partisan measure.
The Act aimed to make it easier and quicker to get the writ issued, and to make sure that it extended to all the territories of the Crown (earlier regimes had sent prisoners to the Channel Islands and elsewhere thinking that they would not have the benefit of Habeas Corpus there). The Act was therefore very relevant in recent years to challenges to the detention of prisoners at Guantanamo Bay
In fact, the Act was probably important more for what it represented than for the difference it made to legal practice. There is not much evidence of any immediate change in the behaviour of the courts, and it has been suggested that it actually weakened the writ since statutes can be repealed or suspended (as this Act was on a number of occasions after 1688). But the symbolic importance of the Act should not be underestimated.
Much of the history of Magna Carta is like this. It is a living tradition, in which moments of crisis have produced re-statements, extensions and re-interpretations, often with consequences that were not at first intended.
Of course, measures taken in moments of crisis often threaten to set new limits to our rights and liberties. This was a clear possibility in the Exclusion Crisis. But the story of the 1679 Act, and the history of the rights associated with Magna Carta more generally, demonstrates another possibility — that greater guarantees of our liberty can come out of such moments. To a large extent Magna Carta, like our political life more generally, is what we make of it.
Michael Braddick FBA is professor of history at the University of Sheffield. He has published widely on aspects of state formation and forms of political resistance in early modern England and is also co-editor of two essay collections and of a major edition of seventeenth century letters. His most recent publications are God’s Fury, England’s Fire: A New History of the English Civil Wars and edited collections on The politics of gesture: historical perspectives and The experience of revolution in Stuart Britain and Ireland, the latter co-edited with David L Smith.