How the Heavy-Handed Counting of an Overweight Legislator Tipped the Scales for a Weighty Law

One of the most important principles of law is the legal recourse of habeas corpus. Translated from the Latin as “to have the body,” it most commonly shows up as a judicial order to produce a prisoner before a court to determine whether that person is being properly detained.

Habeas corpus was recognized prior to 1215, and Article 39 of the Magna Carta expressly guarantees that “no freeman shall be taken or imprisoned or disseised (deprived of a property right) 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.”

The Habeas Corpus Act of 1679 passed by a margin of 2 votes — only after a particularly-fat member of Parliament was counted as the equivalent of 10 men.

The British Parliament has passed several habeas corpus laws over the years. One of the most important was the Habeas Corpus Act of 1679. Passed during the reign of Charles II, it guaranteed the right of prisoners and third parties acting on their behalf to challenge a prisoner’s detention before the Lord Chancellor, Justices of the King’s Bench, and the Barons of the Exchequer. It remains on the statute books of the United Kingdom to this day, nearly 350 years later.

When the Act came before Parliament, its passage was, by no means, assured. It faced strong opposition. Opponents of the measure proposed a series of amendments and parliamentary tactics to stall or kill the Bill. When it came time for the key vote that would decide the Bill’s fate, each side appointed a teller to stand and record the votes of the members. One teller was tasked with calling out the count while the other teller listened and verified the number. Gilbert Burney recounted how the vote tally took place:

“Lord Grey and Lord Norris were named to be the tellers. Lord Norris, being a man subject to vapours, was not at all times attentive to what he was doing: so, a very fat lord coming in, Lord Grey counted him as ten, as a jest at first: but seeing Lord Norris had not observed it, he went on with this misreckoning of ten: so it was reported that they that were for the Bill were in the majority, though indeed it went for the other side: and by this means the Bill passed.”

The clerk recorded in the minutes of the Lords that the “ayes” had fifty-seven and the “nays” had fifty-five, a total of 112, but the same minutes also state that only 107 Lords had attended that session.

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