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Jpdge of probates to ežercile former pow.
XXI. Provided always, and be it further enacted by the ers until the first of authority aforesaid, That it shail and may be lawful for the May, 1787.
judge of the court of probates, and the surrogates in the
several counties within this state, to continue to exercise the like powers they were respectively vested with immediately before the palling of this act, until the first day of May next.
Сн А Р. XXXIX. An ACT for the better securing the Liberty of the Citizens of this Siaie, and for Prevention of Imprisonments.
Pated 21st February, 1787. HEREAS great delays have been used by sheriffs, gaolers and
criminal, or fupposed criminal matters, in making return of writs of habeas corpus to them directed, 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 persons have been, and hereafter may be long detained in priion, in such cases where by law they are bailable, to their great charges and vexation; For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal, or supposed criminal matters :
İ. Be it enabled by the people of the face of Ne-York, represented in fenate and af embly, and it is hereby enacted by the authority of the fame, That
whensoever any person or persons Ihall bring any habeas others to return write corpus directed to any sheriff, gaoler, minister or other perof habeas corpus with son or persons whatsoever, for any person in his or their in a certain tiine.
custody, and the said writ shall be served upon the said officer, or other person or persons, or left at the gaol or prison, with any of the under officers, 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, or other person or persons, 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 charges of bringing the said prisoner, to be ascertained by the judge or court that awarded the fame, and indorled 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 ihall be remanded by the court or judge, to which he shall be brought, according to the true intent of this 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 chancellor of this state for the time being, or the justices of the supreme court, or unto or before such of them 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 a place beyond the distance of twenty miles from the place or places where fuch court, or person is or shall be residing; and ifbeyond the distance of twentv 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 as aforefaid, and not longer.
II. And to the intent that no Mheriff, gaoler, or other officer may preten! ignorance of the iinport of any such writ; Be il further crafted by the all
thori!y asoressid, That all fuch writs shall be marked in this manner, “ By the ffatute," and be signed by the person that awards the fame ; and if any person or persons shall be or ffand committed or detained as aforesaid, for any crime, unless for treason or felony 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 fo committed or detained (other than perfons convict, or in execution by legal process) or any one on his or their behalf, to apply or complain to the chancellor, or any one of the justices of the supreme court; and the said chancellor or justices, or any of them, upon view of the copy or copies of the warrant or warrants of commitinent and detainer, or otherwise, upon oath made that such copy of copies were denied to be given by such person or persons in whose custody the prisoner or prifoners is or are detained, are hereby authorised 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 witesses who were present at the delivery of the fame, 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, or person or persons in whose custody the party fo committed or detained (hall be, returnable immediately before the said chancellor or justice of the said supreme court ; 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, or person or persons in whose cuítody the party is fo committed or detained, shall, within the times respectively before limited, bring such prisoner or prisoners before the said chancellor, or justices of the said supreme court, or one of them, before whom the said writ is made returnable; and in case of his absence, before any other of thein, with the return of such writ, and the true causes of the commit. ment and detainer, and thereupon, within two days after the party shall be brought before them, the faid chancellor, or such justice before whom the prisoner shall be brought as aforesaid, fall discharge the said prisoner from his imprisonment, taking his or their recognizance, with one or more surety or fureties, in any fum according to their discretions, having regard to the quality of the prisoner and nature of the offence, for his or their appearance in the supreme court the term following, or at the next general fellions or gaol delivery of and for such county, city or place, where the commitment was, or where the offence was committed, or in such o her court where the said offence is properly cognizable, as the case shall require, and shall then certify the faid writ, with the return thereof, and the said recognizance or recognizances, into the faid court where such appearance is to be made, unless it shall appear unto the said chancellor, or justice or justices, that the party fo commitied, is detained upon a legal process
, order or warrant, out of fome court that hath jurisdiction of criminal matters, or by some warrant ligned and sealed with the hand and seal of any of the said justices, or some jullice or juslices of the peace, for such matters or offences, for the which, by If a prifonip ness
the law, the prisoner is not bailable. But if any person Icets arrivi tortwo shall have wilfully neglected, by the space of two whole pris to be granted in terms after his iinprisonment, to pray a habeas corpus for
his enlargement, such person so wilfully neglecting, shall not have any labeas corpus to be granied in vacation time, in pursuance of this act.
III. And be it further called hy the authority aforesaid, That if any officer or officers, bis or theit under officer or under officers, under keeper or under
keepers, or deputy, or other person or perfons, shall neglect or refuse to make the returns 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 aforefaid, or upon demand made by the prisoner, or any person in his behalf, shall refuse to deliver, or within the space of fix hours after demand, shall not deliver to the 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 prisons, and such other person or persons in whose cuftody the prisoner shall be detained, fall, for the first offence, forfeit to the prisoner or party grieved, the sum of one hundred pounds, and for the fecond offence, the tum of two hundred pounds, and shall, if an officer, be, and is hereby made incapable to hold or execute his said office ; the faid nalties to be recovered by the prisoner or party grieved, his or her executors or administrators, againit such offender, his executors or administrators, by action of debt, fuit, bill
, plaint or information, in any court of record, wherein no privilege, injunction or stay of prosecution by non vult ulterius prokqu, or otherwise, shall be admitted or allowed, or any more than one imparlance; and any recovery or judgment, at the suit of any party grieved, shall be a fufficient conviction for the first offence; and any after recovery or judgment, at a suit of a party grieved, for any offence, after the firti judyinent, shall be a sufficient conviction to bring the officers, or person or persons, within the said penalty for the second offence.
IV. And for prevention of unjust vexation by reiterated No perfon kt at commitments for the same olence ; Be ii furiher cracica for the late offence, mall be delivered or set at large upon any to becoinmitied again by the authoriiy aforesaid, That no person or persons who but by a proper court,
corpus, shall, at any time thereafter, be again imprisoned.or committed for the fame offence, 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 juuisdiction of the cause; and if any other person or persons shall knowingly, contrary to this act, recommit or imprison, or knowingly cause or procure to be recommitted or imprisoned, for the same offence or pretended ofience, any person or persons delivered or set at large as aforesaid, or be knowingly aiding or On forfeiture of sool.
aflifting therein, then he or they shall forfeit to the prisoner
or party grieved, the sum of five hundred pounds; any colourable pretence or variation in the warrant or warrants of commitment notwithstanding, to be recovered as aforesaid.
V. And be it further enacted by the aui kority afircaid, That is any person or persons shall be committed for any treason or felony, plainly and frecially expressed in the warrant of commitment, upon his prayer or petion in open court, the first week of the term, or first day of the sessions of oyer and terminer or gaol delivery, to be brought to his trial, shall not be indicted some time in the next term, fellions of oyer and terminer or gaol delivery, after such commitment, it shall and may be lawful to and for the justices of the supreme court and justices of oyer and terminer, or gaol delivery, and they are hereby required, upon motion to them inade in open court, the last day of the term, feflions or gaol delivery, either by the prisoner or any one in liis behalf, to set at liberty the prisoner upon bail, unless it appear to the justices, upon oath made, that the witnelles against the prisoner could Not be produced the same term, feflions or gaol delivery. And it any per
firr, nection, other ne cility.
son or persons, committed as aforesaid, upon his prayer or petition in oper court, the first week of the term, or first day of the sessions of oyer and terminer or gaoi delivery, to be brought to his trial, shall not be indicted and tied the fucond terin, fellions of oyer and terminer, or gaol delivery, after h's commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment, Provided always, That nothing in this act lhall extend to discharge out of prison any perion 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 offence, he shall be kept in custody according to the law for such other suit.
VI. And be it further enaclcd by the authority aforesaid, Criminals not to be That if any person or persons, citizens of this state, shall be compas, or udier pro- committed to any prison, or in custody of any officer or cess.
officers whatsoever, for any criminal or supposed criminal matter, that the said person shall not be removed from the said prison and cuftdy, into the custody of any other officer or officers, unless it be by habeas corpus, or some other legal writ or process, or where the prisoner is delivered to the conttable or other inferior officer, to carry such prisoner to fome common gao!, or where any person is fent, by order of any court or judge, or justice of the peace, to any common work-house, 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 Except in cases of due course of law; or in case of sudden fire or infection,
or other necellity; and if any person or persons shall, after Pertons michigany such commitment aforesaid, make out and sign, or counthis act, to forteit terlign any warrant or warrants, for such removal aforesaid,
contrary to this act, as well he who makes or signs, or countersigns such warrant or warrants, as the officer or officers who obey or execute the same, shall, for every offence, forfeit to the prisoner or party grieved, two hundred pounds, to be recovered in manner aforesaid, by the party grieved.
VII. And be it further enačied by the authority aforefaid, Prifoners may obtain That it shall and may be lawful to and for any prisoner and from the chancery or prisoners as aforesaid, to move for and obtain his or their 1upreme court;
habeas corpus, as well out of the court of chancery as out And the chance!lor of the supreme court; and if the chancellor, or any jufice fich writ to turfeit of the supreme court for the time being, in the vacation 5001.
time, upon view 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, Niall deny any writ of habeas corpus by this act required to be granted, being moved for as aforesaid, they fall severally forfeit to the prisoner or party grieved, the sum of five hundred pounds, to be recovered in manner aforesaid.
VIII. And for preventing illegal imprisonments of the citizens of this ftate, in prisons out of this state; Be it further cnačied by the authority afore
Na citizen to be fene faid, That no citizen of this state, who now is or hereafil ne out of this ter shall be an inhabitant or resident within this state, shall or cminitted within the may be sent prisoner to any place whatsoever, out of this
state, for any crime or offence committed within this state, and that every such imprisonment is hereby enacted and adjudged to be ille gal; and that if any of the said citizens now is, or hereafter shall be so imprisoned, every such person and persons so imprisoned, shall and may, for
Perlons so imprison: every such imprisonment, maintain, by virtue of this act, costs, belides dama. an action or actions of false imprisonment in any court of ges not less than 5ool, record, against the person or persons by whom he or she
shall be so committed, detained, imprisoned, fent prisoner or transported, contrary to the true intent and meaning of this act, and against all or any person or persons who snail frame, contrive, write, feal, sign or counterlign, any warrant or writing for such commitment, autainer, imprisonment or transportation, or shall be advising, aiding or atilling in the fame, or any of them; and the plaintiff in every such action shall have judgment to recover treble costs, besides damages, which damages fo to be given shall not be less than five hundred pounds ; in which action no delay, tiay or ftop of proceeding, by rule, order or command, nor no injunction or privi. lege whatsoever, nor any more than one imparlance, shall be allowed, excepting such rule of the court wherein the action shall depend, inade in open court, as shall be thought, in justice, neceffary, for special cause to be expressed in the said rule. And the person or persons, who shall knowingly frame, contrive, write, feal, sign, or counterlign, any warrant for such conmitment, detainer or transportation, or shall to commit, detain, imprifon or transport, any person or persons contrary to this act, or be any wife advising, aiding or afiitting therein, being lawfully convicted thereof, shall be dilabled from thenceforth to bear any office of trust or profit within this state, and shall forfeit to the people of this state, all his goods and chattels, and the issues and profits of his lands and tenements during his natural life. 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 place out of this state, or to any part beyond the feas, and receive earnell upon such agreement, although that afterwards such person shall renounce luch contract. Provided also, That if any person or persons lawfully convicted of any felony, shall, in open court, pray to be transported beyond the leas, 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 feas; this act, or any thing therein contained, to the contrary notwithstanding.
Provided also, That if any person or persons, at any time Bat any person re• Sling in this state, resident in this state, fall have committed, or be charged lony, or other high with having committed, any treason, felony or other high mifelemea hot in any misdemeanor, in any other of the United States of AmeStates, may be fent rica, where he or he ought to be tried for such ofence,
such person or persons may be sent to such place, there io 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 rot withistanding
IX. Provided also, and be it further cnceci?lytic onthority aroud, That no person or persons shall be sued, impleaded, inolefled or troubled, for any offence against this act, unless the party offending be sued or impleaded for the fame, within two years at most after fuch time wherein the oftence fis il be committed, in case the party grieved 131l not then be in prilor; and if he or she thall be in priton, then within the space of two years afer the decease of the person imprisoned, or his or her delivery out of prion, which shall first happen.
X. And be it further cnačied by the authority aforefatid, That if any information, suit of action, Mall be brought or exhibited againt any serion or
there for trial.