2 Sm. 275.

by the way, make return of such writ, and bring or cause to be brought, the body 18 Feb. 1785 § 1. of the prisoner, unto or before the judge or justice, before whom the said writ is made returnable; (1) and, in case of his absence, before any other of the judges or justices aforesaid; and shall then likewise specifically and fully (m) certify the true cause or causes of the commitment and detainer of the said prisoner, and when he was committed, unless the commitment be in any place beyond the distance of twenty miles from the place where such judge or justice shall be residing, and if beyond the distance of twenty miles, and not above one hundred miles, then within ten days, and if beyond the distance of one hundred miles, then within twenty days: And thereupon the judge or justice before whom the prisoner shall be so brought, Duties of judges shall, within two days, discharge(n) the prisoner from imprisonment, taking his or on habeas corpus. her recognizance, with one or more surety or sureties, in any sum, according to his discretion, having regard to the circumstances of the prisoner, and the nature of the offence, for his or her appearance at the next court of oyer and terminer, general jail delivery, or general quarter sessions of or for the county, city or place where the offence was committed, or in such other court where it may be properly cognizable, as the case shall require; and then shall certify the said writ, with the return thereof, and the said recognizances, into the court where such appearance is to be made, unless it shall appear to the said judge or justice, that the party so committed is detained upon legal process, order or warrant, for such matter or offences for which by the law, the said prisoner is not bailable.(0) And that the Return may be said judge or justice may, according to the intent and meaning of this act, be ena- amended or bled, by investigating the truth of the circumstances of the case, to determine whether, according to law, the said prisoner ought to be bailed, remanded or discharged, the return may, before or after it is filed, by leave of the said judge or justice, be amended, and also suggestions made against it, so that thereby material facts may be ascertained.

traversed.

Ibid. § 2.

3. In term-time, it shall and may be lawful for any prisoner as aforesaid, in manner as aforesaid, to move and obtain his or her habeas corpus, out of the supreme In term-time, to court, or the court of common pleas for the county in which he or she is imprisoned, issue out of the whereupon proceedings shall be had as aforesaid.

court.

4. If any person shall be committed for treason or felony, (p) and shall not be Ibid. § 3. indicted and tried some time in the next term, session of oyer and terminer, gen- Prisoners not ineral jail delivery or other court, there the defence is properly cognizable, after such dicted at the next commitment, it shall and may be lawful for the judges or justices thereof, (q) and term, to be released on bail. they are hereby required, upon the last day of the term, sessions or court, to set at Except in certain liberty the said prisoner upon bail; unless it shall appear to them, upon oath or affirmation, that the witnesses for the commonwealth, mentioning their names, could If not indicted and not then be produced; (r) and if such prisoner shall not be indicted and tried the tried at the second second term, sessions or court(s) after his or her commitment, unless the delay hap- charged. pen on the application, or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from imprisonment.(t)

(1) Pending the examination, the prisoner is detained, not on the original warrant, but under the authority of the writ of habeas corpus; he may be bailed, on the return of the writ, de die in diem, or be remanded to the jail whence he came, or to any other place of safe-keeping under the control of the court. Ex parte Kaine, 14 How. 133. Ex parte Bollman, 4 Cr. 123. Rex v. Bethel, 4 Mod. 22. Neal's Case, Sup. Court, Penn., January 1853. MS. And it has been decided by the supreme court of the United States, that when a sheriff produces the body of a prisoner, before the court, in obedience to a writ of habeas corpus, his responsibility ceases; henceforward, the prisoner is in the custody of the court from which the habeas corpus issued. Barth v. Clise, 12 Wall. 400.

(m) If the return be evasive and insufficient, the party refusing to produce the bodies of the prisoners, if present, will be committed. United States v. Davis, 5 Cr. C. C. 622. United States v. Williamson, 3 Am. Ł. Reg. 729. So also, the order of the court will be enforced by attachment and writ of assistance. Commonwealth v. Reed, 59 P. S. 425.

(n) Unless it clearly appear that the prisoner is entirely innocent, the judge is bound to bail or remand. Commonwealth v. Carlisle, Bright. 36. Gerdeman v. Commonwealth, 11 Phila. 374. But if it should appear that he has been guilty of another offence than the one stated in the commitment, the court will not discharge him, but hold him to answer for the latter offence. Commonwealth v. Hickey, 2 Pars. 317. Ex parte Bennett, 2 Cr. C. C. 612.

(0) See Commonwealth v. Holloway, 5 Binn. 514; Williamson's Case, 26 P. S. 9; s. c. 3 Am. L. Reg. 741; Olmsted's Case, Bright. 9; Lockington's Case, Ibid. 269; Veramaitre's Case, 3 Am. L. J. 438, as to commitments by the federal courts.

cases.

term, to be dis

(p) In practice, the act has been extended to all offences. Ex parte Walton, 2 Wh. 502. See Respublica v. Arnold, 3 Y. 265. It is re-enacted by the 54th section of the act 31 March 1860, P. L. 443; but the original act is left unrepealed: see tit. "Criminal Procedure."

(q) The application must be made to the court in which the prisoners were indicted. Ex parte Walton, 2 Wh. 502. Respublica v. Arnold, 3 Y. 264. Commonwealth v. Sheriff, 7 W. & S. 110.

(r) The act only applies where there has been wilful delay on the part of the commonwealth. Commonwealth v. Sheriff, 16 S. & R. 305. Commonwealth v. Jailer, 7 W. 366. Commonwealth v. Brummer, 8 Phila. 607. Not where the trial is delayed by the prisoner. Rex v. Haas, 1 Dall. 9. Respublica v. Arnold, 3 Y. 266. Commonwealth v. Sheriff, 16 S. & R. 304. Ex parte Walton, 2 Wh. 501. Commonwealth v. Jailer, 7 W. 366. Nor does it apply to a fugitive from justice, who has been arrested and committed. Commonwealth v. Hale, 13 Phila. 452. Commonwealth v. Pulte, 14 Ibid. 398.

(s) A prisoner can only claim his discharge on the last day of the second term, after his arrest, when there has been a competent and regularly constituted court, before whom he could have been indicted and tried. Clark v. Commonwealth, 29 P. S. 129. Commonwealth v. Brown, 11 Phila. 370; s. c. 2 W. N. C.

153.

(t) The act was designed to prevent wrongful restraints of liberty, growing out of the malice and procrastination of the prosecutor; but not to shield a prisoner, in any case, from the consequences of any delay made necessary by the law itself; and, therefore, where the array of grand jurors was quashed, at two successive terms after the arrest of the prisoner, for informality in selecting and drawing them, he is

18 Feb. 1785 § 4. 2 Sm. 275.

Not to affect per

5. Provided always, That nothing in this act shall extend to discharge out of prison any person guilty of or charged with treason, felony or other high misdesons charged with meanor, in any other state, and who, by the confederation, ought to be delivered up to the executive power of such state, nor any person guilty of or charged with a breach or violation of the laws of nations.(u)

crimes in other states.

Ibid. § 5.

6. Provided also, That nothing in this act shall extend to discharge out of prison Nor to persons in any person charged with debt or other action, or with process in any civil cause, but that after discharge for such criminal or supposed criminal matter, he or she shall be kept in custody, according to law, for such other suit.

arrest for debt.

Ibid. § 6.

No person to be removed on habeas corpus, within

7. And that no person may avoid his or her trial by procuring a removal, so that he or she cannot be brought back in time, Be it enacted, That no person shall be removed upon any habeas corpus granted in pursuance of this act, within fifteen days next preceding the term, (v) sessions of oyer and terminer, general jail delivery or ing the term of the other court, where the offence with which he or she stands charged is properly cognizable; but upon such habeas corpus shall be brought before the judges or justices thereof, who are thereupon to do what to justice shall appertain.

fifteen days preced

court.

Ibid. § 7.

Ibid. § 8. Penalty for refusing writ.

Ibid. § 9.

Or neglecting to make return thereof.

Ibid. § 10.

ment.

8. Provided, nevertheless, That after such court, the person detained may have his or her habeas corpus, according to this act.

9. If any judge or justice aforesaid, being appealed or complained to, as aforesaid, upon view of the copy or copies of the warrant or warrants of the commitment or detainer, or upon oath or affirmation made, that such copy or copies were denied as aforesaid, shall refuse or neglect to award any writ of habeas corpus by this act required to be granted, he shall forfeit to the prisoner or party grieved,(w) the sum of three hundred pounds, (x) to be recovered by the said prisoner or party grieved, his or her executors or administrators, against such offender, his or her executors or administrators, by action of debt, suit, bill, plaint or information, in any court of record, wherein no essoin, protection, privilege, injunction, wager of law or stay of execution shall be allowed, or any more than one imparlance.

10. If any officer, sheriff, jailer, keeper or other person, to whom such writ shall. be directed as aforesaid, or any of his under-officers or deputies, shall refuse or neglect to make the returns aforesaid, or to bring the body of the prisoner, according to the command of the said writ, within the respective times aforesaid, all and every such officer, sheriff, jailer, keeper or other person, under-officer or deputy, shall be guilty of a contempt of the court under the seal of which the said writ shall have issued, and shall also, for the first offence, forfeit to the prisoner or party grieved one hundred pounds, and for the second offence two hundred pounds, and shall be and is hereby made incapable to hold or execute his said office; the said forfeiture to be recovered by the prisoner or party grieved, in manner aforesaid.

11. If any officer, sheriff, jailer, keeper or other person, to whom such writ shall be directed as aforesaid, or any of his under-officers or deputies, upon Or refusing copy of warrant of commit- demand by the prisoner, or some person in his or her behalf, shall refuse to deliver, or within six hours after demand, shall not deliver to the prisoner or person so demanding, a true copy or copies of the warrant or warrants of commitment and detainer of such prisoner, which are hereby required to be delivered, all and every such officer, sheriff, jailer, keeper or other person, under-officer or deputy, so offending, shall, for the first offence, forfeit to the prisoner or party grieved, one hundred pounds, and for the second offence two hundred pounds, and shall also be and is hereby made incapable to hold or execute his said office; the said forfeitures to be recovered by the prisoner or party grieved, in manner aforesaid.

Ibid. § 11. No person again to be committed for the same of fence, after discharge on habeas corpus.

12. And for preventing unjust vexation by reiterated commitments for the same offence, Be it enacted, That no person who shall be delivered or set at large upon a habeas corpus, shall, at any time thereafter, be again committed or imprisoned for the same offence, by any person or persons whatsoever, other than by the legal order and process of such court wherein he or she 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 recognizance to appear, or other court having jurisdiction of the cause, and if any other person or per sons shall knowingly, contrary to this act, recommit or imprison, or knowingly procure or cause to be recommitted or imprisoned, for the same offence or supposed offence, (y) any person 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,

not entitled to a discharge. Clark v. Commonwealth, 29 P. S. 129; S. P. McGurk's Case, 97 Ibid. 211.

(u) Confederation, art. 4. The same provision is preserved in the constitution of the United States, art. 4, § 2. And see act 31 March 1850, § 54; tit. "Criminal Procedure."

(v) Nor during the session of the court. Commonwealth v. Sheriff, 7 W. & S. 108.

(w) See Norris v. Pilmore, 1 Y. 408.

(x) single judge is not liable to the penalty for refusing the writ, in a case not within the provisions of the statute, and to which the common-law writ of habeas corpus applies. Williamson v. Lewis, 39 P. S. 9. And see Yates v. Lansing, 5 Johns. 282. Ez parte Ferguson, 9 Ibid. 239.

(y) This does not apply to a second arrest on civil process. Hecker v. Jarrett, 1 Binn. 374; s. c. 3 Ibid. 404. And see Yates v. Lansing, 5 Johns. 282; s. C.

2 Sm. 275.

any pretence of variation in the warrant or warrants of commitment notwithstand- 18 Feb. 1785 § 11. ing, the sum of five hundred pounds, to be recovered by the prisoner or party grieved, in manner aforesaid.

Ibid. § 12.

Penalty for im

proper removal of

13. Any person being committed to any prison, or in custody of any officer, sheriff, jailer, keeper or other person, or his under-officer or deputy, for any criminal or supposed criminal matter, shall not be removed from the said prison or custody, into any other prison or custody, unless it be by habeas corpus or some prisoners. other legal writ, or where the prisoner is delivered to the constable or other inferior officer, to be carried to some common jail, or where any person is sent by any judge or justice, having proper authority, to some common work-house or house of correction, or where the prisoner is removed from one 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 as aforesaid, make out, sign, countersign and issue any warrant or warrants for such removal, except as before excepted, then he or they shall forfeit to the prisoner or party grieved, two hundred pounds, to be recovered by the prisoner or party grieved, in manner aforesaid.

Ibid. § 13.

14. All the provisions hereinbefore made for the awarding and granting writs of habeas corpus, and proceeding thereon, in case of commitment or detainer for any Habeas corpus act criminal or supposed criminal matter, shall, in like manner, extend to all cases to extend to all where any person, not being committed or detained for any criminal or supposed cases of restraint of personal liberty. criminal matter,(z) shall be confined or restrained of his or her liberty, under any color or pretence whatsoever. (a) And upon oath or affirmation made by such person, so confined or restrained, or by any other in his or her behalf, of any actual confinement or restraint, and that such confinement or restraint, to the best of the knowledge and belief of the person so applying, is not by virtue of any commitment or detainer for any criminal or supposed criminal matter, a habeas corpus, directed to the person or persons so confining or restraining the party as aforesaid, shall be awarded and granted, in the same manner and under the same penalties, to be recovered from the same persons, as is herein before directed; and the court, judge or justice before whom the party so confined or restrained shall be brought, shall, after the return made, proceed in the same manner as is hereinbefore prescribed, to examine into the facts, (b) relating to the case, and into the cause of such confinement or restraint, and thereupon either bail, remand or discharge the party so brought, as to justice shall appertain.(c)

Ibid. § 14.

Who to make re

15. Whensoever any writ of habeas corpus awarded and granted, either in term or vacation time, for any person so confined or restrained, without a commitment for any criminal or supposed criminal matter, shall be served upon the person or turn in such cases. persons so confining or restraining such party, by being brought to such person or persons, or by being left at the place where the party shall be so confined or restrained, the person or persons so confining or restraining such party, shall make return of such writ, and bring or cause to be brought the body of such party, according to the command thereof, within the respective times limited, and under the provisions herein before prescribed. And every such person refusing or neglect- Penalty for refusal. ing so to make return of such writ, or to bring, or to cause to be brought, the body of the party, according to the command thereof, within the times respectively limited, and under the provisions hereinbefore prescribed, shall be guilty of a contempt of the court under the seal of which the said writ shall have issued, and shall also forfeit, for the first offence, to the party grieved, one hundred pounds, and for second offence, two hundred pounds, to be recovered by him or her, his or her executors or administrators, against the offender, his or her executors or administrators, in manner aforesaid.

9 Ibid. 395. Nor where the first discharge is for want of sufficient evidence; the act of 1785 only contemplates an examination into the regularity of the commitment; where the merits of the case are the subject of investigation, the proceedings are under the common-law writ. Schofield v. Root, 12 Phila. 333. Where a person has been discharged by reason of the failure of the warrant to charge a criminal offence, he may be again arrested and held under a valid warrant founded on the same transaction. Commonwealth v. Little, 33 W. N. C. 486.

(z) The 13th and 14th sections are not in the British statute; they relate entirely to civil cases. Respublica v. Arnold, 3 Y. 266. Hecker v. Jarrett, 3 Binn. 410-11.

(a) The writ of habeas corpus may issue at the instance of any one who claims a right to the custody of the person restrained or taken from him. Holsey V. Trevillo, 6 W. 402. A parent may have the writ to obtain the custody of a child, improperly detained. Commonwealth v. Addicks, 5 Binn. 520; s. c. 2 S. & R. 174. Commonwealth v. Demot, 7 Phila. 624. See Commonwealth v. Barney, 1 Luz. L. Reg. 449. It lies where a wrong person has been arrested on mesne

process. Respublica v. Jailer, 2 Y. 258. To try an apprentice's right to freedom. Pennsylvania v. Montgomery, Add. 262. But not to discharge an apprentice who had enlisted, at the relation of a master. Commonwealth v. Robinson, 1. S. & R. 353. Commonwealth v. Harris, 7 P. L. J. 283. Or one who has been committed for a contempt, by another court of competent jurisdiction. Williamson's Case, 26 P. S. 9; s. c. 3 Am. L. Reg. 741. See Respublica v. Keeper, 2 Y. 349. Yates's Case, 4 Johns. 317. Yates v. Lansing, 9 Ibid. 395. Nor can a state judge discharge a person enlisted into the military service of the United States. Tarble's Case, 13 W. 397.

(b) They may refer the facts to a jury, Respublica v. Jailer, 2 Y. 258; and grant a new trial, Graham v. Graham, 1 S. & R. 330.

(c) See Geuger v. Stoy, 1 Dall. 135. United States v. Johns, 4 Ibid. 412. Respublica v. Keeper, 2 Y. 349. Commonwealth v. Addicks, 5 Binn. 520; s. c. 2 S. & R. 174. Commonwealth v. Jones, 3 Ibid. 167. Commonwealth v. Hambright, 4 Ibid. 149. Commonwealth v. Fee, 6 Ibid. 255. Commonwealth v. Lecky, 1 W. 66. Commonwealth v. Nutt, 1 Bro. 143. Commonwealth v. McFadden, 9 L. Bar 129.

18 Feb. 1785 § 15. 2 Sm. 275.

Limitation of ac

16. No person shall be sued, impleaded, molested or troubled for any offence against this act, unless such person be sued or impleaded for the same within two years after the time wherein the said offence shall have been committed, in case tions for penalties. the party grieved shall not be then in prison, or confined or restrained as aforesaid; and if the said party shall be then in prison, or so confined or restrained, then within two years after the release of the person imprisoned, or so confined or restrained, or his or her delivery out of prison, or from such confinement or restraint.

Ibid. § 16. Defendant may plead the general issue, &c.

13 April 1791 § 9.

3 Sm. 30.

Associate judges may grant the writ.

4 April 1837 § 2. P. L. 378.

And the quarter sessions of Philadelphia.

6 June 1893. P. L. 328.

Writs by convicts in the penitentiary.

Proof of notice to authority committing the relator.

17 April 1866 § 1. P. L. 112.

Subpoena and attachments.

Ibid. § 2.

Costs of service.

14 April 1868 § 1. P. L. 98.

on habeas corpus.

17. In or upon any action, suit, bill, plaint or information for any offence against this act, the defendant or defendants may plead the general issue, and give the special matter in evidence.

18. The said presidents and judges shall severally have the powers to issue writs of habeas corpus, in vacation time and out of term, and to give relief thereupon, in the manner and as fully as the president of any court of common pleas in this commonwealth, at present may or can do, by virtue of an act of assembly, entitled "An act for the better securing personal liberty, and preventing wrongful imprisonments."

19. The court of general quarter sessions of the peace of the county of Philadelphia, or either of the judges thereof, shall have as full power and authority to allow and issue writs of habeas corpus as they now have as judges of the court of common pleas; *** the fees for services rendered by the clerk of the said court of quarter sessions, shall be the same as prescribed for prothonotaries of the courts of common pleas for like services. (d)

20. When application shall be made to any court of this commonwealth, or a judge thereof, by an inmate of either of the penitentiaries of the state for a writ of habeas corpus for the discharge of such inmate, the court or judge directing such writ to issue and before whom the application shall be heard, shall, before the hearing of such application and the discharge of any such inmate, have submitted to it or him proof of notice of the intended application to the authority or authorities that may have committed such inmate to the said penitentiary, and it shall not be lawful for such court or judge to order the discharge of such inmate without proof of notice as aforesaid to the said authority or authorities.

21. The judge or court before whom any writ of habeas corpus shall be returnable, shall have the power to issue subpoenas and all other process necessary to compel the attendance of witnesses.

22. The officer serving the process and the witnesses in attendance shall be entitled to the same mileage, fees and allowances as for similar service and attendance before a justice of the peace; and the costs of service and attendance on the part of the commonwealth, shall be paid by the proper county, and taxed as costs in the case.

23. It shall be lawful for the court of common pleas, or any judge thereof, before whom any writ of habeas corpus shall be heard, upon the petition of any Costs of witnesses person or persons charged with any criminal or supposed criminal matter, to make an order for the payment by the proper county, or by the prosecutor or prosecutors in the case, as the said court or the judge hearing the case may determine, of the costs and fees of the witnesses subpoenaed by the district-attorney on the part of the commonwealth: Provided, That the fees of witnesses shall be the same as are allowed by law in civil cases.

HABITUAL DRUNKARDS.

See LUNATICS AND HABITUAL DRUNKARDS.

HACKS AND CARRIAGES.

See BOROUGHS.

(d) Parts omitted relate to forfeited recognizances; see tit. "Fines and Recognizances.

HARBOR MASTER.

1. Governor to appoint. Oath. Bond. To clean docks and wharves. To prevent nuisances. Stationing ships.

2. Non-compliance with directions of harbor master. Penalty. Deputy. Compensation.

3. Liability for the fees of harbor master.

wharves.

1. The governor shall appoint and commission a person of good character and 29 March 1803 § 16. competent skill to be harbor master of the port of Philadelphia, and liable to be 4 Sm. 72. removed when he shall think proper; and the said harbor master, having first Governor to aptaken an oath or affirmation, and given bond with two sufficient sureties, to be point. approved by the governor, in the sum of four thousand dollars, faithfully and Oath. impartially to perform the duties of his office, shall have authority, and he is Bond. hereby required to enforce and superintend the execution of all laws of the commonwealth, and of all by-laws, rules and regulations of the corporation of the city, or of the wardens of the port of Philadelphia, enacted, ordained and declared, or hereafter to be ordained, enacted and declared for cleaning the docks and wharves To clean docks and of the port of Philadelphia; for preventing all nuisances at the wharves and in the docks aforesaid, by burning or breaming any ships or vessels, or otherwise howso- Prevent nuisances. ever; for regulating and stationing all ships or vessels in the stream of the river Stationing ships. Delaware, or at the wharves within the boundary of the city of Philadelphia; for removing, from time to time, ships and vessels, in order to accommodate and make room for others, or for admitting the river craft to pass in and out of the docks, and for compelling the masters and captains of ships and vessels to accommodate each other, so that ships and vessels arriving from sea shall, for a reasonable time, not exceeding six days, be entitled to berths next to the wharves, until they shall have landed their cargoes, and for that purpose such ships or vessels as are lading shall be removed, and take in their cargoes over and across the decks of the ships or vessels lying nearest to the wharves; for directing the lying of ships and vessels when applied to for that purpose, between the north boundary of the city, and Peg's run in the Northern Liberties, and the south boundary of the city, and Catharine street, in the district of Southwark.

Ibid.

Non-compliance

2. If any master or captain of any ship or vessel shall refuse or neglect to comply with the directions of said harbor master in matters within the jurisdiction of his office, or if any person whosoever shall obstruct or prevent the said harbor mas- with directions of ter in the execution of his duties, such master, captain or other person shall, for harbor master. each and every such offence, severally forfeit and pay any sum not exceeding one Penalty. hundred dollars, to be recovered and appropriated as other forfeitures herein mentioned are recovered and appropriated by the thirty-sixth section of this act; and the said harbor master shall have authority to appoint and employ a deputy or Deputy. deputies to assist him in the execution of his office, and he shall, in full compensa- Compensation. tion for his services, be entitled to have, recover and receive from the master, captain, owner or consignees, of each and every ship or vessel arriving at the port of Philadelphia, coasting vessels not exceeding the burthen of seventy-five tons excepted, the sum of one dollar for each and every voyage by such ship or vessel performed, and no more.(e)

7 May 1855 § 1. P. L. 491.

3. All steamers trading to and from other ports, both foreign and coastwise, and all sailing vessels of over seventy-five tons burthen, either by canal or sea, excepting in ports in Pennsylvania, Delaware and New Jersey, shall pay the same harbor Liability for the master's fees that sailing vessels are now required to pay: Provided, That not fees of harbor more than one hundred dollars shall be paid in any one year by the owners of any line of steamers for harbor master's services.

master.

(e) The harbor master's fees are regulated by the port wardens by the act 16 April 1838, § 26, P. L. 571. The act 15 April 1869, P. L. 972, fixes his salary at $2500 per annum.