6. The provisions of this Act shall be deemed to be in Provisions of addition to, and not in derogation of, any powers of proving Act to be documents given by any existing statute, or existing at common law. cumulative. Rot. Parl. 31 C. 2. nu. 2. Recital that delays had been used by sheriffs in making re of habeas corpus, &c. Sheriff, &c. within three days after service of PART III. 31 CHARLES 2, Chapter 2. (Commonly called "THE HABEAS CORPUS ACT.") An Act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas (a). W (A.D. 1679.) HEREAS great delayes have beene used by sheriffes gaolers and other officers to whose custody any of the Kings subjects have beene committed for criminall or supposed turns of writs criminall matters in makeing returnes of writts of habeas corpus to them directed by standing out an alias and pluries habeas corpus and sometimes more and by other shifts to avoid their yeilding obedience to such writts contrary to their duty and the knowne lawes of the land whereby many of the Kings subjects have beene and hereafter may be long detained in prison in such cases where by law they are baylable to their great charge and vexation. For the prevention whereof and the more speedy releife of all persons imprisoned for any such criminall or supposed criminall matters bee it enacted by the Kings most excellent Majestie by and with the advice and consent of the lords spirituall and temporall and commons in this present Parlyament assembled and by the authoritie thereof that whensoever any person or persons shall bring any habeas corpus directed unto any sheriffe or sheriffes goaler minister or other person whatsoever for any person in his or their custody and the said writt shall be served upon the said officer or left at the goale or prison with any of the under officers underkeepers or deputy of the said officers or keepers that the said officer or officers his or their under officers under-keepers or deputyes shall within three dayes after the service thereof as aforesaid (unlesse the committment aforesaid were for treason or fellony plainely and specially expressed in the warrant of committment) upon payment or tender of the charges of bringing the said prissoner to be ascertained by the judge or court habeas corpus, with the exception of treason and felony, as and under the regulations herein mentioned, to bring up the body before the court to which the writ is returnable; (a) This Act was introduced into Upper Canada, and is still in force, but has not been revised, because it deals only with cases of commitment or detainer for criminal or supposed criminal matter, (see preamble of R. S. O. c. 83). It is therefore printed as the Act now appears in the Imperial Revised Statutes, omitting only sections 10-14, which are inapplicable. that awarded the same and endorsed upon the said writt not exceeding twelve pence per mile and upon security given by his owne bond to pay the charges of carrying backe the prisoner if he shall bee remanded by the court or judge to which he shall be brought according to the true intent of this present Act and that he will not make any escape by the way make returne of such writt or bring or cause to be brought the body of the partie soe committed or restrained unto or before the lord chauncelior or lord keeper of the great seale of England for the time being or the judges or barons of the said court from whence the said writt shall issue or unto and before such other person and persons before whome the said writt and certify is made returnable according to the command thereof, and shall the true likewise then certifie the true causes of his detainer or im- causes of imprisonprisonment unlesse the committment of the said partie be in ment. any place beyond the distance of twenty miles from the place or places where such court or person is or shall be resideing and if beyond the distance of twenty miles and not above one hundred miles then within the space of ten dayes and if beyond Exception the distance of one hundred miles then within the space of in respect of twenty dayes after such delivery aforesaid and not longer. distance. treason and to the lord 2. AND to the intent that noe sheriffe goaler or other officer How writs to may pretend ignorance of the import of any such writt bee it be marked. enacted by the authoritie aforesaid that all such writts shall be marked in this manner Per statutum tricesimo primo Caroli Secundi Regis and shall be signed by the person that awards the same AND if any person or persons shall be or stand committed or detained as aforesaid for any crime unlesse for Persons comtreason or fellony plainely expressed in the warrant of com- mitted, exmittment in the vacation time and out of terme it shall and cept for may be lawfull to and for the person or persons soe committed felony, &c. or detained (other then persons convict or in execution) by may appeal legall processe or any one in his or their behalfe to appeale chancellor, &c or complaine to the lord chauncellour or lord keeper or any one of his Majestyes justices either of the one bench or of the other or the barons of the Exchequer of the degree of the coife Proceedings and the said lord chauncellor lord keeper justices or barons or thereon. any of them upon view of the copy or copies of the warrant or warrants of committment and detainer or otherwise upon oath made that such copy or copyes were denyed to be given by such person or persons in whose custody the prisoner or prisoners is or are detained and hereby authorized and required upon request made in writeing by such person or persons or any on his her or their behalfe attested and subscribed by two witnesses that were present at the delivery of the same to award and grant an habeas corpus under the seale of such court Habeas corwhereof he shall then be one of the judges to be directed to the pus may be officer or officers in whose custodie the party soe committed or detained shall be returnable immediate before the said lord chauncellor or lord keeper or such justice baron or any other justice or baron of the degree of the coife of any of the said and upon service thereof the officer to bring up the prisoners as before mentioned; and thereupon within two days lord chancellor, &c. may discharge upon courts 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 in whose custodie the partie is soe committed or detained shall within the times respectively before limitted bring such prisoner or prisoners before the sd lord chauncellor or lord keeper or such justices barons or one of them before whome the said writt is made returnable and in case of his absence before any of them with the returne of such writt and the true causes of the committment and detainer and thereupon within two dayes after the partie shall be brought before them the said lord chauncellor or lord keeper or such justice or baron before whome the prisoner shall be brought as aforesaid shall discharge the said prisoner from his imprisonment takeing recognizance; his or their recognizance with one or more suretie or sureties in any summe according to their discretions haveing reguard to the quality of the prisoner and nature of the offence for his or their appearance in the Court of Kings Bench the terme following or at the next assizes sessions or generall goaledelivery of and for such county city or place where the committment was or where the offence was committed or in such other court where the said offence is properly cognizable as the case shall require and then shall certifie the said writt with the returne thereof and the said recognizance or recognizances into the said court where such appearance is to be made unlesse it shall appeare unto the said lord chauncellor or lord keeper or justice or justices or baron or barons that the party soe committed is detained upon a legall processe order or warrant out of some court that hath jurisdiction of criminall matters or by some warrant signed and sealed with the hand and seale of any of the said justices or barons or some justice or justices of the peace for such matters or offences for the which by the law the prisoner is not baileable. and certify the writ with the return and recognizance. Proviso for process not bailable. Habeas cor pus not grant 3. PROVIDED alwayes and bee it enacted that if any person ed in vacation shall have wilfully neglected by the space of two whole termes after his imprisonment to pray a habeas corpus for his enlargement such person soe wilfully neglecting shall not have any habeas corpus to be granted in vacation time in pursuance of this Act. to prisoners who have neglected to pray the same. Officer neglecting, &c. to make the said or upon demand to deliver a copy if any officer or 4. AND officers his or their underofficer or under-officers under-keeper or under-keepers or deputy shall neglect or refuse to make the returnes aforesaid or to returns, &c. bring the body or bodies of the prisoner or prisoners according to the command of the said writt within the respective times aforesaid or upon demand made by the prisoner or person in his behalfe shall refuse to deliver or within the space of six of warrant of houres after demand shall not deliver to the person soe commitment; demanding a true copy of the warrant or warrants of committment and detayner of such prisoner, which he and they are hereby required to deliver accordingly all and every the head goalers and keepers of such prisons and such other person in whose custodie the prisoner shall be detained shall for the first incapacity. offence forfeite to the prisoner or partie grieved the summe of first offence, one hundred pounds and for the second offence the summe penalty £100. of two hundred pounds and shall and is hereby made incapeable second offence to hold or execute his said office, the said penalties to be £200 and recovered by the prisoner or partie grieved his executors or administrators against such offender his executors or administrators by any action of debt suite bill plaint or information in any of the Kings courts at Westminster wherein noe essoigne protection priviledge injunction wager of law or stay of prosecution by non vult ulterius prosequi or otherwise shall bee admitted or allowed or any more then one imparlance, and any recovery or judgement at the suite of any partie grieved shall Judgment at be a sufficient conviction for the first offence and any after suit of party recovery or judgement at the suite of a partie grieved for any conviction. offence after the first judgement shall bee a sufficient conviction to bring the officers or person within the said penaltie for the second offence. sufficient of party after set at large upon habeas 5. AND for the prevention of unjust vexation by reiterated Proviso as to committments for the same offence bee it enacted by the imprisonment authoritie aforesaid that noe person or persons which shall be having been delivered or sett at large upon any habeas corpus shall at any time hereafter bee againe imprisoned or committed for the same corpus. offence by any person or persons whatsoever other then by the legall order and processe of such court wherein he or they shall be bound by recognizance to appeare or other court haveing jurisdiction of the cause and if any other person or persons shall knowingly contrary to this Act recommitt or imprison or knowingly procure or cause to be recommitted or imprisoned committing for the same offence or pretended offence any person or persons charged perdelivered or sett at large as aforesaid or be knowingly aiding sons or or assisting therein then he or they shall forfeite to the prisoner assisting or party grieved the summe of five hundred pounds any penalty to the colourable pretence or variation in the warrant or warrants of party £500. committment notwithstanding to be recovered as aforesaid. Unduly re such dis therein; high treason pressed in tion be indic 6. PROVIDED alwayes that if any person or persons If persons shall be committed for high treason or fellony plainely and committed for specially expressed in the warrant of committment upon his or felony prayer or petition in open court the first weeke of the terme plainly exor first day of the sessions of oyer and terminer or generall warrant shall goale delivery to be brought to his tryall shall not be indicted not on petisometime in the next terme sessions of oyer and terminer or ted as herein generall goale delivery after such committment it shall and may be lawfull to and for the judges of the Court of Kings Bench may discharge and justices of oyer and terminer or generall goale delivery and upon bail ; they are hereby required upon motion to them made in open court the last day of the terme sesssions or goale-delivery either by the prisoner or any one in his behalfe to sett at liberty the mentioned, judges, &c. prisoner upon baile unlesse it appeare to the judges and justices proviso; |