Ordinance, 14 November 1842

Sec. 1. Be it Ordained by the City Council of the City of , that if any person <​or Persons​> shall be, or stand committed, or detained for any criminal or supposed criminal matter it shall and may be lawful for him, <​her,​> or her <​them​>, to apply to the Municipal Court <​in Term time, or to any of the Justices thereof, [illegible]​> <​when in Session,​> when sitting, o◊ any Justice <​or <​to​> the Clerk​> thereof, in , for a Writ of , which application shall be in writing, & signed by the Prisoner, or some person on his<​, her,​> or her <​their​> behalf, setting forth the facts concerning his <​her​> or her <​their​> imprisonment, & in whose Custody He <​she​> or She <​they​> is <​are​> detained, & shall be accompanied by a copy of the Warrant or Warrants of Commitment, or an affidavit that the said copy had been demanded of the Person <​or Persons​> in whose custody the prisoner <​or Prisoners​> is <​are​> detained, & by him <​or them​> refused or neglected to be given; the said Court or Clerk to whom the application shall be made, shall forthwith award the said Writ of Habeas Corpus, unless it shall appear from the Petition itself, or from the [p. 1] the documents annexed that the Party can neither be discharged nor admitted to Bail, nor in any other manner relieved. Which said Writ if <​shall be​> issued by the Court shall be under the hand of one or more of the <​Mayor as Chief​> Justices thereof, and if by <​any of the Justices in , under his Hand, & if by​> the Clerk, under his <​the​> hand <​as such Clerk,​> and the Seal case of the Court; <​which Seal may be a written one, until another shall be obtained, and shall be in the following words, to wit, “Seal of the Municipal Court of the City of .”​> and <​said writ​> shall be <​in the form <​and substance​> as follows, to wit X​>

Sec. 2. Where any person <​or Persons​> not being committed or detained for any criminal, or supposed criminal matter, shall be confined, or restrained of his <​her​> or her <​their​> liberty under [p. 3]

<<​This comes in as the latter part of Sec. 1.— on page 3.—​>

* Provided nevertheless, that in case any Person or person<​s​> may at any time hereafter be taken and lodged in the City jail, or County jail of , under any Writ or process, as provided by the City Charter of the City of , and shall require a Writ of to issue, to bring him <​or her​> <​or them​> before the Municipal Court of said , said Writ shall issue to bring him <​<​her​> or her <​them​>​> before said Court, and be directed to <​the City Marshal to be served upon​> the Person or Persons in whose Custody such Prisoner or Prisoners may then be detained. [p. [1]] [verso blank]>

Sec. 3. Upon the return of the Writ of , a day shall be set for the hearing of the Cause of imprisonment or detainer, not exceeding five days thereafter, unless the Prisoner <​or Prisoners​> shall request a longer time. The said Prisoner <​or Prisoners​> may deny any of the material facts set forth in the return, or may alledge any fact to shew, either that the imprisonment or detention is unlawful, or that he is <​he she or they is or are​> then entitled to his <​her or their​> discharge, which allegations or denials shall be made on Oath. The said return may be amended by leave of the Court, before or after the same is filed, as also may all suggestions made against it, [p. 5] it, that thereby material facts may be ascertained. The said Court shall proceed in a summary way to settle the said facts, by hearing the testimony & arguments, as well of all Parties interested civilly, if any there be, as of the Prisoner, <​or Prisoners​> and the Person <​or Persons​> who holds him <​her​> or her <​them​> in custody, and shall dispose of the Prisoner <​or Prisoners​> as the case may require. If it appear that the prisoner <​or Prisoners​> is <​are​> in custody by virtue of Process from any Court, legally constituted, he <​she or they​> can be discharged for the following causes: first, where the Court has exceeded the limits of its jurisdicton, either as to the matter, place, Sum, <​Person​> or Persons; second, where though the Original imprisonment was lawful, yet by some Act, Omission, or event, which has subsequently taken place, the party has become entitled to his <​her or their​> discharge; third, where the process is defective in some substantial form required by law; fourth where the process though in proper form has been issued in a Case [p. 6] Case, or under circumstances where the law does not allow process, or Orders for imprisonment or Arrest, to issue; fifth, where, although in proper form, the process has been issued or executed by a person <​or Persons​> either unauthorized to issue or execute the same, or where the person <​or Persons​> having the Custody of the Prisoner <​or Prisoners​> under such process is not the Person <​or Persons​> empowered by law to detain him <​her or them​>; sixth, where the process appears to have been obtained by false pretence or bribery; seventh, where there is no general law, nor any judgment, Order, or Decree of a Court, to authorize the process, if in a civil Suit, nor any conviction, if in a criminal proceeding. In all cases where the imprisonment is for a criminal, or supposed criminal matter, if it shall appear to the said Court, that there is sufficient legal cause for the commitment of the Prisoner, <​or Prisoners,​> although such commitment may have been informally made, or without due authority, or the process may [p. 7] may have been executed by a Person <​or Persons​> not duly authorized, the Court shall make a new Commitment, in proper form, and directed to the proper officer <​or officers​>, or admit the party to bail, if the Case be bailable.

Section 6. It shall not be lawful for the municipal Court on a scecond writ of obtained by such prisoner <​or prisoners​> or prisoners <​to discharge the <​Said​> prisoner or prison◊​> <​or prisoners​> if he <​she​> or they is <​are​> proven Guilty of the charges clearly and specificaly charged in the warrant of commitment, with a criminal offence: but if the prisoner or prisoners shall be found guilty the Mun[i]cipal Court shall only admit such prisoner or prisoners to Bail <​where​> were the offence is Bailable by Law, or ordinance, or remand him <​her​> or them to the prison where the offence is not Bailable<​, or being bailable,​> <​if​> such prisoner or prisoners shall fail to give the Bail required.

Section 7th No person <​or persons​> who has <​have​> been discharged by order of the Municipal Court on a Habeas Corpus, shall be again imprisoned, restrained, or kept in Custody for the same Cause, unless he, she or they, be afterwards indicted for the same offence, or unless by the [p. 11] Legal order or process of the Municipal Court Wherein he <​she​> or they or <​are​> Bound by to appear; the following shall not be deemed to be the same Cause, “First” If after a discharge for defect of prooff or any material defect in the Commitment in a Criminal Case the prisoner or prisoners should be again arested upon sufficient proof and committed by Legal process, for the same offence, “Second” if in a Civil Suit the <​party or​> <​party or​> parties have been discharged for any illegality in the Judgment of <​or​> process and is <​are​> afterwards imprisoned by Legal process, for the same cause of action “Third”, Generally whenever the discharge has been ordered on accounty of the nonobservance of any of the forms required by Law the party or parties may be a second time imprisoned if the cause be Legal and the forms as required by Law observed. [p. 12]

Section 8— If any person or persons shall be Committed for a criminal matter in case of the absence of <​a Witness or​> Witnesses whose Testimony may be considered to be of importance in behalf of the people, the Municipal Court may adjourn from time to time at its discretion. Provided they decide upon the case within thirty days, if it shall appear by oath or affirmation, that the <​witness or​> Witnesses for the people of the are absent, such <​witness or​> Witnesses being mentioned by Name and the Court shewn wherein their Testimony is Material.

Section 9— Any person or persons being Committed to the City or Co or County Goal [jail], as provided in the Charter of the City of , or in the Custody of any officer Sheriff Jailor Keeper or other person <​or Persons​> or his <​or their​> under officer or deputy for any Criminal or supposed Criminal Matter shall not be removed from said Prison or Custody into any [p. 13] prison or Custody unless it be by or some other Legal writ or <​or by an​> Order of where the Municipal Court, or in Case of Sudden fire infection or other necessities, if any person or persons shall after such Commitment as aforesaid, make out, sign, or countersign any warrant or warrants, for such removal, except as before excepted, then he or they shall forfeit to the prisoner or prisoners, aggreived, a sum not exceeding five hundred Dollars, to be recovered by the prisoner or prisoners aggreived, in the manner hereinafter mention’d

Section 10— <​If​> <​any Member of​> The Municipal Court <​or the Clerk of said Court​> shall Corruptly refuse <​or neglect​> to issue a writ or writs of Habeas Corpus when Legally applyed to, in a Case where such writ or writs may Lawfully issue or who shall for the purpose of oppression unreasonably delay the issuing of such writ or writs shall for every such offence forfeit to the prisoner or prisoners party or parties aggreived <​a sum​> <​not less than $500,00, and​> not exceeding One [p. 14] Thousand Dollars<​, and <​be imprisoned for​> six Months. imprisonment​>

Section 11— If any Officer Sheriff Jailor. Keeper or other person, <​or Persons upon​> to whom any such writ shall be <​served​> directed, shall neglect or refuse to make the returns as aforesaid, or to bring the Body of the Prisoner <​or prisoners​> according to the command of the said writ, within the time, required by this act <​act <​ordinance​>,​> all and every such officer, sheriff Jailor, Keeper, or other person <​or Persons​> shall be Guilty of a Contempt of the Municipal Court who issued said writ, whereupon the said Court may, and shall issue an against such <​said​> officer Sheriff, Jailor, Keeper or other person <​or Persons​> and caused him <​her,​> or them to be committed to the or Jail as Provided for by the City Charter of the City of , there to remain without Bail or mainprize, until he or they shall shall obey <​the​> said writ; such officer Sheriff, Jailor, Keeper, or other person <​or Persons​>, shall also forfeit to the prisoner <​or Prisoners,​> or party <​or Parties​> aggrieved a sum not exceeding [p. 15] one thousand Dollars and not less than five hundred Dollars and shall be incapable of holding or executing his said office,

Section 12— Any one <​Person or Persons​> having a person <​Prisoner or Prisoners​> in his <​or their​> custody or under his <​or their​> restraint, power or controul for whose relief a writ <​or Writs​> of is issued, who with intent to avoid the effect of such writ <​or Writs​> shall transfer such person <​or Persons​> to the Custody <​of​> or place him or her <​or them​> under the control of any other <​Person or Persons,​> or shall conceal him <​her​> or her <​them​>, or change the place of him <​his​> <​her​> or her <​their​> confinement, with intent to avoid the operation of such writ <​or writs​> or with intent to remove him <​her​> or her <​them​> out of the , shall forfeit for every such offence one thousand Dollars and may be imprisoned not less then one year nor less <​more​> then five years, In any prosectution for the penalty incurred under this section, it shall not be necessary to shew that the writ <​or Writs​> of Habeas Corpus [p. 16] had issued at the time of the removal, transfer or concealment therein mentioned, if it be proven that the acts therein forbidden, were done with the intent to avoid the operation of such writ <​or Writs.​>

Section 13— Any Sheriff, or his Deputy, any Jailor or Coroner, having custody of any prisoner <​or prisoners​> committed on any Civil or Criminal, process, of any Court or Magistrate, who shall neglect to give such prisoner <​or prisoners​> a copy of the process, order or commitment by virtue of which he <​<​she​> or they are​> is imprisoned, within six hours after demand made by said prisoner <​or prisoners​> or any one on his <​her or their​> behalf, shall forfeit five hundred Dollars

Section 14— Any person who, knowing that another has been discharged by order of the Municipal Court, on a shall contrary to the provisions of this ordinance, arrest or detain him <​or her​> again for the same cause, which was shewn on [p. 17] return of such writ, shall forfeit one thousand Dollars, for the first offence and Two thousand Dollars for every subsequent one.

Section 15— All the pecuniary forfeitures incurred <​under​> this ordinance shall <​be and​> inure to the use of the party for whose Benefit the writ of was issued, and shall be sued for and recover’d with costs by the City Attorney, in the Name of the City, by information, and the amount when recovered, shall without any, deduction, be paid to the party <​parties​> entitled thereto—

Section 16— In any action, or suit for any offence against the provisions of this ordinance, the Defendant or Defendants may plead the general issue, and give the special matter in evidence—

Section— 17— The recovery of said penalties shall be no bar to a civil suit for damages [p. 18]

Sec. 18. The Municipal Court <​upon​> issuing the a Writ of , may appoint any suitable Person to serve the same, other than the Marshal, <​and shall endorse the​> which appointment shall be endorsed on the back of said Writ.

Sec. 19. This Ordinance to take effect and be in force from and after its passage, any Act heretofore to the contrary thereof in any wise notwithstanding. passed Novr. 14th. 1842.

Novr. 14th. 1842.

Ordinance regulating the proceedings on Writs of [p. [20]]