Ordinance, 14 November 1842, Draft

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An Ordniance regulating the proceedings on Writs of Habeus Corpus.
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 vacation, for a Writ of Habeas Corpus, 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 hand 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 Vacation, under his Hand, & if by​> the Clerk, under the 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​>
<​& be​> directed to the Person <​City Marshall, to <​& shall​> be served <​by Copy delivering a Copy thereof to​> upon the Person or Persons——​> in whose custody the Prisoner <​or Prisoners​> is <​are​> detained, and <​said writ shall be​> made returnable forthwith, <​and <​the form & substance thereof, as herein set forth, and​> be taken & considered as part & parcel of this ordinance;​> to <​To​> the intent that no Officer, Sheriff, jailer, keeper, or other person, <​or Persons upon​> to whom such Writ shall be <​served​> directed, may pretend ignorance thereof, every such Writ <​and Copy thereof served​> shall be endorsed with these Words, “by the habeus Corpus Act;” and whenever the said Writ shall by any Person be served upon the Sheriff, jailer, keeper, or other person <​or Persons​> whatsoever <​whomsoever​>, <​holding said Prisoner or Prisoners​> to whom the same shall be directed, or being brought to him <​or them​>, or being <​served upon​> left with any of his or <​their​> under Officers or deputies at the jail, or place where the Prisoner <​or Prisoners are​> is detained, he, <​or they​> or some of his <​or their​> under Officers or [p. 2]
X Comes in at this mark on page 2.—
State of Illinois) Sct.
City of )
The People of the State of , to the Marshal of said .
Whereas application has been made before the Municipal Court of said that the Body (or Bodies) of A. B. &c. is <​or are​> in the custody of C. D. &c., of &c.,
These are therefore to command the said C. D. &c., of &c., [blank] of [blank] to safely have the Body <​(or Bodies)​> of said A. B. &c. [blank] in his custody detained as it is said, together with the day and cause of his <​(her or their)​> caption and detention, by whatsoever name the said A. B. &c., [blank] may be known or called, before the Municipal Court of said , forthwith, to abide such Order as the said Court shall make in this behalf. And further, if the said C. D. &c, [blank] or other Person or Persons having said A. B. &c, [blank] in custody, shall refuse or neglect to comply with the provisions of this Writ, you the Marshal of said , or other Person authorized to serve the same, are hereby required to arrest the Person or Persons so refusing or neglecting to comply as aforesaid, and bring him or them, together with the Person or Persons in his or their custody, forthwith, before the Municipal Court aforesaid, to be dealt with according to Law; and Hereof Herein fail not, and bring this Writ with you.
Witness Clerk of the Municipal Court, at , this [blank] day of [blank] in the year of Our Lord One Thousand eight hundred and [blank]
Clerk. [verso blank]>
Or deputies shall, upon payment or tender of the charges of bringing the said Prisoner, <​or Prisoners,​> to be ascertained by the Court Justice, or Clerk awarding the said Writ, & indorsed thereon, not exceeding ten Cents per mile; and upon sufficient security given to pay the charges of carrying him <​her​> or her <​them​> back, if he <​she​> or she <​they​> shall be remanded, make return of such Writ, and bring, or cause to be brought, the body <​or bodies​> of the Prisoner <​or Prisoners​> before the Municipal Court <​forthwith,​> if in <​Session,​> Term time, or before one or more of the Justices of said Court if in Vacation, and certify the true cause of his <​her or their​> imprisonment, within three days thereafter, unless the commitment of such Person <​or Persons​> shall be to the County jail, <​in ​> in which Case the time shall be prolonged till five days after the delivery of the Writ as aforesaid, and not longer. <​*​>
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 persons 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 Habeas Corpus 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. [verso blank]>
under any color or pretence whatever, he <​she​> or she <​they​> may apply for a Writ of Habeas Corpus, as aforesaid, which application shall be in writing, signed by the Party, or some person on his <​her​> or her <​their​> behalf, setting forth the facts concerning his <​her​> or her <​their​> imprisonment, and wherein the illegality of such imprisonment consists, and in whose custody he <​she​> or she <​they​> is <​are​> detained; which application, or petition, shall be verified by the Oath or affirmation of the party applying, or some other Person on his <​her​> or her <​their​> behalf; if the confinement or restraint is by virtue of any judicial Writ or process, or Order, a copy thereof shall be annexed thereto, or an Affidavit made that the same had been demanded and refused: the same proceedings shall thereupon be had in all respects, as are directed in the preceding Section. and any Officer <​Person​> or persons knowing that he <​or they​> has <​have​> an illegal Writ, or not having any Writ, who shall attempt through any false pretext [p. 4] pretext to take or intimidate any of the inhabitants of this , through such pretext, shall forfeit for every such offence a sum not exceeding One thousand Dollars, nor less than five hundred Dollars, or in Case of failure to pay such forfeiture, to be imprisoned not more than twelve Months nor less than six months.
Sec. 3. Upon the return of the Writ of Habeas Corpus, 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 from, 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.
Sec. 4. When any person <​or Persons​> shall be admitted to Bail, on Habeas Corpus, he <​she or they​> shall enter into Recognizance with one or more securities in such sum as the Court shall direct, having regard to the circumstances of the Prisoner <​or Prisoners​>, and the nature of the offence, conditioned for his <​her​> or her <​their​> appearance at the next Circuit Court, to be holden in and for the County where the offence was committed, or where the same is to be tried: Where the Court shall admit to Bail, or remand any Prisoner <​or Prisoners​> brought before the Court, on any Writ of Habeas Corpus, it shall be the duty of said Court to bind all such Persons as do declare any thing material to prove the offence with which the Prisoner <​or Prisoners​> is <​are​> charged, by Recognizance, to appear at the proper Court [p. 8] Court having cognizance of the offence, on the first day of the next term thereof, to give evidence touching the said offence, and not to depart the said Court without leave: which Recognizance, so taken, together with the Recognizance entered into by the Prisoner <​or Prisoners,​> when he <​she or they are​> is admitted to Bail, shall be certified and returned to the proper Court on the first day of the next succeeding term thereof. If any such <​witness or​> witnesses shall neglect or refuse to enter into a Recognizance as aforesaid, when thereunto required, it shall be lawful for the Court to commit him or her <​or them​> to jail until he <​<​she​> or she <​they​>​> shall enter into such Recognizance, or be otherwise discharged by due course of law; if <​the Court​> any Justice shall neglect or refuse to bind any such Witness <​or Witnesses,​> or Prisoner <​or Prisoners​>, by recognizance as aforesaid, or to return any such recognizance, when taken as aforesaid, the Court shall be deemed guilty of a misdemeanour in office, and be proceeded against accordingly.
Sec [p. 9] Sec. 5. Where any Prisoner, <​or Prisoners​> brought up on a Habeus Corpus, shall be remanded to Prison, it shall be the duty of the <​Municipal​> Court remanding him, <​her or them,​> to make out and deliver to the Sheriff, or other Person, <​or Persons​> to whose custody he <​<​she​> or she <​they​>​> shall be remanded, an Order in Writing, stating the Cause or Causes of remanding him <​or her <​her or them​>​>. If such Prisoner <​or Prisoners​> shall obtain a second Writ of Habeas Corpus, it shall be the duty of such Sheriff or other Person <​or Persons upon​> to whom the same shall be <​served​> directed, to return therewith the Order aforesaid; and if it shall appear that the said Prisoner <​or Prisoners were​> was remanded for an offence adjudged not bailable, it shall be taken and received as conclusive, and the Prisoner <​or Prisoners​> shall be remanded without further proceedings. [4 or 5 lines blank] [p. 10]
Section 6. It shall not be lawful for the municipal Court on a scecond writ of Habeas Corpus 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 recognizance 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 Habeas Corpus 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 attachment 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 Habeas Corpus 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 Habeas Corpus 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 Habeas Corpus 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 Habeas Corpus, 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.
Joseph Smith Mayor
, Recorder. [1/2 page blank] [p. [19]]
Novr. 14th 1842.
Ordinance regulating the proceedings on Writs of Habeas Corpus [p. [20]]


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