59. A Bill Directing the Mode of Suing Out and Prosecuting Writs of Habeas Corpus
Be it enacted by the General Assembly, that whensoever a habeas corpus shall be served, by delivering it to the officer or other person to whom it is directed; or by leaving it at the jail or prison in which the party suing it out is detained; unless the warrant of committment plainly and specially express the same to have been for treason or felony; if the charges of bringing the prisoner, to be ascertained by the Court or Judge who awarded the writ, and thereon endorsed, not exceeding twelve pence per mile, be paid or tendered, and security1 to pay the charges of carrying him back, in case he be remanded, and that he will not escape by the way, be given by his own or any other person’s bond;2 the officer or his deputy within three days after such service, or, if the prisoner is to be brought more than twenty miles, within so many days more as will be equal to one day, for every twenty miles of such further distance, shall make return of the writ and bring the body of the prisoner, or cause it to be brought, before the proper Judge or Judges according to the command thereof, and shall then likewise certify the true causes of his detainer or imprisonment:3 Every such writ shall be signed by him who awards it; and if any person shall be, or stand committed or detained as aforesaid, for any crime, unless it be for treason or felony4 plainly expressed in the warrant of committment in the vacation time, the prisoner, not being convict, or in execution by legal process, or any one on his behalf may appeal and complain to any Judge of the High Court of Chancery,5 or General Court, who at the request of such prisoner, or other person on his behalf, attested by two witnesses present at the delivery thereof, is hereby authorised, upon view of a copy of the warrant of committment, or detainer; or otherwise, upon affidavit made, that such copy was denied6 to be given by him in whose custody the prisoner is detained, to award and grant a habeas corpus, under the seal of the said court, to be directed to the officer in whose custody the party committed or detained shall be returnable immediately before the said Judge, or any other Judge of one of the said courts; and upon service thereof, as aforesaid, the officer, or his deputy, in whose custody the party is so committed or detained, shall, within the times before respectively limitted, bring the prisoner before the court, or one of the Judges thereof, before whom the writ is made returnable; or in case of his absence before any other of them, with the return of the writ and the true causes of the committment and detainer; and thereupon the Judge, before whom the prisoner shall be brought, shall, within two days thereafter discharge him from imprisonment, taking his recognizance, with surety, in any sum according to the discretion of the Judge, having regard to the circumstances of the prisoner and nature of the offence, for his appearance in the General Court the term following, or in some other court where the offence is properly cognizable, as the case shall require;7 and then shall certify the said writ with the return thereof and the said recognizance into the said court, where such appearance is to be made, unless it shall appear to the Judge that the party so committed is detained upon a legal process, order or warrant, out of some court that hath jurisdiction of criminal matters; or by some warrant signed and sealed, with the hand and seal of any of the said Judges, or some Justice of the Peace, for such matters, or offences, for the which, by the law, the prisoner is not bailable: If any person shall have wilfully neglected, by the space of two terms after his imprisonment, to pray a habeas corpus for his enlargement, such writ shall not be granted to him, in vacation, in pursuance of this act. Any officer neglecting or refusing to make the return aforesaid, or to bring the body of the prisoner, according to the command of the writ within the time aforesaid, or not delivering a true copy of the warrant of committment and detainer within six hours after demand thereof made, to the prisoner, or person demanding it on his behalf, which copy the officer, or his deputy, is hereby required to deliver; shall forfeit to the prisoner one hundred pounds,8 to recover which, the right of action shall not cease by the death of either or both the parties. No person who shall have been delivered upon a habeas corpus, shall afterwards be imprisoned or committed for the same offence, otherwise than by the order or process of the court wherein he shall be bound by recognizance to appear, or of some other court having jurisdiction of the cause.9
A citizen of this commonwealth committed to prison, in custody of an officer, for any criminal matter, shall not be removed from thence into the custody of another officer,10 unless it be by habeas corpus, or some other legal writs; or where the prisoner shall be delivered to the constable or another inferior officer, to be carried to some common jail, or shall be sent by warrant of an Alderman to some common work-house; or shall be removed from one place to another within the same county, in order to his discharge, or trial, in due course of law; or in case of sudden fire or infection, or other necessity; or where the prisoner shall be charged by affidavit with treason or felony, alledged to be done in any of the other United States of America, in which last case he shall be sent thither, in custody, by order of the General Court, or warrant of Judges11 thereof, in vacation time, or may be bound by recognizance with sureties before them to appear there, whichsoever shall seem most proper, if the said court or Judges, upon consideration of the matter, shall think he ought to be put upon his trial.12 Any person as aforesaid may move for, and obtain, his habeas corpus, as well out of the High Court of Chancery, as out of the General Court, and if any Judge of either of the said courts, in the vacation time, upon view of the copy of the warrant of committment, or detainer, or upon affidavit made that such copy was denied as aforesaid, shall refuse any writ of habeas corpus by this act required to be granted, being moved for as aforesaid, such Judge shall be liable to the action of the party grieved.13
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 43. MS (ViU); clerk’s copy. Text of Act as adopted in 1784 is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xi, 408–10. There is also a closely-related draft of a Bill on this subject in DLC: TJ Papers, 236: 42275–6; this is a clerk’s copy, endorsed “Concerning Writs of Habeas Corpus,” but it has several corrections and interlineations in TJ’s hand. There is some evidence that this is a Bill that TJ brought up separately rather than being an early draft of the Bill concerning writs of habeas corpus that was intended for the Committee of Revisors; it is more comprehensive than either the proviso that TJ wrote into his 1776 Bill for Establishing a General Court (q.v., Vol. 1, p. 636, 644, esp. note 33) or the text of Bill No. 59. This MS is referred to below as MS Bill.
Bill No. 59 was brought up separately at the May 1784 session, passed by the House 21 June, and by the Senate 26 June, with several amendments to which the House agreed the same day (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , May 1784, 1828 edn., p. 30, 38, 39, 66, 69, 81). The principal differences between the Act as adopted, MS Bill, and Bill No. 59 are indicated below. (MS Bill differs greatly in phraseology even in those passages in which its substance agrees with Bill No. 59.) Despite the Act of 1784, Madison brought up Bill No. 59 on 31 Oct. 1785, when it was read twice and committed to the committee of the whole, but no further action was taken on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15).
1. Act of 1784 reads: “sufficient security.”
2. The preceding eight words are not in Act of 1784.
3. The preceding passage, or rather its equivalent, respecting the manner of issuing and making return on a writ of habeas corpus is in another part of MS Bill, rather than at the beginning; in this passage TJ altered “twenty miles” to “twenty five miles.”
4. MS Bill, in the corresponding part, reads: “Treason or Murder.”
5. MS Bill merely reads: “upon application to the General Court in term time or to one or more of the Judges thereof in vacation.”
6. Act reads “desired”; MS Bill reads “had been demanded of him by whom the Prisoner is detained.”
7. Instead of the words “and thereupon the judge … case shall require,” MS Bill has the following: “And thereupon the said Court, or Judge or Judges, within two days after such return made and delivered shall proceed to examine whether the cause of such commitment appearing upon the said return be just and legal or not and shall thereupon do what to justice shall appertain either by delivering bailing or remanding the Prisoner.” The italicized words are underscored in MS Bill and the words “immediately on” are interlined above them in TJ’s hand. This clearly indicates that this was an alteration made by amendment, and therefore MS Bill must have been introduced as a separate piece of legislation some time during TJ’s legislative career.
8. MS Bill reads, following this point: “to be recovered with costs by action of debt or Information in any Court of Record.”
9. At this point MS Bill adds the following: “And if any other person contrary to this Act shall knowingly commit or procure to be committed or imprisoned any person so discharged, for the same offence, or be aiding or assisting therein, he shall forfeit to the Party grieved five hundred Pounds to be recovered as aforesaid.”
10. MS Bill reads: “he shall not be removed to another prison but by writ of Habeas Corpus; unless it be where the prisoner is directed to be conveyed from Constable to Constable, or to some work house … under penalty of one hundred pounds to the Prisoner removed, to be paid by the Person signing a Warrant for such removal, and if none such, then by the Officer or other person removing the Prisoner to be recovered as aforesaid.” The words “unless it be” are in TJ’s hand.
11. The Act reads: “any two judges.”
12. The passage “or where the prisoner shall be charged … put upon his trial” is not in MS Bill, but it contains, instead, the following: “But if any person resident within this Commonwealth shall have committed any Capital Offence in any other State in America, where he ought to be tried for the same, such person may be sent in Custody to such other State, there to receive his trial for such Offence, in such manner as shall be settled by the Laws of this and the other States without incurring the Penalties of this Act.”
13. The preceding sentence is not in MS Bill, but it contains the following not in Bill No. 59: “No citizen of this Commonwealth resident therein, shall or may be sent Prisoner to any other State in America or beyond sea, under pain of forfeiting to the Person so sent a Prisoner double damages and costs to be recovered by Action of False Imprisonment in any Court of Record, against the Person conveying him and every other person who shall sign any Warrant or order for the same, or be aiding, assisting or advising therein, or any or either of them‥‥ All prosecutions for the Penalties hereby inflicted shall be commenced within two years after the Offence committed and not after.”