Cole v. Thayer

I am inclined to think that this is not a case to which the penalty given by the second section of the habeas corpus act, applies.

The provision itself),in making it the duty of the officer or person holding the prisoner in custody, to deliver him, upon demand, a copy of the warrant of commitment or detainer, under which he holds him, assumes that he is held by virtue of a warrant or process; and must, I think, be construed and understood as applying only to those cases in which the prisoner is arrested and confined by process issued, or which purports to have been issued by a civil magistrate for a supposed criminal offence.

If it had been the intention of the framers of this act to make this provision applicable to all cases of a restraint of personal liberty, instead of adopting the technical phraseology of “ a true copy of the warrant of commitment or detainer,” they would have directed, in general terms, that where the prisoner was held by a warrant, a copy of the warrant should be delivered; and, in all other cases, a statement in writing of the cause of his detention.

*251*The case of Hudson and Wife v. Ash, (1 Str. 167,) seems to sanction this construction. That was an action brought for not delivering a copy of the commitment under this provison of the habeas corpus act. The wife of the plaintiff was arrested upon a warrant issued by a justice of the peace. When she came before the justice, she could not find bail; but, at her own request, was permitted to sleep at the house of the constable that night, in order to get bail the next morning. While thus in the custody of the constable, a copy of the commitment was demanded, and not being furnished, the action was brought. Pratt, 0. J., said there were two questions: 1. Whether the defendant was an officer: and 2. Whether the plaintiff’s wife was detained by virtue of a warrant within the meaning of the act; and he held that the defendant was clearly an officer, but that the woman was not in his custody by virtue of any warrant. The warrant, he remarks, was only to bring her before the justice, and was fully executed when she was brought there; and she did not remain with the constable by virtue of any warrant or commitment; and, on that ground, non-suited the plaintiff.

In the case of Huntley v. Luscombe, (2 Bos. & Bull. 530,) the question whether this provision of the habeas corpus. act, is applicable to commitments of any other kind than such as are made for criminal or supposed criminal matters, was discussed at large by the counsel. But the court decided the case on the ground that the demand of a copy of the warrant of commitment from the defendant was not sufficiently established: and expressed no opinion on the main question. It was contended by Shepherd, Sergt., in behalf of the plaintiff, that the 5th section of the English habeas corpus act, which gives the penalty in question, extended not only to those writs of habeas corpus which are given by that act; but to all other writs of habeas corpus at common law; and that, although a person in execution be not entitled to the writ under the act, yet he is clearly so at common law; and if a copy of the execution be refused to him, he is entitled to the penalty given by the 5th section. But I am not aware that *it has ever been con*252tended, that this section was applicable to summary commitments by military officers or tribunals.

The first section of the act of 1818, (ch, 277, p. 298,) declares, that the several provisions made in the habeas corpus act,for awarding writs of habeas corpus, shall, in like manner, extend to all cases where any person, (not being committed or detained for any criminal or supposed criminal matter, nor in execution by legal process,) shall be confined or restrained of his, her, or their liberty, under any color or pretence whatever. And the third section provides, that the original act shall, as respects the penalties for not returning writs of habeas corpus, and the remedy therefor, be deemed and taken to apply and extend to the cases provided for by this act.

This is declaring, by the strongest possible implication, that the original act, as respects the penalty for not giving a copy of the warrant of commitment or detainer, shall not be deemed to extend and apply to the cases provided for by the act of 1818. For it is to be remarked, that the penalty given in the original act for not returning the writ, is the same in amount, and imposed by the same section, which gives the penalty for not delivering a copy of the warrant of commitment: thus marking the intention of the legislature, in this respect, to discriminate between the two cases ; giving the penalty for not returning the writ in all cases ; but not extending the penalty for non-delivery of a copy of the warrant of commitment.

It appears sufficiently from the declaration, that the arrest was by virtue of a military order. All the counts so state it.

The defendant is, therefore, entitled to judgment upon the demurrer.

Judgment for the defendant.