Act of January 17, 1818–January 1, 1820. R. C. ch. 120.* 1. § 1. Whenever any person(1) detained in custody, whether charged with a criminal offence or not, shall, by himself, or by some other person in his behalf, apply to the general court, or any superior court of law, or superior court of chancery in this commonwealth, or to any judge thereof, in vacation, for a writ of habeas corpus‡ ad subjiciendum, and shall shew, by affidavit or other evidence, probable cause to believe that he is detained in custody without lawful authority, it shall be the duty of the court or judge to whom such application shall be made, forthwith to grant the writ, signed by himself, directed to the person in whose custody the applicant is detained, and returnable immediately, before such court or judge, or any of the said courts or judges: Provided, That in all cases where it shall appear necessary, the court or judge granting the writ, shall previously require bond, with sufficient security, executed in such manner, and in such reasonable penalty, as such court or judge shall prescribe, conditioned for the payment of such charges as may be awarded against the prisoner, and that he will not escape by the way. Every bond, so executed, shall be recorded with the other proceedings, as hereinafter provided for; and may be sued on, in the name of the person to whom it is made payable, for the benefit of any person really interested therein. Jan. 10, 1815, c. 26. 2. § 2. Whenever any such writ shall be served on the officer or other† person to whom it is directed, or, in his absence from the place where the prisoner is confined, on the person having the immediate custody of the prisoner, *Former general laws on this subject, May 1784, c. 35, 11 Stat. Larg. 408; Dec. 19, 1792, c. 118, R. C. And see 31 Ch. 2, c. 21, § 3; 56 Geo. 3, c. 100. Public officers removing persons from one county to another, by writ of habeas corpus, authorized to impress men, horses and boats, and regulations relative thereto. See Sup. R. C. c. 198, p. 258, 259. (1) It seems that a person detained as a slave, cannot avail himself of this act to extricate himself from the possession of the detainer. Sce Roane, J. in Lewis v. Fullerton, 1 Rand. 22-3. See post. p. 506, No. 68. But see De Lacy v. Antoine et al. 7 Leigh, 438. I concede at once, (said Tucker, Pres. in delivering the opinion of a majority of the court,) that under our law the habeas corpus is not the proper method of trying the right to freedom; but there is no provision in this act which denies the habeas corpus to a free person illegally confined in custody, although he be a person of colour. Where, indeed, on the face of the petition, it appears that the case presents a litigated question as to the right of a negro to his freedom, the writ should be refused as inappropriate to the case. Where this does not appear by the petition, but comes out in the return, and is sustained by the proofs, the party should be remanded, or sent before a justice of the peace to make his complaint according to law. The court should, on the return, exercise a sound discretion; and where there seems to be no real litigation as to the right to freedom, may discharge the applicant on the writ, without putting him to his suit in forma pauperis. The applicant's own affidavit is sufficient to sustain the application for the writ, &c. Brooke, J. dissenting. See his opinion, p. 449. See post. tit. JUDICIARY-Circuit Superior Courts of Law, &c. No. 28. See act of Feb'y 16, 1834, Ses. Acts 1833-4, c. 25, p. 27, Sup. R. C. c. 198, p. 258, which authorizes public officers removing persons from one county to another, by writ of habeas corpus, to impress men, horses and boats, and prescribes regulations and compensation therefor. Act of January 17, 1818-January 1, 1820. R. C. ch. 120. it shall be the duty of him on whom the writ shall be so executed, without delay, to bring the body of the prisoner, or cause it to be brought before the court or judge before whom the writ is made returnable, or, in case of the absence of such court or judge, before any of them; and, at the same time, to certify the cause of the detainer of such prisoner. lbid. 3. § 3. Any person failing to return the writ so served upon him, with the cause of the prisoner's detainer, or to bring the body of the prisoner before the court or judge, according to the command of the writ, for three days after such service, or, when the prisoner is to be brought more than twenty miles, for so many days more as will be equal to one day for every twenty miles of such further distance, shall forfeit and pay to the prisoner the sum of three hundred dollars; the right to recover which, shall not cease by the death of either or both of the parties. Ibid. 4. § 4. It shall be lawful for a judge, in vacation, to take the same steps to enforce obedience to any writ of habeas corpus ad subjiciendum, as may be taken in term-time by any court having jurisdiction over such writs. Ibid. 5. § 5. The court or judge, before whom the prisoner shall be brought, shall, without delay, proceed to enquire into the cause of his imprisonment, and shall either discharge him, admit him to bail or remand him into custody, as the law and the evidence shall require; and shall, moreover, either award against the prisoner the charges of his transportation, not exceeding seventeen cents per mile, and the costs of the proceedings, or shall award costs in his favour, or shall award no costs or charges against either party, as shall seem right. The clerk of the court, in the office of which the proceedings shall be recorded, may issue execution for the costs and charges so awarded by a judgment rendered in vacation, in the same manner as if the judgment had been rendered in term-time. Ibid. 6. § 6. The return made to such writ shall not hereafter be taken to be conclusive as to the facts stated therein; but it shall be competent for the judge or court, before whom such return is made, to receive evidence in contradiction thereof, and to determine the same, as the very truth of the case shall require. Ibid.; 56 Geo. 3, c. 100, § 3. 7. § 7. In vacation, a judge shall have the same power to compel the attendance of a witness, to give evidence upon the trial, as a court would have in term-time; and whenever, either in term-time or in vacation, it shall be inconvenient to procure the personal attendance of a witness, his affidavit, taken upon reasonable notice to the adverse party, may be received in evidence. Ibid. 8. § 8. The proceedings and judgments shall, in all cases, be entered of record. If they be had in vacation, before a judge in chancery, they shall be signed by the judge, certified to the clerk, and by him entered among the records of the chancery court, within the jurisdiction of which, the judgment shall be rendered: if before a judge of the general court in vacation, they shall be in like manner signed, certified and entered among the records of the superior court of law for the county in which the judgment shall be rendered. Whenever either party shall require it, upon the trial, the court or judge shall cause to be made part of the record all the material facts proved. The clerk shall be allowed the same fee for entering the record, as is allowed by law for copying a record, of the same number of words; which fee shall be charged to the prisoner, and taxed in the bill of costs, when costs are recovered by him. Ibid. 9. § 9. The judgment so entered of record shall be conclusive, until reversed in the manner herein provided for; and no person remanded by such judgment, whilst the same continue in force, shall be at liberty to obtain ano Act of January 17, 1818-January 1, 1820. R. C. ch. 120. ther habeas corpus, for the same cause, or, by any other proceeding, to bring the same matter again in question, except by writ of error or by action of false imprisonment; nor shall any person, who shall hereafter be discharged from confinement by such judgment, be afterwards imprisoned or confined for the same cause, unless by the order or judgment of a court of competent jurisdiction. Ibid. 10. § 10. If any party to such judgment shall feel himself aggrieved thereby, it shall be lawful for the court of appeals, on his motion, to grant a writ of error; and, upon the trial, to reverse or affirm the judgment, wholly or in part; and to cause such other judgment to be entered, and such other proceedings to be had, as the law and the right of the case may require; either awarding costs or not, at their discretion. Ibid. 11. § 11. If, by any judgment entered as aforesaid, any person held in service of this state, (a) or of the United States, shall be discharged, (b) it shall be lawful for the attorney-general, on behalf of this commonwealth, or for any attorney, duly authorized, on behalf of the United States, to obtain from the court of appeals a writ of error to such judgment, and to cause the same to be reversed and otherwise proceeded on, in the same manner as is allowed to the parties thereto. And if, at any time during the recess of the court of appeals, the executive of this commonwealth should think that the public interest requires the immediate revision of such judgment, it shall be lawful for them to convene the said court, on any day which to them shall seem proper. Ibid. 12. § 12. The trial of all writs of error to judgments in case of habeas corpus, shall have preference, in the court of appeals, to all other trials. Ibid. 13. § 14. A citizen of this commonwealth, committed to prison in custody of any officer, for any criminal matter, shall not be removed from thence, into the custody of another officer, unless it be by habeas corpus, or some other legal writ, or where the prisoner shall be delivered to the constable or other inferior officer, to be carried to some common jail, or shall be sent, by warrant of an overseer of the poor, to some common workhouse, 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, felony or other crime, alleged to be done in any other of the United States of America; in which last case, he shall, on demand of the executive authority of the state from which he fled, be sent thither in custody, by order of the general court, or by warrant of any two judges 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. 1792, c. 118, R. C. 14. 13. The remedy by writ de homine replegiando, shall be, and the same is hereby annulled. Ibid. (a) The right of appeal is confined to the case of persons held in service of this state, or of the United States; by which the court understands military service, or at least a service different from, and of greater urgency than the confinement of persons in pursuance of a judgment of a court martial, for failing to pay a fine, imposed for not appearing at the place of rendezvous in pursuance to a requisition of militia. Attorney General v. Fenton et al. 5 Munf. 292. (b) As to the power of the judiciary of the respective states, to take cognizance of commitments or confinements, under colour of the authority of the United States, see the opinion of R. E. Parker, J. in the case of The State of Virginia v. Lawton, and the cases by him cited. Enquirer, Aug. 11, 1820, and Ex parte Pool et al. gen'l ct. Nov. T. 1821, 2 Virg. Cas. 276. [See tit. SEAMAN, note (a)]: *See post. tit. JUDICIARY-Circuit Superior Courts of Law, &c. No. 28. ^^ 1. 1. If any person or persons, shall at any time shoot, hunt or range upon the lands or tenements, or fish or fowl in any creeks or waters included within the bounds of any other person or persons, without license first obtained of the owner of such lands, every such offender shall forfeit and pay three dollars for every such offence, to be recovered with costs, before any justice of the peace of the county where the offence shall be committed, by the informer, to his own use; in which information, the confession of the party accused, or the oath of one credible witness, shall be sufficient evidence. Where the owner of the land shall prosecute for any unlawful shooting, hunting ranging, fishing or fowling within his bounds, the oath of such owner shall be sufficient evidence to convict the offender; but, in that case, the penalty shall be paid to the overseer of the poor of the district wherein the offender resides, to the use of the poor of such district; and, moreover, every such offender shall be liable to the action of the party grieved, at the common law, for his or her damages. See 1705-38-48, and 1792, c. 88, R. C. 2.2. If any person shall be the third time convicted of any such offence as aforesaid, the justice of the peace, before whom such conviction shall be, over and above giving judgment for the aforesaid forfeiture, shall require such offender to enter into recognizance, with one or more sufficient sureties, to the governor for the time being, and his successors, in the penalty of thirty dollars for his good behaviour, during one whole year from thence next following; or, in case of refusal so to do, shall commit him to the common jail, there to remain until he give such security, or until the expiration of one month. And if, after such surety given, such offender shall be convicted of shooting, hunting, ranging, fishing or fowling unlawfully as aforesaid, within the time in his recognizance limited, such offence shall be breach of the good behaviour, and the penalty of his recognizance shall be forfeited to the overseers of the poor, for the use of the poor of the district wherein such conviction shall be. lbid. Act of January 16, 1801. R. C. ch. 256. 3. § 1.-If any free white person or persons shall kill any deer, (not being his own tamed,) or shall be found in possession of any, between the first of January and the first of August, in any year, every such person, for every deer, shall forfeit five dollars, to be recovered with costs, by warrant, before a justice of the peace of the county where the offence shall have been committed, or the offender or offenders may reside, to the use and benefit of the informer, provided the offence be proved by the confession of the party, or by the oath of one or more credible witness or witnesses, other than the informer; but if the offence should be established by the oath of the informer only, in that case the said forfeiture shall be payable to the overseers of the poor of the county where the conviction shall have been, and applied towards lessening the poor rates thereof. If any white person, free negro or mulatto, shall be guilty of the like offence, and be thereof duly convicted, before a justice of the peace of the county where the offence shall have been committed, or the offender resides, the said offender shall forfeit and pay to the informer, or to the overseers of the poor, as the case may be, the sum of five dollars and costs; and, Act of January 16, 1801. R. C. ch. 256. in case of inability or refusal to pay, shall, by order of the said justice of the peace, receive not less than ten nor more than twenty lashes on his bare back. [If any person or persons within this commonwealth, by shooting, trapping, hunting, ranging, driving with dogs or otherwise, shall kill or destroy one or more deer, the same not being his own (tamed,) between the first days of January and September, in any year, he or they so offending shall be subject to the penalties imposed by the act, entitled "an act to prevent the killing of deer within certain periods annually," passed January the sixteenth, eighteen hundred and one: Provided, That nothing herein contained shall be so construed as to extend to the counties west of the Blue Ridge of mountains. Act of March 3, 1831, Ses. Acts 1830-31, c. 46, p. 116, Sup. R. C. ch. 309, p. 503. The period within which the killing of deer is prohibited on the eastern side of the Blue Ridge, shall be from the first day of February till the first day of September in every year, instead of the period now prescribed by law. Act of January 10, 1840, c. 70, p. 57.] 4. 2. If any slave shall be guilty of the like offence, and be thereof lawfully convicted before any justice of the peace of the county where the offence shall have been committed, or the master or owner of such slave resides, such slave shall, by order of the said justice of the peace, receive on his bare back, not less than ten nor more than twenty lashes. 5. § 3. This act not to extend to the counties west of the Alleghany mountain. Act of December 23, 1792. R. C. ch. 252. 6. 1.-Prohibits fire hunting, or the killing deer by such means, on any patented lands, under the penalty of four dollars, for every such offence, recoverable as in No. 1, one half to the informer, the other to the overseers of the poor, or the whole to the latter, as the case may be. See No. 1. 7. § 2. Subjects destroyers of tame deer, having a bell or collar, to an action of trespass. Act of January 4-May 1, 1805. R. C. ch. 254. 8. § 1. It shall not be lawful for any person or persons to haul any seine or seines below the mouths of the different rivers* in this commonwealth, between the fifteenth day of May and the fifteenth day of August in every year; and if any person or persons shall, contrary to the true intent and meaning of this act, haul any seine or seines below the mouths of the different rivers of this commonwealth, as aforesaid, between the said fifteenth day of May and the fifteenth day of August, he shall, for every act of hauling, forfeit and pay tenț * See Sup. R. C. c. 400, p. 503, by which, fine and imprisonment are imposed upon those who obstruct the passage of fish on the waters of the Potomac river, and its tributary streams; and by which, penalties are imposed for improperly destroying wild fowl. Amended by acts of March 2, 1833, Ses. Acts 1832-3, c. 85, p. 54, and March 4, 1834, Ses. Acts 1833-4, c. 76, p. 96; see, also, act of March 9, 1835, Ses. Acts 1834-5, c. 71, p. 53, imposing penalties for interfering with fisheries on Potomac river and its tributaries. By act of March 30, 1837, Ses. Acts 1836-7, c. 79, p. 53, the length of seines on the Potomac is regulated, and penalties are imposed for violating the act. And by act of March 21, 1838, c. 118, p. 88, further regu lations are prescribed for fishing on the Potomac, in the county of King George. Penalty "increased from ten to fifty dollars for each and every foffence, to be recovered by presentment, indictment or information, or by action on the case, in any court of record in this commonwealth, by any person who will sue for the same; one moiety of the said fine or penalty to his own use, the other moiety thereof to the commonwealth, for the benefit of the literary fund." Act of March 25, 1837, Ses. Acts 1836-7, c. 78, p. 53, by which, hauling seines in the county of Northampton is also regulated. Section third provides, "that this act shall be constantly given in charge to the grand juries by the judges of the supe |