Olnrnpll Slam Btl^aa\ ICtbrary Cornell University Library KF9011.H961876 A treatise on the right of personal libe 3 1924 020 121 160 DATE DUE ' ,■ 1 5EP-^ f^r^ OULi**'" V^U '■'■ t - 'ii ■" ; ' CAYLORD PNINTE0INU.5.A. Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020121160 C. Li, TREATISE . I /; v ON THE EIGHTOF PERSONAL LIBEETY, AND ON THE WEIT OF HABEAS CORPUS PRACTICE CONNECTED "WITH IT: WITH A VIEW OF THE Jafa of ttabilion of Jfugitibts. BY ROLLIN C. H^URD. SECOND EDITION, ■WITH NOTES, BY PRANK H. HURD. ALBANY: W. C. LITTLE & CO., LAW BOOKSELLERS. 1876. iiOQ litis S ,0 Entered according to Act of CongreBs, in the year one thousand eight hundred and seventy-six. By frank H. HURD, In the Office of the Librarian of Congress, at Washington. H9L> DAVISON & PAUL, PEINTEKS AND STEEE0TTPEB3, SARATOGA SPRINGS. TO HENRY STANBERRY, Esq., DISTINGUISHED AiSoNG THE FEW WHO, AMIDST THE TEMPTATIONS TO PEOFESSIONAL INOONSTANOT PECULIAR TO OUB TIMES AND COUNTRY, CONTINUE, WITH UNWAVERING DEVOTION, TO DIQNIFT AND ADORN THE PRACTICE OP THE LAW, BT THE DISPLAY OF PROFOUND AND VARIED LEARNING AND THE GRACES OF POLISHED ELOCUTION, THIS WORK IS RESPECTFULLY INSCRIBED BY THE AUTHOR. PREFACE. The jurisdiction exercised under the writ of habeas cor- pus embraces many interesting and important subjects. It is invoked to remove alleged illegal restraint of per- sonal liberty; but as all restraint is not illegal, it be- comes important to a ready and just administration of the law, that there should be a clear apprehension of the nature and extent of the right of personal liberty and the limitations to which it may, legally, be subjected. Restraint may be imposed under legal process ema- nating from a federal court, or under color of federal authority without process. In such cases it is important to understand the nature and extent of the jurisdiction of the state courts under the writ of habeas corpus. The restraint may be imposed under legal process emanating from a federal or state court when the legal- ity of the imprisonment may depend on the extent or rightful exercise of the jurisdiction of the court granting the process, or on the sufficiency of the process itself. Process may be irregular and yet the prisoner may not be entitled to be discharged, for the writ of habeas corpus VI PREFACE. is not a remedy in all cases of false imprisonment. It may be regular and yet the prisoner may be entitled to be discharged, for the imprisonment under it may, not- withstanding its regularity, be illegal. The restraint may be imposed under a claim of private authority, and that authority may be denied, or there may be conflicting claims for the custody of the person restrained; and the restraint may be imposed in the exercise of the duty of extradition of fugitives from justice or from service, and in such cases not only the validity of the process employed may be brought in question, but also the constitutional powers of congress and of the states. Thus, under the writ of habeas corpus, it may become necessary to decide as to the extent and legai exercise of the jurisdiction of a federal court or ofiicer, or of a state court ; the validity of legal process in respect to any or all the many grounds on which it is liable to be impeached ; the constitutionality of state and federal laws ; the right of prisoners to be admitted to bail, and the right and sometimes the expediency of continuing private custody. This jurisdiction, so extensive and important and, when in competent hands, so beneficent, has in some states been committed to inferior ofBcers not learned in the law ; and there have not been wanting magistrates of this class, ambitious of the distinction of Habeas Cor- pus Judges, who have cherished the pleasing illusion PREFACE. VIX that, though destitute of every other qualification for the judicial office, they were quite sufficient for a pro- ceeding in which the law appeared to them to be con- cerned only for the release of prisoners. And there have not been wanting magistrates of higher rank, who, though acknowledging their subjection to the law in all other proceedings, have, when acting under the writ of habeas corpus, deluded themselves with the idea that they were, judicially, omnipotent. In such hands there is reason to fear that the law has suffered violation in the discharge of prisoners as often as in the commitments which they have reviewed. The practitioner who has undertaken to investigate, and the judge who has been required to administer the law under this writ have doubtless, at times, felt a regret that some one had not lessened their labors by a careful collection and methodical arrangement of the principles of law commonly involved in the proceeding, the rules of practice by which it is governed and the decisions wherein they have been applied and illustrated. The profession has, hitherto, been without such aid. The only service of practical value which has been rendered is the learned note in 3 HilVs Rep. 647, by Nicholas Hill, Jr., Esq., to which as well as to the encouraging counsel of its generous and accomplished author, I have been greatly indebted. I desire also to express my obli- gations to Feancis Wharton, Esq., the learned author of the valuable work entitled "American Criminal Law," VUl PEEFACB for his interesting article on the extradition of fugitives from justice, found in 6 Penn. Law Journal, 413, which he kindly placed at my service. The object of the following pages has been to supply a work of the description above indicated, which no one else has found inclination or leisure to execute. With no predecessor in this field to encourage by his success or warn by his failure, I have been compelled in the choice and discussion of the topics considered, to assume the responsibility and incur the risk, and may therefore, perhaps not in vain, ask for the performance the indul- gence usually extended to the labors of a pioneer. ROLLIN C. HURD. MonHT Veehoh, Ohio, September, 1868. PREFACE TO SECOND EDITION". Nearly twenty years have elapsed since the publica- tion of the first edition of this work. In that period the great civil war in the United States occurred, during the continuance of wMch many and important questions as to the writ of habeas corpus arose and were deter- mined. For this reason, as well as because the original work was out of print, a new edition was demanded. In its preparation few alterations have been made in the original text except to conform it to changes which new legislation has occasioned in the statutes of dif- ferent states. Section VI. of Chapter I., treating of the ultimate jurisdiction of the Supreme Court of the United States, and Chapter III. of Book III., treating of extradition of fugitives from service, have been omitted. The first was considered unnecessary, after the hold- ing of the Supreme Court of the United States that the state courts had no jurisdiction to release, upon habeas corpus, individuals in custody under the authority of X PREFACE TO SECOND EDITION. the federal government. The second was omitted as it could be of no practical use, since the abolition of slavery. The whole of the chapter as originally prepared upon the subject of the concurrent jurisdiction of the federal and state courts, has been retained, although the doctrine then laid down has since been overruled. This course was pursued as it was deemed advisable to present from the beginning, to the profession, the whole discussion of this important question. The new cases with the state- ment of the points decided, and the discussion of their doctrines, will be found in the notes. The cases cited in the text of the first edition, have for greater convenience of reference been placed also in the notes. FRANK H. HURD. Toledo, Ohio, June, 1876. CONTENTS BOOK I. THE EIGHT OF PEESONAL LIBEETT. , CHAPTER I. GBNBKAl JSTATURB AND LIMITATIONS OF THB EIGHT. SECTION I. PAGE. General nature of the right, 3 SECTION II. Nature of the limitations 6 CHAPTER II. LIMITATIONS OF A PUBLIC NATUEB. SECTION I. Limitations punitive of crime, 6 SECTION II. Limitations coercive of duties to the State, 8 1. The duty of supporting and defending the State 8 2. The duty of testifying for the State in criminal cases, 8 3. The duty of obedience to judicial mandates 9 XU CONTENTS. SECTION III. PAGE. Limitations executive of duties to tlie citizen, CHAPTER III. LIMITATIONS OF A PEIVATB NATUKE. SECTION I. Limitations coercive of private obligations, 11 1. Demands arising out of contracts express or implied, 11 3, Demands arising out of injuries to the person, property, or reputation, 30 SECTION II. Limitations arising from the relation of husband and wife, 31 1. The husband's right of custody, 31 3. His supposed right of chastisement, 33 3. His right of confinement, 35 4. His right of recaption, 30 SECTION IIL Limitations arising from the relation of parent and child, 35 1. The grounds of parental custody, 35 3. The parent's right of chastisement, 38 3. The parent's right of confinement, 40 4. The power of emancipation, 41 5. The mother's right of correction, 43 SEGTION IV. Limitations arising from the relation of guardian and ward, 43 1. General nature of the relation of guardian and ward, 43 3. Guardianship over idiots and lunatics, 44 3. Guardianship over infants, 44 4. The guardian's right to ohangs his ward's domicU, 46 SECTION V. Limitations arising from the relation of master and apprentice 47 SECTION VI. Limitations arising from the relation of master and hired servant 48 CONTENTS. XIH SECTION VII. FAGB, Limitations arising from the relation of master and scholar 49 SECTION VIII. Limitations arising from the relation of principal and special bail, 54 CHAPTER IV. CONSTITUTIONAL AND STATUTOET GITABANTBBS OF THE EIGHT OP PEESONAl LIBBETT IN BNGLAND. SECTION L Magna Carta, 66 SECTION II. The Petition of Right, 75 SECTION in. The Bill of Rights, 79 SECTION IV. The Habeas Corpus Acts, 31 Car. II. and 56 Geo. III., 81 CHAPTER V. CONSTITUTIONAL AND STATUTORY GUABANTEES OF THE BIGHT OP PEBSONAL LIBEBTT IN AMEBICA. SECTION L Liberties in the Colonies, 93 1. Magna Carta, 93 3. The writ of Habeas Corpus, 95 SECTION IL Constitutional and statutory guarantees in the United States 105 1. The provisions in the Constitution of the United States, 105 3. The provisions in the constitutions of the several states, 110 3. Suspension of the privilege of the writ, 116 4. Statutory enactments relating to the writ of habeas corpus, . . 119 Xiv CONTENTS. BOOK II. THE WRIT OP HABEAS COEPTJS. CHAPTER I. NATURE OF THE WRIT OF HABEAS CUKPUS, AND SOURCES AND EX- TENT OF JURISDICTION OTER IT. SECTION I. PAGE, General nature of the writ of habeas corpus, 139 SECTION II. Jurisdiction in England 132 1. Jurisdiction at common law, ■ 133 3. Statutory jurisdiction, 133 SECTION III. Jurisdiction of the federal courts of the United States, 133 SECTION IV. Jurisdiction of the state courts, 153 • SECTION V. Concurrent jurisdiction of the federal and state courts, 154 CHAPTER II. PRACTICE IN PHOCUBING AND SERVING THE WRIT, SECTION I. Preliminary observations, 199 SECTION II. The Application, 200 1. In what cases it may be made 200 3. By whom it may be made, , 203 3. The mode of making it, 204 4. When it may be denied, 211 5. When it must be granted, 223 COSTTEBTTS. XV SECTION III. PAGE. Security for costs and against escape, 335 SECTION rv. Allowance of the writ, , 326 1. Mode of allowance, 336 2. Notice of allowance, 337 SECTION V. The writ, 338 1. The form of it, 828 3. In what name to issue, 330 3. To whom directed, 330 SECTION VI. Service of the writ, 333 CHAPTER III. THE EKTDEN. SECTION I. General nature of the return, and mode of enforcing it, 385 1. Genera] nature of the return, 235 3. Must be made without delay, . . _. 335 3. May be enforced by attachment, 336 SECTION II. Form of the return, 338 SECTION III. General requisites of the return, 339 SECTION IV. Non-production of the body and the reasons therefor, 339 1. Importance of the production of the body, 339 3. Disability from want of possession, custody or power, 240 3. Disability from sickness of prisoner, 349 XVI CONTENTS. SECTION V. Production of the body and statement of the day and cause of the cap- OK-I tion and detention, 1. Statement of the cause of caption, 251 3. Statement of the cause of detention, 253 SECTION VI. Certainty required in the return ""^ SECTION VII. Amendment of the return, 357 SECTION VIII. Verification of the return, , 358 SECTION IX. Effect of the return at common law, 258 SECTION X. Effect of the return in the United States, 271 CHAPTER IV. THE ISSUE, SECTION I. Issue of law, , 389 SECTION II. Issues of fact and law, . . , , 290 CHAPTER V. THE HEABIN&. SECTION I. The mode of trial, ; 397 CONTEIirTS. XVll SECTION 11. PAGE. The evidence, 300 1. General observations, 300 3. Evidence in summary proceedings, 301 3. Competency of witnesses, 303 4. Evidence by affidavit, 304 SECTION III. Custody pending tbe hearing, 319 SECTION IV. Attachment for contempt, 320 CHAPTER VI. JUKISDICTION IN RESPECT TO THE VALIDITY OF LEGAL PKOCBSS WHEN ASSERTED AS CATTSB OF DETENTION. SECTION I. General nature of this jurisdiction, 334 SECTION II. The extent of the jurisdiction, 325 1. Limited grounds of inquiry, 825 3. Defects cognizable under the habeas corpus, 337 8. Limitations resulting from the superior rights of other acting judicial tribunals, 331 SECTION III. Corrective jurisdiction, 348 SECTION IV. The writ of certiorari as ancillary to the writ of habeas corpus, 850 SECTION V. The certiorari, in connection with the habeas corpus as a writ of error 353 C XVUl CONTENTS. CHAPTER VII. TAIIDITT OF PEOCBSS. SECTION I. PAGE. Jurisdiction of the subject matter, """ SECTION 11. Jurisdiction of the person, o"'' SECTION III. Jurisdiction of the process, 361 SECTION IV. Jarisdiction must he exercised in the manner prescribed by law, 363 SECTION V. Presumptions relating to jurisdiction, 363 1. Distinction between superior and inferior courts, 364 2. Presumptions relating to superior courts, 366 3. Presumptions relating to inferior courts, 366 SECTION VJ. General warrants,. 367 SECTION VII. Requisites of special warrants, 369 1. The Direction, 369 3. The name of the accused, 370 3. The offence, how described and supported, 371 4. The conclusion, 393 5. The signature and seal, 393 SECTION VIII. Orders of court, 394 SECTION IX. Authority of law, 305 CONTENTS. XIX SECTION X. PAGE. Commitments in execution, 398 1. Commitments on summary convictions, 398 3. Commitments for contempt, 405 SECTION XI. Warrant defective, prisoner not always discharged, 411 SECTION XII. Warrant perfect, prisoner not always remanded, 434 CHAPTER Vm. EIGHT TO BAIL. SECTION I. Bailable ofEences, 427 SECTION II. Inquiry before indictment, 433 SECTION III. Inquiry after indictment, 435 SECTION IV. Inquiry after conviction, 444 CHAPTER IX. CLAIMS FOE PEIVATE CUSTODY FOUNDED ON THE DOMESTIC EB- LATIONS. SECTION I. General observations, 449 SECTION II. Husband for his wife 45O XX CONTENTS. SECTION III. PAGE. Parent for his child, 453 1 Degree of restraint necessary to authorize the writ, 453 3. Nature and extent of jurisdiction 454 SECTION IV. General rules as to custody of legitimate children, 461 SECTION V. Spirit of the English cases on conflicting claims of parents for the cus- tody of their children 463 SECTION VI. Spirit of the American cases' on conflicting claims of parents for the custody of their children 473 SECTION VII. Custody of illegitimate children, 533 SECTION VIII. Infant's liberty of choice, 531 SECTION IX. Infant's age of discretion, 535 SECTION X. Voluntary transfer of custody, 540 SECTION XI. Master for Ms apprentice, 549 SECTION XII. Guardian for his ward, 554 CHAPTER X. STATUTORY PEOVISIONS RELATING TO PRISONER'S DISCHARGE. SECTION I. Discharge for want of prosecution, ggn CONTENTS. XXI SECTION 11. PAGE. Beoominitment after discharge, 563 CHAPTER XI. SECTION I. Writ of error, 568 BOOK III. THE LAW OP EXTRADITION OF FUGITIVES. CHAPTER I. EXTRADITION OF FtT&ITIVES FROM JUSTICE FROM FOREIGN STATES. SECTION I. Nature of the obligation, 577 SECTION II. B7 whom the surrender is to be made, 581 SECTION III. By what agency the surrender is to be made, 582 CHAPTER II. EXTRADITION OF FUGITIVES FROM JUSTICE FROM THE SEVERAL STATES OF THE UNION. SECTION I. Nature of the obligation, 598 SECTION II. The crime committed, 601 SECTION III. The accusation, 610 XXU CONTENTS. SECTION IV. PAGE. The flight of the accused, 613 SECTION V. The demand of the fugitive, 613 SECTION VI. The arrest and surrender, 614 SECTION vn. The revisory power of the judiciary, 631 SECTION VIII. State legislation, 633 FIRST APPENDIX. HABEAS CORPUS ACT, 31 CAK. II. SECOND APPENDIX. HABEAS COEPTTS ACT OF UNITED STATES. TABLE OF CASES. A PAGE. PAGE. Barnes' case 338 Abbott V. Booth 370 Barnum v. Frost 45 D. Converse 41 Barrett, In matter of 194 Ableman v. Bootii 193, 290 Barron v. Mayor and City of Bal- Adams, Ex parte (Miss.) 406, 409 timore 117 (N. y.) 613, 619, Barry v. Mercein 138 516 624 Ex parte 141 v. Vose 331 Bartlett, Ex parte 47 Albee v. Ward 363 Barth v. Clise 330 Alexander, Ex parte 405, 409 Bates V. Thompson 363 Alfred d. McKay 531 Beaty, Ex parte 347 Allen, Ex parte 219 1). Koss 333 Allison, In re 354, 357 Beeching et a)., Ex parte 368 Almeida, Ex parte 178 Beekman v. Traver 394 Ambrose, In matter of 291 Bell V. The State 573 Anderson 11. The State 53 Belson, In re 229 Ex parte 194 Belt, In matter of 304 Andrus v. Harman 338 Benace v. The People 336 Anne Gregory's case, 203 Benedict, Ex parte 133 Ann Cutley's case 477 Bennett ». Bennett (Deady) 140 146 Archer's case 443 V. (Beasiey) 521 ,534 Ardry ®. Hoole 403 Ex parte 353 393 430 Armstrong v. Stone 534 In matter of 194 Atkins v. Atkins 24, 29 i>. Smith 33 Atkinson v. Jameson 305 Bessett, Ex parte 434 Atty.-Gen. v. Padden 330 Bethel's case 338 v. Hunt 219 Betty's case 573 Atwood V. Atwood 26 Bickley 1). Com. Bigelow i>. Stearnes Binns *. Moseley 406 403 219 B Blair, In re Blake's case 328 331 330 Bagley, Ex parte 54, 55 Blissett's case 465 Bailey, Ex parte 43 Boaz, Ex parte 525 Baker's case 338, 358 Bogart, In re 141 Ex parte 366 Bollman, Ex parte 134, 141, 305, «. Gordon 300 307, 325 356 434 In re 319 Bond V. Isaac 304 Baldvrin i>. Blackmore 409 ■ V. Lockwood 37 Banks, Ex parte 443 Booth, In re 190 334 Bank U. S. ■». Jenkins et al 202, Boreham, In re 541 288 340, 347 Bosen, Ex parte 331 Barker v. The People 117 Boucher's case 373 Barlow v. Heine 39 Bowen, Ex parte 333 Barnes v. Allen 33 Boylestown v. Kerr 398 XXIV TABLE OF CASES. Brackett i). The State 401 Bracy's case 409 Bradley D. The State 33 Brady ■!). Davis 386 Brass Crosby's case 238, 405 Breeze v. Elmore 50 Brennan, In re 356 Brevoort n. McJimsey 333 Bromley's case 237 Brooks 1). Adams 363 V. Com. 398 V. Delaplaine 333 Brown's case 611 V. Rice 363 V. United States 145, 333 Bryan, In matter of 198 Bryant, Ex parte (Ala.) 443 (Tyler) 249 Bucksport J). Rockland 41 Bull, Ex parte 378 Burdett i>. Abbott 570 Burnett, Ex parte 330 Burns ■!>. Erbeu 398 Burford, Ex parte 143, 373 379 380 Burr's Trial 118, 309 421 438 Buruham i). Morrissey 411 Bushel's case 219 Bushnell, Ex parte 190 333 Butler e. Freeman 456 457 Byrd «. The State 443 563 567 Byrne v. Love 581 550 Cable 1). Cooper 303 385 388 Cabrera, Ex parte 145 Cain, In matter of 137 Callicott, In re 330 Cameron v. Lightfoot 338 Campbell i). Carter 32 Ex parte 222 574 Canfield v. Patterson 289 Carlton's case 171 Carus Wilson, In re 354 Carr v. Carr 535 Caudle v. Seymour 379 Chancey's case 263 Chare «. Hathaway 402 Child, Ex parte 203 City of London's case 254 568 Clark 1). Com. 296, 561 V. Gautier 294 Matter of 607, 618, 630 V. McComman 365 ■i). The People 406 ®. Smith 220 Clarke's case 328, 330, 407 PAGE. Clarke, Ex parte 365 In re 257 Cobbett, Ex parte (5 C. B.) 219 (53 E. C. L.) 349 V. Hudson 203 Cochrane, In matter of 26, 30 Colby V. Jackson 10 Cole V. Cole 524 Collier, In matter of 190. 353, 574 Collins V. Batterson 361 Colt V. Eves 117 Com. V. Addicks and wife 477, 480 D.'Baird 48,49 «. Barney 480 V. Biddle 574 V. Brickett 55, 58 «. Briggs 230, 480, 481 ■B. Carlisle 376, 430 ■v. Chandler 340 v. Crans 419 V. Crotty 371 V. Cushing 181, 303 V. Deacon 47, 580, 598 ■». Dean 377 V. De Longchamps 580 V. Downs 181, 304 1). Edwards 47 V. Fox 175, 343 •». Frink 137 1). Gamble 343 V. Gane 193 ». Gilkeson 547 11. Green 580 «. Hall 630 V. Hambright 339 V. Hamilton 294, 453 11. Hammond 204, 394, 539, 554 -!). Harris 553 •v. Harrison 181, 303, 553 V. Hardy 403 «. Hickey ^18 V. Intoxicating Liquors 377 V . Jailer of Alleghany Co. 661 V. Keeper of Prison 432, 435 11. Kirkbridge 256 11. Leckey 337, 408 11. McAffee 25 11. McBride 566, 573 11. Murray (Pa.) 43, 165 V. (Va.) 380 ■», Newton 411 «. Norton et al. 341 V. Nutt 476 11. Randall 53 11. Reed §23 ■i). Ridgeway 231, 275 V. Robinson 206, 322, 293, 552 557 TABLE OF CASES. XXV PAGE. Com. V. Rutherford 438 V. Seed 50 V. Sheriff 562 ■B. Sheriff of Alleghany Co. 561 V. Taylor 538 «. Tilg;hman 307 V. Webster 55 V. Whitney 846 V. Wright 193 Cone i>. Dougherty 550 Conner v. Com. 379, 380 In re 538 Cooper, In re 205, 413, 575 Corbett v. The State 447 Cotes «. Michill 389 Coupland, Bx parte 240, 352 Coulter, In re 141 Cox v. White 328 Crandall, Petition of 338 Croon & May, Ex parte, 431, 432 Cross, Ex parte 351 Crowley's case 455 Cummings' case 403 Cunningham v. Thomas 290 Curley, In re 573 Curry v. Pringle 361 Curtis V. Curtis 540 D Da Costa, In re 574 Dakins, Bx parte 365 Daley, In re 203 Dalton V. The State 530 Darcy, In re 527 Darnall v. Mullikin 533 Davies, Ex dem. Powers v. Doe 243 Davis, Ex parte 300 v. The State 445 Davison's case 407 Dawson ®. Dawson 37 Deckard i). The State 302 Dedham n. Natick 42 De Hautville «. Sears 306, 479 De Lacy v. Antoine 210, 295 Delaney, Bx parte 330 Dening «. Corwin 365 Denny v. Tyler 10, 202 De Roches, Bx parte 138, 201, 302 Dick V. Grissom 41 Dies i>. Husted 198 Dimes, In re 349 Dobbs, In matter of 194 Dobson, Ex parte 370, 377 Dodge's case 301 Donnelly i). The State 330 Dorr, Ex parte 144 Dow'scasd 351, 633 Doyle, In matter of 530, 531 Drury v. The State 442 Dumain and wife v. Gwynne 248, 483 548 Duntz V. Levett 34 Dyson, Ex parte 445 E Banes v. The State 397 Eaton, Matter of 139 V. Patterson 333 Eden's case 257 Eggington, Bx parte 365 Elderton's case, 393 Elizabeth Warman's case 241 Elkinson, Ex parte 146 Elliott V. Piersol 157 Emmanuel «. The State 574 Evans «. Foster 432 Evans v. Perciful 333 Everts, Ex parte 139 Fagan, In re 126 Pairhurst «. Lewis 41 Farrand, matter of 197 Farez, In re 595 Feeley's case 330 Ferguson d. Ferguson 391, 394 Ferguson's case 165 Fernandez, In re 412 Perreira's case 580 Ferren, Matter of 203 Fetter, In matter of 609 ,611 618 Field, Ex parte 122 239 Fitter v. Probasco 363 Fltts 1). Fitts 394 Fitzgerald «. Northcote 50,53 Fleming 1). Clark 338 348 Fletcher ®. The People 88, 40 Forbes, Ex parte 145 Ford «. Graham 319 V. Nassau 319 Foster and wife -o. Alston 394 493 531 Freestone, In re 358 French v. Lighty 300 Fridge D. The State 365 Fulgham v. The State 25' G Gano 1). Hall Garner v. Gordon 394 800, 462 XXVI TABLE OF CASES. Gibson, Ex parte 328, 330 418 1). The State 210 GifEord, Ex parte 145 151 Gilchrist, Ex parte 887 Gishwller v. Dodez 534 Gist 1). Bowman 40(3 Glass et al. v. Sloop Betsey 157 Gofil's case 409 Gold V. Bissell 361 Goldswaln's case 264 Goodenoiigh, In re 534, 540 550 Goodliue's case 616 Goodwin's case 443 Gordon v. Potter 41 Gosline «. Place 352, 370 377 Gossett 1). Howard 887 Gould V. Hays 338 Graham, Ex parte 152 B. Graham 299 553 In re 343 Gregg, In matter of 516 530 In re 333 ■B. Wyuu 200 Greenough, In re 609 Green's case 444 Green v. Robinson 333 Griffin, In matter of 143 In re 127 1). Wilcox, 122 126 Griffith, Ex parte 220 Grignon's Lessee i). Astor 364 Griuer, In re 223 Grummon v. Raymond 361 Gurney i>. Tufts 329 381 H Hakewell, In re 336, 298 Hall «. Dana 338 Halsey v. Trevills 59, 204 Hamilton, Ex parte 143 V. Wright 363 Hammond «. Howell, 337, 375 D. The People 573 Hammond's case 356 Hancock v. Hamstead 44 Hansen, Matter of 520 Harp 1). Osgood 55, 57 Harrison's case 205 Heckcr v. Jarrett 201, 337, 339, 566 Henderson v. Lynde 63 Heinrich, In re 5'M, 596 Henry, In matter of 398 Herr 1). Herr 365 Herrick v. Smith 338, 332, 370 Hewitt Ex parte 535 Heyward, Matter of 303, 608, 611, 615 Hickey, Ex parte 406 Hight v. U. States 436 Hill, Ex parte (Ala.) 198 (Nev.) 196 V. Wait, 363 Hinchman v. Richie 10 Hobhouse's case 220 Hobson, In matter of 194 357 Holcomb ». Cornish 365 Holley V. Mix and Clute 397 Holmes, Ex parte 581 1). Jennison 572 581 Holman, Ex parte 195 414 D. The Mayor of Austin 414 Homer v. Battyn 301 Hooper ». Lane 361 Hopkins, Ex parte 393 Hosley, In re 831 Hottentot Venus case 303 Hovey ii. Morris, 204 389 Howard, Ex parte 443 1). The People 829 V. Lyon 58 Howe V. The State 573 Hoye V. Bush 371 Hughes, In matter of 611 633 Hunt V. Hunt 523 Husted's case. 166 Hutcheson e. Peck 32 Hutchins ii. Player 263 Hyde v. Hyde 536 V. Jenkins 204 Irwin, In matter of 406 Jack V. Martin 635 Jackson, Ex parte 34.T In matter of 356 558 James i). Com. 117 Jenkins, Ex parte 148, 152 273 Johnson 'o. Com. 405 1}. Terry, 550 B. The State 88 «. U. States 146 Johnstone v. Beatty 47 Johnston 1). Riley 608 Jones n. Danvers 319 Ex parte 319 1). Hughs 341 V. Kelley 847 403 TABLE OP CASES. XXVll Jones V. Tevis ■». Timber] ake Jordan, In matter of «. The State K 43 893 194 406 Kaine, In re Kearny, Ex parte 330, 592, 594 143, 140, 332, 405, 407 Keeler, In matter of 310 Keen v. McDonough. 338 Kelley D. KeUey 30 Kellogg, Ex parte 338 Kelsey i). Parmlee 370 Kemp, In re 131, 238 Kemple's Lessee i). Kennedy, 364, 365 Kennedy ». May 543 Kenney ii. The State 393 Kentucky «. Dennison 610, 636 Kilbourn's case 406 The King v. Bethell 330, 338 V. Dean and Chapter of Trinity Chapel 568 V. Edgar 293 v. Edwards 551 v. Blwell 338 V. Despard 374, 385 V. Gibson 399 «. Hawkins 364 11. Horner 434 -D. Judd 376, 385 V. Lyme Regis 355 B.Marks351, 376, 385,416 V. Marsh 330 1). Myers 305 ■». Middleton 453 ■». Reynolds 551 t>. Rogers 354, 404 V. Sir Robert Viner 343 V. Taylor 337, 354 V. Wagstaff et al. 343 «. Wilkes 373, 378 V. Winton 337, 340 1). Winwick 371 Kingsbury's case 611, 614, 630 Kirk's case 443 Kittrell, Ex parte 443 Klepper, Ex parte 309 Knee, Ex parte 526 Kottman, In matter of 459, 535 Kraft V. Wickey 47 Lafonta's case 61, 574 Lagrave, In matter of 596 Lander i). Laird 50 V. Bearer 53 Langdon, Ex parte 407 Lange, Ex parte 144 Lawler, Ex parte 407 Lawrence, Ex parte 574 Lacon v. Hooper Lady Leigh's case 401 209 Lea V. White " 393, 554, 573 Lecaux ■». Eden 168 Lee, Ex parte 198 Leech ij. Agnew 45 Leonard v. Putnam 46 Lessee of Hlckey ti. Stewart et al. 158 Lessee of Hodges «. Deaderick's Heirs 363 Linda v. Hudson 304 Lindsey v. Lindsey 500 Livingston «. Livingston 356 Lloyd, Ex parte 526 Lobdell v. Allen 47 Lockiugtou's case 171 Loclcwood 1). The State 406 Logan v. The State 559 Long, In matter of 137 Longworth's case 445 Lough V. Millard 393 Love «. Moynehan 33 Lovejoy «. Webber 347 Lum !). The State 437 Lynde v. The People 441 Lyons v. Blenheim 455 M Mackalley's case 338 Mallet 11. Dexter 333 Manchester, Matter of 611, 613 Marbury v. Madison 156 Maria n. Kirby 574 Martin v. Hunter's Lessee 154 In re 351, 356 In matter of (Paine C. C.) 344 In matter of (Barb.) 194 Mary Heath's case 209, 316 Mason, Matter of 332, 277, 418 Mathews v. Terry 49 v. Wade 394 Mathis !). Colbert 567 Maulsby, Ex parte 365, 413 Mayhew ». Loclce 395 Mayue v. Bredwin 542 Mayo V. Wilson 397 Mayor n. Mason 403 MoCall 11. McDowell 126 McCann, Ex parte 140 xxvm TABLE OF CASES. McCardle, Ex parte 143, 352, McCasey, Ex rel. McClellau, Ex parte 454, McConologue's case 195, 197, 557; McCoy ». The State McCullough, Ex parte McDonald, Ex parte In re McDonnel, In re McDowIes, Matter of 500,531, McFarland v. Johnson 230, McGeelian, Ex parte 331, McJunkin d. Gilliam McKee, Ex parte McLaughlin's case McLeod's case McPherson «. Cunliff McRoberts, Ex parte Meade «. Deputy Marshall, Va. Mean «. Haws Meek v. Pierce Mercein i). The People 454, 470, Merrill ®. Lake Merryman, Ex parte Metzger's case Milburn, Ex parte Miller i). Snyder Milligan, Ex parte 132, 143, 146, 348, 133, 300, Millet «. Baker Mims 11. Wimberly Mitchell, In matter of (Ga.) 454, Ex parte (La.) Money v. Leach Moore i>. Ewing In re 473, V. The State Morrill ®. Dickey Morgan ii. Brown Morton, In matter of 378, Mossey v. Johnson Mowry, In re Muns «. Dupont Murray, Ex parte 338, Musgrove v. Kornegay 578 193 466 ,573 443 338 138 139 594 546 573 563 414 409 405 387 365 195 361 371 370 473 333 119 589 564 418 136, 333 394 198 543 573 368 319 536 441 46 403 414 404 353 373 364 554 N Nash's case Nash 1). The People Nelson & Graydon ii Tyrrell Newman's case Newton. In re Nichols V. Cornelius, Nickeson's case Nicolls 1). IngersoU 399 224 Cutler & 146, 273, 347, 391 252 203, 333 Nightingale v. Whittington 42 Norris «. Newton 187 North, In re '43 Nugent, Ex parte 406, 410 Nye, Bx parte 309 o Oakes, Matter of 10 O'Conner, In matter of 194 In re 328 Ohio & Mississippi R. R. i>. Fitch 195 Oliver, In re 135, 136 Olmsted's case 163 Olmsted i). Hoyt 338 O'Neal, In matter of 483 Osborn v. Allen 37, 42 Overton «. Beavers 45 Oxford ■». Rumney 40 331, 290, 630 509 56 Page, Ex parte 329 Pardv, Ex parte 222, 405 Parker v. Bidwell 58 In matter of 209, 433 Parrish v. The State 418 Parsons ii. Lloyd 389 Partington, Ex parte 349, 571 Paul 1). Van Kirk 341 Peacoke v. Bell & Kendall 364, 365 Pearce v. Atwood 363 Pease «. Burt 58 Peltier «. Pennington 334 The People -». Beigler 434 11. Brooks 520 11. Bradley 230 , 233, 333 11. Budge 333 V. Burtnett, 572, 574 V. Cassels 326 V. Cavanagh 338, 378, 575 V. Chegary & Con- dert 304, 306, 471, 505, 533 11. Cole 444 n. Cowles 434 V. Cunningham 394, 573, 574 583 11. Curtis 11. Dixon 440 11. Erbert 530 1). Faucher 573 «. Fisk 194 11. Gaul 122 , 126, 194 11. Gray 378 TABLE OF OASES. XXIX The People v. Hackley 410 B. Hessing 442 V. Hyler et aj. 438, 439 «. Kehl 237 e. Kelley (Abb. Pr.) 444 V. (Barb.) 350 V. Kling 528 V. Landt 529 i>. Lynch 616 V. Markham 330 e. Martin 287, 335, 438 D. McCormick 328 B.McLeod 286, 326, 485, 488, 443 V. Mercein 304, 331, 394, 304, 453, 455, 510, 516 V. Miller 401 V. Mitchell 581 V. Nash 334 «. Nevins 388, 338, 393, 394, 397, 407 V. Olmstead 519 V. Pelham 338 Pool V. Gott Poor V. Poor Power, Matter of Powers, In re Power e. The People Preston, In re Price ». Graham In re Prigg ®. The Com. Prime, In re Q 30 601, 635; PAGE. 543 35 253 348 403 587 378 453 686 633 The Queen v. Green 880 ». Howes 536 «. Patty et al. 569 V. Richards 351 R V. Phillips 401 Rate V. Hanna 82 v. Pillow 304 540 558 Race, In re 248 «. Porter 466 Rafter, In matter of 127 V. Rhoades 519 Ralston, Ex parte 204, 495 «. Rhoner, 377 Randall v. Bridge 254 •». Richardson 435 Randolph, Ex parte 146, 203 «. RufE 332 Ream i). Watkina 41 «. RulofE 331 849 Reed v. Rice 117 1). Smith 384 Regina v. Chancy 355, 357 «. Supt. House o: V. Clark (Am. Law Reg.) 538 Refuge 398 «. (Eng. L. &E.) 454, V. Tompkins 387, 325, 473, 536 326 ,390 «. Day 219 1). Tinder 440 ,444 V. Douglas 265 V. Van Home 440 D. Leggatt 453 V. Wilcox 43, 391, 534, D. Newman 305 540 •D. Roberts 248 V. Winters 24 •». Smith 541 Percy, In matter of 395 Republic v. Wingate 437 Perham, In re 378 Respublica v. The Gaoler of Perkins, Ex parte (18 Cal.) 414 Philadelphia 275, 399, 339 (2 Gal.) 573 Rex V. Allason 403 Matter of 573 B. Barnes 405 Perry, Ex parte (N. Y.) 412 «. Bethuen 349 (Wis.) 480 •». Blaney 403 ®. Perry 25 B. Bradley 402 Pfitzer, Ex parte 614 «. Carlisle 828 Phelan's case 194 V. The Chancellor 860 Phinney's case 405 1). Clark (3 Burr.) 308, 236 Phipps, In re 351 V. (1 Burr.) 203 Pigot V. Davis 338 V. (1 Salk.) 353 Pike 11. Hanson 301 1). (Cowp.) 403 Piatt «. Harrison 330 1). (T. R.) 403 Pleasant's case 179 «. Clarkson 293, 448, 464 Pool et al.. Ex parte 179 V. Croker 372 XXX TABLE OF CASES. Rex -B. Crowtlier 1). Davis V. Dawes u Deleval 1). De Mandeville V. Earl Ferrers V. Gardner V. Gavin V. Goodall «. Gordon 1). Greenhill 466, ■B. Greenwood 11. Hall 1). Harper i>. Harris V. Hazell ■». Hood 1!. Hopkins ■V. Home 1). Isley 11. James V. Jones «. Johnson ■». Kessel V. Killer ■». Lister 11. Loyd v. Lovet V. Mead 1>. Pain 1). Parkyns 11. Parnam i>. Patcliett D. Pearce ■B. Reed v. Roddam i>. Simpson V. Soper «. Smith D. St. Nicholas i>. Swallow V. Symonds 11. Taylor v. Theed v. Thompson V. Tilly 11. Trelawney V. Turlington 11. Venables 11. Vipont 11. White 11. Wiseman 11. Wright 11. Wyndham V. York Reynolds v. Orvis Rhodes, Ex parte 408 402 305 292, 305, 463 466 243 229, 264 322 392 251 467, 472, 536 424 409 399 403 403 371 523, 526 255 534 409 243 292, 464 305 403 27, 34 403 403 31, 450, 451 379 219 424, 434 403 402 403 227 402 402 522 292, 370, 464 405 402 399 403 403 402 402 402 250 402 402 263 453 237, 248, 250 374. 381, 443 404 361 177 PAGE. Richards «. Richards 25 Ring, In matter of 418, 573 Robalina n. Armstrong 527 Roberts' case 159, 166 Ex parte 329 Robinson, Ex parte (McL.) 151, 343, 573 Ex parte (Bond) 145 11. Flanders 392, 620. 633 11. Spearman 329 Rodgers n. McLean 47 Rohan v. Swain 397 Remains, Matter of 633 Rose V. Himely 157 Ross, Ex parte 594 Rowe, Ex parte 411, 414 11. Rowe 462 Ruddle's Ex'rs v. Ben 295 Rudyard's case 399 Ruggles V. Corey 58 Russell V. Hubbard 370 V. The Com. 573 v. Whiting 293 S Samuel n. Payne et al. Sanborn ii. Carlton Sanders ». Rodway Sandilands, Ex parte Sanford v. Nichols Savacol n. Boughtou Schmied, Ex parte Schumpert, Ex parte Sears n. Dessar 209, Sergeant's case Shadgett ii. Clipson Shaw, Ex parte V. Smith Shank's case Shirk's case Shortz V. Quigley Shriver's Lessee v. Lynn et Sliue u Turk Shuttleworth, In re Simonton, Ex parte Sims' case Skinner, Ex parte Slaoum V. Simms & Wise Smith, Ex parte (3 McL.) 278, (5 Cow.) (3 H. & N. 11. Powle In re (H. & N.) (Nev.) V. Mctver 397 370 31, 451 451 379 341 189 473 , 245, 256 163 371 329 258, 557 411 194 302 158 295 10, 421 443 181, 222 459, 466 363 146, 227, 611, 625 393, 616 al. 266 365 370 328, 332 333 TABLE OF CASES. XXXI Smiths. Randall 394 ■D. Shaw 363 Smithurst, Matter of 406 Somerville v. Hunt 393 Son v. The People 403 Souther's case 394 Spangler, In matter of 194, 196 Spirey, In matter of 127 Speer v. Davis 393, 549 Spradland, In matter of 435 Spring 11. Woodworth 45 Stacy's case 242 Stanley, Ex parte 444 Stansbury v. Benton 41 Stanton v. Willson 41 Starr «. Litchfield 53 The States; Alford 45 i>. Applegate 363 V. Aaseliu 424, 434 V. Baird 523 «. Banks 291, 523, 534, 549 V. Barnhard 23 «. Barrett 548 1). Beaver et al. 299 V. Bloom 296, 418 B. Brearly et al. 176,553, 574 ®. Buckley 24 V. Buyck 443, 560 V. Buzine 326, 393, 420, 616 11. Caswell V. Cheesemau D. Clover «. Conner ■u. Craton V. Daniels v. Dimick 1}. Drake V. Everett ». Farlee i>. Eraser V. Heathman «. HiU ®. Hufford «. J. H. v. Killett 11. King V. Lazarre 11. Libbey V. Loper v. Lyon 11. Mahon ■». Marco V. Mathews V. MoNab «. MoNally V. Mills 393 554 542 447 33 622 185 393, 394 382, 433, 575 394 395 437 (Minn.) 205 511 379 379, 383 495 55, 63 548 616 803, 305, 306 55 443 7 442 394 436 The State v. Monguo 559 D. Munson 234, 370, 383, 393 ■». Paine 486 11. Pendegrass 51 11. Philpot 203 , 209, 244 11. Phine 158 v. Potter 382, 575 V. Baborg 237 V. Ehodes 25 V. Richardson 486, 534, 540 V. Rogers 443 11. Sauvinet 448 ■». Schlemn 633 11, Scott 539 11. Shattuck 331 V. Simmons 444 v. Smith 484, 543 11. Sparks 137 11. Sprague 560 v. Stalmaker 443 «. Staples 381 n. StigaU 520 «. Stokes 402 n. Tillinghast 31 «. Tipton 406 n. Towl 328, 413 11. Vaughn 393 V. Ward 445, 447 11. Wederstrandt 158 V. White 406, 409 11. Wolcott 316 V. Woodfln 406 V. Worley 394 11. Wray 441 V. Zulich 196 Stewart's case 338, 358 Stockdale v. Hansard 338 Strahl, Ex parte 396 Street n. State 441 Striplin ii. Wase 525 Stupp, In re 596, 597 Summers, Ex parte 410 Swallow ■». City of London 263, 365 Swift n. Swift 543 Tacket ii. The State 393 Tarble, In re 196 Taylor v. Alexander. 341 Tayloe, Ex parte 430, 483 The Territory ii. Benoit 486 Thomas v. Crossin 153 Tomlinson's case 399 Thompson v. Hill 333 xxxu TABLE OP CASES. Thornton, Ex parte 618, 630 Timson, In re 351 Toof «. Bentley 363 Townsend i>. Kendall 45, 46, 557 Tracy, Ex parte 331 Troutman, In matter of 630 Truman, In re 338 Turner v. Felgate 389 Tweed's case 339 u TJ. States i>. BoUmau and Swart- wout 199, 837 11. Booth 193 ». Davis (Cr. C. C.) 345 1). (Sum. C. R.) 580 . Wood 46 Woodworth «. Spring 46 Wray, Ex parte 441 Wright V. Hazen 365 «. Johnson 223 v. The State 343 v. Wright 527 Wyatt, Ex parte 832 Wyeth ■». Richardson 575 Wyndham's case 378 Yarborough i>. The State 484, 437 Yates' case 344, 354, 340, 405, 408 1). Lansing 224, 564 ■B. The People 569, 571, 572 Yerger, Ex parte 139, 148, 349, 353 Young V. The State 549 Zembrod v. The State 443 THE LAW OE HABEAS CORPUS RIGHT OF PERSONAL LIBERTY. THE RIGHT OF PERSONAL LIBERTY. CHAPTER I. GENERAL NATURE AND LIMITATIONS OF THE RIGHT. Section I. General nature of the right. II. Nature of the limitations. SECTION I. GBNEEAL NATURE OF THE EIGHT. Personal Liberty is the power of unrestrained loco- motion. The right to exercise it springs from the funda- mental laws of our being. The ever-recurring wants of the body, requiring continual labor for their provision, and the necessity of exercise to the healthy action of all its vital processes, render locomotion indispensable to animal existence. Man shares these wants with inferior animals, and, were he their equal only, should share their freedom also. But he has other wants no less im- perious than those of the body : knowledge, the aliment of the soul ; and happiness, the object of its unceasing aspiration. To *supply these varied wants, he is con- [4 strained to employ his powers with unremitting care. Acting upon that enlightened sense of independence, which a knowledge of his nature and destiny alone can inspire, he pursues happiness in whatever paths it invites him ; gives his days to labor, to study or to 4 THE EIGHT OF PERSONAL LIBERTY. [Book I. pleasure ; remains in one place or visits all ; in a word, in the exercise of liberty attains tlie fall enjoyment of life. A survey of the nations of the earth, to discover where the right of personal liberty has been, and now is, most generally understood, most highly prized and most ef- fectually secured to every walk in life, and to observe the liberalizing and elevating influence which a just sense of it exerts upon the government which fosters and secures it, the vital energy which it imparts to the administration of public afifairs, and the unfailing stim- ulus which it supplies to private enterprise, would prove alike grateful to the spirit of philosophic inquiry and flattering to the pride of an American citizen. But it is the object, rather, of the following pages to ascertain what are the limits of right ; how it is secured, and how, when illegally assailed, it may most speedUy be vin- dicated. The right of personal liberty, thus inhering in man as an independent sentient being, though absolute and of inestimable value, is not without material qualifications. "Man," says Montesquieu, "is born in society and there he remains." Grovernment is essential to the pres- ervation of society, and, in some form, everywhere pre- vails. Thus, born in society and under government, enjoying the privileges of one and the protection of the 5] other, he cannot rightfully *exercise any power incom- patible with the well-being of either. Hence, each mem- ber of society, in the exercise of his right of liberty, as well as of his other absolute rights, is subject to such limitations and penalties, as the common welfare and the just ends of government may require. Ch- !■] LIMITATIONS OF THE EIGHT. 5 SECTION II. NATUEE 01" THB LIMITATIONS. The limitations of the right of personal liberty are either of a public or private nature. I. Limitations of a public nature are those which are, 1. Punitive of crime ; 2. Coercive of duties to the state ; or 3. Executive of duties to the citizen. II. Limitations of- a private nature are those which are, 1. Coercive of private obligation ; or 2. Incident to certain civil relations, viz. : 1. Husband and wife ; 2. Parent and child ; 8. Guardian and ward ; 4. Master and apprentice ; B. Master and servant ; 6. Master and scholar ; 1. Principal and special bail. 6 THE EIGHT OF PEESONAL LIBBETT. [Book I. 6] *CHAPTER TI. LIMITATIONS OF A PUBLIC NATUEE. Section I. Liii0tations punitive of celme. II. Limitations coercive of duties to the state. III. Limitations executive of duties to the citizen, SECTION I. LIMITATIONS PUNITIVE OF CEIME. In 1765 it was written of the English law : It is a melancljoly truth that, among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parlia- ment to be felonies without benefit of clergy ; or, in other words, to be worthy of instant death. And in 1810 it was declared by Lord Holland, in debate in the House of Lords, that the list had been increased to nearly double that number." In" 1844 this "dreadful list" had been reduced to twelve." The same severity did not prevail in the American Colonies as in England ; j^-et in them many crimes were punished capitally which are now punished with im- prisonment. In the United States more than half the states, and these among the foremost in point of the gen- 7] eral completeness and the considerate humanity *of their criminal codes, have in effect abolished the punish- ment of death for all other crimes than the single offence of murder.* ' 4-Bl. Com. 18. 2 4 Am. Jurist, 1. ^ It seems that the only crimes now punished capitally in England are high treason, murder and piracy. 24 & 25 Vict. o. 100 ; 1 Vict. c. 88 ; 4 Bl. Com. Wend. ed,. App. A. •i Treason is also punished capitally in most of the states. Piracy is visited with the same penalty by the laws of the United States. Arson and rape are punishable with death in several of the southern states. Law Eep. 490. Cii. 11.] LIMITATIONS OF A PUBLIC WATUEK. 7 Although doubts have been suggested as to the right of the state to inflict capital punishment in any case, and elaborate arguments urged against the policy of it, the right to imprison for crime in all cases is unques- tioned. It is not that crime has become less odious in the sight of legislators, but the rights of life and liberty more precious, that the severity of the penalties of the criminal codes of England and America has been so greatly mitigated. It may be said now, that in the United States the personal liberty of oflE«»nders supplies the principal revenue of Penal Justice. She inflicts, in- deed, pecuniary fines for slight offences, and exacts the forfeit of life for the most atrocious ; but the great mul- titude of felons are required to expiate their crimes in prison. Of Contempts. — The right of liberty is also subject to restriction as a punishment for contempts of court which may, without impropriety, be classed with crimes. A court of justice represents the judicial majesty of the people. Through the forms of law it utters their mighty voice in judgment. Property, character, liberty and life itself, are involved in the issues before it ; and it needs all the aid which composure can lend to reason to enable it to discharge wisely and impartially its mani- fold and momentous duties. Contempts, therefore, tend- ing to interrupt or disturb the court in the administra- tion of justice, have always been held to deserve instant and severe punishment.' ' The authority to punish contempts is a necessary attribute of judicial power, inherent in all courts of justice from the very nature of their organiza- tion. Watson V. Williams, 36 Miss. 33 ; State «. Matthews, 37 K H. 451 ; 4 Bl. Com. '284. 8 THE EIGHT OF PEESONAL LIBEETT. [Book I. 8] *SECTION" n. LIMITATIONS COBECITE OF DUTIES TO THE STATU. 1. The duty of supporting and defending the state. 2. The duty of testifying for the state in criminal cases. 3. The duty of obedience to judicial mandates. 1. The duty of supporting and defending the State. — it IS no less the duty of the citizen to support the state than it is of the state to protect the citizen. And although our army and navy are now supplied by volunteers, it is the undoubted right of the state, whenever in her judgment the public emergency requires it, to compel the citizen to enter her service. And when engaged in that service, whether by compulsion or voluntary enlistment, he be- comes subject to her control under officers acting within their appointed spheres. Whatever charms the life of the soldier or marine may possess, it is not one of perfect liberty. The restraints to which they are subjected, though necessary to that rigor of discipline which the art of war demands, are oftentimes felt to be serious and sometimes annoying if not oppressive restrictions. 3. The duty of testifying for the State in Criminal Oases. — Be- sides the obedience which a witness owes to a subpoena,, for neglect of which he is exposed to punishment, he may also, in criminal.cases, be compelled to enter into a recognizance to appear at a future day to give evidence in behalf of the state ; and in case of his refusal, he may be committed to prison. Such appears to have been the 9] common law, *and such is the statute law of several states.' It may seem harsh thus to imprison a man not only innocent of crime but not even charged with it. But it is of the highest interest to the community that offend- > 1 Chit. Cr. Law, 76. Ch. II.] LIMITATIONS OF A PUBLIC NATTTEE. 9 ers should be brought to justice ; and he who refuses to be laid jinder bonds to give evidence against them is de- linquent in public duty. The witness was not, however, at common law required to procure any surety. His own recognizance was all that was exacted. To require him, as has sometimes been done, to procure sureties in addition is certainly an extraordinary exercise of legis- lative power.' 3. The duty of obedience to judicial mandates. — The judi- ciary would hold but a barren scepter if their powers ceased with declaring the law. They are vested with a power to enforce as well as pronounce their judgments. In many cases of contumacious conduct they secure obe- dience to their orders by attachment and commitment of the delinquent party. Imprisonment in such cases is not regarded merely as a punishment for a contempt, but as a necessary means of enforcing compliance with the decision of the court. SECTION m. EXBCUTIVB OF DUTIES TO THE CITIZEN. It would be a very narrow view of the obligations of the state to suppose that her protection should be lim- ited to such as may be able in return to render *aid [10 to her. The lunatic, the idiot and the helpless pauper, no less than the industrious citizen and the valient sol- dier claim her fostering care. The irresponsible lunatic must not be allowed a lib- erty fraught with danger to himself and others — nor must he or the idiot be left exposed to the cupidity and rapacity of heartless relatives. Neither must the invalid pauper be suffered to starve in a land overflowing with plenty. ' Bickley v. Commonwealth, 2 J. J. Marshal] (Ky.), 572; 4 Bl. Com., Wend, ed., 296. 3 10 THE EIGHT OF PEESOBTAL LIBERTY. [Book 1 This obligation of government has long been recog- nized, but not so long efficiently discharged. There is, however, no more gratifying evidence of the progress of society than is afforded by the asylums which a just sense of public duty has, in many of the states, provided for these unfortunate classes. Irrespective of any statutory provision, the custody of such persons would, especially in case of infants, de- volve upon the nearest in blood ; but in view of laws enacted to provide for their support and custody, the right of private restraint must yield to the call and be- nevolent design of the state. Hence it has been held that a lunatic could not be kept in close confinement by his relatives or friends, except on the ground of temporary necessity, and that only so long as may be reasonably required to obtain the benefits provided by law.' In the exercise of this power the legislature may pre- scribe and cause to be enforced such regulations as in its judgment the public good may require. The lunatic may be made a close prisoner, or suffered 11] to go at large under the custody of a *committee; and the pauper may be required to perform moderate labor and abide in the public infirmary, or become the servant of the "lowest bidder." The restrictions in these cases being designed for the benefit of the unfortunate subjects and for the safety of the community, should cease when the cause which re- quired them is removed ; as, when the lunatic recovers his reason, or the pauper acquires property adequate for his maintenance by gift or otherwise, or gains sufficient health and strength to earn his support. ' Matter of Josiah Cakes, VIII Law Reg. 122. No principle of right is vio- lated in putting a reasonable and salutary restriction on the liberty of a person •who, from the loss of reason and judgment, is unable to provide means for his own cure or who is liable to use freedom from restraint in such way as to increase or prolong his malady. Denny v. Tyler, 3 Allen (Mass.), 227 ; Colby V. Jackson, 1 N. H. 181 ; Hinchman v. Ritchie, Brightley (Penn.) Eep., 143 ; see In re Shuttleworth, 9 Ad. & El. 651, N. S. Ch. m.] LIMITATIONS OF A PRIVATE ISTATUEE. 11 *CHAPTER III. [12 LIMITATIONS OF A PRIVATE NATURE. Section I. Limitations coercive oj' pkitate obligations. II. Limitations arising from the relation of husband and wife. III. Limitations arising prom the relation of parent and' child. IV. Limitations arising from the relation of guardian and ward. V. Limitations arising from the relation of mastf.r and apprentice. VI. LI^^TATI0NS arising from the relation of master and servant. VII. Limitations arising from the relation of master and scholar. VIII. Limitations arising from the relation of principal and special bail. SECTION I. LIMITATIONS COEECIVB OF PRIVATE OBLIGATIONS. The duty of the state to provide some means of re- dress for private wrongs, has long been recognized by all civilized nations. Pecuniary demands, whether springing from contracts express or implied, or from injuries to the person, property or reputation, have been made the subjects of various civil remedies, in some of which a heavy hand has, not unfrequently, been laid upon the right of personal liberty. 2. Demands arising out of contracts, express or implied. — The re- lation of debtor and creditor has long been a matter of legislative concern ; and the principles of freedom and avarice have, in their persons, for ages struggled with each other for the mastery. Legislative favor seemed at last to declare against freedom ; and in England, and even under American skies, the victims of a cruel and oppressive *policy could be reckoned by thousands [13 locked in prisons built and guarded by the state. The distinctions of age and sex were disregarded, and not even the decrepid patriot soldier could excite the pity or escape the rapacity of the merciless ;creditor. It almost supasses belief that ever on American soil and 12 THE EIGHT OP PEESONAl LIBBKTT. [Book I. nnder the sanction of American law, a helpless woman, innocent of fraud, with her infant child at the breast, could, for a pitiful debt of six dollars, be cast into prison and kept in close confinement. And yet, not only was that done in 1824, in Massa- chusetts, but in 1818 a captain in the revolutionary army, then more than seventy years old, was kept in close con- finement -in a jail in New Hampshire for a debt of eight dollars, and had ieen for more than four years? In the year 1828 there were confined in the prison of the city of New York, 1,085 persons for debt ; and between the 6th of June, 1829, and the 24th of February, 1830, there were imprisoned for debt in the city of Philadelphia 817 persons, of whom 80 were committed for debts less than one dollar each." The right of personal liberty was held no more sacred in Great Britain. On the 29th of April, 1826, there were confined for debt in England, Scotland, Wales and Ire- land 3,820 persons, of whom 228 had been confined more than two years and 104 more than four years." But the day of deliverance for honest debtors in America was drawing nigh. From the boundless west a champion had come. 14] *Born in 1781, in the then almost unbroken vdlder- ness of Kentucky, inured to the hardships and privation of a pioneer life, possessing the lively sense of the right of personal liberty which that life of peculiar self-depen- dence always inspires, having the warmest sympathies for the laboring classes, to which he was attached both by inclination and habit, and wearing, not without pride, the laurels he had gained on the field of battle in defence of the liberties of his country, Col. Richard M. John- son appeared in 1822, on the most conspicuous theater of the nation, the acknowledged and resolute champion of the long oppressed right of personal liberty — a right dear to all, but doubly dear to the poor. ' 14 Niles Reg. 423; 26 ib. 40. « 38 Nilea Reg. 1'74. « 32 NEes Reg. 230. Ch. III.] LIMITATIOKS OF A PEIVATE NATtTEB. 13 Important reforms in the law of imprisonment for debt had been proposed in some of the states, and par- tially adopted in others ; the subject, also, on account of the great severity of the times, had recently been brought forward in Congress ; but there was wanting a public leader to enlighten, concentrate, extend and make effectual the favorable opinions in regard to it which had begun to be entertained in different sections of the country. Such a leader was found in Col. Johnson. On the 14th day of December, 1822, then a Senator from Kentucky, he introduced in the Senate of the United States a bill for the abolition of imprisonment for debt. The measure was delayed by various fortune for several years, but was finally successful. During its pendency before Congress it was defended with great zeal and ability by the distinguished mover, who plead earnestly for the natural rights of man, and *pointed with [15 just pride to the example of his own noble state. Although it was beyond the power of Congress to af- fect the condition of a debtor imprisoned under the au- thority of the several states, yet the agitation of the subject, the discussion which it elicited, and the action of Congress could not but exert a favorable influence upon the popular mind, and lead to an amelioration of the laws of the states ; and so thought the imprisoned debtors of the city of New York, when on the 8th day January, 1830, their prison resounded with the Ken- tuckian' s name, for his philanthrophic labors in the cause of liberty. Our prisons now, in most of the states, have no ter- rors for the poor and honest debtor ; and it is just to record that to Col. Johnson, more than to any other statesman, are we indebted for the restoration of so much valuable ground. In one of his reports to Congress, there is a sketch of the condition of the debtor in the republics of Grreece and Eome, and of the origin and gradual extension of imprisonment for debt in England, drawn by a master 14 THE BIGHT OF PERSONAL LIBEETT. [Book I. hand, and wMch deserves to be preserved not only as evidence of the spirit and thoroughness with which the subject was discussed, but also as depicting in striking, and, with one or two immaterial exceptions, truthful colors the character of the thraldom from which thou- sands of our citizens have been delivered. "In ancient Greece," says the report, "the power of creditors over their debtors was absolute ; and, as in all 16] cases where despotic control is tolerated, their *ra- pacity was boundless. They compelled their insolvent debtors to cultivate their lands like cattle, to perform the service of beasts of burden, and to transfer to them their sons and daughters, whom they exported as slaves to foreign countries. "These acts of cruelty were tolerated in Athens, dur- ing her more barbarous state, and in perfect consonance with the character of a people who could elevate a Draco, and bow to his mandates, registered in blood. But the wisdom of Solon corrected the evil. Athens felt the beneiit of the reform ; and the pen of the his- torian has recorded the name of her lawgiver as the benefactor of man. "In ancient Rome, the condition of the unfortunate poor was still more abject. The cruelty of the Twelve Tables against insolvent debtors should be held as a bea- con of warning to all modern nations. After judgment was obtained, thirty days of grace were allowed before a Roman was delivered into the power of his creditor. After this period he was retained in a private prison, with twelve ounces of rice for his daily sustenance. He might be bound with a chain of fifteen pounds weight ; and his misery was three times exposed in the market- place, to excite the compassion of his friends. At the expiration of sixty days, the debt was discharged by the loss of liberty or life. The insolvent debtor was either put to death or sold in foreign slavery beyond the Tiber. But, if several creditors were alike obstinate and unrelenting, they might legally dismember his Ch. m.] LIMITATIONS OF A PRIVATE WATTTEE. 15 body, and satiate their revenge by tliis horrid partition. Though the refinements of modern *criticisms have [17 endeavored to divest this ancient cruelty of its horror, the faithful Gibbon, who is not remarkable for his partial- ity to the poorer class, preferring the liberal sense of an- tiquity, draws this dark picture of the effect of giving the creditor power over the person of the debtor : No sooner was the Roman empire subverted than the delu- sion of Roman perfection began to vanish, and then the absurdity and cruelty of this system began to be ex- ploded — a system which convulsed Greece and Rome, and filled the world with misery, and, without one re- deeming benefit, could no longer be endured — and, to the honor of humanity, for about one thousand years, during the middle ages, imprisonment for debt was generally abolished. They seemed to have understood what, in more modern times, we- are less ready to com- prehend, that power in any degree, over the person of the debtor, is the same in principle, varying only in de- gree, whether it be to imprison, to enslave, to brand, to dismember, or to divide his body. But as the lapse of time removed to a greater distance the cruelty which had been suffered, the cupidity of the affluent found means again to introduce the system ; but by such slow grada- tions, that the unsuspecting poor were scarcely conscious of the change. "The history of English jurisprudence furnishes the remarkable fact, that, for many centuries, personal lib- erty could not be violated for debt. Property alone could be taken to satisfy a pecuniary demand. It was not until the reign of Henry III., in the thirteenth cen- tury, that the principle of imprisonment for debt was recognized in the land of our *ancestors, and that was [18 in favor of the barons alone ; the nobility against their bailiffs, who had received their rents and had appropri- ated them to their own use. Here was the shadow of a pretext. The great objection to the punishment was, that it was inflicted at the pleasure of the baron, with- 16 THE EIGHT OF PERSONAL LIBEETT. [Book I. out a trial ; an evil, incident to aristocracies, but obnox- ious to republics. The courts, under the pretext of imputed crime, or constructive violence, on the part of the debtor, soon began to extend the principle, but with- out legislative sanction. In the eleventh year of the reign of Edward I., the immediate successor of Henry, the right of imprisoning debtors was extended to mer- chants — Jewish merchants excepted, on account of their heterodoxy in religion — and was exercised with great se- verity. This extension was an act of policy on the part of the monarch. The ascendancy obtained by the bar- ons menaced the power of the throne ; and, to counter- act their influence, the merchants, a numerous and wealthy class, were selected by the monarch, and ia- vested with the same authority over their debtors. "But England was not yet prepared for the yoke. She could endure an hereditary nobility ; she could tol- erate a monarchy ; but she could not resign her unfor- tunate sons, indiscriminately to prison. The barons and the merchants had gained the power over their victims ; yet more than sixty yeans elapsed before Parliament dared to venture another act of recognizing the principle. During this period, imprisonment for debt had, in some degree, lost its novelty. 19] *" The incarceration of the debtor began to make the impression that fraud, and not misfortune, had brought on this catastrophe, and that he was, therefore, un- worthy of the protection of the law, and too degraded for the society of the'world. Parliament then ventured, in the reign of Edward HI., in the fourteenth century, to extend the principle to two other cases, debt and detinue. The measure opened the door for the impo- sitions which -were gradually introduced by judicial usurpation, and have resulted in most cruel oppression. Parliament, for one hundred and fifty years afterwards, did not venture to outrage the sentiments of an injured and indignant people, by extending the power to ordi- nary creditors. But they had laid the foundation, and Ch. III.] LIMITATIONS OF A PRIVATE NATURE. 17 an irresponsible judiciary reared the superstructure. From the twenty-fourth year of the reign of Edward III., to the nineteenth of Henry VIII., the subject slumbered in Parliament. In the mean time all the ingenuity of the courts was employed by the introduction of artificial forms and legal fictions to extend the power of impris- onment for debt in cases no"t provided for by statute. The jurisdiction of the court called the King's Bench extended to all crimes or disturbances against the peace. Under this court of criminal jurisdiction, the debtor was arrested by what was called the writ of Middlesex, upon a supposed trespass or outrage against the peace and dignity of the crown. Thus, by a fictitious con- struction, the person who owed his neighbor was sup- posed to be, what every one knew him not to be, a violator of the peace, and an offender against the dig- nity of the crown ; and while his body was held in custody for *thi8 cri«ae, he was proceeded against in a civU [20 action, for which he was not liable to arrest under stat- ute. The jurisdiction of the Court of Common Pleas extended to civil actions arising between individuals upon private transactions. To sustain its importance upon a scale equal with that of its rival, this court also adopted its fictions, and extended its power upon arti- ficial construction, quite as far beyond its statutory prerogative ; and upon the fictitious plea of trespass, constituting a legal supposition of outrage against the peace of the kingdom, authorized the writ of capias, and subsequent imprisonment, in cases where a sum- mons only was warranted by law. "The Court of Exchequer was designed to protect the king's revenue, and had no legal jurisdiction, except in cases of debtors to the public. The ingenuity of this court found means to extend its jurisdiction to all cases of debt between individuals, upon the fictitious plea that the plaintiff, who instituted the suit, was a debtor to the king, and rendered the less able to discharge the debt by the default of the defendant. Upon this arti- 3 18 THE EIGHT OF PERSONAL LIBEETT. [Book I. ficial pretext, that the defendant was debtor to the king's debtor, the Court of Exchequer, to secure the king's revenue usurped the power of arraigning and im- prisoning debtors of every description. Thus these rival courts, each ambitious to sustain its relative im- portance, and extend its jurisdiction, introduced as legal facts the most palpable fictions ; and sustained the most absurd solecisms as legal syllogisms. "Where the person of the debtor was, by statute, held sacred, the courts devised the means of construing the demand of a debt into the supposition of a crime, 21] *for which he was subject to arrest on mesne process ; and the evidence of debt into the conviction of a crime against the peace of the kingdom, for which he was de- prived of his liberty at the pleasure of the offended party. These practices of the courts obtained by regu- lar gradation. Each act of iisurpation was a precedent for similar outrages, until the system became general, and at length received the sanction of Parliament. The spirit of avarice finally gained a complete triumph over personal liberty. Tlie sacred claims of misfortune were disregarded, and, to the iron grasp of poverty, were added the degradation of infamy and the misery of the dungeon." But English cupidity did not exhaust the resources of ingenuity, nor set the only example of laws too bar- barous for barbarians. The judges of Scotland were not to be surpassed in matters of fiction. They discovered that the delinquent debtor by being unable to pay his debt, had not committed a trespass, or a breach of the peace merely, as in England, but treason, and was ac- cordingly to be proceeded against as a rebel. Lord Karnes, in his Historical Law Tracts, p. 336, written in 1761, says of the law of Scotland : " There is not in the law of any country a stronger instance of harshness, I may say of brutality, than occurs in our present form of personal execution for payment of debt; where the debtpr, without ceremony, is declared a rebel, Ch. hi.] limitations of a private -natuee. 19 merely upon failure of payment. To punish a man as a rebel, who, by misfortune, or be it bad economy, is rendered insolvent, betokens the most savage and bar- barous manners. One would *imagine love of [22 riches to be the ruling passion in a country where pov- erty is the object of so great a punishment." It can hardly be necessary to remind the reader that it is recorded in the Antiquary, that Eddie Ochiltree expressed great disgust at the Scottish process of per- sonal execution. There has been some amelioration of the law of im- prisonment for debt in Scotland, at least in the mode of administering it, for it is now said to be " slow, cautious and tolerant in its oporeration.'" In the United States the law of imprisonment for debt has not only been modified by statute, but important securities against a return to its former barbarism, have been gained by provisions in the fundamental law of more than half of the states.' There is no imprisonment for debt in Tennessee, Min- nesota, Mississippi, Texas, and Maryland. Imprison- ment in the other states is permitted under various qualification, where either the debt was contracted in fraud or the debtor is attempting to defraud his creditor. The fraud in such cases is generally required to be shown by affidavit of the plaintiff, before the warrant for arrest issues. There is reason also to believe that the poor and hon- est debtors of England, judging from recent efforts in that country, may before long be allowed *that [23 ' 2 Kent, 511. ' Sec. 990 of the Revised Statutes of the United States provides, Wo person shall be imprisoned for deht in any state, on process issuing from a court of the United States, where by the laws of such state, imprisonment for debt has been or shall be abolished. And all modifications, conditions and restrictions upon imprisonment for debt, provided by the laws of any state shall be applicable to the process issuing from the courts of the United States to be executed therein ; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such state. 20 THE RIGHT OF PERSONAL LIBERTY. [Book I. exemption from imprisonment for poverty, which was enjoyed by their ancestors eight hundred years ago." 2. Demands arising out of injuries to the person, property or reputation. — Although imprisonment partakes of the na- ture of punishment, it is not inflicted with that view when allowed in aid of civil remedies. The theory is, that the state having, for the sake of the public peace, denied to the citizen the right to redress his own wrongs, should make the remedies which it proffers for private injuries so prompt and effectual as to remove as far as possible all motive to seek satisfaction by unlawful means. Hence it is, that for fraud practiced in making contracts or in attempting to evade their just obligation, imprisonment, as a coercive means to protect or redress the innocent and injured party, continues an approved element- of remedial justice. And hence, also, in cases of injuries to the person, property or reputation, where they are instigated by malice or committed wilfully, the wrongdoer has no more meritorious plea for exemption from imprisonment than the fraudulent contractor. Ac- cordingly in some of the states this distinction is recog- nized to some extent, and no good reason is seen why it should not generally prevail.' ' In England imprisonment for debt upon final process in actions of debt not exceeding £20 was abolished, except in certain cases of fraud and misconduct by 7