Εικόνες σελίδας
Ηλεκτρ. έκδοση

imposing no unnecessary restraints, surround him and every other citizen with protections against the lawless acts of others.

If we examine the qualifications and restrictions which the law imposes upon personal liberty, we shall find that they range themselves in two classes ; first, those of a public, and, second, those of a private nature.

The first class are those which spring from the relative duties and obligations of the citizen to society and to his fellow-citizen. These may be arranged into sub-classes as follows; 1. Those imposed to prevent the commission of crime which is threatened ; 2. Those in punishment of crime committed ; 3. Those in punishment of contempts of court or legislative bodies, or to render their jurisdiction effectual ; 4. Those necessary to enforce the duty citizens owe in defence of the State ;2 5. Those which may become important to protect the community against the acts of those who, by reason of mental infirmity, are incapable of selfcontrol. All these limitations are well recognized and generally understood, but a particular discussion of them does not belong to our subject. The second class are those which spring from the helpless or dependent condition of individuals in the various relations of life.

1. The husband, at the common law, is recognized as having legal custody of and power of control over the wife, with the right to direct as to her labor, and to insist upon its performance. The precise nature of the restraints which may be imposed by the husband upon the wife's actions, it is not easy, from the nature of the case, to point out and define ; but at most they can only be such

1 “Liberty," says Mr. Webster, “is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have. It is an error to suppose that liberty consists in a paucity of laws. If one wants few laws, let him go to Turkey. The Turk enjoys that blessing. The working of our complex system, full of checks and restraints on legislative, executive, and judicial power, is favorable to liberty and justice. Those checks and restraints are so many safeguards set around individual rights and interests. That man is free who is protected from injury." Works, Vol. II. p. 393.

9 In Judson v. Reardon, 16 Minn. 431, a statute authorizing the members of a municipal council to arrest and imprison without warrant persons refusing to obey the orders of fire wardens at a fire was held unwarranted and void.

gentle restraints upon her liberty as improper conduct on her part may appear to render necessary ;1 and the general tendency of public sentiment, as well as of the modern decisions, has been in the direction of doing away with the arbitrary power which the husband was formerly supposed to possess, and of placing the two sexes in the marriage relation upon * a footing nearer [* 340]

[ equality. It is believed that the right of the husband to chastise the wife, under any circumstances, would not be recognized in this country; and such right of control as the law gives him would in any case be forfeited by such conduct towards the wife as was not warranted by the relation, and which should render it improper for her to live and cohabit with him, or by such conduct as, under the laws of the State, would entitle her to a divorce. And he surrenders his right of control also, when he consents to her living apart under articles of separation.3

2. The father of an infant, being obliged by law to support his child, has a corresponding right to control his actions and to employ his services during the continuance of legal infancy. The child may be emancipated from this control before coming of age, either by the express assent of the father, or by being turned away from his father's house and left to care for himself; 4 though in neither case would the father be released from an obligation which the law imposes upon him to prevent the child becoming a public charge, and which the State may enforce whenever necessary. The mother, during the father's life, has a power of control subordinate to his; but on his death 5 or conviction and sentence to imprison

1 2 Kent, 181. See Cochran's Case, 8 Dowl. P. C. 630. The husband, however, is under no obligation to support his wife except at his own home; and it is only when he wrongfully sends her away, or so conducts himself as to justify her in leaving him, that he is bound to support her elsewhere. Rumney v. Keyes, 7 N. H. 570; Allen v. Aldrich, 9 Fost. 63; Shaw v. Thompson, 16 Pick. 198; Clement v. Mattison, Rich. 93. In such a case his liability to supply her with necessaries cannot be restricted by giving notice to particular persons not to trust her. Bolton v. Prentice, 2 Strange, 1214; Harris v. Morris, 4 Esp. 41.

Hutcheson v. Peck, 5 Johns. 196; Love v. Moynahan, 16 Il. 277.

Saunders v. Rodway, 16 Jur. 1005, 13 Eng. L. & Eq. 463. * Whiting v. Earle, 3 Pick. 201; McCoy v. Huffman, 8 Cow. 841; State v. Barrett, 45 N. H. 15; Wolcott v. Rickey, 22 Iowa, 171; Fairburst v. Lewis, 23 Ark. 435; Hardwick v. Pawlet, 36 Vt. 320. • Dedham v. Natick, 16 Mass. 135. See p.




ment for felony," she succeeds to the relative rights which the father possessed before.

3. The guardian has a power of control over his ward, corresponding in the main to that which the father has over his child, though in some respects more restricted, while in others it is broader. The appointment of guardian when made by the courts is of local force only, being confined to the State in which it is made, and the guardian would have no authority to change the domicile of the ward to another State or country. But the appointment commonly has reference to the possession of property by the ward, and over this property the guardian possesses a power of control which is not possessed by the father, as such, over the property owned by his child.2

4. The relation of master and apprentice is founded on a contract between the two, generally with the consent of the parent

or party standing in loco parentis to the latter, by which [* 341] the * master is to teach the apprentice some specified trade

or means of living, and the apprentice, either wholly or in part in consideration of the instruction, is to perform services for the master while receiving it. This relation is also statutory and local, and the power to control the apprentice is assimilated to that of the parent by the statute law.8

5. The power of the master to impose restraints upon the action of the servant he employs, is of so limited a nature that practically it may be said to rest upon continuous voluntary assent. If the servant misconducts himself, or refuses to submit to proper control, the master may discharge him, but cannot resort to confinement or personal chastisement.

6. The relation of teacher and scholar places the former more nearly in the place of the parent than either of the two preceding relations places the master. While the pupil is under his care, he has a right to enforce obedience to his commands lawfully given in

1 Bailey's Case, 6 Dowl. P. C. 311. If, however, there be a guardian appointed for the child by the proper court, his right to the custody of the child is superior to that of the parent. Macready v. Wolcott, 33 Conn. 321.

? 1 Cooley's Bl. Com. 462, and cases cited.

3 The relation is one founded on personal trust and confidence, and the master cannot assign the articles of apprenticeship except by consent of the apprentice and of his proper guardian. Haley v. Taylor, 3 Dana, 222; Nickerson v. Howard, 19 Johns. 113; Tucker v. Magee, 18 Ala. 99.

[blocks in formation]

his capacity of teacher, even to the extent of bodily chastisement or confinement. And in deciding questions of discipline he acts judicially, and is not to be made liable, either civilly or criminally, unless he has acted with express malice, or been guilty of such excess in punishment that malice may fairly be implied. All presumptions favor the correctness and justice of his action.

7. Where parties bail another, in legal proceedings, they are regarded in law as his jailers, selected by himself, and with the right to his legal custody for the purpose of seizing and delivering him up to the officers of the law at any time before the liability of the bail has become fixed by a forfeiture being judicially declared on his failure to comply with the condition of the bond.? This is a right which the bail may exercise in person or by agent, and without resort to judicial process.3

8. The control of the creditor over the person of his debtor, through the process which the law gives for the enforcement of his demand, is now very nearly abolished, thanks to the humane provisions which have been made of late by statute or by constitution. In cases of torts and where debts were fraudulently contracted, or where there is an attempt at a fraudulent disposition of property with intent to delay the creditor, or to deprive him of payment, the body of the debtor is allowed to be seized and confined; but the reader must be referred to the constitution and statutes of his State for specific information on this subject.

* These, then, are the legal restraints upon personal [* 342] liberty. For any other restraint, or for any abuse of the legal rights which have been specified, the party restrained is entitled to immediate process from the courts, and to speedy relief.

The right to personal liberty did not depend in England on any statute, but it was the birthright of every freeman. As slavery ceased it became universal, and the judges were bound to protect it by proper writ when infringed. But in those times when the power

State o. Pendergrass, 2 Dev. & Bat. 365; Cooper v. McJunkin, 4 Ind. 290; Commonwealth v. Randall, 4 Gray, 38.

Harp 0. Osgood, 2 Hill, 216; Commonwealth v. Brickett, 8 Pick. 138. The principle may be followed, if necessary, out of the jurisdiction of the court in which the bail was taken, and arrested there. Parker v. Bidwell, 3 Conn. 84. Even though it be out of the State. Harp v. Osgood, supra. And doors, if necessary, may be broken in order to make the arrest. Read's case, 4 Conn. 166; Nicolls v. Ingersoll, 7 Johns. 145. 8 Parker v. Bidwell, 3 Conn. 84; Nicolls v. Ingersoll, 7 Johns. 145.

of parliament was undefined and in dispute, and the judges held their offices only during the king's pleasure, it was almost a matter of course that rights should be violated, and that legal redress should be impracticable, however clear those rights might be. But in many cases it was not very clear what the legal rights of parties were. The courts which proceeded according to the course of the common law, as well as the courts of chancery, had limits to their authority which could be understood, and a definite course of proceeding was marked out for them by statute or by custom; and if they exceeded their jurisdiction and invaded the just liberty of the subject, the illegality of the process would generally appear in the proceedings. But there were two tribunals unknown to the common law, but exercising a most fearful authority, against whose abuses it was not easy for the most upright and conscientious judge in all cases to afford relief. These were, 1. The Court of Star Chamber, which became fully recognized and established in the time of Henry VII., though originating long before. Its jurisdiction extended to all sorts of offences, contempts of authority and disorders, the punishment of which was not supposed to be adequately provided for by the common law; such as slanders of persons in authority, the propagation of seditious news, refusal to lend money to the king, disregard of executive proclamations, &c. It imposed fines without limit, and inflicted any punishment in the discretion of its judges short of death. Even jurors were punished in this court for verdicts in State trials not satisfactory to the authorities. Although the king's chancellor and judges were entitled to seats in this court, the actual exercise of its powers appears to have fallen into the hands of the king's privy council, which sat as a species of inquisition, and exercised almost any authority it saw fit to assume. The court was abolished by the Long Par

liament in 1641. 2. The Court of High Commission, [* 313] established * in the time of Elizabeth, and which exer

cised a power in ecclesiastical matters corresponding to that which the Star Chamber assumed in other cases, and in an equally absolute and arbitrary manner. This court was also abol


See Hallam, Constitutional History, c. 1 and 8; Todd, Parliamentary Government in England, Vol. II. c. 1. The rise and extension of authority of this court, and its arbitrary character, are very fully set forth in Brodie's Constitutional History of the British Empire, to which the reader is referred for more particular information.

« ΠροηγούμενηΣυνέχεια »