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 [* 340] the two sexes in the marriage relation upon * a footing nearer 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.1 And he surrenders his right of control also, when he consents to her living apart under articles of separation.2

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; 3 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 or conviction and sentence to imprisonment 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,

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, 3 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.

3 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; Fairhurst v. Lewis, 23 Ark. 435; Hardwick v. Pawlet, 36 Vt. 320.

4 Dedham v. Natick, 16 Mass. 135. See p. 348.

5 Bailey's Case, 6 Dowl. P. C. 311. If, however, there be a guardian appointed for the child by the proper

1 Hutcheson v. Peck, 5 Johns. 196; court, his right to the custody of the Love v. Moynahan, 16 Ill. 277.

child is superior to that of the parent.

2 Saunders v. Rodway, 16 Jur. Macready v. Wolcott, 33 Conn. 321. 1005; 13 Eng. L. & Eq. 463.

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 is given a power of control which is not possessed by the father, as such, over the property owned by his child.1

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 the master is to teach the apprentice some specified [* 341] 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.2

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 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.3

11 Cooley's Bl. Com. 462, and of the apprentice and of his proper cases cited.

2 The relation is one founded on personal trust and confidence, and the master cannot assign the articles of apprenticeship except by consent

guardian. Haley v. Taylor, 3 Dana, 222; Nickerson v. Howard, 19 Johns. 113; Tucker v. Magee, 18 Ala. 99.

* State v. Pendergrass, 2 Dev. & Bat. 365; Cooper v. McJunkin, 4

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.1 This is a right which the bail may exercise in person or by agent, and without resort to judicial process.2

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.

[* 342]

*These, then, are the legal restraints upon personal 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 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

Ind. 290; Commonwealth v. Randall, 4 Gray, 38; Anderson v. State, 3 Head, 455; Lander v. Seaver, 32 Vt. 114; Morrow v. Wood, 35 Wis. 59.

1 Harp v. Osgood, 2 Hill, 216; ommonwealth v. Brickett, 8 Pick. 138. The principal 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.

Parker v. Bidwell, 3 Conn. 84; Nicolls v. Ingersoll, 7 Johns. 145.

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 jurisdiotion 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.1 The court was abolished by the Long Parliament in 1641. 2. The Court of High Commission, established in the time of Elizabeth, and which exercised a [* 343] 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 abolished in 1641, but was afterwards revived for a short time in the reign of James II.

It is evident that while these tribunals existed there could be.

1 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.

no effectual security to liberty. A brief reference to the remarkable struggle which took place during the reign of Charles I. will perhaps the better enable us to understand the importance of those common-law protections to personal liberty to which we shall have occasion to refer, and also of those statutory securities which have since been added.

When the king attempted to rule without the Parliament, and in 1625 dissolved that body, and resorted to forced loans, the grant of monopolies, and the levy of ship moneys, as the means of replenishing a treasury that could only lawfully be supplied by taxes granted by the commons, the privy council was his convenient means of enforcing compliance with his will. Those who refused to contribute to the loans demanded were committed to prison. When they, petitioned the Court of the King's Bench for their discharge, the warden of the fleet made return to the writ of habeas corpus, that they were detained by warrant of the privy council, informing him of no particular cause of imprisonment, but that they were committed by the special command of his majesty. Such a return presented for the decision of the court the question, "Is such a warrant, which does not specify the cause of detention, valid by the laws of England?" The court held that it was, justifying their decision upon supposed precedents, although, as Mr. Hallam says, "it was evidently the consequence of this decision that every statute from the time of Magna Charta, designed to protect the personal liberties of Englishmen, became a dead letter, since the insertion of four words in a warrant (per speciale mandatum regis), which might become matter of form, would control their remedial efficacy. And this wound was the more deadly in that the notorious cause of these gentlemen's imprisonment was their withstanding an illegal exaction of money. Every thing that distinguished our constitutional laws, all that rendered the name of England valuable, was at stake in this issue."1 This decision, among other violent acts, led to the Petition of Right, one of the principal

charters of English liberty, but which was not assented [* 344] to by the king until the judges had * intimated that if he saw fit to violate it by arbitrary commitments, they would take care that it should not be enforced by their aid against his

1 Hallam, Const. Hist. c. 7. See also Brodie, Const. Hist. Vol. II. c. 1.