be expelled for that alone; and counsel who has once taken part in litigation, and been the adviser or become intrusted with the secrets of one party, will not afterwards be suffered to engage for an opposing party, notwithstanding the original employment has ceased, and there is no imputation upon his motives. And,

[* 338] on the

other hand the court will not allow counsel to be

made the instrument of injustice, nor permit the client to exact of him services which are inconsistent with the obligation he owes to the court and to public justice; a higher and more sacred obligation than any which can rest upon him to gratify a client's whims, or to assist in his revenge.3

1 P. C. 283; Ex parte Bradley, 7 Wall. 364; Withers v. State, 35 Ala. 252; Matter of Moore et al., 63 N. C. 397; Biggs, Ex parte, 64 N. C. 202; Bradley v. Fisher, 13 Wall. 335; Dickens's Case, 67 Penn. St. 169.

1 For example, one whose reputation for truth and veracity is such that his neighbors would not believe him when under oath. Matter of Mills, 1 Mich. 393. See In re Percy, 36 N. Y. 651; People v. Ford, 54 Ill. 520. An attorney convicted and punished for perjury, and disbarred, was refused restoration, notwithstanding his subsequent behavior had been unexceptionable. Ex parte Gar bett, 18 C. B. 403.

* In Gaulden v. State, 11 Geo. 47, the late solicitor-general was not suffered to assist in the defence of a criminal case, because he had, in the course of his official duty instituted the prosecution, though he was no longer connected with it. And See Wilson v. State, 16 Ind. 392.

3

Upon this subject the remarks of Chief Justice Gibson in Rush v. Cavanaugh, 2 Penn. St. 189, are worthy of being repeated in this connection. The prosecutor in a criminal case had refused to pay the charges of the counsel employed by him to prosecute in the place of the attorney-general, because the counsel, after a part of the evidence had been put in, had consented that the charge might be withdrawn. In considering whether this was sufficient reason for the refusal, the learned judge said: "The material question is, did the plaintiff violate his professional duty to his client in consenting to withdraw his charge . . . instead of lending himself to the prosecution of one whom he then and has since believed to be an innocent man?

"It is a popular but gross mistake to suppose that a lawyer owes no fidelity to any one except his client, and that the latter is the keeper of his professional conscience. He is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as to the client; and he violates it when he consciously presses for an unjust judgment; much more so when he presses for the conviction of an innocent man. But the prosecution was depending before an alderman, to whom, it may be said, the plaintiff was bound to no such fidelity. Still he was bound by those obligations which, without oaths, rest upon all men. The high and honorable office of a counsel would be degraded to that of a mercenary, were he compellable to do the bidding of his client against the dictates of his conscience. The origin of the name proves the client to be

The Writ of Habeas Corpus.

It still remains to mention one of the principal safeguards to personal liberty, * and the means by which ille- [* 339] gal restraints upon it are most speedily and effectually

remedied. To understand this guaranty, and the instances in which the citizen is entitled to appeal to the law for its enforcement, we must first have a correct idea of what is understood by personal liberty in the law, and inquire what restraints, if any, must exist to its enjoyment.

Sir William Blackstone says, personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, without imprisonment or restraint, unless by due course of law. It appears, therefore, that this power of locomotion is not entirely unrestricted, but that by due course of law certain qualifications and limitations may be imposed upon it without infringing upon constitutional liberty. Indeed, in organized society, liberty is the creature of law, and every man will possess it in proportion as the laws, while

subordinate to the counsel as his patron. Besides, had the plaintiff succeeded in having Crean held to answer, it would have been his duty to abandon the prosecution at the return of the recognizance. As the office of attorney-general is a public trust which involves, in the discharge of it, the exercise of an almost boundless discretion by an officer who stands as impartial as a judge, it might be doubted whether counsel retained by a private prosecutor can be allowed to perform any part of his duty; certainly not unless in subservience to his will and instructions. With that restriction usage has sanctioned the practice of employing professional assistants, to whom the attorney-general or his regular substitute may, if he please, confide the direction of the particular prosecution; and it has been beneficial to do so where the prosecuting officer has been overmatched or overborne by numbers. In that predicament the ends of justice may require him to accept assistance. But the professional assistant, like the regular deputy, exercises not his own discretion, but that of the attorney-general, whose locum tenens at sufferance he is; and he consequently does so under the obligation of the official oath."

1 Bl. Com. 134. Montesquieu says: "In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid, he would no longer be possessed of liberty, because all his fellow-citizens would enjoy the same power." Spirit of the Laws, Book 11, c. 3.

imposing no unnecessary restraints, surround him and every other citizen with protections against the lawless acts of others.1

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.

2 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; 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; 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, 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.

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

3 Saunders v. Rodway, 16 Jur. 1005, 13 Eng. L. & Eq. 463.

4 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.

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

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.

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.

2 1 Cooley's Bl. Com. 462, and cases cited.

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.