other hand, the court will not allow counsel to be made the instrument of injustice, or permit the client to exact of him .services which are inconsistent with the obligation he owes to the courts and to public justice, which obligation is higher and more sacred than any which can rest upon him to gratify the client's whims or to assist his revenge.1

The Writ of Habeas Corpus.

One of the principal protections to personal liberty still remains

In Rush v. Cavenaugh, 2 Penn. St. 189, a prosecutor in a criminal case 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because the counsel, after a part of the evidence had been put in, had consented that the charge should be withdrawn. In considering whether this was a sufficient reason for the refusal, Chief Justice Gibson says: "The material question is, did the plaintiff violate his professional duty to his client in consenting to withdraw his charge of forgery against Crean when before the alderman, 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 compelled to do the bidding of his client against the dictates of his conscience. The origin of the name proves the client to be 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 obligations of the official oath."

to be mentioned. But before calling attention to that, it may be important to consider what is meant by personal liberty in the law, that we may the better understand the application of what may be said concerning its guaranties.

Blackstone says personal liberty consists in the power of locomotion, of changing situation, or removing one's person to whatever place one's inclination may direct, without imprisonment or restraint, unless by due course of law.1 The definition implies that certain qualifications and limitations rest upon this power, which are known to the law and enforced by it, without infringing upon constitutional liberty. Of these qualifications and limitations there are two classes,- those of a public and those of a private nature.

The first class are those which spring from the relative duties and obligations of man to society and his fellow-man, and they may be arranged into sub-classes: as, 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 courts or legislative bodies, or to render their jurisdiction effectual; 4. Those necessary to enforce the duty citizens owe in defence of the State; 5. Those which may become important to protect community against the acts of those who, by reason of mental infirmity, are incapable of self-control. All these limitations are well recognized and understood, but their particular discussion 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 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 they can only be such gentle restraints on her liberty as her improper conduct may seem to require; and the general tendency of public sentiment, as well as of the modern decisions, has been to do away with the arbitrary power which the husband was formerly supposed to possess, and to place the two sexes in the married state more upon 1 1 Bl. Com. 134.

8 2 Kent, 181; see Cochran's case, 8 Dowl. P. C. 630.

a footing of equality. It is believed that the right of the husband to chastise his wife, under any circumstances, would not be recognized in this country, and in any case his right to control would be gone if he should conduct himself towards the wife in a way not warranted by the relation, and which should render it improper for her to cohabit with him, or if he should be guilty of such conduct as would entitle her, under the laws of the State, to a divorce. His right of control is also gone when the parties live 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 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 home and left to care for himself; though in neither case would the father be released from an obligation which rests 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 with 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 power to change the domicile of the ward to another State or country. But the appointment commonly has some 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 over the property owned by the child.

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

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

2 Saunders v. Rodway 13 E. L. & E. 463; 16 Jur. 1005.

master is to teach the apprentice some specified trade or means of living. This relation is also statutory and local, and for power to control or punish against the opposition of the apprentice the statute must be examined.

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 rests upon 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 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 must be implied. All presumptions favor the correctness 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 conditions of the bond.2 This is a right which they may exercise in person or by agent,3 and without resort to judicial process.

8. The control of the creditor over the person of his debtor through legal process to enforce payment of his demand is now nearly abolished, thanks to the humane provisions of recent statutory and constitutional provisions. In cases of torts, and where debts were fraudulently contracted, or where there is an attempt at a fraudulent disposition of property with the intent to deprive the creditor of payment, the body of the debtor may be seized and confined; but the reader is referred to the constitution and statutes of his State for information on this subject.

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

2

3

Ind. 290;

Harp v. Osgood, 2 Hill, 216; Commonwealth v. Brickett, 8 Pick. 138. • Parker v. Bidwell, 3 Conn. 84.

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 the Parliament was undefined and in dispute, and the judges held their offices only during the king's pleasure, it was a matter of course that rights should be violated, and that legal redress should be impracticable, however clear those rights might be. But in other cases it was not so clear what the legal rights of the 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 marked out by statute or by custom; so that 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 at all times 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, and disorders, the punishment of which was not supposed to be adequately provided for by the common law; like 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 by 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, its actual administration seems to have fallen into the hands of the king's privy council, which sat as a species of inquisition, and exercised almost any power it saw fit to assume. The court was abolished by the Long Parliament in 1641. 2. The Court of High Commission, estab

1 See Hallam's Constitutional History, chs. 1 and 8.