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.1

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

2 Harp v. 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.

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 reiress · 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, [* 343] established in the time of Elizabeth, and which exercised 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

1 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.

ished 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 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 to by the king until the judges had intimated that if he saw [* 344]

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

fit to violate it by arbitrary commitments, they would take care that it should not be enforced by their aid against his will. And four years later, when the king committed members of parliament for words spoken in debate, offensive to the royal prerogative, the judges evaded the performance of their duty on habeas corpus, and the members were only discharged when the king gave his consent to that course.1

The Habeas Corpus Act was passed in 1679, mainly to prevent such abuses and other evasions of duty by judges and ministerial officers, and to compel prompt action in any case in which illegal imprisonment was alleged. That act gave no new right to the subject, but it furnished the means of enforcing those which existed before. The preamble recited that " whereas great delays have been used by sheriffs, jailers, and other officers, to whose custody any of the king's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus, to them directed, by standing out on alias or pluries habeas corpus, and sometimes more, and by other shifts, to avoid their yielding obedience to such writs, contrary to their duty and the known laws of the land, whereby many of the king's subjects have been and hereafter may be long detained in prison in such cases, where by law they are bailable, to their great charge and vexation. For the prevention whereof, and the more speedy relief of all persons imprisoned for any such criminal or supposed criminal matters," the act proceeded to make elaborate and careful provisions for the future. The important provisions of the act may be summed up as follows: That the writ of habeas corpus might be issued by any court of record or judge thereof, either in term-time or vacation, on the application of any person confined, or of any person for him; the application to be in writing and on oath, and with a copy of the warrant of commitment attached, if procurable; the writ to be returnable either in court or at chambers; the person detaining the applicant to make return to the writ by bringing up the prisoner with the cause of his detention, and the court or judge to discharge him unless the imprisonment appeared to be legal, and in that case to take bail if the case was bailable; and performance of all these duties was made

1 Hallam, Const. Hist. c. 8; Brodie, Const. Hist. Vol. I. c. 8.

2 Hallam, Const. Hist. c. 13; Beeching's Case, 4 B. & C. 136; Matter of Jackson, 15 Mich. 436.

compulsory, under heavy penalties. *Thus the duty which [* 345] the judge or other officer might evade with impunity before,

he must now perform or suffer punishment. The act also provided for punishing severely a second commitment for the same cause, after a party had once been discharged on habeas corpus, and also made the sending of inhabitants of England, Wales, and Berwickupon-Tweed abroad for imprisonment illegal, and subject to penalty. Important as this act was it was less broad in its scope than the remedy had been before, being confined to cases of imprisonment for criminal or supposed criminal matters; 2 but the attempt in parliament nearly a century later to extend its provisions to other cases was defeated by the opposition of Lord Mansfield, on the express ground that it was unnecessary, inasmuch as the commonlaw remedy was sufficient; as perhaps might have been, had officers been always disposed to perform their duty. Another attempt in 1816 was successful.4

3

The Habeas Corpus Act was not made, in express terms, to extend to the American colonies, but it was in some expressly, and in others by silent acquiescence, adopted and acted upon, and all the subsequent legislation in the American States has been based upon it, and has consisted in little more than a re-enactment of its essential provisions.

What Courts issue the Writ.

The protection of personal liberty is for the most part confided to the State authorities, and to the State courts the party must apply for relief on habeas corpus when illegally restrained. There are only a few cases in which the federal courts can interfere; and those are cases in which either the illegal imprisonment is under pretence of national authority, or in which this process becomes important or convenient in order to enforce or vindicate some right, or authority under the Constitution or laws of the United States.

1 Mr. Hurd, in the appendix to his excellent treatise on the Writ of Habeas Corpus, gives a complete copy of the act. See also appendix to Lieber, Civil Liberty and Self-Government; Broom, Const. Law, 218.

* See Mayor of London's Case, 3 Wils. 198; Wilson's Case, 7 Q. B. 984. 'Life of Mansfield by Lord Campbell, 2 Lives of Chief Justices, c. 35; 15 Hansard's Debates, 897 et seq.

⚫ By Stat. 56 Geo. III. c. 100. See Broom, Const. Law. 224.