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refuse to bail, "without certain rules to guide it, which has ever been regarded with jealousy by a people tenacious of liberty," and proceed: "The people of Louisiana have therefore by their constitution restrained the discretion, and enlarged the liberty of the citizen by declaring that all persons shall be bailable by sufficient sureties unless for capital offences, where the proof is evident or presumption great; and the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.'

"A judge or court authorized to issue a writ of habeas corpus, cannot therefore refuse bail by sufficient sureties except for capital offences, where the proof is evident or presumption great.

"It is the constitutional right of the prisoner to demand it, and it is not in the discretion of the judge to deny it.

"Does the conviction of the prisoner deprive him of this constitutional right? A conviction did not deprive the judges of the power to bail according to their discretion at common law. Str., 9, 531, 794; 2 Shower, 96; Salk., 60.

"In many of the states an appeal or writ of error is allowed by law, to obtain relief from an improper conviction. Where that means of relief is accorded until the appeal or writ of error can be tried, the party prosecuting it has often been bailed, notwithstanding his conviction. 1 Caine's R., 148, 72; 1 Wheeler Cr. Cas., 431. In some states express provision is made by law enabling convicts to give bail until their appeal or writ of error is tried. Miss.

Rev. St., 138, Mass. Rev. St., 763. And it is probable that in most of the states where appeals or writs of error are allowed in criminal cases, similar relief is extended to prisoners either by statute or by the practice of their courts, by suspending the execution of the sentence and all the effects of the conviction during the pendency of the appeal or writ of error: otherwise the hope of relief would be attended with certain evil, rendering its advantage doubtful. The case of The State v. Ward. 2 Hawks., 443, is a decision directly in point against the application in the present case. We cannot so interpret the clause in our Constitution, the words of which are plain, unambiguous and imperative that all persons shall be bailable by sufficient sureties unless,' &c. They are entitled to be bailed as a matter of right, and the judge has no discretion except in fixing the amount of the security.

"The prisoner is not undergoing the sentence of the law for his crime, but is a prisoner awaiting the final determination of his case by the Supreme Court, to which the 63d Art. of the Constitution allows him to appeal."

Let to bail, $5,000.

One judge, the court consisting of four, dissented.

57

CHAPTER IX.

CLAIMS FOR PRIVATE CUSTODY FOUNDED ON THE DOMESTIC

RELATIONS.

Section I. GENERAL OBSERVATIONS.

II. HUSBAND FOR HIS WIFE.

III. PARENT FOR HIS CHILD.

IV. GENERAL RULES AS TO THE CUSTODY OF LEGITIMATE CHILDREN.

V. SPIRIT OF THE ENGLISH CASES ON CONFLICTING CLAIMS OF PARENTS FOR

CUSTODY OF THEIR CHILDREN.

VI. SPIRIT OF THE AMERICAN CASES ON CONFLICTING CLAIMS OF PARENTS FOR
CUSTODY OF THEIR CHILDREN.

VII. CUSTODY OF ILLEGITIMATE CHILDREN.

VIII. INFANT'S LIBERTY OF CHOICE.

IX. INFANT'S AGE OF DISCRETION.

X. VOLUNTARY TRANSFER OF CUSTODY.
XI. MASTER FOR HIS APPRENTICE.
XII. GUARDIAN FOR HIS WARD.

SECTION I.

GENERAL OBSERVATIONS.

It has been seen that at common law, the writ of habeas corpus might be granted on the application of the husband, parent, guardian and master for the purpose of inquiring into any alleged illegal restraint, respectively, of the wife, child, ward or apprentice.

The object, it will be observed, in such cases is not to enforce a right of custody; but to remove unlawful restraint. The party thus interested in the custody will be presumed to represent the wishes of the person restrained, so far as to enable him to set

the remedial power of the court in motion. But the right properly speaking, extends no farther than that.

In the case of adults, other than idiots and lunatics, where the writ issues at the instance of one claiming the custody, the court makes no order in relation to the custody, but leaves the person brought up free to go where he or she pleases. If the writ issues at the instance of the person restrained to be set free from a legal custody, the court may discharge or remand according as it finds the custody to be legal or illegal, and if legal whether grossly abused

or not.

SECTION II.

HUSBAND FOR HIS WIFE.

In the case of Rex v. Clarkson, 1 Str., 447, Dibley pretending to have married Mrs. Turberville, a lady of fortune, took out a habeas corpus directed to her guardians, commanding them to bring her into court. When she was brought into court, and the return had been read, the chief justice asked her if she desired to be taken out of the hands of the person she lived with and go with Dibley? She denied him to be her husband, and desired she might continue with her guardians.

THE COURT. "We have nothing to do to order her to go with Dibley, but only to see that she is under no illegal restraint; all we can do is to declare that she is at her liberty to go where she pleases; but lest this writ be made use of by Dibley as a means to get her abroad and seize her, we

will order our tipstaff to wait upon her home to her guardians; and so it was done in Lady Harriet Berkley's case." 3d vol. St. Tr., 78.

In the case of Rex v. Mead, 1 Burr., 542, the writ issued at the instance of the husband for his wife directed to her mother. On the return it appeared there had been articles of separation executed in which the husband had covenanted "never to disturb her or any person with whom she should live." It was suggested that the writ had been obtained by the husband with a view of seizing her by force or for some other bad purpose.

The court held the argreement to be a formal renunciation by the husband of his marital right to seize her, or force her back to live with him. And they said that any attempt of the husband to seize her would be a breach of the peace, and that any attempt by the husband to molest her in her present return from Westminister Hall would be a contempt of the court.

They told the lady she was at full liberty to go where and to whom she pleased.

In such a case a court of Chancery will interfere by injunction to restrain the husband from infringing his covenant. Sanders v. Rodway, 13 Eng. Law and Eq., 463.

But even without articles of separation, if the wife voluntarily leaves her husband and remains absent without any restraint, the husband is not entitled to the writ of habeas corpus.

This point was determined in a late case, Ex parte Sandilands, 12 Eng. Law and Eq., 463. In that case

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