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conduct of their children except while in school, the parent is also responsible for the conduct of the child on the way.
7. “Where parties bail another in legal proceedings, they are regarded in law as his jailors, 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. a This is a right they may exercise in person, or by agent, and without resort to judicial process.” b
This relation of principal and bail in civil cases, commonly called special bail, is a thing of the past. It existed when the debtor was liable to be arrested, as he could be, upon demands arising upon contract, and when so arrested, to avoid further imprisonment, gave bail to the sheriff, conditioned that he would give special bail to the plaintiff in the action within twenty days after the return of the writ, so that the plaintiff might have his body to imprison, in satisfaction of the judgment to be obtained in the action, His special bail became in law the jailors of his own choosing, and he was thus immersed in a living prison, or his body subject to the actual custody of his special bail, and liable at any time, and at all places, to be taken by his bail, and cast into the common gaol upon a copy of the bail piece, by his special bail, or by a person authorized by them. Thanks to the progressive spirit of the age, this barbarous excrescence upon the laws of the past, no longer obscures the jurisprudence of the free citizens of this state. The law to abolish imprisonment for debt, in this and other states, has to that extent, emancipated the honest citizen from this odious penalty arising from his inability to pay his debts. Though he is still liable to be restrained of his personal liberty in what are called actions sounding in tort.
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 the recent statutory and constitutional provisions. In cases of torts, and where debts were fraudulently contracted, or where there is an
a Harp v. Osgood, 2 Hill, 216. 6 Parker v. Bidwell, 3 Conn. 84
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.”
The causes which in this state give the creditor power over the personal liberty of the debtor, are limited to five, by express provisions of the statute. a 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to the person or character, or for injuring, or wrongfully taking, detaining, or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied by a public officer or attorney, solicitor or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for the misconduct or neglect in office, or in a professional employment. 3. In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be found or taken, or with the intent to deprive the plaintiff of the benefit thereof. 4. When the defendant has been guilty of a fraud, in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female can be arrested in any action, except for wilful injury to person, character, or property. Even arrest for these causes cannot be made, until it has been judicially determined by a judge of some court upon proper application, and upon satisfactory evidence to him, that a cause of action exists, and that the case comes within one of the five subdivisions of causes above enumerated, and a sufficient bond or undertaking, satisfac
a Code, $ 179.
tory to, and approved by said judge, shall be given by the plaintiff to pay to the defendant all costs and damages he may recover in such action. The statute further provides the manner in which the defendant arrested for these causes, can be discharged from such arrest. All these matters are subjects that belong to practice, not connected with the question of power of restraint.
These then, are the legal restraints upon, and qualifications to the right of personal liberty. For any other restraint, or for the legal abuse of the legal rights which have been above specified, the party restrained, is entitled to immediate process from the courts, by habeas corpus, and to speedy relief thereon.
OF CONSTITUTIONAL PROTECTION TO THE PERSON OF THE CITIZEN
- OTHER THAN PERSONAL LIBERTY.
RIGHTS AND IMMUNITES OF THE CITIZEN. THE leading idea put forth in the declaration of our independence, as well as in the preamble and body of our national constitution, is the equality of rights of all mankind. Not only was it the object of these instruments, to secure them the blessings of liberty and equality, but also to secure alike to each and every citizen, all the benefits which is oonferred upon each and every other citizen of the states or of the nation. To secure this end, the federal constitution speaks in an authoritative tone: “The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states."
It is no part of our purpose to make this work the history o our political organizations, nor to point out the reasons therefrom, that lead to the insertion of this provision in the constitution; but only to treat it as a sacred right secured to every citizen, because we find it so secured by the fundamental law of the government. It is an invaluable privilege ; it becomes the birthright of every
; natural born citizen ; and the lawfully acquired right of every naturalized citizen. By this constitutional provision, every citizen of a state, is likewise a citizen of the United States; and as a national citizen, he is in theory, politically and potentially present, and has the right to be actually and personally present, in every part of the national domain. He possesses the right to be personally present in any state or territory of the government, and to enjoy there, the right and freedom to speak his opinions; to do and perform all lawful acts; and to enjoy all the privileges and immunities that any other citizen of that, or any other state or territory, in which it is his pleasure to be, may enjoy; and any state regulation, that interferes with these rights of a national citi
zen, in manner or effect, different from that which its own citizens enjoy, does an act which directly conflicts with his constitutional rights, whatever may be the pretence for adopting such regulations. Cotemporaneous experience has taught us, that the violation of this sacred right, was one of the leading reasons of bringing on the late national disruption.
QUARTERING SOLDIERS IN PRIVATE HOUSES. This provision speaks for itself. The experience of all nations, has shown, that a large standing army in time of peace, should be avoided as dangerous to liberty, and that the quartering of soldiers upon the citizens of the state, had been a very common resort of arbitrary princes, and was full of inconvenience and peril to the citizens. It has been well said by Judge Cooley, a that, “It is dificult to imagine a more terrible engine of oppression than the power in an executive, to fill the house of an obnoxious person with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will, of one who is sent as an instrument of punishment; and with whom, insult and outrage may appear quite in the line of duty.” The clause, as we find it in the national constitution, has come down to us through the petition of rights; the Bill of Rights of 1688, and the Declaration of Independence; and is carried out in the national constitution ; securing the principle to the nation, and to the citizen, that the military shall, in time of peace, be in strict subordination to the civil power. b
UNREASONABLE SEARCHES AND SEIZURES. This constitutional sanction, and adoption of what had become a feature of the common law, and the test which it affords for trying the legality of any warrant by which a man may be deprived of his liberty, or disturbed in the enjoyment of his property; cannot be too highly valued by the citizens of a free government. This principle had been secured before the adoption of our constitution,
a Cooley on Const. Lim. 308 o Story on Coust $ 1900