2

the appeal or writ of error can be tried, the party prosecuting it has often been bailed, notwithstanding his conviction. In some states express provision is made by law enabling convicts to give bail until their appeal or writ of error is tried. *And it is probable that in [449 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,' 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.*

11 Caines' R. 148, 72; 1 Wheeler Cr. Cas. 431.

? Miss. Rev. St. 138; Mass. Rev. St. 763.

3 2 Hawks. 443.

4 In 1 Bishop's Criminal Procedure, sec. 253, it is said, "Still though the common law doctrine seems thus absolute, the meaning appears simply to be, that the judicial discretion must be strongly moved to induce it to allow bail between conviction and sentence, even in case of misdemeanor. But where one was convicted of libel and was sick, the court said, 'The offence is so great that an adequate punishment may endanger his life, and to lessen the judgment would be an ill precedent, therefore bail him for the present, and we will give judgment when he is better.' And this is the doctrine which is accepted as the sound law in the United States." Corbett v. The State, 24 Ga. 391; State v. Connor, 2 Bay, 34.

"In Ex parte Lees, 1 Ellis, Blackbun & E. 828, it was held that a writ of ha beas corpus is not grantable in general when the party is in execution on a criminal charge, after judgment, on an indictment according to the terms of the common law.

"It is perhaps therefore to be accepted as the common law doctrine, that, if the case has gone to final sentence, and the prisoner is taken in execution, he cannot have bail while he is pursuing measures to have the judgment reversed. But this doctrine has been changed and bail is in proper cases allowed, in England, by recent statutes; and the same is probably true in many or most of our states." 1 Bishop's Criminal Procedure, 2d ed., sec, 254, and cases there cited.

In Louisiana after commitment for contempt, the prisoner is entitled to discharge upon habeas corpus, if he produce a pardon from the executive authority. State v. Sauvinet, 24 La. An. 119.

*CHAPTER IX.

[450

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 reme- [451 dial 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,' 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 452] 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."

In the case of Rex v. Mead,' 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

1 1 Str. 447.

2 3d vol. St. Tr. 78.

31 Burr, 542.

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 agreement 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 Westminster 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.'

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.' In that case *a rule nisi had been [453 obtained on the application of Mr. Sandilands, for a writ of habeas corpus to bring up the body of his wife. It appeared by the affidavits, upon which the rule was founded, that Mrs. Sandilands was staying with her son, against whom the application was made, by her own consent, and that no coercion or imprisonment had been used towards her, except that it was suggested that she was incapable of exercising a sound discretion and that her son used undue influence over her. The court hesitated, being of opinion that this was, in effect, an indirect mode of suing for a restitution of conjugal rights; but the case of The King v. Mead,' being cited, they reluctantly granted a rule to show cause.

1 Sanders v. Rodway, 13 Eng. Law and Eq. 463.

212 Eng. Law and Eq. 463.

3 1 Burr. 542.