fant to a parent, or an apprentice to a master.' On the same principle, I see no reason why the writ at common law may not be used to deliver a slave from illegal restraint, and restore him to the custody of his master."

It has been shown in the preceding pages that the writ of habeas corpus is not, properly speaking, issued to deliver an infant to a parent, though the court sometimes in the exercise of its sound discretion orders the infant to be thus delivered. It has also been shown that in the case of the master and apprentice, although it may issue at the instance of the master, the courts very rarely make any order in favor of the master for the custody of the apprentice.

But if the practice in those cases were clearly settled, as assumed by the learned judge, then all the beneficent principles of practice applicable in those cases, should be extended to the case where the writ was granted to the master for his slave.

The writ should be granted at the instance of the master, on some sufficient showing of illegal restraint; *and if mere absence from his custody is to be [552 held equivalent to such illegal restraint, then on the simple application of the master; but in either case where the slave is brought before the court under the writ, he, as well as the apprentice or infant, must, if of sufficient capacity, be allowed his liberty of choice, and if of tender years or insufficient capacity he must be disposed of under the writ, as the sound discretion of the court shall dictate."

1 Commonwealth v. Robinson, 1 S. & R. 353.

2 In Indiana, where a writ of habeas corpus had been sued out by the guardian to obtain possession of his infant ward, the minor was awarded to the custody of the guardian. Shaw v. Smith, 8 Ind. 485.

In Massachusetts, the right of a guardian to acquire the custody of his minor ward by habeas corpus was recognized in McConologue's case, 107 Mass. 171. 30 in Minnesota. Townsend v. Kendall, 4 Minn. 412. See also People v. Wilcox, 22 Barbour, 178. In Schouler's Domestic Relations, 451, it is said, "Proceedings on a writ of habeas corpus may determine the question of legal custody. But a child in the personal keeping of his guardian is in legal cus

tody. Nor can unlawful imprisonment or restraint be imputed from the guardian's refusal to surrender such child to the parent. On the other hand the court cannot entertain habeas corpus to restore to the guardian a child forcibly removed by the parent unless the child is actually restrained of liberty."

In Michigan, on petition of guardians for a writ of habeas corpus against respondent who had caused their ward to be carried out of the state, and beyond the jurisdiction of the courts, and still continued to keep her out of the state after service of the writ, the Supreme Court was equally divided as to the question whether the writ could issue to bring the ward into the state. In matter of Jackson, 15 Mich. 417.

By the 7th section of the act 31 Car. II. it was pro

vided that:

"If any person or persons, committed as aforesaid,' upon his prayer or petition in open court, the first week of the term on the first day of the sessions of oyer and and terminer and general gaol delivery, to be brought to his trial, shall not be indicted and tried the second term sessions of oyer and terminer or general gaol delivery after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment."

In Georgia, where the act 31 Car. II. was adopted, it was held in the case of The State v. Monguo et Segar,' that where the prisoners had been confined two terms, were ready for their trial at each term, and at the second term did, by their counsel, petition to be brought to trial, they were entitled to be discharged on a writ of habeas corpus.

In South Carolina, where the act of 31 Car. II. was also adopted, it was held in the case of Logan v. *The State, that a prisoner who had been let out [554 on bail was not entitled to his discharge though he had

2

1 Charl. 24.

Const. Rep. 493.

demanded his trial. Nor can he claim his discharge under the act, where there has been a mistrial under the indictment, though the state is not ready for trial at the next term.'

Nor can the accused be discharged from his recognizance under the act for the provisions of the 7th section apply only to actual prisoners.'

The provision in the statute of Pennsylvania, is as follows:

"If any person shall be committed for treason or felony, and shall not be indicted and tried some time in the next term, session of oyer and terminer, general gaol delivery, or other court, where the offence is properly cognizable, after such commitment, it shall and may be lawful for the judges or justices thereof, and they are hereby required upon the last day of the term, sessions, or court, to set at liberty the said prisoner upon bail, unless it shall appear to them, upon oath or affirmation, that the witnesses for the Commonwealth, mentioning their names could not then be produced; and if such prisoner shall not be indicted and tried the second term, sessions, or court, after his or her commitment, unless the delay happen on the application or with the assent of the defendant, or upon trial shall be acquitted, he or she shall be discharged from commitment.'

It has been held by the Supreme Court of Pennsylvania, that by the fair construction of their habeas corpus act (although no provision was referred to except 555] the preamble, which "confines itself to all *wrongful restraints of personal liberty"), a prisoner who had not been tried at the second term was not in all cases entitled to be discharged, although the delay did not happen on his application nor with his assent.

In the case of The Commonwealth v. The Sheriff and

1 State v. Sprague, 1 McCord, 563.
The State v. Buyck, 1 Brevard, 460.
3 Dunlop's St. 143, sec. 3.

Jailer of Alleghany County,' in 1827 the prisoner had been indicted as an accessory. Two terms of the court had passed, but the principal had not been convicted, nor had the process of outlawry been completed against lim, nor could it be for another term, the statute requiring at least three terms to complete it. So that the proof which the rules of law made indispensable to the conviction of the prisoner could not be given within the time mentioned in the habeas corpus act. He sued out the writ of habeas corpus to be discharged.

The court, however, held that the section above quoted was intended to provide against the abuse of a protracted trial, to provide not only against the malice of a prosecutor, but against his negligence, against all his delays whether with cause or without cause, against every possible act or want of action of the prosecutor; but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself.

The court also intimated that a prisoner would not be entitled to his discharge if the second term should pass without his trial in consequence of his sickness, insanity, or the limited term of the court (that being prescribed by law) not admitting of the trial.'

Chief Justice Gibson dissented. But eleven years after, in the case of The Commonwealth v. The Jailer *of Alleghany County,' in a somewhat weaker [556 case he appears to have concurred with the other mem

16 Serg. & Rawle, 304.

? The doctrine of this case was approved in Clark v. The Commonwealth, 29 Penn. State, 129. There it was held that under the act considered a prisoner could only claim his discharge in the last day of the second term after his arrest, when there had been a competent and regularly constituted court, before which he could have been indicted and tried. The act was designed to prevent wrongful restraints of liberty growing out of the malice and procrastination of the prosecutor, but not to shield a prisoner in any case from the consequences of any delay made necessary by the law itself. Where the array of grand jurors was quashed at two successive terms after the arrest of the prisoner, for informality in selecting or drawing them, he was not entitled to be discharged. 37 Watts, 366.