must depend very much upon circumstances, and the tender age of the child may often be a controlling consideration against his claim. The courts have large discretionary power in these cases, and the tendency of modern decisions has been to extend, rather than restrict it.1 There is no common-law right to a trial by jury of the issues of fact joined on habeas corpus; but the issues both of fact and of law are tried by the court or judge before whom the proceeding is had; 2 though without doubt a jury trial might be provided for by statute, and perhaps even ordered by the court in some cases.3 * Right of Discussion and Petition. [* 349] The right of the people peaceably to assemble, and to petition the government for a redress of grievances, is one which "would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared, and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen."4 But it has not been thought unimportant to protect this right by statutory enactments in England; and indeed it will be remembered that one of the most notable attempts to crush the liberties of the kingdom made the right of petition the point of attack, and selected for its contemplated victims the chief officers in the episcopal hierarchy. The trial and acquittal of the seven bishops in the reign of James II. constituted one of the decisive battles in English constitutional history;5 and 1 Barry's Case may almost be said to exhaust all the law on this subject. We refer to the various judicial decisions made in it, so far as they are reported in the regular reports. 8 Paige, 47; 25 Wend. 64; People v. Mercein, 3 Hill, 399; 2 How. 65; Barry v. Mercein, 5 How. 105. See also the recent case of Adams v. Adams, 1 Duv. 167. For the former rule, see The King v. De Manneville, 5 East, 221; Ex parte Skinner, 9 J. B. Moore, 278. Where the court is satisfied that the interest of the child would be subserved by refusing the custody to either of the parents, it may be confided to a third party. Chetwynd v. Chetwynd, L. R. 1 P. & D. 39; In re Goodenough, 19 Wis. 274. * See Hurd on Habeas Corpus, 297–302, and cases cited; Baker v. Gordon, 23 Ind. 209. 3 See Matter of Hakewell, 22 Eng. L. & Eq. 395; s. c. 12 C. B. 223. Story on the Constitution, § 1894. See this case in 12 Howell's State Trials, 183; 3 Mod. 212. Also in Broom, the right which was then vindicated is "a sacred right which in difficult times shows itself in its full magnitude, frequently serves as a safety-valve if judiciously treated by the recipients, and may give to the representatives or other bodies the most valuable information. It may right many a wrong, and the deprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation,- a simple, primitive, and natural right. As a privilege it is not even denied the creature in addressing the Deity." Happily the occasions for discussing and defending it have not been numerous in this country, and have been confined to an exciting subject now disposed of.2 1 [* 350] * Right to bear Arms. Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly demonstrated in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II. that they demanded its reduction even before the liberation became complete; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is "a well-regulated militia;" but this cannot exist unless the people are trained to bearing arms. The federal and State constitutions therefore provide that the right of the people to bear arms shall not be infringed; Const. Law, 408. See also the valuable note appended by Mr. Broom, p. 493, in which the historical events bearing on the right of petition are noted. Also, May, Const. Hist. c. 7; 1 Bl. Com. 143. Lieber, Civil Liberty and Self-Government, c. 12. 2 For the discussions on the right of petition in Congress, particularly with reference to slavery, see 1 Benton's Abridgement of Debates, 397; 2 ib. 57–60, 182-188, 209, 436-444; 12 ib. 660-679, 705-743; 13 ib. 5-28, 266-290, 557562. Also Benton's Thirty Years' View, Vol. I. c. 135, Vol. II. c. 32, 33, 36, 37. Also the current political histories and biographies. 3 1 Bl. Com. 143. but how far it may be in the power of the legislature to regulate the right we shall not undertake to say, as happily there neither has been, nor perhaps is likely to be, much occasion for a discussion of that question by the courts.1 1 In Bliss v. Commonwealth, 2 Lit. 90, the statute "to prevent persons wearing concealed arms was held unconstitutional, as infringing on the right of the people to bear arms in defence of themselves and the State. But see Nunn v. State, 1 Kelly, 243; State v. Jumel, 13 La An. 399; Owen v. State, 31 Ala. 387; Cockrum v. State, 24 Tex. 394; Andrews v. State, 3 Heis. 165; s. c. 8 Am. Rep. 8, and note. A statute prohibiting the open wearing of arms upon the person was held unconstitutional in Stockdale v. State, 32 Geo. 225. And one forbidding carrying either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was sustained, except as to the lastmentioned weapon; and as to that it was held that, if the weapon was suitable for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for "lifting their hands in opposition " to a white person was unconstitutional. And see in general, Bishop on Stat. Crimes, Chap. 36, and cases cited. [405] OF THE PROTECTION TO PROPERTY BY "THE LAW OF THE LAND." THE protection of the subject in the free enjoyment of his life, his liberty, and his property, except as they might be declared by the judgment of his peers or the law of the land to be forfeited, was guaranteed by the twenty-ninth chapter of Magna Charta, "which alone," says Sir William Blackstone," would have merited the title that it bears of the Great Charter." 1 The people of the American States, holding the sovereignty in their own hands, have no occasion to exact pledges from any one for a due observance of individual rights; but the aggressive tendency of power is such, that they have deemed it of no small importance, that, in framing the instruments under which their governments are to be administered by their agents, they should repeat and re-enact this guaranty, and thereby adopt it as a principle of constitutional protection. In some form of words, it is to be found in each of 1 4 Bl. Com. 424. The chapter, as it stood in the original charter of John, was: "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisietur nec utlagetur nec exuletur, nec aliquo modo destruatur, nec rex eat vel mittat super eum vi, nisi per judicium parium suorum, vel per legem terræ." No freeman shall be taken or imprisoned or disseised or outlawed or banished, or any ways destroyed, nor will the king pass upon him, or commit him to prison, unless by the judgment of his peers, or the law of the land. In the charter of Henry III. it was varied slightly, as follows: "Nullus liber homo capiatur vel imprisonetur, aut disseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ." See Blackstone's Charters. The Petition of Right— 1 Car. I. c. 1-prayed, among other things, "that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent, by act of Parliament; that none be called upon to make answer for refusal so to do; that freemen be imprisoned or detained only by the law of the land, or by due process of law, and not by the king's special command, without any charge." The Bill of Rights-1 Wm. and Mary, § 2, c. 2-was confined to an enumeration and condemnation of the illegal acts of the preceding reign; but the Great Charter of Henry III. was then, and is still, in force. 1 1 the State constitutions; and, though verbal differences *appear in the different provisions, no change in language, [* 352] 66 process of 1 The following are the constitutional provisions in the several States: Alabama: "that, in all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself, or be deprived of his life, liberty, or property, but by due process of law." Art. 1, § 8. — Arkansas: "That no person shall. be deprived of his life, liberty, or property, without due process of law." Art. 1, § 9. California: Like that of Alabama. Art. 1, § 8.. Connecticut: Same as Alabama, substituting course of law" for " law." Art. 1, § 9. - Delaware: Like that of Alabama, substituting for "process of law," "the judgment of his peers, or the law of the land." Art. 1, § 7. — Florida: Like that of Alabama. Art. 1, § 9. - Georgia: "No person shall be deprived of life, liberty, or property, except by due process of law." Art. 1, § 3. - Illinois: No person shall be deprived of life, liberty, or property, without due process of law." Art. 1, § 2. - Iowa, the same. Art. 1, § 9.- Kentucky: "Nor can he be deprived of his life, liberty, or property, unless by the judgment of his peers, or the law of the land." Art. 13, § 12. Maine: 66 Nor be deprived of his life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land." Art. 1, § 6. Maryland: "That no man ought to be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." Declaration of Rights, § 23. — Massachusetts: "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land." Declaration of Rights, Art. 12. — Michigan: "No person shall . . . be deprived of life, liberty, or property, without due process of law." Art. 6, § 32.- Minnesota: Like that of Michigan. Art. 1, § 7.- Mississippi: The same. Art. 1, § 2. Missouri: Same as Delaware. Art. 1, § 18.- Nevada: "Nor be deprived of life, liberty, or property, without due process of law." Art. 1, § 8. New Hampshire: Same as Massachusetts. Bill of Rights, Art. 15,- New York: Same as Nevada. Art. 1, § 6. North Carolina: "That no person ought to be taken, imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land." Declaration of Rights, § 17. —— Pennsylvania: Like Delaware. Art. 9, § 9. Rhode Island: Like Delaware. Art. 1, § 10. South Carolina: Like that of Massachusetts, substituting "person" for "subject." Art. 1, § 14. Tennessee: "That no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." Art. 1, § 8. Texas: "No citizen of this State shall be deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land." Art. 1, § 16. -West Virginia: No person, in time of peace, shall be deprived of life, liberty, or property, without due process of law." Art. 2, § 6. Under - 66 |