other. The history of this act is interesting and symptomatic.1

The Constitution of the United States prohibits the suspension of the habeas corpus act, "unless when, in cases of rebellion or invasion, the public safety may require it;" and Alexander Hamilton says, in the "Federalist": "The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and of titles of nobility, to which we have no corresponding provisions in our constitution," (therefore personal liberty, or protection and safety, supremacy of the law and equality,) "are perhaps greater securities to liberty than any it contains ;" and, with reference to the first two, he justly adds the words of "the judicious Blackstone."3

All our state constitutions have adopted these important principles. The very opposite of this guarantee was the "lettre de cachet," or is the arbitrary imprisonment at present in France.

A witness of singular weight, as to the essential importance of Anglican personal liberty, must not be omitted here. The Emperor Napoleon III. who, after Orsini's attempt to assassinate him, obtained the "law of suspects" according to which the French police, or administration, (not the courts of justice,) may transport a "suspect" for seven years, wrote, in earlier days, with admiration of English individual liberty.*

1 The appendix contains the habeas corpus act.

2 Paper, No. lxxxiv.

* Blackstone's Commentaries, vol. i. page 136. Note, in the "Federalist."

In 1854 a complete edition of the emperor's works was published. In that edition was a chapter headed De la Liberté individuelle en Angleterre. In it are the following passages:

"No inhabitant of Great Britain (excepting convicts) can be expelled from the United Kingdom. Any infraction of this clause (the habeas corpus act) would be visited with the severest penalties." He remarks that we have no public prosecutor, the attorney-general interfering only on extraordinary occasions; and if criminals sometimes escape justice, personal liberty is the less endangered. "In England, authority is never influenced by passion; its proceedings are always moderate, always legal;" there is "no violation of the citizen's domicile, so common in

There was in England, until within a recent date, a remarkable deviation from the principles of personal liberty-the impressment. The crown assumed the right to force any able-bodied man on board a man-of-war, to serve there as sailor. There has always been much doubt about this arrogated privilege of the crown, and, generally, sailors only were taken, chiefly in times of war and when no hands would freely enlist. Every friend of liberty will rejoice that the present administration has taken in hand a new plan of manning the navy, by which this blemish will be removed.'

France;" family correspondence is inviolate, and no passports bar the most perfect freedom of traffic,-"passports, the oppressive invention of the Committee of Public Safety, which are an embarrassment and an obstacle to the peaceable citizen, but which are utterly powerless against those who wish to deceive the vigilance of authority." A law deprived of the general support of public opinion would be a mere scrap of paper. "It suffices for us to note this fact, that in France, where such jealousy is shown of everything which touches equality and national honor, people do not attach themselves so religiously to personal liberty. The tranquillity of the citizen may be disturbed, his domicile may be violated, he may be made to undergo for whole months a preventive imprisonment personal guarantees may be despised, and a few generous men shall raise their voices; but public opinion will remain calm and impassible as long as no political passion is awakened. There lies the greatest reason for the violence of authority; it can be arbitrary because there is no curb to check it. In England, on the contrary, political passions cease the moment a violation of common right is committed; and this, because England is a country of legality, and France has not yet become so; because England is a country solidly constituted, while France struggles by turns for forty years between revolutions and counter-revolutions, and the sanctity of principle has yet to be created there."

1 The plan has not yet been published, but one of the ministers, Sir James Graham, said in the Commons, in April, 1853:

"The first point on which all the authorities consulted were agreed is, that whatever measures are taken, must rely for success on the voluntary acceptance of them by the seamen, and that any attempt to introduce a coercive mode of enlistment would be followed by mischievous consequences and failure." The difficult question does not yet seem to be wholly settled (1859.) It seems difficult to obtain a sufficient number of seamen to man the fleet in emergencies. In France seamen are drafted, as soldiers are for the army.

CHAPTER VII.

BAIL. PENAL TRIAL.

3. CONNECTED with the guarantees of personal liberty, treated of in the foregoing chapter, is the bail.

The law of all nations not wholly depraved in a political point of view, adopts the principle that a man shall be held innocent until proved by process of law to be otherwise. In fact, the very idea of a trial implies as much. Theoretically, at least, this is acknowledged by all civilized nations, although often the way in which judicial affairs are conducted, and in many countries the very mode of trying itself, are practical denials of the principle. But even in the freest country there is this painful yet unavoidable contradiction, that while we hold every person innocent until by lawful trial proved to be guilty, we must arrest a person in order to bring him to a penal trial; and, although by the law he is still considered. innocent, he must be deprived of personal liberty until his trial can take place, which cannot always follow instantly upon the arrest. To mitigate this harshness as much as possible, free nations guarantee the principle of bailing in all cases in which the loss of the bailed sum may be considered as a more serious evil than the possible punishment. The amount of bail must depend upon the seriousness of the charge, and also upon the means of the charged person. If judges were allowed to demand exorbitant bail, they might defeat the action of this principle in every practical case. It was enacted, therefore, in the first year of William and Mary,' and has been adopted in all our constitutions, that no "excessive bail"

1 William and Mary, stat. ii. c. 2.

shall be required. The nature of the case admits of no more exact term; but, with an impeachment hanging over the judges, should the principle thus solemnly pronounced be disregarded, it has worked well for the arrested person. Indeed, there are frequent cases in the United States in which this principle is abused and society is endangered, because persons are bailed who are under the heaviest charges, and have thus an opportunity of escape if they know themselves guilty. As this can take place only with persons who have large sums at their disposal, either in their own possession or in that of their friends, and as liberty demands first of all the foundation of justice, it is evident that this abuse of bail works as much against essential liberty as the proper use of bail guarantees it. We ought, everywhere, to return to the principle of distinguishing transgressions of the law into bailable offences and offences for the suspected commission of which the judge can take no bail. These are especially those offences for the punishment of which no equivalent in money can be imagined; for instance, death or imprisonment for life, and those offences which put the offender into the possession of the sum required for the bail.

It has been objected to the bail that it works unjustly. It temporarily deals with so precious a thing as personal liberty according to possession of wealth: but it must be remembered that the whole arrest before trial is an evil of absolute necessity, and the more we can limit it the better.

Liberty requires bail, and that it be extended as far as possible; and it requires likewise that it be not extended to all offences, and that substantial bail only be accepted.

4. Another guarantee, of the last importance, is a wellsecured penal trial, hedged in with an efficient protection of the indicted person, the certainty of his defence, a distinct indictment charging a distinct act, the duty of proving this act on the part of government, and not the duty of proving innocence on the part of the prisoner, the fairness of the trial by peers of the prisoner, the soundness of the rules of evidence, the publicity of the trial, the accusatorial (and not the inquisitorial) process, the certainty of the law which is to be applied,

together with speed and utter impartiality, and an absolute verdict. It is moreover necessary that the preparatory process be as little vexatious as possible.

When a person is penally indicted, he individually forms one party, and society, the state, the government, forms the other. It is evident that unless very strong and distinct guarantees of protection are given to the former, that he be subjected to a fair trial, and that nothing be adjudged to him but what the law already existing demands and allows, there can be no security against oppression. For government is a power, and, like every power in existence, it is desirous of carrying its point-a desire which increases in intensity the greater the difficulties are which it finds in its way.

Hence it is that modern free nations ascribe so great an importance to well regulated and carefully elaborated penal trials. Montesquieu, after having given his definitions of what he calls philosophical liberty, and of political liberty, which, as we have seen, he says, consists in security, continues thus: "This security is never more attacked than in public and private accusations. It is, therefore, upon the excellence of the criminal laws that chiefly the liberty of the citizen depends." Although we consider this opinion far too general, it nevertheless shows how great a value Montesquieu set on a well-guarded penal trial, and he bears us out in considering it an essential element of modern liberty. The concluding words of Mr. Mittermaier's work on the Penal Process of England, Scotland, and the United States, are: "It will be more and more acknowledged how true it is that the penal legislation is the key-stone of a nation's public law.'

This passage of the German criminalist expresses the truth more accurately than the quoted dictum of Montesquieu. For, although we consider the penal trial and penal law in general intimately connected with civil liberty, it is nevertheless a fact that a sound penal trial is invariably one of the last fruits of

1 Esprit des Lois, xii. 2; "Of the Liberty of the Citizen." ? This comprehensive and excellent work was published in Germany, Erlangen, 1851.