It is one of the reasons why a broadcast liberty and national development was so difficult in the middle ages, that the pope, in the times of his highest power, could interfere with the autonomy of states. I do not discuss here whether this was not salutary at times. Gregory VII. was a great, and, possibly, a necessary man; but where civil liberty is the object, as it is now with civilized nations, this medieval interference of the pope would be an abridgment of it, just as much as the Austrian or French influence in the States of the Church is an abridgment of their independence at present.

It is a remarkable feature in the history of England, that even in her most catholic times the people were more jealous of papal interference by legates or other means, than any other nation, unless we except the Germans when their emperors were in open war with the popes. This was, however, transitory, while in England intercourse with the papal see was legally restricted and actually made penal.

2. Civil liberty requires firm guarantees of individual liberty, and among these there is none more important than the guarantee of personal liberty, or the great habeas corpus principle, and the prohibition of “general warrants" of arrest of persons.

To protect the individual against interference with personal liberty by the power-holder is one of the elementary requisites of all freedom, and one of the most difficult problems to be solved in practical politics. If any one could doubt the difficulty, history would soon convince him of the fact. The English and Americans safely guard themselves against illegal arrest; but a long and ardent struggle in England was necessary to obtain this simple element, and the ramparts around personal liberty, now happily existing, would soon be disregarded, should the people, by a real prava negligentia malorum, ever lose sight of this primary requisite.

The means by which Anglican liberty secures personal liberty are threefold: the principle that every man s house is

it was necessary, at a later period, diplomatically to explain and partially te unsay it.

his castle, the prohibition of general warrants, and the habeas corpus act.

Every man's house is his castle. It is a principle evolved by the common law of the land itself, and is exhibited in a yet stronger light in the Latin version, which is, Domus sua cuique est tutissimum refugium, and Nemo de domo sua extrahi debet, which led the great Chatham, when speaking on general warrants, to pronounce that passage with which now every English and American school-boy has become familiar through his Reader. "Every man's house," he said, "is called his castle. Why? Because it is surrounded by a moat, or defended by a wall? No. It may be a straw-built hut; the wind may whistle around it; the rain may enter it, but the king cannot."1

Accordingly, no man's house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon. It has been but recently decided in England, that although a house may have been unlawfully erected on a common, and every injured commoner may pull it down, he is nevertheless not justified in doing so if there are actually people in it.

There have been nations, indeed, enjoying a high degree of liberty, without this law maxim; but the question in this place is even less about the decided advantages arising to freemen from the existence of this principle, than about the sturdiness of the law and its independent development, that could evolve

In many countries, and even among hardly civilized tribes, it has been a rule that no one should enter a man's house without the consent of the owner. Missionaries tell us that the Yarriba people in Central Africa do not allow their king to enter a house, even to arrest a criminal, without the consent of the head of the family. So we are very often told that the trial by jury was known before England had its present name; but the question of importance is, how far a principle is developed, how securely it is guaranteed, how essential a part of a general system it is, and how strong it is to resist when public power should choose to interfere with it. The Chinese have no censorship, but this absence of censorship is not liberty of the press. The Romans cared very little about the religion of their subjects, (so that they were not Christians,) but this was not constitutional toleration or freedom of worship

and establish this bold maxim. It must be a manly race of freedom-loving people, whose own common law could deposit such fruitful soil. For let it be observed that this sterling maxim was not established, and is not maintained, by a disjunctive or a law-defying race. The Mainots considered their Lacedæmonian mountain fastnesses as their castles too, during the whole Turkish reign in Greece; the feudal baron braved authority and law in his castle; the Mino-tze1 have never been subdued by the Tartar dynasty of China, and defy the government in their mountain fastnesses to this day, much as the Highlanders of Scotland did before the battle of Culloden, but the English maxim was settled by a highly conjunctive, a nationalized people, and at the same time when law and general government was extending more and more over the land. It is insisted on in the most crowded city the world has ever seen, with the same jealousy as in a lonely mountain dwelling; it is carried out, not by retainers and in a state of war made permanent, as Essex tried to do when he was arrested, but by the law, which itself has given birth to it. The law itself says: Be a man, thou shalt be sovereign in thy house. It is this spirit which brought forth the maxim, and the spirit which it necessarily nourishes, that makes it important.

It is its direct antagonism to a mere police government, its bold acknowledgment of individual security opposite to government, it is its close relationship to self-government, which give so much dignity to this guarantee. To see its value, we need only throw a glance at the continental police, how it enters, at night or in the day, any house or room, breaks open any drawer, seizes papers or anything it deems fit, without any other warrant than the police hat, coat, and button.

Nor must we believe that the maxim is preserved as a piece of constitutional virtu. As late as the month of June, 1853, a bill was before the House of Commons, proposing some guarantee against property of nuns and monks being too easily withdrawn from relations, and that certain officers

In the province of Kouang-Si, containing mountainous regions.

should have the right to enter nunneries, from eight A.M. to eight o'clock P.M., provided there was strong suspicion that an inmate was retained against her will. The leading minister of the crown in the Commons, Lord John Russell, opposed the bill, and said: "Pass this bill, and where will be the boasted safety of our houses? It would establish general tyranny."

The prohibition of "general warrants." The warrant is the paper which justifies the arresting person to commit so grave an act as depriving a citizen, or alien, of personal liberty. It is important, therefore, to know who has the right to issue such warrants, against whom it may be done, and how it must be done, in order to protect the individual against arbitrary police measures. The Anglican race has been so exact and minute regarding this subject, that the whole theory of the warrant may be said to be peculiarly Anglican, and a great self-grown institution. "A warrant," the books say, "to deprive a citizen of his personal liberty should be in writing, and ought to show the authority of the person who makes it, the act which is authorized to be done, the name or description of the party who is authorized to execute it, and of the party against whom it is made; and, in criminal cases, the grounds upon which it is made." The warrant should name the person against whom it is directed; if it does not, it is called a general warrant, and Anglican liberty does not allow it.' Where it is allowed there is police government, but not the government for freemen. It is necessary that the person who executes the warrant be named in it. Otherwise the injured citizen, in case of illegal arrest, would not know whom

A warrant to apprehend all persons suspected, or all persons guilty, etc. etc., is illegal. The person against whom the warrant runs ought to be pointed out. The law on this momentous subject was laid down by Lord Mansfield in the case of Money vs. Leach, 3 Burrow's Rep. 1742, where the "general warrant" which had been in use since the revolution, directing the officers to apprehend the "authors, printers, and publishers" of the famous No. 45 of the North Briton, was held to be illegal and void. [Comp. May, Constit. Hist., ii. chap 11.]

he should make responsible; but if the person be named, he is answerable, according to the Anglican principle that every officer remains answerable for the legality of all his acts, no matter who directed them to be done. Indeed, we may say the special warrant is a death-blow to police government.

The Constitution of the United States demands that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The warrant is held to be so important an element of civil liberty, that a defective warrant is considered by the common law of England and America one of the reasons which reduce the killing of an officer from murder to manslaughter. The reader will see this from the following passage, which I copy from a work of authority both here and in England. I give the passage entire, because it relates wholly to individual liberty, and I shall have to recur to it.3 The learned jurist says: Though the killing of an officer of justice, while in the regular execution of his duty, knowing him to be an officer, and with intent to resist him in such exercise of duty, is murder, the law in that case implying malice, yet where the process is defective or illegal, or is executed in an illegal manner, the killing is only manslaughter, unless circumstances appear, to show express malice; and then it is murder. Thus, the killing will be reduced to manslaughter, if it be shown in evidence that it was done in the act of protecting the slayer against an arrest by an officer acting beyond the limits of his precinct; or, by an assistant, not in the presence of the officer or, by virtue of a warrant essentially defective in describing

' [For arrests which officers or even private persons are allowed by English law to make without warrant, see Blackstone's Com., iv. chap. 21, pp. 292, 293, and the notes of the annotators on his text.]

The reader will find a copy of the Constitution of the United States in the Appendix.

3 This is section 123 of vol. iii. of Dr. Greenleaf on Evidence, which I have copied by the permission of my esteemed and distinguished friend. I have left out all the legal references. The professional lawyer is acquainted with the book, and the references would be important to him alone.