He must have a list of the witnesses against him, an equal time beforehand;

A sufficient time for the trial must be allowed; and the prisoner must not be seized, tried, and executed, as Cornish was, in 1685, in a week, as Burnet says, or, as McAulay has it, in ten days;

Counsel must be allowed, as a matter of course;

The judges must be impartial and independent, and ample challenges must be allowed; peers must judge. Consequently, judges must not be asked by the executive, before the trial, what their judgment would be if such or such a case should be brought before them, as was repeatedly done by the Stuarts;

Of all trials, hearsay must be excluded from the trial for treason;

Facts, not tendencies; acts, not words or papers written by the indicted person, and which have never been allowed to leave his desk, must be charged;

Perfect publicity must take place from beginning to end, and reporters must not be excluded; for it is no publicity in a populous country that allows only some twenty or forty by-standers ;'

The trial must be in presence of the prisoner;

Several witnesses must be required to testify to the same fact, and the witnesses for the prisoner must be as much upon oath as those for the government;

Confession, if unconditionally admitted at all, must at least be in open court;

There must be no physical nor psychical torture or coercion ;

There must be good witnesses, not known villains or acknowledged liars, as Titus Oates, or Lord Howard against Lord Russell;

The judges must not depend upon the executive;

When, in 1858, Count Montalembert was tried in Paris for having written a pamphlet in praise of England, a peculiarly small court-room was selected, only a few persons were admitted, by tickets, and no notes were allowed to be taken.

No evidence must be admitted which is not admitted in

other trials;

There must be a fixed punishment;

There must be no constructive treason;

And the judges must not be political bodies.

These guarantees have been elaborated by statute and common law, through periods of freedom and tyranny, by the Anglican race. The English law grants these safeguards, except indeed the last to lords, because, according to the principle that every one must be tried by his peers, a lord is tried by the house of lords. It showed great wisdom that the framers of our constitution did not assign the trial for treason to the senate,' as the former French constitution appointed the house of peers to be the court for high treason. American impeachments are tried indeed by the senate, but it will be observed that the American trial of impeachment is not a penal trial for offences, but a political institution, trying for political capacity. The senate, when sitting as a court to try impeachments, can only remove from office, whatever the crime may have been; and the impeached person can be penally tried after the senate has removed him from office. In its political character, then, but in no other point, the American. impeachment resembles the Athenian ostracism, which was likewise a political, and not a penal institution. The English impeachment is a penal trial.

The trials for treason going on in many countries of the European continent, especially in Naples and the Austrian dominions, are, by way of opposite, fair illustrations of what has been stated here.3

The trial for treason has been treated of in this place because naturally connected with the subject of the penal trial

The American trials for treason are collected in Francis Wharton's State Trials of the United States, Philadelphia, 1846.

[2 And, it may be, acquitted, as the court of ordinary justice would have its own definition of crime, and its own rules of evidence.]

3 The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan trials for treason, published in 1851. It is but a sample.

in general. Otherwise it would have been more properly enumerated among the guarantees connected more especially with the general government of a free country. We return, therefore, once more to the guarantees of individual rights.'

I would mention for the younger student, that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief advancements and reverses. Such tables are very suggestive, and strikingly show what we owe to the continuity of human society. None of these tables has been more instructive to me than that on the history of the law of treason.

CHAPTER IX.

COMMUNION. LOCOMOTION, EMIGRATION.

6. THE freedom of communion is one of the most precious and necessary rights of the individual, and one of the indispensable elements of all advancing humanity-so much so, indeed, that it is one of those elements of liberty which would have never been singled out, had not experience shown that it forms invariably one of the first objects of attack when arbitrary power wishes to establish itself, and one of the first objects of conquest when an unfree people declares itself free.

I have dwelt on the primordial right of communion in the Political Ethics at great length, and endeavored to show that the question is not whether free communion or a fettered press be conducive to more good, but that everything in the individual and in nations depends in a great measure upon communion, and that free communion is a pre-existing condition. The only question is, how to select the best government with it, and how best to shield it, unless, indeed, we were speaking of tribes in a state of tutelage, ruled over by some highly advanced nation.

In this place we only enumerate freedom of communion as one of the primary elements of civil liberty. It is an element of all civil liberty. No one can imagine himself free if his communion with his fellows is interrupted or submitted to surveillance; but it is the Anglican race which first established it on a large scale, broadly and nationally acknowledged.'

Free nations demand and guarantee free communion of speech, the right of assembling and publicly speaking, for it is

The first fair play was given to a free press in the Netherlands.

communion of speech in this form which is peculiarly exposed to abridgment or suppression by the public power; they guarantee the liberty of the press, and, lastly, the sacredness of epistolary communion.

It is a very striking fact that, although the Constitution of the United States distinctly declares that the government of the United States shall only have the power and authority positively granted in that instrument, so that, in a certain 1espect, it was unnecessary to say what the government should not have the right to do, still, in the very first article of the Additions and Amendments of the Constitution, congress is forbidden to make any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The reader will keep in mind that the framers of our constitution went out of their way and preferred to appear inconsistent, rather than omit the enumeration of those important liberties, that of conscience, as it is generally called, that of communion, and of petitioning; and the reader will remember, moreover, that these rights were added as amendments. They must then have appeared very important to those who made our constitution, both on account of their intrinsic importance, and because so often attacked by the power-holders. Let the reader also remember that, if it be thus important to abridge the power of government to interfere with free communion, it is at least equally important that no person or number of men interfere, in any manner, with this sacred right. Oppression does not come from government or official bodies alone. The vorst oppression is of a social character, or by a multitude.

The English have established the right of communion, as so many other precious rights by common law, by decisions, by struggles, by revolution. All the guarantee they have for the unstinted enjoyment of the right lies in the fact that the whole nation says with one accord, as it were: Let them try to take it away.