them had failed, and the act may be considered as the ultimate result of a long struggle between law and individual on the one hand, and power on the other. The history of this act is interesting and symptomatic."

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, 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."

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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.

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 manof-war, to serve there as sailor. There has always been a great deal of 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

• The appendix contains the Habeas Corpus Act.

7 Paper, No. LXXXIV.

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

will rejoice that the present administration has taken in hand a new plan of manning the navy, by which this blemish will be removed.9

9 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."

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 things are actually carried on, 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 it is impossible to let always follow instantly upon the arrest. To mitigate this harshness as much as possible, free nations guarantee the principle of bailing VOL. I.-8

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" 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. 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

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

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 money; 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 well-secured 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 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