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 keystone of a nation's public law."3 This passage of the German criminalist expresses the truth more accurately than the quoted dictum of 2 Esprit des Lois, XII. 2, Of the Liberty of the Citizen. 3 This comprehensive and excellent work was published in Germany, Erlangen, 1851. 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 political civilization, partly because it is one of the most difficult subjects to elaborate, and because it requires long experience to find the proper mean between a due protection of the indicted person and an equally due protection of society; partly because it is one of the most difficult things in all spheres of action to induce irritated power to limit itself as well as to give to an indicted person the full practical benefit of the theoretic sentence, easily pronounced like all theory, that the law holds every one innocent until proved not to be so. The Roman and Athenian penal trials were sadly deficient. The English have allowed counsel to the penally indicted person only within our memory, while they had been long allowed in the United States. The penal 4 It must not be forgotten, however, that, deficient as the penal trial of England, without counsel for the defendant, was, it contained many guarantees of protection, especially publicity, a fixed law of evidence, with the exclusion of hearsay evidence, the jury and the neutral position of the judge in consequence of the trial by jury, and the strictly accusatorial character of the trial, with the most rigid adhesion to the principle of trying a person upon the indictment alone, so that the judge could be, and in later times really had been, the protector of the prisoner. Had the trial been inquisitorial instead of accusatorial, the absence of counsel for defence would have been an enormity. To this enormity Austria has actually returned since the beginning of this century. The code promulgated by Joseph gave counsel, or a "defensor," to the prisoner; but, although the process remained inquisitorial, the defensor was again disallowed. The late revolution re-established him, but whether he trial in the Netherlands was a poor one, when nevertheless, the Netherlanders are allowed on all hands to have enjoyed a high degree of civil liberty. It is one of the most common facts in history that a nation is more or less advancing in nearly all the branches of civilization, while the penal trial and the whole penal law remains almost stationary in its barbarous inconsistency. The penal trial of France, up to the first revolution, remained equally shocking to the feelings of humanity and to the laws of legal logic. The reason of this apparent inconsistency is that, in most cases, penal trials affect personally individuals who do not belong to the classes which have the greatest influence upon legislation. This point is especially important in countries where the penal trial is not public. People never learn what is going on in the houses of justice. Another and great reason is that generally lawyers by profession are far less interested in the penal branch of the law than in the civil. This, again, arises from the double fact that the civil law is far more varied and complicated, consequently more attractive to a judicial mind, and that the civil cases are far more remunerative. How much the difficulty to be solved constitutes the attraction for the lawyer, we may see from the fact that very few professional lawyers take an interest in the punishment itself. A penal case has attraction for them so long as it is undecided, but has been disallowed again of late I don't know. Nor can it be of very great importance in a country in which the "state of siege" and martial law seem to be permanent. what imprisonment follows, if imprisonment has been awarded, interests them little. Very few lawyers have taken a lead in the reform of criminal law and in prison discipline, the noble sir Samuel Romilly always excepted. Among the points which characterize a fair and sound penal trial according to our advancement in political civilization, we would designate the following: No intimidation before the trial or attempts by artifice to induce the prisoner to confess; a contrivance which protects the citizen even against being placed too easily into a state of accusation; the fullest possible realization of the principle that every man is held innocent until proved to be otherwise, and bail; a total discarding of the principle that the more heinous the imputed crime is, the less ought to be the protection of the prisoner, but on the contrary the adoption of the reverse; a distinct indictment, and the acquaintance of the prisoner with it, sufficiently long before the trial, to give him time for preparing the defence; that no one be held to incriminate himself; the accusatorial process, with jury and publicity, therefore an oral trial and not a process in writing; counsel or defensors of the prisoner; a distinct theory or law of evidence, and no hearsay testimony; a verdict upon evidence alone and pronouncing guilty or not guilty; a punishment in proportion to the offence and in accordance with common sense and justice; especially no punitory 5 The idea expressed by Dr. Paley regarding this point is revolting. He says, in his Political Philosophy, that we may choose imprisonment, which necessarily must make the prisoner worse than he was when he fell into the hands of government, nor cautionary imprisonment before trial, which by contamination must advance the prisoner in his criminality; and that the punishment adapt itself as much as possible to the crime and criminality of the offender; that nothing but what the law demands or allows be inflicted,' and between two systems, the one with fair punishments always applied, the other with very severe punishments occasionally applied. He thus degrades penal law, from a law founded above all upon strict principles of justice, to a mere matter of prudential expediency, putting it on a level with military decimation. 6 Lieber's Popular Essay on Subjects of Penal Law and on Uninterrupted Solitary Confinement at Labor, &c. Philadelphia, 1838. I have there treated of this all-important subject at some length. 7 Tiberius Gracchus erected a temple in honor of Liberty, with a sum obtained for fines. If the fines were just, there was no inconsistency in thus making penal justice build a temple of freedom, for liberty demands security and order, and, therefore, penal justice. On the other hand, what does a citizen reared in Anglican liberty feel when he reads in a simple newspaper article in a French provincial paper, in 1853, the following? "The minister of general police has just decided that Chapitel, sentenced by the court to six months' imprisonment for having been connected with a secret society, and Brayet, sentenced for the same offence to two months' imprisonment, shall be transported to Cayenne for ten years, after the expiration of their sentence !" The decree of the 8th of December, 1851, not a law, but a mere dictatorial order, upon which ten years' transportation are added by way of "rider" to a few months' imprisonment adjudged by the courts of law, is this: "Article 1. Every individual placed under the surveillance of the high police, who shall be found having broken his assigned limits of residence, may be transported, by way of general safety, to one of the penitentiary colonies, at Cayenne or in Algeria. "The duration of transportation shall be five years or less, and |