either the person accused, or the offence; or, where the party had no notice, either expressly, or from the circumstances of the case, that a lawful arrest was intended, but, on the contrary, honestly believed that his liberty was assailed without any pretence of legal authority; or, where the arrest attempted, though for a felony, was not only without warrant, but without hue and cry, or fresh pursuit, or, being for a misdemeanor only, was not made flagrante delicto; or, where the party was, on any other ground, not legally liable to be arrested or imprisoned. So, if the arrest, though the party were legally liable, was made in violation of law, as, by breaking open the outer door or window of the party's dwelling-house, on civil process; for such process does not justify the breaking of the dwelling-house, to make an original arrest; or, by breaking the outer door or window, on criminal process, without previous notice given of his business, with demand of admission, or something equivalent thereto, and a refusal." The Habeas Corpus Act. This famous act of parliament was passed under Charles II., and is intended to insure to an arrested person, whether by warrant or on the spot, that at his demand he be brought, by the person detaining him, before a judge, who may liberate him, bail him, or remand him, no matter at whose command or for what reasons the prisoner is detained. It allows of no "administrative arrests," as extrajudicial arrests are called in France, or imprisonment for reasons of state. The habeas corpus act further insures a speedy trial,' a trial by the law of the land, and by the lawful court three points of the last importance. It moreover guarantees that the prisoner know for what he is arrested, and may properly prepare for trial. The habeas corpus act did by no means first establish all these principles, but numberless Long imprisonments before trial are customary means resorted to on the continent of Europe in order to harass the subjects. Guerrazzi and other liberals were sentenced, in Tuscany, on the first of July, 1853, after having been imprisoned for fifty months before ever being brought to trial. It is useless to mention more instances; for long imprisonment before trial is the rule in absolute governments whenever it suits them. attempts to secure them had failed, and the act may be considered as the ultimate result of a long struggle between law and the individual on the one hand, and power on the 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 :"2 "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. The Appendix contains the habeas corpus act. * Paper No. lxxxiv. 3 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 citi There was in England, until within a recent date, a remark able 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.1 zen's domicile, so common in 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." 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. [For the history of impressment, for the army as well as for the navy, down to 1860, comp. May, u. s., ii. 259 et seq. U til 1872 no law abolishing this practice was passed; but the practice itself seems to be in abeyance.] 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” shall be required. The nature of the case admits of no more II William and Mary, stat. ii. c. 2. 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, |