searching in places not described therein, or by seizing persons and articles not commanded, he is not protected by the warrant, and can only justify himself as in other cases where he assumes to act without process.1 Obeying strictly the command of his warrant, he may break open outer or inner doors, and his justification does not depend upon his discovering that for which he is to make search.2

In other cases than those to which we have referred, the law favors the complete and undisturbed dominion of every man in his own premises, and protects him in it with such jealousy that he may defend his possessions against intruders in person, or by his servants or guests, even to the extent of taking the life of the intruder, if that seem essential to the defence.3

Quartering Soldiers in Private Houses.

A provision is found incorporated in the constitution of nearly every State, that "no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law." To us, after four fifths of a century have passed away since occasion has existed for complaint of the action of government in this particular, the repetition of this declaration seems to savor of idle form and ceremony; but "a frequent recurrence to the fundamental principles of the Constitution" can never be unimportant, and, indeed, may well be regarded as "absolutely necessary to preserve the advantages of liberty, and to maintain a free government." It is difficult to imagine a more terrible engine of oppression than the power in an executive to fill the house of an obnoxious person with a company of soldiers, who are to be fed and warmed at his expense, under the direction of an officer accustomed to the exercise of arbitrary power, and in whose presence the ordinary laws of courtesy, not less than the civil restraints which protect person and property, must give way to unbridled will; who is sent as an instrument of 1 Crozier v. Cundey, 9 D. & R. 224; Same case, 6 B. & C. 232; State v. Brennan's Liquors, 25 Conn. 278.

3

22 Hale P. C. 151; Barnard v. Bartlett, 10 Cush. 501.

1 Hale P. C. 481; Curtis v. Hubbard, 4 Hill, 437; Pond v. People, 8 Mich. 150.

* Constitutions of Massachusetts, New Hampshire, Vermont, Florida, Illinois, and North Carolina. See also constitutions of Virginia, Nebraska, and Wisconsin, for a similar declaration.

punishment, and with whom insult and outrage may appear quite in the line of his duty. However contrary to the spirit of the age such a proceeding may be, it can never be impossible that it will be resorted to in times of great excitement and violent party action; and "the dragonades of Louis XIV. in France, of James II. of Scotland, and those of more recent and present date, furnish sufficient justification for this specific guaranty."1 The clause, as we find it in the National and State constitutions, has come down to us through the Petition of Rights, the Bill of Rights of 1688, and the Declaration of Independence, and it is but a branch of the constitutional principle, that the military shall in time of peace be in strict subordination to the civil power.2

Criminal Accusations.

Perhaps the most important protection to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony must be made by grand-jury, by bill of indictment; and this process is still retained in most of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State. The mode of trial, however, is the same in all; and this is a trial by jury, surrounded by certain safeguards which are understood to be a part of the system, and which the government cannot dispense with.

And first, the party must be presumed to be innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or changes the presumption of innocence into an adjudged fact.

If there was any mode short of confinement which would in all cases insure the attendance of the accused to answer the accusation, it would not be justifiable to submit him to that indignity, since the effect is to subject him to the punishment of a guilty person before it has yet been determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is apparent that such a sum of money, or an agreement by responsible

1 Lieber's Civil Liberty and Self-Government, ch. 11.

2 Story on the Constitution, §§ 1899, 1900; Rawle on Const. 126.

parties to pay it to the government in the event that the accused should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanors; one or more friends of the prisoner undertaking for his presence on trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he failed to appear. But in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the practice is much more merciful than it was formerly in England, there are some cases where it is deemed almost a matter of course, and in others where it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the proof of guilt is strong or the presumption great. Capital offences are not generally regarded as bailable; at least after indictment, or when the party is charged upon the finding of a coroner's jury;1 and this upon the supposition that one who may be subjected to the terrible punishment that would follow a conviction would not for any mere pecuniary considerations remain to abide the judgment.? And where the death penalty is abolished and imprisonment for life substituted, it is not doubted that the rule would notwithstanding be the same, and bail would still be denied in the case of the highest offences, except under very peculiar circumstances. In the case of other felonies, it is not usual to refuse bail, and in some of the State constitutions it has been deemed important to make it a matter of right in all cases except on capital charges, "when the proof is evident or the presumption great." 4

Wherever bail is allowed, unreasonable bail is not to be re

1 Matter of Barronet, 1 Ellis & Bl. 1; Ex parte Tayloe, 5 Cow. 39.

2 State v. Summons, 19 Ohio, 139.

United

Nevertheless, the court has the power to bail, even in capital cases. States v. Hamilton, 3 Dall. 18; State v. Rockafellow, 1 Halst. 332; Commonwealth v. Semmes, 11 Leigh, 665; People v. Smith, 1 Cal. 9; People v. Van Horne, 8 Barb. 158; United States v. Jones, 3 Wash. 224; Commonwealth v. Archer, 6 Grat. 705. In England, all felonies were once capital, but it was always discretionary with the courts to allow bail.

4

See, to this effect, provisions in the constitutions of Mississippi, Illinois, Kentucky, Missouri. And see Ex parte Wray, 30 Miss. 673; Moore v. State, 36 Miss. 137; Foley v. People, Breese, 31; Ullery v. Commonwealth, 8 B. Monr. 3; Shore v. State, 6 Mo. 640; Ex parte Banks, 28 Ala. 89; State v. Summons, 19 Ohio, 139.

quired; but the constitutional principle to this effect is one which, from the very nature of the case, can only be enforced by appeal to the judgment and sense of justice of the court or magistrate who is empowered to fix upon the amount. That bail is reasonable which, in view of the nature of the offence, the penalty which the law attaches to it, and the probabilities that guilt will be established on trial, seems sufficient to secure his attendance. This will depend somewhat upon the prisoner's circumstances; that which is reasonable bail to a man of wealth being equivalent to a denial of the right if exacted of a poor man charged with the like offence. When a court or magistrate requires more than the bail sufficient to secure attendance, and keeps the prisoner in confinement for failure to give it, the constitutional privileges of the accused are invaded, and his right in this particular set at naught; and it is but poor excuse for the act that the wrong is without remedy.

The presumption of innocence is an absolute protection against conviction and punishment, except either, first, on confession in open court; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, or refused to plead on being arraigned, a terrible mode was resorted to for the purpose of compelling him to do so, which might even end in his death, and this because without plea there could be neither trial nor judgment; but a more merciful proceeding is substituted, the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself.

It is again required that the trial be speedy; and here also the injunction is addressed to the justice and sound judgment of the court. In this country, where officers are specially appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression, which it is to be feared they do not always sufficiently appreciate and wield with due regard to the rights and protection of the accused. When a person charged with crime is willing to proceed at once to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary to secure the attendance of

1 4 Bl. Com. 325. Poor Giles Corey, accused of witchcraft, was, perhaps, the only person ever pressed to death for refusal to plead in America. 3 Bancroft, 93; 2 Hildreth, 160.

witnesses. Very much, however, must be left to the judgment of the prosecuting officer in these cases; and the court would not compel the government to proceed to trial at the first term after indictment or information filed, if the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time.1 But further delay would not generally be allowed without a more specific showing of the causes which prevent the State proceeding to trial, including the names of the witnesses, the steps taken to procure them, and the facts expected to be proved by them, in order that the court might judge of the reasonableness of the application, and that the prisoner might, if he saw fit to take that course, secure an immediate trial by admitting that the witnesses, if present, would swear to the facts which the prosecution have claimed could be proved by them.2

It is also requisite that the trial be public. By this it is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials, because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would demand the exclusion at least of the young from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a · public trial is for the benefit of the accused, that the public may see that he is fairly dealt by and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly met if, without partiality or favoritism, a reasonable proportion of the public is suffered to be present, notwithstanding those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.

1 Watts v. State, 26 Geo. 231.

The Habeas Corpus Act, 31 Ch. 2, c. 2, § 1, required a prisoner charged with crime to be released on bail, if not indicted the first term after their commitment, unless the king's witnesses could not be obtained, and that he should be brought to trial as early as the second term after commitment. The principles of this statute are considered as having been adopted into the American common law.