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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"

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

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 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,

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 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 key-stone of a nation's public law."

This passage of the German criminalist expresses the truth. more accurately than the quoted dictum of 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

1 Esprit des Lois, xii. 2; "Of the Liberty of the Citizen."

2 This comprehensive and excellent work was published in Germany, Erlangen, 1851.

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 trial in the Netherlands was imperfect, 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 logic.

1 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 has been discontinued again of late I do not know. Nor can it be of very great importance in a country in which the state of siege" and martial law seem to be almost permanent.

The reason of this apparent inconsistency is that, in most cases, penal trials affect 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 fact that the civil law is far more varied and complicated, consequently more attractive to a judicial mind, that the civil cases are far more remunerative, and form the large bulk of the administration of justice. 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 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, 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: The person to be tried must be present, (and of course, living;)' 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

1 Penal trials of absent persons are common in countries where the principles of the Roman law prevail. They are common in France; and the church has even tried deceased persons for heresy, found them guilty, and confiscated the property which had belonged to the heretic. The presence of the indicted person at his trial, is a principle plain to every one so soon as once pronounced, but power acknowledges it at a late period only, and always has a tendency to return to it, whether this power be a monarch or his government, or an impassioned populace. Several of the almost solemn procedures of lynch law which have occurred of late in some of our western states, and according to which absent persons were warned never to return to their domicile, are instances in point.

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