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chapter vii.: bail.—penal trial. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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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,1 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 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 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 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.”1 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.”2
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 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.1 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.
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);1 there must be 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, and, 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;1 especially no punitory imprisonment of a sort that 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;2 that nothing but what the law demands or allows to be inflicted,3 and that all that the law demands be inflicted—no arbitrary injudicious pardoning, which is a direct interference with the true government of law.
The subject of pardoning is so important, especially in our country, that I have deemed it advisable to add a paper on pardoning, which the reader will find in the Appendix.
Perhaps there are no points so important in the penal trial in a free country, as the principle that no one shall be held to incriminate himself, that the indictment as well as the verdict must be definite and clear, and that no hearsay evidence be admitted. Certainly none are more essential.
A great lawyer and excellent man, Sir Samuel Romilly, justly says, that if the ascertaining of truth and meting out of justice is the object of the trial, no possible objection can be taken against it on principle. But there is this difficulty, that if judges themselves question, they become deeply interested in the success of their own cross-examinations, they become biased against the prisoner, should he thwart them, or turn questions into ridicule. Romilly makes this remark after having actually seen this result in France, where it is always done, (witness Mad. Lafarge's trial, or any French trial of importance,) and certainly often with success.1 Or let us observe English prosecutions some centuries back.
In the inquisitorial process, it is not only done, but the process depends upon the questioning of the prisoner.
There are other dangers connected with it. An accused man cannot feel that perfect equanimity of mind which alone might secure his answers against suspicion. I know from personal experience how galling, it is to see your most candid answers rewarded with suspicions and renewed questions, if the subject is such that you cannot possibly at once clear up all doubts. It ought never to be forgotten that the accused person labors under considerable disadvantages, merely from the fact that he is accused. Bullying and oppressive judges were common in England when the principle was not yet settled that no one shall be held to incriminate himself. The times of the Stuarts furnish us with many instances of altercations in the court, between the judge and the prisoner, and of judicial browbeating, to the detriment of all justice.
The trial of Elizabeth Gaunt, the aged and deaf Baptist woman, who had given a night's rest under her roof to a soldier of Monmouth's dispersed army, under Chief-Justice Jones,2 and was convicted of treason on the sole testimony of the wretch whom she sheltered that she had knowledge of his being a rebel, may serve as an instance.
It is, among other reasons, for this very fact of prisoners on trial being asked by the French judge about the fact at issue, his whereabouts at the time, his previous life, and a number of things which throw suspicion on the prisoner, although unconnected with the question at issue, that Mr. Bèranger says, in a work of just repute:” We, “that is, the French,” have contented ourselves to place a magnificent frontispiece before the ruins of despotism; a deceiving monument, whose aspect seduces, but which makes one freeze with horror when entered Under liberal appearances, with pompous words of juries public debates, judicial independence, individual liberty, we are slowly led to the abuse of all these things, and the disregard of all rights; an iron rod is used with us, instead of the staff of justice.”1
There are peculiar reasons against examining the prisoner in public trials, and many peculiar to the secret trial Although it cannot be denied, that often the questioning of the prisoner may shorten the trial and lead to condign conviction, which otherwise may not be the result, it is nevertheless right that most, perhaps all our state constitutions have adopted this principle. It is just; it is dignified; it is fair. The government prosecutes; then let it prove what it charges. So soon as this principle is discarded, we fall into the dire error of throwing the burden of proving innocence wholly or partially on the prisoner; while, on the contrary, all the burden ought to lie on the government, with all its power, to prove the charged facts. Proving an offence and fastening it on the offender, is one important point in the penal trial; but the method how it is done is of equal importance. The Turkish cadi acknowledges the first point only; yet what I have stated is not only true with reference to the jural society, it is even true in the family and the school.
It is an interesting fact for the political philosopher that, while the Anglican race thus insists on the principle of nonself-incrimination, the whole Chinese code for that people under a systematic mandarinism is pervaded even by the principle of self-accusation for all, but especially for the mandarins.
The principle that on government lies the burden of proving the guilt, leads consistently to the other principle, that the verdict must be definite and absolute. Hence these two important facts: The verdict must be guilty or not guilty, and no absolutio ab instantia, as it is called in some countries of the European continent; that is to say, no verdict or decision which says, According to the present trial we cannot find you guilty, but there is strong suspicion, and we may take you up another time;1 nor any “not proven,” as the Scottish trial admits of, ought to be permitted. “Not proven,” does not indeed allow a second trial, but it expresses: You are free, although we have very strong suspicion. Secondly, the main principle leads to the fact that no man ought to be tried twice for the same offence. This is logical, and is necessary for the security of the individual. A person might otherwise be harassed by the government until ruined. Repeated trials for charges which the government knows very well to be unfounded, are a common means resorted to by despotic executives. Frequently such procedures have led the persecuted individual to compound with government rather than lose all his substance.
The Anglican race, therefore, justly makes it an elementary principle of its constitutional law, that “no man shall be tried twice for the same offence.”
I have said that a fair trial for freemen requires that the preparatory steps for the trial be as little vexatious as possible. They must also acknowledge the principle of non-incrimination. This is disregarded on the whole of the European continent. The free range of police power, the mean tricks resorted to by the “instructing” judge or officer, before the trial, in order to bring the prisoner to confession, are almost inconceivable,1 and they are the worse, because applied before the trial, when the prisoner is not surrounded by those protections which the trial itself grants. With reference to this point, and in order to modify what I have stated regarding Greek penal trials, I wish to mention the interesting fact that “the prosecutor, in Athens, who failed to make good his charge, incurred certain penalties, unless he obtained at least one-fifth of the votes in his favor. In public suits, he forfeited one thousand drachmae to the state, and could never again institute a similar suit. The same punishment was incurred if he declined to proceed with the case. In private suits, he paid the defendant one-sixth of the amount of the disputed property, as a compensation for the inconvenience he had suffered in person or character.”2
Sir Samuel Romilly had the intention of proposing, in a similar spirit, a bill by which an acquitted prisoner, having been prosecuted for felony, should be compensated by the county, at the discretion of the court, for loss of time and the many evils endured. Indeed, he thought that far more ought to be done.3 Leave was given to bring in the compensation bill, but it was afterwards withdrawn. It is evident that the great difficulty would lie in the fact that the discretion of the judge would establish at once a distinction between the verdicts, similar to that produced by the Scottish “not guilty” and “not proven.” To compensate, however, all acquitted persons would be very mischievous, if we consider how many persons are acquitted who nevertheless are guilty. Indeed, it might well be asked whether the fear of burdening the county with the payment of the compensation would not, in some cases, induce the jury to find more easily a verdict of guilty.
The professional reader may think that I have not sufficiently dwelt upon some essential points of a sound penal trial, for instance, on publicity, or the independence of counsel. He will find, however, that these subjects are treated of in other parts of this work, to which it was necessary to refer them.
[1.]I William and Mary, stat, ii, c. 2.
[1.]Esprit des Lois, xit. 2; “Of the Liberty of the Citizen.”
[2.]This comprehensive and excellent work was published in Germany, Erlangen, 1851.
[1.][I.e., in cases of felony no counsel was allowed, unless upon collateral facts, or some point of law; and so in cases of petty larceny. But when a peison was indicted for high treason, he had, as early as 7 Wm. III., the privilege of counsel, which was granted also to persons impeached for the same crime by a statute of 20 Geo. III. In 1836, by statute of 6 and 7 Wm. IV., this privilege was granted in trials for felony. See Blackst., iv., chap. 27, p. 355, and May, u. s., ii. 558.] 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.
[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 right plain to every one as soon as once pronounced, but power acknowledges it at a late period only, and always has a tendency to depart from it, whether this power be a monaich 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 nevet to return to their domicile, are instances in point.
[1.]The idea expressed by Dr. Paley regarding this point is revolting. He says, in his Political Philosophy, that we may choose between two systems, the one with fair punishments always applied, the other with very severe punishments occasionally applied. He thus degiades 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.
[2.]Lieber's Popular Essay on Subjects of Penal Law, and on Uninterrupted Solitary Confinement at Labor, etc.; Philadelphia, 1838. I have there treated of this all-important subject at some length.
[3.]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.
[1.]Sir Samuel Romilly's Memoirs, vol i. p. 315, 2d ed., London, 1840.
[2.]Phillipps's State Trials, vol ii. 214, et seq., and, indeed, in many parts of the work.
[1.]Beranger, De la Justice Criminelle de France, Paris, 1818, page 2.
[1.]The reader will find in Appendix III. a paper on the subject of some continental trials, and the admission of half and quarter proof and proportional punishment
[1.]This may be amply seen in the reports on Fiench trials, and, among other works, in Feuerbach's Collection of Geiman Criminal Trials.
[2.]See K. F. Hermann, Gr. Staatsalterth., § 144.
[3.]Memoirs of the Life of Sir Samuel Romilly, 2d ed., London, 1840, vol. ii P. 235. Strangely enough, there is an English law, 25 George II., ch. 36, accord ing to which prosecutors are to have the expenses of their prosecution reim bursed, and a compensation afforded them for their trouble and loss of time. This is evidently to induce people freely to prosecute; but no guarantee is given on the other hand against undue prosecution, and a compensation for the trouble and loss of time of the acquitted person.