forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon. It has been but recently decided in England, that although a house may have been unlawfully erected on a common, and every injured commoner may pull it down, he is nevertheless not justified in doing so if there are actually people in it.

There have been nations, indeed, enjoying a high degree of liberty, without this law maxim; but the question in this place is even less about the decided advantages, arising to freemen from the existence of this principle, than about the sturdiness of the law and its independent development, that could evolve and establish this bold maxim. It must be a manly race of freedomloving people, whose own common law could deposit such fruitful soil. For, it must be observed, that this sterling maxim was not established, and is not maintained by a sejunctive or a law-defying race. The Mainots considered their Lacedæmonian mountain fastnesses as their castles too, during the whole Turkish reign in Greece; the feudal baron braved authority and law in his castle; but the English maxim was settled by a highly conjunctive, a nationalized people, and at the same time when law and general government extended more and more over the land. It is insisted on in the most crowded city the world has ever seen, with the same jealousy as in a lonely mountain dwelling; it is carried out, not by retainers and in a state of war made permanent, but by the law, which itself has given birth to it. The law itself says: Be a man,-thou shalt be sovereign in thy house. It is this spirit which brought forth the maxim, and the spirit which it necessarily nourishes, that makes it important.

It is its direct antagonism to a mere police government, its bold acknowledgment of individual security opposite to government, it is its close relationship to selfgovernment, which give so much dignity to this guarantee. To see its value, we need only throw a glance at the continental police; how it enters at night or in the day any house or room, breaks open any drawer, seizes papers or anything it deems fit, without any other warrant than the police hat, coat and button.

Nor must we believe that the maxim is preserved as a constitutional rarity, and not as a living principle. As late as the month of June, 1853, a bill was before the House of Commons, proposing some guarantee against property of nuns and monks being too easily withdrawn from relations, and that certain officers should have the right to enter nunneries from eight A.M. to eight o'clock P.M., provided that they had strong suspicion that an inmate was retained against her will. The leading minister of the crown in the Commons, Lord John Russell, opposed the bill, and said: "Pass this bill, and where will be the boasted safety of our houses? It would establish general tyranny."

The prohibition of" general warrants." The warrant is the paper which justifies the arresting person to commit so grave an act as depriving a citizen, or alien, of personal liberty. It is important, therefore, to know who has the right to issue such warrants, against whom it may be done, and how it must be done, in order to protect the individual against arbitrary police measures. The Anglican race has been so exact and minute regarding this subject, that the whole theory of the warrant may be said to be peculiarly Anglican, and a great self-grown institution. "A warrant," the books say, "to deprive a citizen of his personal liberty should be in writing, and ought to show the

authority of the person who makes it, the act which is authorized to be done, the name or description of the party who is authorized to execute it, and of the party against whom it is made; and, in criminal cases, the grounds upon which it is made.' which it is made." The warrant should name the person against whom it is directed; if it does not, it is called a general warrant, and Anglican liberty does not allow it. Where it is allowed there is police government, but not the government of real freemen. It is necessary that the person who executes the warrant be named in it, otherwise the injured citizen, in case of illegal arrest, would not know whom he should make responsible; but if the person be named, he is answerable, according to the Anglican principle that every officer remains answerable for the legality of all his acts, no matter who directed them to be done. Indeed, we may say the special warrant is a death-blow to police government.

The constitution of the United States demands that "no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, &c." +

The warrant is held to be so important an element of civil liberty, that a defective warrant is considered by the common law of England and America one of the reasons which reduce the killing of an officer from murder to

3 A warrant to apprehend all persons suspected, or all persons guilty, &c. &c. is illegal. The person against whom the warrant runs ought to be pointed out. The law on this momentous subject was laid down by Lord Mansfield in the case of Money v. Leach, 3 Bur. 1742, where the "general warrant" which had been in use since the revolution, directing the officers to apprehend the "authors, printers, and publishers" of the famous No. 45 of the North Briton, was held to be illegal and void.

The reader will find a copy of the "Constitution of the United States" in the Appendix.

manslaughter. The reader will see this from the following passage, which I copy from a work of high authority both here and in England. I give the passage entire, because it relates wholly to individual liberty, and I shall have to recur to it. The learned jurist says:

5

Though the killing of an officer of justice, while in the regular execution of his duty, knowing him to be an officer, and with intent to resist him in such exercise of duty, is murder,-the law in that case implying malice, -yet where the process is defective or illegal, or is executed in an illegal manner, the killing is only manslaughter, unless circumstances appear to show express malice, and then it is murder. Thus the killing will be reduced to manslaughter, if it be shown in evidence that it was done in the act of protecting the slayer against an arrest by an officer acting beyond the limits of his precinct; or by an assistant, not in the presence of the officer; or by virtue of a warrant essentially defective in describing 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 misdemeanour 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

5 This is § 123 of Vol. III. of Dr. Greenleaf on Evidence, which I have copied by the permission of my esteemed and distinguished friend. I have left out all the legal references. The professional lawyer is acquainted with the book, and the references would be important to him alone.

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 the Second, 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 It allows of no "administrative arrests," as extra-judicial 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 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 attempts to secure them had failed; and the act may be considered as the ultimate result of a long struggle between law and individual on the one hand, and power on the other. The history of this act is interesting and symptomatic.6

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: "The establishment of the writ of habeas corpus,

The Appendix contains the Habeas Corpus Act. 7 Paper, No. LXXXIV.

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