to have been unfounded.1 But if he exceed the command [* 308] by * searching in places not described therein, or by seizing persons or 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.2 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."

In other cases than those to which we have referred, and subject to the general police power of the State, the law favors the complete and undisturbed dominion of every man over his own premises, and protects him therein with such jealousy that he may defend his possession 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.4

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

Barnard v. Bartlett, 10 Cush. 501.

2 Crozier v. Cudney, 9 D. & R. 224; Same case, 6 B. & C. 232; State v. Brennan's Liquors, 25 Conn. 278.

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

That in defence of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193; Yates v. People, 32 N. Y. 509; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 Ill. 241; Bohannan v. Commonwealth, Bush, 481; s. c. 8 Am. Rep. 474. But except where a forcible felony is attempted against person or property, he should avoid such consequences if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396. But a man assaulted in his dwelling is under no obligation to retreat; his house is his castle, which he may defend to any extremity. And this means not simply the dwelling-house proper, but includes whatever is within the curtilage as understood at the common law. Pond . People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a person must act upon the circumstances as they appear to him at the time; and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed in defence was excessive See the cases above cited. Also Schiner v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314; Henton v. State, 24 Texas, 454.

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 the 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 the 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 instru

*

ment of punishment, and with whom insult and outrage [* 309] may appear quite in the line of his duty. However con

trary to the spirit of the age such a proceeding may be, it may always be assumed as possible that it may be resorted to in times of great excitement, when party action is generally violent; and "the dragonades of Louis XIV. in France, of James II. in Scotland, and those of more recent and present date in certain countries, furnish sufficient justification of this specific guaranty." The clause, as we find it in the national and State constitutions, has come down to us through the Petition of Right, 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.3

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

3

Lieber, Civil Liberty and Self-Government, c. 11.

Story on the Constitution, §§ 1899, 1900; Rawle on Constitution, 126. In exceptional cases, however, martial law may be declared and enforced, whenever the ordinary legal authorities are unable to maintain the public peace, and suppress violence and outrage. Todd, Parliamentary Government in England, Vol. I. p. 342; 1 Bl. Com. 413-415. As to martial law in general, see Ex parte Milligan, 4 Wall. 129.

[351]

Criminal Accusations.

Perhaps the most important of the protections 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 were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safeguards which are a well understood part of the system, and which the government cannot dispense with.

First, we may mention that the humanity of our law always presumes an accused party 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 converts the presumption of innocence into an adjudged fact.2

If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet

The indictment, to accomplish the purpose of the constitutional requirement, should set out the material facts charged against the accused. State v. O'Flaherty, 7 Nev. 153. This, however, would not preclude the legislature from establishing forms, provided they furnished such reasonable information as would apprize the accused of the charge he was to meet.

2 It is sometimes claimed that where insanity is set up as a defence in a criminal case, the defendant takes upon himself the burden of proof to establish it, and that he must make it out beyond a reasonable doubt. For recent cases taking this view, see State v. Felton, 32 Iowa, 49; McKenzie v. State. 42 Geo. 334; Boswell v. Commonwealth, 20 Grat. 860. Other well-considered cases do not support this view. The burden of proof, it is held, rests throughout upon the prosecution to establish all the conditions of guilt; and the presumption of innocence that all the while attends the prisoner entitles him to an acquittal, if the jury are not reasonably satisfied of his guilt. A reasonable doubt of his capacity to commit the crime as justly entitles him to an acquittal, as a reasonable doubt on any other branch of the case. See State v. Marler, 2 Ala. 43; People v. McCann, 16 N. Y. 58; Commonwealth v. Kimball, 24 Pick. 373; Commonwealth v. Dana, 2 Met. 340; Hopps v. People, 31 Ill. 385; People v. Garbutt, 17 Mich. 23; State v. Klinger, 43 Mo. 127; State v. Hundley, 46 Mo. 414.

If

it is not determined that he has committed any crime. the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible *parties to pay it to the government in case the accused [* 310] 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 misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. 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 criminal code is much more merciful than it formerly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence 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 by the finding of a coroner's jury; 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 believed that the rule would be the same notwithstanding this change, and bail would still be denied in the case of the highest offences, except under very peculiar circumstances.3 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

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

2 State v. Summons, 19 Ohio, 139.

3 The courts have power to bail, even in capital cases. Hamilton, 3 Dall. 18; United States v. Jones, 3 Wash. 224;

United States v. State v. Rockafel

low, 1 Halst. 332; Commonwealth v. Semmes, 11 Leigh, 665; Commonwealth v. Archer, 6 Grat. 705; People v. Smith, 1 Cal. 9; People v. Van Horne, 8 Barb. 158. In England, when all felonies were capital, it was discretionary with the courts to allow bail before trial. 4 Bl. Com. 297, and note.

4 The Constitutions of a majority of the States now contain provisions to

*

When bail is allowed, unreasonable bail is not to be re[* 311] quired; but the constitutional principle that demands this is one which, from the very nature of the case, addresses itself exclusively to the judicial discretion and sense of justice of the court or magistrate 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 the trial, seems no more than sufficient to secure the party's attendance. In determining this, some regard should be had to the prisoner's pecuniary circumstances; that which is reasonable bail to a man of wealth, being equivalent to a denial of right if exacted of a poor man charged with the like offence. When the court or magistrate requires greater security than in his judgment is needful to secure attendance, and keeps the prisoner in confinement for failure to give it, it is plain that the right to bail which the constitution attempts so carefully to secure has been disregarded; and though the wrong is one for which, in the nature of the case, no remedy exists, the violation of constitutional privilege is aggravated, instead of being diminished, by that circumstance.1

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, and refused to plead, a terrible mode was resorted to for the purpose of compelling him to do so; and this might even end in his death: 2 but a more merciful proceeding is

this effect. And see Foley v. People, Breese, 31; Ullery v. Commonwealth, 8 B. Monr. 3; Shore v. State, 6 Mo. 640; State v. Summons, 19 Ohio, 139; Ex parte Wray, 30 Miss. 673; Moore v. State, 36 Miss. 137; Ex parte Banks, 28 Ala. 89.

1 The magistrate in taking bail exercises an authority essentially judicial. Regina v. Badger, 4 Q. B. 468; Linford v. Fitzroy, 13 Q. B. 240. As to his duty to look into the nature of the charge and the evidence to sustain it, see Barronet's Case, 1 El. & Bl. 1.

2 4 Bl. Com. 324. In treason, petit felony, and misdemeanors, wilfully standing mute was equivalent to a conviction, and the same punishment might be imposed; but in other cases there could be no trial or judgment without plea; and an accused party might therefore sometimes stand mute and suffer himself to be pressed to death, in order to save his property from forfeiture. Poor Giles Corey, accused of witchcraft, was perhaps the only person ever pressed to death