some

dresses itself to the discretion of the court. If the crime be great, and therefore the need of securing the prisoner for trial is great, the court may and usually do, affix the bail at a large sum, times a very large sum; although the effect of this may be to prevent the accused from obtaining bail. This is a very common result. We frequently read in the papers that this or that man, accused of burglary, or robbery, is ordered to find bail in a large amount, and in want thereof to be committed to jail; he then goes to jail, almost as a matter of course. This is not excessive bail. It must be remembered that the purpose of taking bail is not to bring money into the treasury, but to secure the presence of the accused when wanted. It sometimes happens that the accused runs away, leaving the bail to pay the sum for which they are bound; but this was not the object in fixing an amount for the bail; for this was to make it reasonably sure that the bail would produce the accused. This bail becomes excessive when it is out of all proportion to the magnitude of the offence, and is much more than enough to give reasonable assurance of the presence of the prisoner. If such bail be demanded, it is a common thing for the accused to apply, by his counsel, to a court having authority in the case, and ask them to reduce the bail; which they will do if good cause be shown.

SECTION IV.

EXCESSIVE FINES.

Imposing a fine is one method of punishing a criminal. History tells us that in England instances occurred repeatedly in which the government impoverished and crushed an obnoxious person by imposing a fine which took from him all his property. More than this, as a criminal, when fined, is ordered to be committed to jail until the fine be paid, had such a fine been imposed as it was impossible for him to pay, this was, in fact, a sentence to imprisonment without relief. It was to prevent such abuses as this that this clause was introduced into the English Bill of Rights, and copied into our constitution.

CRUEL AND UNUSUAL PUNISHMENT.

This, too, was one of the ways in which history tells us that an arbitrary government has gratified its vengeance against the objects of its wrath. It was well to place the clause in the constitution, as a perpetual reminder that such enormities must not be practised here. In this country all punishments are determined by

law; these are fine or imprisonment, with or without solitary confinement, and with or without hard labor; but the amount of the fine, and the length and character of the imprisonment, are determined by the statutes, within certain limits.

SECTION V.

BILL OF ATTAINDER.

In the constitution, immediately after the clause prohibiting the suspension of the writ of habeas corpus, there follows this clause: "No bill of attainder or ex post facto law shall be passed."

"Attainder" is an English law term, derived from Latin and French words, which signify to "stain" or "taint." It means, that one who was convicted of treason, or other great crime punishable by death, was tainted or corrupted in blood. The effect of which was a forfeiture of all his possessions, real or personal, and an incapacity of any heirs inheriting from him. In England, when any one holding a heritable title was attainted, this title was extinguished, and did not go to his descendants. A bill of attainder means an act passed by Parliament, by which, without a judicial trial, a person is convicted of some great crime, usually treason, which is punishable by death, with loss of all property. The objection to it was, that this extreme punishment was inflicted by a legislative body, and not after a trial in the law courts, and by due process of law. In the history of England this method was often resorted to for removing by death those who fell under the displeasure of the king or parliament. It was, of course, a tyrannical abuse; and because it was this, or so liable to become this, it was prohibited by the constitution.

Sometimes in England another kind of bill, called a "bill of pains and penalties," was passed to punish an obnoxious person; and it differed from the bill of attainder only in this, that it did not inflict the punishment of death. It has been solemnly adjudged that the prohibition in the constitution against a bill of attainder extends, in its force and meaning, to a bill of pains and penalties.

SECTION VI.

EX POST FACTO LAW.

The ninth section of the first article prohibits Congress from passing an ex post facto law; and the tenth section of the same article extends the prohibition to the several States. The literal

meaning of these Latin words, which were taken from Latin (or Roman) law, mean "from after the fact." It is an awkward phase, either in Latin or English. It may be defined thus: An ex post facto law is one which, being passed after an act is committed, makes that act punishable, although it was not punishable when committed; or makes it punishable in a different and severer manner from that in which it was punishable when committed. This definition shows of itself the reasonableness of the prohibition; for it is obvious to common sense that the plainest justice requires that a man should not be punished for violating a law which was not a law when he committed the act; and that if he violated an existing law, he should know or have it in his power to learn what penalty or punishment he took the risk of.

SECTION VII.

THE RIGHT TO ASSEMBLE AND PETITION GOVERNMENT.

The first article of the amendments to the constitution prohibits Congress from passing any law abridging the right of the people peaceably to assemble, and to petition the government for a redress of grievances. With this we close the list of the provisions of the constitution intended to secure to the people their rights.

It will be observed that there are here two rights secured: one is to assemble peaceably; the other is to petition the government. They need not go together. The people may assemble to discuss their grievances, and determine upon mutual consultation what remedies they will seek. If they do this peaceably, the assembly must not be prevented nor interfered with. And one or more of the people has the right to petition Congress, and ask for the redress of whatever seems to him or to them a grievance, with or without assembling with others for that purpose.

Both of these provisions were inserted in the constitution because history had taught our fathers that they were necessary. We exercise them continually, in any way we please, and no one thinks of preventing our doing so. We may, therefore, think that these rights belong to us naturally and necessarily, and wonder that the framers of the constitution thought it necessary thus solemnly to assert and secure them. But they knew how hard it had been to maintain the free exercise of these rights in England; and that the framers of the English Declaration of Rights, at the Revolution of 1688, inserted them in that declaration, because they knew that the denial or violation of these rights had been one of those manifesta

tions and instruments of tyranny which rendered that revolution necessary.

And Congress have perhaps yet to learn, unless they have already learned by experience, another thing about them. Congress would not attempt to enact a law preventing any persons from sending them a petition. This is made impossible, by the provision in the constitution. But it is possible for either House of Congress to treat a petition with disrespect and contumely, and in this way do what they can to prevent the exercise of this right, and to make it ineffectual.

It need not be said that this is a virtual breach of their duty to the constitution, and an actual disregard, if not of its words, yet of its principles, as certain as if they enacted a law in defiance of its express language. If, however, the history of this country shows that in a time of excessive party excitement such an abuse was possible, it shows also that, if firm and brave men resist it stubbornly, they will surely defeat it. It may well be hoped that whatever has been seen of a disregard of this constitutional provision in times past, carried with it a lesson which will prevent a repetition of the offence.

SECTION VIII.

IMPAIRING THE OBLIGATION OF CONTRACTS.

We add this topic to this section, although it belongs rather to the protection afforded by the constitution to the rights of property. The section of the constitution last quoted declares that no State shall pass "any law impairing the obligation of contracts."

The wisdom and justice of this prohibition are obvious. Every man acts, or should act, under the law; and whenever he does anything in conformity with the law, he has a perfect right to trust to the law to support him in what he has done. If he makes a contract with his neighbor, he has a right to believe that the law will secure to each of them the rights that either party acquires by the contract; and will enforce upon each of them the obligations imposed upon either party by the contract. If, now, a State has the power to interfere, and declare that contract void, and annul or change its obligations, it is plain that the whole business of the community would be at the mercy of legislators; and all who did business of any kind would work in the dark, and be wholly uncertain whether what they were doing would have any force or effect.

Repeatedly have our citizens invoked this provision for their protection, and found it efficacious to secure their rights; and many

and very various are the questions which have arisen under this provision. We cannot here give an account of them, for it would occupy a large part of the volume. But some things we may say, to show how this provision works.

It is held that an act of incorporation is a charter between the State and the stockholders. Therefore, if a charter for a bridge declares that no other bridge shall be built within a certain distance, a law authorizing another bridge to be built within that distance is held by the courts to be unconstitutional, and therefore void.

If a bank be chartered with certain powers, an act taking away or interfering with those powers, or impairing them to the injury of the stockholders, is unconstitutional and void.

A grant of land by a State, and a compact between two States, are such contracts, and cannot be subsequently interfered with, unless by consent. But an act creating a salaried office is not such a contract that it cannot be repealed; but the salary due before any change in the law must be paid in the terms of the law.

CHAPTER III.

THE RIGHT TO FREEDOM OF SPEECH AND OF WRITING.

The same article of the constitution from which we last quoted provides that Congress "shall make no law abridging the freedom of speech or of the press." Here again we see that this provision applies only to the laws of Congress; but similar provisions are made by law in the other States, and in some of them by their constitutions. The effect of these provisions is, that every man may have a right to speak, write, and publish his opinions upon any subject whatever, without the need of any prior license or permission, and without any prior restraint. Nevertheless, every man both speaks and publishes upon his own responsibility; for it is possible to do a grievous wrong to another, in his rights, his peace, his property, and his reputation, by a wrongful speaking or publishing. He who commits this offence is punishable therefor, according to the character of his offence, either by indictment, as for a wrong committed against the public; or by an action, as for a wrong committed against an individual. This offence of wrongful speaking or publishing to the injury of the community or of a person is either a