3

tution did not assign the trial for treason to the senate, as the former French constitution appointed the house of peers to be the court for high treason. American impeachments are tried, indeed, by the senate; but it will be observed that the American trial of impeachment is not a penal trial for offences, but a political institution, trying for political capacity. The senate, when sitting as a court to try impeachment, can only remove from office, whatever the crime may have been; and the impeached person can be penally tried after the senate has removed him from office. In its political character, then, but in no other point, the American impeachment resembles the Athenian ostracism, which was likewise a political and not a penal institution. The English impeachment is a penal trial.

The trials for treason going on in many countries of the European Continent, especially in Naples and the Austrian dominions, are fair illustrations ex converso of what has been stated here.1

The trial for treason has been treated of in this place, because naturally connected with the subject of the penal trial in general; otherwise it would have been more properly enumerated among the guarantees connected more especially with the general government of a free country. We return, therefore, once more to the guarantees of individual rights."

3 All the American trials for treason are collected in Francis Wharton's State Trials of the United States. Philadelphia, 1846.

The reader is probably acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan Trials for Treason, published in 1851. It is but a sample.

I would mention for the younger student that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief progresses and reverses. They are very suggestive, and strikingly show what we owe to the continuity of human society. None of these tables has been more instructive to me than that on the history of the law of treason.

CHAPTER IX.

COMMUNION. LOCOMOTION. EMIGRATION.

6. THE freedom of communion is one of the most precious and necessary rights of the individual, and one of the indispensable elements of all advancing humanity-so much so, indeed, that it is one of those elements of liberty which would have never been singled out, had not experience shown that it forms invariably one of the first objects of attack, when arbitrary power wishes to establish itself, and one of the first objects of conquest, when an unfree people declares itself free.

I have dwelt on the primordial right of communion in the Political Ethics at great length, and endeavoured to show that the question is not whether free communion or a fettered press be conducive to more good, but that everything in the individual and in nations. depends in a great measure upon communion, and that free communion is a pre-existing condition. The only question is, how to select the best government with it, and shielding it, unless, indeed, we were speaking of tribes in a state of tutelage, ruled over by some highly advanced nation.

In this place we only enumerate freedom of communion, as one of the primary elements of civil liberty. It is an element of all civil liberty. No one can imagine himself free if his communion with his fellows

is interrupted or submitted to surveillance; but it is the Anglican race which first established it on a large scale, broadly and nationally acknowledged.

Free nations demand and guarantee free communion of speech, the right of assembling and publicly speaking; for it is communion of speech in this form which is peculiarly exposed to abridgment or suppression by the public power. They guarantee the liberty of the press, and, lastly, the sacredness of epistolary communion.

It is a very striking fact that, although the constitution of the United States distinctly declares that the government of the United States shall only have the power and authority positively granted in that instrument, so that, in a certain respect, it was unnecessary to say what the government should not have the right to do, still, in the very first article of the Additions and Amendments of the Constitution, Congress is forbidden to make any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

The reader will keep in mind that the framers of our constitution went out of their way and preferred to appear inconsistent, rather than omit the enumeration of those important liberties, that of conscience, as it is generally called, that of communion, and of petitioning; and the reader will remember, moreover, that these rights were added as amendments. They must then have appeared very important to those who made our constitution, both on account of their intrinsic importance, and because so often attacked by the powerholders. Let the reader also remember, that if it be thus important to abridge the power of government to

interfere with free communion, it is at least equally important that no person or number of men interfere, in any manner, with this sacred right. Oppression does not come from government or official bodies alone. The worst oppression is of a social character, or by a multitude.

The English have established the right of communion, as so many other precious rights by common. law, by decisions, by struggles, by revolution. All the guarantee they have for the unstinted enjoyment of the right lies in the fact that the whole nation says with one accord, as it were, Let them try to take it away.

It is the same with our epistolary communion. The right of freely corresponding is unquestionably one of the dearest as well as most necessary of civilized man; yet our forefathers were so little acquainted with a police government, that no one thought of enumerating the sacredness of letters along with the freedom of speech and the liberty of the press. The liberty of correspondence stands between the two-free word, free letter, free print. The framers did not think of it, as the first lawmakers of Rome are said to have omitted the punishment of parricide. Yet we, too, say, Let any one try to infringe the sacredness of letters.

In all the late struggles for liberty on the Continent of Europe, the sacredness of letters was insisted upon, not from abstract notions, but for the very practical reason that governments had been in the habit of disregarding it. Of course, they now do so again. The English parliament took umbrage, a few years ago, at the liberty a minister had taken of ordering the opening of letters of certain political exiles residing in England; and although he stated that it had been the habit of all administrations to order it under certain circumstances,

he promised to abstain in future. In the United States there is no process or means known to us, not even by writ of a court, we believe, by which a letter could be extracted from the post-office, except by him to whom it is addressed; and as to the executive unduly opening letters, it would be cause for instant impeachment.

Quite recently, in the month of April, 1853, it appeared in the prosecution of several persons of distinction at Paris, for giving wrong and injurious news to foreign papers, that their letters had not only been opened at the post-office, but that the originals had been kept back, and copies had been sent to the recipients, with a postscript, written by the government officer, for the purpose of fraudulently explaining the different handwriting. It stated that the correspondent had a sore hand. When the counsel for the accused said that the falsifying officer ought to be on the bench of the accused, the court justified the prefect of the police, on the ground of tr reasons of state." No commentary is necessary on such self-vilification of governments; but this may added, that these outrages were committed even without a formal warrant from any one, but on the sole command of the police. Are we, then, wrong in calling such governments police governments? It is not from a desire to stigmatize these governments; it is on account of the prevailing principle, and the stigma is a natural consequence of this principle.'

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1 In the decision of the appellate court in the same case, we find this to be the chief argument, that government establishes post-offices, and cannot be expected to lend its hand to the promotion of mischief, by carrying letters of evil doers. This is totally fallacious. Government does not establish post-offices, but society establishes them, though it may be through government.

If it did, it is not a benefit done by a second party, as when A makes a present to B, but government is simply and purely an agent; and, what is more, the right of establishing post-offices is not an inherent attribute of