conclusive and satisfactory, as to be above contradiction or doubt. But who can say, whether it be in any case so high, until all the proofs in favor, as well as against, the party have been heard? Witnesses for the government may swear falsely, and directly to the matter in charge; and, until opposing testimony is heard, there may not be the slightest ground to doubt its truth; and yet, when such is heard, it may be incontestable, that it is wholly unworthy of belief. The real fact seems to be, that the practice was early adopted into the criminal law in capital cases, in which the crown was supposed to take a peculiar interest, in base subserviency to the wishes of the latter. It is a reproach to the criminal jurisprudence of England, which the State trials, antecedently to the revolution of 1688, but too strongly sustain. They are crimsoned with the blood of persons, who were condemned to death, not only against law, but against the clearest rules of evidence.

§ 397. Another anomaly in the common law, is, that in capital cases, the prisoner is not, upon his trial upon the general issue, entitled to have counsel, unless some matter of law shall arise, proper to be debated. That is, in other words, that he shall not have the benefit of the talents and assistance of counsel in examining the witnesses or making his defence before the jury. Mr. Justice Blackstone, with all his habitual reverence for the institutions of English jurisprudence, as they actually exist, speaks out upon this subject with the free spirit of a patriot and a jurist. This (he says) is "a rule, which, however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see, that the proceedings against him are legal, and strictly regular, seems to be not all of a piece with the rest of the humane treatment of prisoners by the English law. For, upon what face of reason, can that assistance be denied to save the life of a man, which is yet allowed him in prosecu tions for every petty trespass." The defect has indeed been cured in England in cases of treason; but it remain ed unprovided for in all other cases, to, what one can

hardly help deeming, the discredit of the free genius of the English Constitution, until a very recent period.

§ 398. The wisdom of both of these provisions is, therefore, manifest, since they make matter of constitutional right, what the common law had left in a most imperfect and questionable state. The right to have witnesses sworn, and counsel employed for the prisoner, are scarcely less important privileges, than the right of a trial by jury. The omission of them in the Constitution is a matter of surprise; and their present incorporation into it is matter of honest congratulation among all the friends of rational liberty.

"The

§ 399. We may bring also into view, in this place, two other amendments of the Constitution, connected with the subject of crimes. One is designed to guard the citizens from unreasonable and illegal searches of their persons, houses, papers, and effects, without probable cause of the commission of any offence; the other is, to prevent Congress, as well as the courts, from inflicting excessive and cruel punishments. The first is ; right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. And no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.” A warrant is a writ, or process under seal, issued by some court or magistrate, for the arrest of a person, who is accused on oath of some public offence or misdemeanor, requiring the officer, to whom it is directed, to arrest the offender, and to bring him before the court or magistrate, to answer for the offence, and otherwise to be dealt with according to law. Sometimes such warrants include, not only an authority to arrest the person, but also, in cases where the accusation is for stealing goods, authority to search the dwelling house, or other place of abode, of the party, for the stolen goods, and hence the latter are commonly called search-warrants. Formerly, search-war rants, in a general form, were issued from the State De partment in England, authorizing officers to search houses

and persons, without naming any persons or places in pa ticular, so that, under color of such warrants, every man's house in the kingdom might, at the mere discretion of such officers, be searched, without any ground of accusation. Such warrants were, however, held illegal by the courts of justice in England. And this amendment not only pronounces them illegal; but prohibits Congress from passing any laws to give them effect.

§ 400. The second amendment is ; "Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted." This amendment may, at first sight, be thought superfluous. It is, however, an exact transcript of a clause in the Bill of Rights, passed and ratified in the great Revolution of 1688, in England. It was thought, at that time, to be a most important constitutional provision for the security of the people against the wilful oppression of their rulers. The history of former ages had, indeed, taught the people the necessity of some such guards against the vindictiveness and the cruelty of the supple dependents of the Crown. In the arbitrary reigns of some of the princes of the house of Stuart, demands had often been made of excessive bail against persons, who were odious to the Court or its favorites; and on failing to procure such bail, (as often occurred,) they were committed to prison, and remained there for long periods, and always during the pleasure of the Crown. Enormous fines and assessments were also sometimes imposed by judges and magistrates, and cruel and vindictive punishments were inflicted, with a view to gratify the resentments of the prosecutors, or to subdue the unhappy victims to the will of their oppressors The provision may now seem to be unnecessary, under our free Constitution, since it may be thought scarcely possible, that any department of our Government should authorize or justify such atrocious conduct. But the clause holds out a wise admonition to all departments of the National Government, to warn them against such violent proceedings, and to instruct them in the duties of clemency and moderation. A barrier is thus interposed against the use of those vindictive and atrocious punish

ments, which in former ages have disgraced the annals of many nations.

§ 401. The third section of the third article, contains the definitic n of treason, a crime, which is very apt to rouse public resentment, and, in times of party and political excitement, to be extended by construction to embrace acts of very slight misconduct, and even of an innocent character. Free governments, as well as despotic governments, have too often been guilty of the most outrageous injustice to their own citizens and subjects, upon accusations of this sort. They have been ready to accuse, upon the most unsatisfactory evidence, and to convict, upon the most slender proofs, some of their most distinguished and virtuous statesmen, as well as persons of inferior character. They have inflamed into the criminality of treason acts of just resistance to tyranny; and tortured a manly freedom of opinion into designs subversive of the government. To guard against the recurrence of these evils, the Constitution has declared, "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. "The Congress shall have power to declare the punishment of treason. But no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.'

§ 402. Treason is generally deemed the highest crime, which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance of its powers by force. Its tendency is to create universal danger and alarm; and on this account, it is peculiarly odious, and often visited with the deepest public resentment. Even a charge of this nature, made against an individual, is deemed so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in times of high political excitement, acts of a very subordinate nature are often, by popular prejudices, as well as by royal resentment, magnified into this fatal enorinity. It is, therefore, of very great importance, that its true

nature and limits should be exactly ascertained; and Montesquieu was so sensible of it, that he has not scrupled to declare, that if the crime of treason be indeterminate, that alone is sufficient to make any government degenerate into arbitrary power. The history of England itself is full of melancholy instruction on this subject. By the ancient common law, it was left very much to discretion to determine, what acts were, and what were not, treason; and the judges of those times, holding office at the pleasure of the Crown, became but too often the instruments, in its hands, of foul injustice. At the instance of tyrannical princes, they had abundant opportunities to create constructive treasons; that is, by forced and arbitrary constructions, to raise offences into the guilt and punishment of treason, which were not suspected to be such. grievance of these constructive treasons was so enormous, and so often weighed down the innocent, and the patriotic, that it was found necessary, as early as the reign of Edward the Third, for Parliament to interfere, and arrest it, by declaring and defining all the different branches of treason. This statute has ever since remained the pole star of English jurisprudence upon this subject. And, although, upon temporary emergencies, and in arbitrary reigns, since that period, other treasons have been created, the sober sense of the nation has generally abrogated them, or reduced their power within narrow limits.

The

§ 403. Nor have republics been exempt from violence and tyranny of a similar character. It has been justly remarked, that new-fangled and artificial treasons have been the great engines, by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.

§ 404. It was under the influence of these admonitions, furnished by history and human experience, that the Convention deemed it necessary to interpose an impassable barrier against arbitrary constructions, either by the courts, or by Congress, upon the crime of treason. It confines it to two species; first, the levying of war against the United States; and, secondly, adhering to their enemies, giving them aid and comfort. In so doing, they have