which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.1

§ 1793. 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 adopted the very words of the Statute of Treason of Edward the Third; and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law, which has prevailed for ages.

§ 1794. Fortunately, hitherto but few cases have occurred in the United States, in which it has been necessary for the courts of justice to act upon this important subject. But whenever they have arisen, the judges have uniformly adhered to the established doctrines, even when executive influence has exerted itself with no small zeal to procure convictions.1 On one occasion only has the consideration of the question come before the Supreme Court; and we shall conclude what we have to say on this subject, with a short extract from the opinion delivered upon that

1 The Federalist, No. 43; 3 Wilson's Law Lect. 96. 2 See also Journ. of Convention, 221, 269, 270, 271.

3 See 4 Black. Comm. 81 to 84; Foster, Cr. Law, Discourse I. But see 4 Tuck. Black. Comm. App. Note B.

4 See 4 Jefferson's Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102, 103. See Burr's Trial in 1807; 3 Wilson's Law Lect. 100 to 106.

occasion.

"To constitute that specific crime, for which the prisoners, now before the court, have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined, that the actual enlistment of men to serve against the government does not amount to levying war. It is true, that in that case the soldiers enlisted were to serve without the realm; but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied."

1795. "It is not the intention of the court to say, that no individual can be guilty of this crime, who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those, who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."1

1 Ex parte Bollman, 4 Cranch, 126. See also United States v. Burr, 4 Cranch, 469 to 508, &c.; Serg. on Const. ch. 30, (2 edit. ch. 32 ;) People v. Lynch, 1 John. R. 553.

§ 1796. The other part of the clause, requiring the testimony of two witnesses to the same overt act, or a confession in open court, to justify a conviction is founded upon the same reasoning. A like provision exists in British jurisprudence, founded upon the same great policy of protecting men against false testimony, and unguarded confessions, to their utter ruin. It has been well remarked, that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable, in their nature, of being disproved by other negative evidence. To which it may be added, that it is easy to be forged, and the most difficult to guard against. An unprincipled demagogue, or a corrupt courtier, might otherwise hold the lives of the purest patriots in his hands, without the means. of proving the falsity of the charge, if a secret confession, uncorroborated by other evidence, would furnish a sufficient foundation and proof of guilt. And wisely, also, has the constitution declined to suffer the testimony of a single witness, however high, to be sufficient to establish such a crime, which rouses against the victim at once private honour and public hostility. There must, as there should, be a concurrence of two witnesses to the same overt, that is, open act of treason, who are above all reasonable exception.1

1 See United States v. Fries, Pamph. p. 171.

2 4 Black. Comm. 356, 357.

3 See 4 Black. Comm. 357, 358.

4 United States v. Burr, 4 Cranch, 469, 496, 503, 506, 507.

§1797. The subject of the power of congress to declare the punishment of treason, and the consequent disabilities, have been already commented on in another place.1

CHAPTER XL.

PRIVILEGES OF CITIZENS

FUGITIVES

SLAVES.

§ 1798. THE fourth article of the constitution contains several important provisions, some of which have been already considered. Among these are, the faith and credit to be given to state acts, records, and judgments, and the mode of proving them, and the effect thereof; the admission of new states into the Union; and the regulation and disposal of the territory, and other property of the United States. We shall now proceed to those, which still remain for examination.

§ 1799. The first is, "The citizens of each state "shall be entitled to all privileges and immunities of "citizens in the several states." There was an article upon the same subject in the confederation, which declared, "that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall, in every other, enjoy all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively," &c. It was remarked by the Federalist, that there is a strange confusion in this language. Why the terms, free inhabitants, are used in one part of the article, free citizens in another, and people in another; or what is meant by superadding

1 See ante, Vol. III. § 1211 to 1230, § 1308 to 1315, and § 1316 to 1324.

2 See 1 Tucker's Black. Comm. App. 365. 3 Confederation, Art. 4.