some cases induce the jury to find more easily a verdict of guilty.

The professional reader may think that I have not sufficiently dwelt upon some essential points of a sound penal trial, for instance, on publicity, or the independence of counsel. He will find, however, that these subjects are treated of in other parts of this work. The arrangement could not be made otherwise.

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CHAPTER VIII.

HIGH TREASON.

5. THAT penal trial which is the most important with reference to civil liberty, and in which the accused individual stands most in need of peculiar protection by the law, is the trial for treason.

If a well-guarded penal trial in general forms an important element of our liberty, because the individual is placed opposite to public power, a carefully organized trial for treason is emphatically so. In the trial for treason the government is no longer theoretically the prosecuting party, as it may be said it is in the case of theft or assault, but government is the really offended, irritated party, endowed at the same time with all the force of the government, to annoy, persecute, and often to crush. Governments have, therefore, been most tenacious in retaining whatever power they could in the trial for treason; and, on the other hand, it is most important for the free citizen that, in the trial for treason, he should not only enjoy the common protection of a sound penal trial, but far greater protection. In despotic countries, we always find that the little protection granted in common criminal trials, is withheld in trials for treason; in free countries, at least in England and the United States, greater protection is granted, and more caution demanded, in trials for treason than in the common penal process. The trial for treason is a gauge of liberty. Tell us how they try people for treason, and we will tell you whether they are free. It redounds to the glory of England that

attention was directed to this subject from early times, and that guarantees were granted to the prisoner indicted for treason, centuries before they were allowed to the person suspected of a common offence; and to that of the United States, that they plainly defined the crime of treason, and restricted it to narrow limits, in their very constitution. This great charter says, section III. :

1. "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 confession in open court.

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2. 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."

Whether political societies, not so fortunately situated as ourselves, yet equally prizing civil liberty, might safely restrict the crime of treason to such narrow limits as the wise and bold framers of our constitution have done, is a subject which belongs to a branch of political science that does not occupy us here; but it may be asserted that several cases have actually occurred in the United States, in which all nations except the American would have considered the provisions of our constitution insufficient, and in which nevertheless they have been found adequate.

We may consider the American law of high treason as the purest in existence, and it shows how closely the law of treason is connected with civil liberty. Chief-Justice Marshall said: "As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether

the inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government, none can more affect the safety of both.”1

All constitutions of the different American states which mention treason, have the same provision. Those that say nothing special about it have the same by law, and in conformity with the principles which the respective constitutions lay down regarding penal trials.” None admit of retrospective laws, of legislative condemnations of individuals, or of attainders.

The course which the law of treason takes is this: At first there exists no law of treason, because the crime is not yet separated from other offences, as indeed the penal and civil laws are not separated in the earliest periods. The Chinese code, so minute in many respects, mixes the two branches, and debtors are treated as criminal of fenders, reminding us, in this particular, of the early Roman law. When first treason comes to be separated from the other offences, it is for the twofold purpose of inflicting more excruciating pains, and of withholding from the trial the poor protection which is granted to persons indicted for common offences. The dire idea of a crimen exceptum gains ground. The reasoning, or rather unreasoning, is that the crime is so enormous that the criminal ought not to have the same chances of escape, thus assuming that the accused, yet to be proved to be a criminal, is in fact a criminal, and forgetting, as has been indicated before, that the graver the accusation

1 The Writings of John Marshall, p. 42. Ex parte Bollman and Swart

wout.

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Judge Story says: "A state cannot take cognizance, or punish the offence (i. c. treason against the United States), whatever it may do in relation to the offence of treason, committed exclusively against itself, if indeed any case can, under the constitution, exist, which is not at the same time treason against the United States." Chap. 28, vol. iii. of Commentaries on the Constitution of the United States.

is, and the severer therefore the punishment, in case of established guilt, may be, the safer and more guarded ought to be the trial. It is a fearful inconsistency, very plain when thus stated, yet we find that people continually fall into the same error even in our own days. How often is Lynch law resorted to on the very plea that the crime, still a suspected one, is so infamous that the regular course of law is too slow or too doubtful! The same error prevailed regarding witchcraft. The Pope declared it a crimen exceptum-too abominable to be tried by common process. Protestant governments followed the example.

At the same time we find that, at the period of which we are now speaking, the law of treason is vastly extending, and all sorts of offences, either because considered peculiarly heinous, or because peculiarly displeasing to the public power, are drawn within the meaning of treason. A list of all the offences which, at some time or other, have been considered to amount to treason, from the crime of "offended divine majesty," (crimen læsæ majestatis divinæ,) in which stealing from a church was included, to the most trivial common offences, and which I have made out for my own use, would astound the reader, if this were the place to exhibit it.

When political civilization advances, and people come to understand more clearly the object and use of government, as well as the dangers which threaten society and the individual, the very opposite course takes place. More protection is granted to the person indicted for treason than in common penal trials, and the meaning of treason is more and more narrowed. The definition of treason is made clearer, and constructive treason is less and less allowed, until we arrive at our own bright law of treason.

It is thus that the law of treason becomes, as I stated