bers as well as talent and confidence resulting at once from permanency of place, and dignity of station, and enlightened patriotism.

APPENDIX IV.

[From Judge Story's work.]

The third section of the third article is as follows:-" Treason against the United States shall consist 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."

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 by force of its powers. 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 ruinous importance. It is, therefore, of very great importance that its 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 or were not treason; and the judges of those times, holding office at the pleasure of the crown, became but too often 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 *. The 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 III., 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 the 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 them within narrow limits.

Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, that new fangled and artificial treasons have been the great engines by which violent factions, the natural

* 25 Edw. 3, c. 2; Hale, P. C. 259.

offspring of free governments, have usually wreaked their alternate malignity on each other *..

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 or comfort +.

In so doing they have adopted the very words of the Statute of Treason of Edward III., and thus by implication, in order to cut off at once all chances of arbitrary constructions, they have recognised the well settled interpretation of these phrases in the administration of criminal law which has prevailed for ages .

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 §.

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 the subject with a short extract from the opinion delivered upon that 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.

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

*The Federalist. No. XLIII.

+ Journal of Convention, 221, 269, 270, 271.

4 Black. Comm. 81-84; Foster, Crown Law, Discourse 1.

Sec. 4, Jefferson's Correspondence.-72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102, 103. See Burr's Trial in 1807.

See also United States v. Burr, 4 Cranck, 469 to

Exparte Bollman, 4 Cranck, 126. 508; People v. Lynch, 1 John Rep. 553.

contrary, if war be actually levied, that is, if a body of men be actually assembled for the 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 assembly of men for the treasonable purpose to constitute a levying of war.

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 principle of protecting men against false testimony and unfounded 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.

APPENDIX V.

[From Cobbett's Parliamentary History, vol. i. 333.]

[Mr. Justice Powell and others examined touching the Dispensing Power.] This day Mr. Justice Powell attended according to order, and being called in, The Speaker said, The house has sent for you to desire you to inform them, whether the Judges were sent to, to meet together in Sir Edward Hales's case? Mr. Justice Powell: The Judges were sent to, to meet my Lord Chancellor, at Serjeant's Inn, in Fleet-street, all the twelve Judges were present, and there it was proposed, Whether the king could dispense, &c., in Sir Edward Hales's case? I beg the favour to be excused from making answer as to persons. It is improper for me to accuse any. I humbly beg the favour that I be exempted." And withdrew.

may

The Speaker, Mr. Justice Powell, the house has considered your answer, and has commanded me to acquaint you, that for what concerns yourself they will not question you nor require an answer; but for what you please of the other Judges, there can be no tie of secrecy; you are under a duty to tell your knowledge. This is not properly an accusation of the Judges, but your testimony is required to deliver your knowledge.

Mr. Justice Powell: I am very free to declare any thing relating to myself, but to others, unless you command me, I desire your excuse. 'Tis at a great distance, a great while since, but I shall declare what I remember. I am unwilling to incur the displeasure of this honourable house.

Going on Wednesday or Thursday in Trinity term [2 James ii.] to dine at Serjeant's Inn, Chancery Lane, I was desired to attend at the other Serjeant's Inn, in Fleet-street, at 4 o'clock, where being met, my Lord Chief Justice Herbert told us what the business was. He desired my opinion with the rest of

the Judges in Sir Edward Hales's case.

He cited some cases to make out the king's dispensing power; he cited Coke's 12th Report. After he had done, it was my turn as puisne Judge to speak. I answered, the case was of great importance, and for the present I was not able to do it, till I had consulted books against Michaelmas term. He said he would have it on Tuesday, I said the time was short, but I would wait on him. Milton, who was then baron, gave his opinion, That he might dispense. The next was Lutwich, who said, he restrained it to this case, and thought the king could dispense in this case, but not in ecclesiastical cases. He restrained it to that case before us, not relating to religion. Jenner was the next, who said, The king might dispense. Wright was for dispensing; Holloway, I believe, was for dispensing; I cannot say it positively, I was at a distance. Streete was against it. Lord Chief Baron Atkins was at a greater distance; I could not well understand him; he cited several cases. Lord

Chief Justice Bedingfield's opinion was, That the king could dispense. This is all I can say in the matter transacted so long ago. Nothing was put in writing, nor notes taken of what was then spoken. As for what concerns myself, I attended my Lord Chief Justice, at his chamber. I called on Mr. Justice Lutwich, who went with me, and there I heard first of the judgment given on the Monday morning. 'Twas given Monday, because there was a grand jury of persons of quality that day, and it was thought the next would not have had such an audience, and therefore they hasted giving judgment that day; so I did not deliver my opinion. I beg pardon, it was my forgetfulness not to name Wythers and Heath. [Upon the Speaker's asking of them, &c.] They were with the majority for the dispensing power; I think no persons were present but the twelve Judges, and I am pretty confident of it. The question was delivered by word of mouth by Lord Chief Justice Herbert. 'Whether the king could dispense with the statute of 25, chap. ii. and the accepting a commission by that dispensation.' He then withdrew.

APPENDIX VI.

[Article 25, Code Civil.]

The effect of civil death is to deprive the condemned person of all his property, the rights of his heirs immediately take effect; all his goods belong at once to them, just as in the case of natural death and intestacy He cannot inherit, nor can one inherit through him, property which may afterwards descend

to him. He cannot dispose of his goods in whole or in part, either by gift or testamentary disposition, nor acquire any thing in either way except necessary

food. racter.

He cannot be guardian, nor concur in any acts belonging to that chaHe cannot be witness to any solemn or authentic act, nor be allowed to give evidence in a Court of Justice. He cannot bring or defend an action except in the name of a curateur, specially appointed by the Court in which the action is brought. He is incapable of contracting a marriage, productive of any civil right. If he be already married, his marriage is dissolved as to all its civil effects. His wife and his heirs are empowered to enforce all rights and actions to which his natural death might give rise.

THE END.

LONDON:

BRADBURY AND EVANS, PRINTERS, WHITEFRIARS.