relate exclusively to the courts of the United States. Whether, under State laws, capital crimes shall be tried by juries, whether an accused person shall be twice put in jeopardy of life or limb, whether bail shall be excessive or punishments cruel or unusual,—it is for the States to say. The single exception is the clause quoted from the Fourteenth Amendment. This is the only instance in which the National Constitution has attempted directly to regulate the State judiciaries. The State constitutions, however, contain similar limitations upon State judicial power.

CHAPTER XXXVIII.

TREASON.

ARTICLE III.

559. The Crime of Treason.-Treason aims at the overthrow of the established government. It tends to unsettle and destroy the very foundations of civil society. It is a crime of which only a person owing allegiance to a government can be guilty. A man cannot be a traitor to a foreign country, unless he enlists in its army or becomes naturalized. Hence treason is regarded as the highest of crimes, and a traitor as the most odious of criminals.

The common law of England recognizes two kinds of treason. It is petit treason for a wife to kill her husband, or for a servant to kill his master; but high treason relates to the state, and includes attempting the life of the sovereign as well as waging war against him.

560. Abuses of the Punishment of Treason.Tyrannical governments have taken advantage of the universal sentiment against treason to accomplish their own selfish purposes. In England, for example, the common law contained no definition of treason, and left large discretion to the courts to declare what acts were treasonable. The judges, who held their offices at the favor of the Crown, sometimes proved themselves only too ready to serve the power upon which they were dependent. They invented constructive treasons; that is, by arbitrary construction of the law and by distorting facts, they made treason of offenses that were not so in reality. To put an end to such abuses required the vigorous interposition of

Parliament, as well as the loud remonstrances of the people. Nor is it in monarchies alone that the power inherent in society to punish treason has been abused. In the words of" The Federalist," "New-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually worked their alternate malignity on each other." To guard against such evils, the Convention inserted a definition of treason in the Constitution, and defined the mode of its proof, leaving nothing on either point to the discretion of either Congress or the Courts.

Section 3, Clause 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 on confession in open court.

561. Levying War.-To levy war is to make war, an overt act. C.-J. Marshall has said: "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 offenses. If a body of men be actually assembled for the purpose of affecting 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."2

562. Giving an Enemy Aid and Comfort.-The second form of treason is not so easily defined. Aid and comfort may be given to an enemy in many different ways. However, for a citizen to sell the enemy of his country provisions, cannon, horses, ships, etc., to be used in the

1 No. 43.

2 Ex parte Bollman, 4 Cranch 126.

prosecution of war against it, or to render such enemy personal assistance, would be treason.

563. Modes of Conviction.-Here fear of the abuse of power is seen again. In the first mode of conviction two witnesses to the same overt act are essential. The clause also guards the accused against the consequences of his own confession, real or alleged; only confession in open court, that is, public confession when he is on trial, will be accepted as a basis of conviction.

On the last point Justice Story may be quoted: "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 favor, 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.”1

Section 3, Clause 2.-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.

564. The Punishment Declared.-In 1790 Congress enacted that treason should be punished with death by hanging. In 1862 it enacted two modes of punishment, at the discretion of the court: the traitor should suffer death and his slaves be made free; or he should be imprisoned not less than five years, be fined not less than $10,000, and his slaves be made free, the fine to be levied on any property, real or personal, except slaves, that he might possess. In the second case the criminal should also be forever incapable of holding office under the United States. At present the punishment is death, or, at the discretion of the court, imprisonment at hard labor for five years and a fine of not less than $10,000, with the same disqualification as to holding office. Without this clause, Congress would have a perfect right to define the punishment of treason; and it was introduced, no doubt, to furnish an opportunity to limit the effects of attainder.

1 Commentaries, 1802.

565. The Common Law Punishment.-According to the common law, a person adjudged guilty of high treason was drawn to the gallows, at first on the ground or pavement, afterwards on a sledge or hurdle; he was hanged by the neck and cut down alive; his entrails were taken out and burned before his face; his head was cut off; his body was divided into four parts, and his head and quarters were then placed at the king's disposal,—the whole proceeding being summed up in the phrase, "drawn and quartered."

566. Attainder of Treason.-According to the common law, a man found guilty of treason was said, by a figure of speech, to be attinctus, attainted, tainted, stained, soiled, and disgraced. The attainder of treason attached to the offender the moment that the judge delivered sentence of judgment upon him. By an extension of the figure, the attainder worked corruption of the blood of the person attainted, and also forfeiture of his estate.

The far-reaching significance of the old rules of law in relation to attainder, is well explained by Mr. Justice Story: "By corruption of blood all inheritable qualities are destroyed; so that an attainted person can neither inherit lands nor other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them to any other heir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remoter ancestor. So that if a father commits treason, and is attainted and suffers death, and then the grandfather dies, his grandson cannot inherit any estate from his grandfather; for he must claim through his father, who would convey to him no inheritable blood. . . . In addition to this most grievous disability, the person attainted forfeits, by the common law, all his lands, and tenements, and rights of entry, and rights of profits in the lands or tenements, which he possesses. And this forfeiture relates back to the time of the treason committed, so as to avoid all intermediate sales and incumbrances; and he also forfeits all his goods and chattels from the time of his conviction."1

567. Power of Congress Over Attainder.-- The common law connected attainder with judgment of treason, 1 Commentaries, ? 1299.