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hardly help deeming, the discredit of the free genius of the English Constitution, until a very recent period.
§ 393. 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.
§ 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; “The 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 pai 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 1638, 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 v.indictive and atrocious punish
ments, which in former ages have disgraced the amals of many nations.
$ 401. The third section of the third article, contains the definiticn of treason, a crime, which is very apt to rouse public reseatment, 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 char
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 resent
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 enority. It is, therefore, of very great importance, that its true
nature and limits should be exactly ascertained ; and Moutesquieu 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,
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. 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 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.
§ 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 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.
§ 405. 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 tbe 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 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 they are 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 at once against the victim private honor and public hostility. There must, as there should, bę a concurrence of two witnesses to the same overt act, that is, to the same open act of treason, who are above all reasonable exception,
$ 406. The subject of the power of Congress to de. clare the punishment of treason, and the consequent disabilities, have been already commented on in another place
$ 407. We have thus passed in review all those provisions of the Constitution, which concern the establishrnent, jurisdiction, and duties, of the judicial department; and the rights and privileges of the citizens, connected with the administration of public justice.