§ 1794. 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 rights 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 is matter of honest congratulation among all the friends of rational liberty.

§ 1795. There yet remain one or two subjects connected with the judiciary, which, however, grow out of other amendments made to the Constitution, and will naturally find their place in our review of that part of these Commentaries which embraces a review of the remaining amendments.2

defence by counsel is permitted in all cases of felony. See Cooley, Const. Limitations, 330-338.]

1 3 Wilson's Law Lect. 170, 171; 1 Tuck. Black. Comm. App. 305; Rawle on Const. ch. 10, p. 128, 129.

2 [It is a rule of obvious propriety that, where different tribunals are sitting within the same jurisdiction to administer the same laws, the decisions should be in harmony. Where the laws of the United States are in question, uniformity is assured by the appellate jurisdiction conferred upon the Supreme Court of the United States over the State courts in those cases; but there is no such common appellate tribunal in the case of questions of State law. Congress, however, with manifest propriety, has endeavored to secure uniformity by requiring the federal courts to adopt as their rule of decision "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide." Act of Sept. 24, 1789, 1 Stat. at Large, 92. The laws of the States are the laws as construed and applied by the courts. In Beauregard v. New Orleans, 18 How. 502, Mr. Justice Campbell says: "The constitution of this court requires it to follow the laws of the several States as rules of decision wherever they apply. And the habit of the court has been to defer to the decisions of their judicial tribunals upon questions arising out of the common law of the State, especially when applied to the title of lands.” In Bank of Hamilton v. Dudley's Lessee, 2 Pet. 524, it was contended that the exclusive power of State courts to construe legislative acts did not extend to the paramount law, so as to enable them to give efficacy to an act which was contrary to the State constitution; but Marshall, Ch. J. said: "We cannot admit this distinction. The judicial department of every government is the rightful expositor of its laws, and emphatically of its supreme law." Again, in Elmendorf v. Taylor, 10 Wheat. 159, the same eminent judge says: "The judicial department of every government, where such department exists, is the appropriate organ for construing the legislative acts of that government. Thus no court in the universe which proposed to be governed by principle would, we presume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than

to depart from the words of the statute. On this principle, the construction given by this court to the Constitution and laws of the United States is received by all as the true construction; and on the same principle the construction given by the courts of the several States to the legislative acts of those States is received as true, unless they come in conflict with the Constitution, laws, or treaties of the United States." And in Green v. Neal's Lessee, 6 Pet. 298, it is said by McLean, J.: "The decision of the highest judicial tribunal of a State should be considered as final by this court, not because the State tribunal in such a case has any power to bind this court, but because, in the language of the court in Shelby v. Guy, 11 Wheat. 361, 'a fixed and received construction by a State, in its own courts, makes a part of the statute law.'" And see Jackson v. Chew, 12 Wheat. 162, per Thompson, J.

In further illustration of the same doctrine, the following cases are cited; Sims v. Irvine, 3 Dall. 425; McKeen v. Delancy, 5 Cranch, 22; Polk's Lessee v. Wendal, 9 Cranch, 87; Preston v. Browder, 1 Wheat. 115; Mutual Assurance Co. v. Watts, Id. 279; Shipp v. Miller, 2 Wheat. 316; Thatcher v. Powell, 6 Wheat. 119; Bell v. Morrison, 1 Pet. 351; Waring v. Jackson, Id. 570; De Wolf v. Rabaud, Id. 476; Fullerton v. Bank of United States, Id. 604; Gardner v. Collins, 2 Pet. 58; Beach v. Viles, 2 Pet. 675; Inglis v. Sailor's Snug Harbor, 3 Pet. 99; United States v. Morrison, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; Hinde v. Vattier, Id. 398; Ross v. McLung, 6 Pet. 283; Marlatt v. Silk, 11 Pet. 1; Bank of United States v. Daniels, 12 Pet. 82; Clarke v. Smith, 13 Pet. 195; Ross v. Duval, Id. 45; Wilcox v. Jackson, Id. 498; Harpending v. Reformed Church, 16 Pet. 445; Martin v. Waddell, Id. 367; Amis v. Smith, Id. 303; Porterfield v. Clark, 2 How. 76; Lane v. Vick, 3 How. 464; Foxcroft v. Mallett, 4 How. 353; Barry v. Mercein, 5 How. 103; Rowan v. Runnels, Id. 134; Van Rensselaer v. Kearney, 11 How. 297; Pease v. Peck, 18 How. 595; Fisher v. Haldeman, 20 How. 186; Parker v. Kane, 22 How. 1; Suydam v. Williamson, 24 How. 427; Sumner v. Hicks, 2 Black, 532; Chicago v. Robbins, Id. 418; Miles v. Caldwell, 2 Wall. 35; `Williams v. Kirkland, 13 Wall. 306; Springer v. Foster, 2 Story C. C. 383; Neal v. Green, 1 McLean, 18; Paine v. Wright, 6 McLean, 395; Boyle v. Arledge, Hemp. 620; Griffing v. Gibb, McAll. 212; Bayerque v. Cohen, Id. 113; Wick v. The Samuel Strong, Newb. 187; N. E. Screw Co. v. Bliven, 3 Blatch. 240; Bronson v. Wallace, 4 Blatch. 465; Van Bokelen v. Brooklyn City R. R. Co., 5 Blatch. 379; United States v. Wonson, 1 Gall. 5; Society &c. v. Wheeler, 2 Gall. 105; Coates v. Muse, Brock. 539; Meade v. Beale, Taney, 339; Parker v. Phetteplace, 2 Cliff. 70; King v. Wilson, 1 Dill. 555.

In Green v. Neal's Lessee, 6 Pet. 291, an important question was presented as to the proper course to be pursued by the Supreme Court of the United States under somewhat embarrassing circumstances. That court had been called upon to put a construction upon a State statute of limitations, and had done so. Afterwards the same question had been before the Supreme Court of the State, and in repeated cases had been decided otherwise. The question now was, whether the Supreme Court would follow its own decision, or reverse that in order to put itself in harmony with the State decisions. The subject is considered at length by McLean, J., who justly concludes that " an adherence by the federal courts to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and federal tribunals. This rule is not only recommended by strong considerations of propriety, growing out of our system of jurisprudence, but it is sustained by principle and authority." And it accordingly reversed its rulings to make them conform to those of the State court. See also Suydam v. Williamson, 24 How. 427; Leffingwell v. Warren, 2 Black, 599; Blossburg &c. R. R. Co. v. Tioga R. R. Co., 5 Blatch. 387; Smith v. Shriver, 3 Wall. Jr. 219. It is of course immaterial that the court may still be of opinion that the State court has erred, or that the decisions elsewhere are different; Bell v. Morrison,

1 Pet. 360. But where the Supreme Court has held that certain contracts for the price of slaves were not made void by the State constitution, and afterwards the State court held otherwise, the Supreme Court, regarding this decision wrong, declined to reverse their own ruling. Rowan v. Runnels, 5 How. 134. Compare this with Nesmith v. Sheldon, 7 How. 812, in which the court followed, without examination or question, the State decision that a State general banking law was in violation of the constitution of the State. The U. S. circuit court had held otherwise previous to the State decision. Falconer v. Campbell, 2 McLean, 195.

This doctrine does not apply to questions not at all dependent upon local statutes or usages; as, for instance, to contracts and other instruments of a commercial and general nature, like bills of exchange, Swift v. Tyson, 16 Pet. 1; and insurance contracts, Robinson v. Commonwealth Ins. Co., 3 Sum. 220. And see Reimsdyk v. Kane, 1 Gall. 371; Austin v. Miller, 5 McLean, 153; Glouster Ins. Co. v. Younger, 2 Curt. C. C. 322; Bragg v. Meyer, 1 McAll. 408. Nor to decisions which sustain violations of the Constitution of the United States. State Bank v. Knoup, 16 How. 369; Jefferson Branch Bank v. Skelley, 1 Black, 436.

And where a contract has been made under a settled construction of the State constitution by its highest court, the Supreme Court will sustain it, notwithstanding the State court has since overruled its former decision. Gelpecke v. Dubuque, 1 Wall. 176.]

CHAPTER XXXIX.

DEFINITION AND EVIDENCE OF TREASON.

$1796. THE third section of the third article is as follows: "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."

§ 1797. 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 true 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 goverment degenerate into arbitrary power.2 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 and 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 1 3 Wilson's Law Lect. ch. 5, p. 95, &c.

2 Montesq. Spirit of Laws, B. 12, ch. 7; 4 Black. Comm. 75.

were not suspected to be such.1 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.,2 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.3

§ 1798. 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 offspring of free governments, have usually wreaked their alternate malignity on each other.4

§ 1799. 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.5 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 wellsettled interpretation of these phrases in the administration of criminal law which has prevailed for ages. 6

§ 1800. 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

1 4 Black. Comm. 75; 3 Wilson's Law Lect. 96; 1 Tuck. Black. Comm. App. 275, 276.

2 Stat. 25 Edw. 3, ch. 2; 1 Hale, P. C. 259.

3 See 4 Black. Comm. 85 to 92; 3 Wilson's Law Lect. 96, 97, 98, 99; 1 Tuck. Black. Comm. App. 275.

4 The Federalist, No. 43; 3 Wilson's Law Lect. 96.

5 See also Journal of Convention, 221, 269, 270, 271.

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