bring the prisoner to confession, are almost inconceivable,1 and they are the worse, because applied before the trial, when the prisoner is not surrounded by those protections which the trial itself grants. With reference to this point, and in order to modify what I have stated regarding Greek penal trials, I wish to mention the interesting fact that "the prosecutor, in Athens, who failed to make good his charge, incurred certain penalties, unless he obtained at least one-fifth of the votes in his favor. In public suits, he forfeited one thousand drachmæ to the state, and could never again institute a similar suit. The same punishment was incurred if he declined to proceed with the case. In private suits, he paid the defendant one-sixth of the amount of the disputed property, as a compensation for the inconvenience he had suffered in person or character."2

Sir Samuel Romilly had the intention of proposing in a similar spirit, a bill by which an acquitted prisoner, having been prosecuted for felony, should be compensated by the county, at the discretion of the court, for loss of time and the many evils endured. Indeed, he thought that far more ought to be done. Leave was given to bring in the compensation bill, but it was afterwards withdrawn. It is evident that the great difficulty would lie in the fact that the discretion of the judge would establish at once a distinction between the verdicts, similar to that produced by the Scottish "not guilty" and "not proven." To compensate, however, all acquitted persons

1 This may be amply seen in the reports on French trials, and, among other works, in Feuerbach's Collection of German Criminal Trials.

2 Herman, Political Antiquit. of Greece; Oxon. 1836, sec. 144, where more, and all the necessary authorities can be found.

Memoirs of the Life of Sir Samuel Romilly, 2d ed.; London, 1840, vol. ii. p. 235. Strange enough, there is an English law, 25 George II., ch. 36, according to which prosecutors are to have the expenses of their prosecution reimbursed, and a compensation afforded them for their trouble and loss of time. This is evidently to induce people freely to prosecute; but no guarantee is given on the other hand against undue prosecution, and a compensation for the trouble and loss of time of the acquitted person.

would be very mischievous if we consider how many persons are acquitted who nevertheless are guilty. Indeed, it might well be asked whether the fear of burdening the county with the payment of the compensation would not, in 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, to which it was necessary to refer them.

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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. The English law does not know the term "political offence," of which the trial for treason is, commonly, the highest in importance. Political Offence is a term belonging to the modern law of some countries of the European continent,' and it was doubtless trials for offences of this character, which those jurists and publicists had partly in view, who, the reader will recollect, point out a well-guarded penal trial, almost as the sole characteristic of civil liberty.

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

1 The American reader ought to keep in mind that the term political offence is now a well-established term on the continent of Europe. It is used in legislation; thus the late French republic abolished capital punishment for political offenders, and in the treaty of extradition between France and Spain, "political offenders" are excepted, and not subject to extradition. It would, nevertheless, be difficult to give a definition of the term Political Offence sufficiently clear to be acceptable to a lawabiding administration of justice. Indeed, we may say, that it was natural this term should have presented itself, in the course of things on the continent of Europe, and it is equally natural, and is full of meaning, that the English law does not know it.

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.

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."

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 development of the law of treason takes in history 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 offenders, reminding us, in this particular, of the early Roman law. When

The Writings of John Marshall, p. 42. Ex parte Bollman and Swartwout. The rebellion of the Mormons in 1858, has occurred since the remarks in the text were written. It would seem sound reasoning and statesmanship, that the narrower the limits are to which the public law restricts treason, the more necessary it becomes to execute the law fully within those limits.

Judge Story says: "A state cannot take cognizance, or punish the offence (i.e. 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.