first treason comes to be separated from the other offences, it is for the twofold purpose of inflicting more excruciating pains, and of withholding from the trial the poor protection which is granted to persons indicted for common offences. The dire idea of a crimen exceptum gains ground. The reasoning, or rather unreasoning, is that the crime is so enormous that the criminal ought not to have the same chances of escape, thus assuming that the accused, yet to be proved to be a criminal, is in fact a criminal, and forgetting, as has been indicated before, that the graver the accusation is, and the severer therefore the punishment, in case of established guilt, may be, the safer and more guarded ought to be the trial. It is a fearful inconsistency, very plain when thus stated, yet we find that men continually fall into the same error, even in our own days. How often is lynch law resorted to in our country, on the very plea that the crime, still a suspected one, is so infamous that the regular course of law is too slow or too doubtful! The same error prevailed regarding witchcraft. The pope declared it a crimen exceptum-too abominable to be tried by common process. Protestant governments followed the example.1

At the same time we find that, at the period of which we are now speaking, the law of treason is vastly extending, and all sorts of offences, either because considered peculiarly heinous, or because peculiarly displeasing to the public power, are drawn within the meaning of treason. A list of all the offences which at some time or other have been considered to

1 I seize upon this opportunity of advising every young reader of this work to study with earnest attention the history of the witch-trials, forming, possibly, with the African slave-trade, the greatest aberrations of our Cis-Caucasian race. Such works as Soldan's History of the WitchTrials exhibit the psychology of public and private passion, of crime and criminal law, in so impressive and instructive a manner, that the sad course of crime and error having been ran through, it ought not to stand on record in vain for us. We learn, in history and in psychology, as in nature, to understand the principles, motives, and laws of minor actions, by the changes and convulsions on a large scale; and the vast changes and revulsions by the microscopic observation of the minute reality around us.

amount to treason, from the crime of "offended divine majesty," (crimen læsæ majestatis divinæ,) in which stealing from a church was included, to the most trivial common offences, and which I have made out for my own use, would astound the reader, if this were the place to exhibit it.

When political civilization advances, and people come to understand more clearly the object and use of government, as well as the dangers which threaten society and the individual, the very opposite course takes place. More protection is granted to the person indicted for treason, than in common penal trials, and the meaning of treason is more and more narrowed. The definition of treason is made more distinct, and constructive treason is less and less allowed, until we arrive at our own clear and definite law of treason.

It is thus that the law of treason becomes, as I stated before, a symptomatic fact, and is in politics what roads, the position of woman, public amusements, the tenure of land, architecture, habits of cleanliness, are in other spheres. They are gauges of social advancement. The more I studied this subject, the more I became convinced of the instruction to be derived from the history of the law of treason in ancient times, the middle ages, and modern periods, and it was my intention to append a paper to this work, which should give a survey of the whole. When, however, I came to arrange my long collected materials, I found, although firmly resolved to disregard an author's partiality for materials of interest once collected, and to restrict the paper to the merest outlines, that it would be impossible to do any justice to the subject without allowing to it a disproportionally large place. I decided, therefore, to leave the subject for a separate work.

In conclusion I would repeat, experience proves that not only are all the guarantees of a fair penal trial peculiarly necessary for a fair trial for treason, but that it requires additional safeguards; and, of the one or the other, the following seem to me the most important:

The indictment must be clear as to facts and time, when the indicted act has been committed;

The prisoner must have the indictment a sufficient time before the trial, so as to be able to prepare for it;

He must have a list of the witnesses against him, an equal time beforehand;

A sufficient time for the trial must be allowed; and the prisoner must not be seized, tried, and executed, as Cornish was, in 1685, in a week;

Counsel must be allowed, as a matter of course;

The judges must be impartial and independent, and ample challenges must be allowed; peers must judge. Consequently, judges must not be asked by the executive, before the trial, what their judgment would be if such or such a case should be brought before them, as was repeatedly done by the Stuarts;

Of all trials, hearsay must be excluded from the trial for treason;

Facts, not tendencies; acts, not words or papers written by the indicted person, and which have never been allowed to leave his desk, must be charged;

Perfect publicity must take place from beginning to end, and reporters must not be excluded; for it is no publicity in a populous country that allows only some twenty or forty by-standers;1

The trial must be in presence of the prisoner;

Several witnesses must be required to testify to the same fact, and the witnesses for the prisoner must be as much upon oath as those for the government;

Confession, if unconditionally admitted at all, must at least be in open court;

There must be no physical nor psychical torture or coercion; There must be good witnesses, not known villains or acknowledged liars, as Titus Oates, or Lord Howard against Lord Russell;

The judges must not depend upon the executive;

1 When, in 1858, Count Montalembert was tried in Paris for having written a pamphlet in praise of England, a peculiarly small court-room was selected, only a few persons were admitted, by tickets, and no notes were allowed to be taken.

No evidence must be admitted which is not admitted in

other trials;

There must be a fixed punishment;

There must be no constructive treason;

And the judges must not be political bodies.

These guarantees have been elaborated by statute and common law, through periods of freedom and tyranny, by the Anglican race. The English law grants these safeguards, except indeed the last to lords, because, according to the principle that every one must be tried by his peers, a lord is tried by the house of lords. It showed great wisdom that the framers of our constitution did not assign the trial for treason to the senate,' as the former French constitution appointed the house of peers to be the court for high treason. American impeachments are tried indeed by the senate, but it will be observed that the American trial of impeachment is not a penal trial for offences, but a political institution, trying for political capacity. The senate, when sitting as a court to try impeachments, can only remove from office, whatever the crime may have been; and the impeached person can be penally tried after the senate has removed him from office. In its political character, then, but in no other point, the American impeachment resembles the Athenian ostracism, which was likewise a political, and not a penal institution. The English impeachment is a penal trial.

The trials for treason going on in many countries of the European continent, especially in Naples and the Austrian dominions, are, by way of opposite, fair illustrations of what has been stated here.2

The trial for treason has been treated of in this place because naturally connected with the subject of the penal trial in general. Otherwise it would have been more properly

1 The American trials for treason are collected in Francis Wharton's State Trials of the United States; Philadelphia, 1846.

The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan trials for treason, published in 1851. It is but a sample.

enumerated among the guarantees connected more especially with the general government of a free country. We return, therefore, once more to the guarantees of individual rights.1

1 I would mention for the younger student, that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief advancements and reverses. Such tables are very suggestive, and strikingly show what we owe to the continuity of human society. None of these tables has been more instructive to me than that on the history of the law of treason.