Sidebilder
PDF
ePub

and maritime jurisdiction, nor to cases of equity, in which the courts determine both the law and the fact. If the matter in controversy be less than twenty dollars, a jury trial can not be claimed, being a matter of too little importance to warrant the expense of a jury trial.

§ 3. When a matter in controversy has once been fairly adjudicated, that adjudication is a bar to any further judicial examination or proceedings, except according to the forms and usages of the com mon law. There must be an end somewhere to human controversy, and that end must be determined by legal principles and usage, The rules of common law here spoken of, under which matters of fact may be re-examined, refer to a continuation of the investiga tion by a successful motion for a new trial, on cause shown, or by writ of error, or by an appeal to another and higher tribunal. The parties have the right to exhaust all legal remedies before the controversy is to be considered as judicially settled; but these remedies must be pursued according to common-law usage.

1. DEFINITION.

consist only,

ART. VI.-TREASON.

Treason against the United States shall

1st. In levying war against them; or,

2d. In adhering to their enemies, giving them aid and comfort.

[merged small][merged small][ocr errors]

-No person shall be convicted of treason

1st. On the testimony of two witnesses to the same

overt act; or,

2d. On confession in open court. 69.

Το

§ 1. Under the common law of England, and under an old English statute as far back as the time of Edward III., there were seven distinct crimes that came under the head of treason. imagine the king's death, to counterfeit the king's seal, or to counterfeit the king's coin, was treason. The English jurists were sometimes puzzled to determine precisely what was treason.

§ 2. The Constitution of the United States, therefore, wisely gives a concise definition of this crime as against the General Gov

ernment. Our Constitution recognizes no such offense as constructive treason, as was the case with the ancient common law of England. There are but two ways that treason can be committed against the United States, and these are defined with such precision as to leave no room for cavil or doubt. Levying war against the United States, or adhering to their enemies, giving them aid and comfort, is treason.

[ocr errors]

§ 3. Very early in our history, the Supreme Court of the United States had occasion to define what is to be understood by the phrase, "levying war. On that occasion, the court said, “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. The first (levying war) must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war can not have been committed.

[ocr errors]

$ 4. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting 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.

[ocr errors]

§ 5. The Constitution is humane to the accused, in requiring the strictest proof for the establishment of his guilt. There must be two witnesses, at least, to the same overt act, unless the prisoner make confession in open court. Confessions out of court, though testified to by any number of witnesses, are not sufficient. Confessions (out of court) are said to be 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.1 There must, as there should,

1 Black. Comm., 4 v., 357.

be a concurrence of two witnesses to the same overt act, that is, open act of treason, who are above all reasonable exception.1

The power of Congress to declare the punishment of treason was noticed in Chap. IV., Art. IV., Part II.

FREEDOM.

of

ART. VII.-OFFICIAL IMMUNITIES.

[ocr errors]

1. FROM ARREST. Members of Congress shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest,

66

1st. During attendance at their respective houses;

2d. While going to and returning from the same. 2. OF SPEECH. - For any speech or debate in either house, they shall not be questioned in any other place. 21. § 1. Although freedom from arrest is here classed under the title Personal Rights," as it relates to members of Congress, yet it is as much the right of their constituencies, and of the houses of which they are members, as it is the right of the members themselves. It is an official immunity. It is a right universally accorded to members of legislative bodies in all countries, and in all the States of this Union. They can be arrested for crime only. Blackstone says, "It has immemorially constituted a privilege of both houses of the British Parliament."

§ 2. Thomas Jefferson says,

It seems absolutely indispensable for the just exercise of the legislative power in every nation purporting to possess a free Constitution of government; and it can not be surrendered without endangering the public liberties as well as the private independence of the members." Of course, an arrest of a member of Congress would prevent the performance of his duties in the house of which he was a member. His constituency would be left without representation. The public interests, which are always considered paramount to private, must suffer for want of attention. The privilege is considered not that of the member or of his con stituents only, but a privilege of the house also.

1 Story on Const., § 1,802.

§ 3. And, for the purpose of securing entire freedom of discussion, no member of either house can legally be questioned elsewhere for any thing which he may see fit to utter in debate in his place as a member; that is, he can not legally be called to account before the courts, no matter how much he may slander private character Of course, this is a right which may be, and sometimes is, abused. But the public interests may require the most critical and searching examinations into personal and official qualifications of individuals proposed as candidates for public stations of grave responsibility. Members should be allowed to perform these duties without fear of future personal retribution.

CHAPTER XII.

EXECUTIVE DEPARTMENT.

ART. I.-IN WHOM VESTED.

In a President of the United States of America. 53.

§ 1. Under the Confederation, there was no such officer as a President of the United States. There was an Executive Committee of thirteen, one from each State, having no power except during the recesses of Congress. Congress possessed the executive power while in session. Alexander Hamilton says in " The Federalist,"

66

There is hardly any part of the system [of government], the arrangement of which could have been attended with greater difficulty; and there is none which has been inveighed against with less candor, or criticised with less judgment.' These remarks were made while the Constitution was before the people for deliberation.

§ 2. Energy in the Executive is one indispensable characteristic in the definition of good government; for the duty of this depart ment is to see that the laws are faithfully and promptly executed. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be a bad government in practice.1

1 Federalist, No. 72.

§ 3. It was a subject of much and earnest debate in the Convention that formed the Constitution, whether this department should be placed in the hands of one, or in the hands of several. No subject was more thoroughly discussed in that body. It was maintained that energy would be most likely to be secured by unity of executive, and that wisdom would be most likely to be secured by a plurality; and that the latter would be most likely to command the confidence of the people.

§ 4. As the executive prerogative is limited to the faithful execution of the laws after they shall have been duly enacted and promulgated, it was doubtless most judicious that the executive power should be vested in a single individual. It gives a stronger sense of personal responsibility. No discretion is submitted to the executive officer as to the wisdom or expediency of the law. What has once been declared to be law, under all the cautious forms of deliberation prescribed by the Constitution, ought to receive prompt obedience.1

ART. II.-TERM.

He shall hold his office during the term of four years. 53. § 1. This was a subject on which there was a great variety of opinion in the Convention. There were those who favored the proposition that the Executive should hold his office for life, or during good behavior. At one stage of the proceedings, seven years was fixed as the duration of the term. The term of four years was finally fixed upon as a compromise; for there were members in favor of one year, others in favor of two, and others three years.

§ 2. The term of four years is intermediate between the term of office of the Senate and that of the House of Representatives. In the course of one presidential term, the House is, or may be, twice recomposed, and two-thirds of the Senate changed or re-elected.2 The executive term should not be so short as to be constantly changing from one incumbent to another, giving the government no opportunity to test by experience the policy of its measures; nor, on the other hand, should it be so long as to allow an obstinate

1 Kent's Comm., Lect. 13. 2 Story on the Const., § 1,438.

« ForrigeFortsett »