14 Fowler v. Lindsey, 3 Dall. 411; New Jersey v. New York, 5 Peters, 287; Cherokee Na. v. Georgia, 5 Peters, 1; Ex parte Madrazo, 7 Peters, 627; Rhode Island v. Massachusetts, 12 Peters, 657; Pennsylvania v. Wheeling &c. Br. 18 How. 421.

15 Bank of U. S. v. Planters' Bank, 9 Wheat. 904.

16 Pennsylvania v. Wheeling &c. Br. 9 How. 647; 13 How. 518.

17 Chancely v. Bailey, 37 Ga. 532.

13 Rhode Island v. Massachusetts, 12 Peters, 657; Florida v. Georgia, 17 How. 478; Virginia v. West Virginia, 11 Wall. 3.); New York v. Coanecticut, 4 Dali. I.

19 Pennsylvania v. Quicksilver Co. 10 Wall. 553; Cohens v. Virginia, 6 Wheat. 264.

20 State v. Atkins, 35 Ga. 315. Contra, State v. Trustees, 5 Bank Reg. 466; 1 Hughes, 133.

21 Kentucky v. Dennison, 24 How. 66.

22 Cohens v. Virginia, 6 Wheat. 261. 23 Ex parte Barry, 2 How, 65.

It

Appellate jurisdiction.-In every case to which the judicial power extends, and in which original jurisdiction is not given, the Supreme Court may exercise its appellate jurisdiction. Where original jurisdiction is founded on the character of the parties, the judicial power cannot be exercised in its appellate form; but where it is founded on the nature of the controversy the appellate jurisdiction attaches.3 The essential criterion of appellate jurisdiction is, that it raises and corrects proceedings in a cause already instituted. In prize cases the Supreme Court can exercise appellate jurisdiction only.5 The appellate power is not limited to any particular courts. may be exercised over territorial courts, but not without legislation by Congress, or over State courts on questions involving the constitutionality of legal enactments. But it cannot exercise appellate jurisdiction over the Court of Claims, 10 nor can Congress grant appellate jurisdiction on the inferior courts from the decisions of the State courts.11 The principle on which appellate jurisdiction from State courts is allowed is to grant efficient and just means of self-protection. 12 The Supreme Court jurisdiction over inferior courts is strictly appellate.13 The jurisdiction on appeal must be conferred by Congress,14 with such excep tions and under such regalations as Congress may make, 15 and the action of Congress excludes State legislation. 15 All appellate jurisdiction must be exercised in pursuance of positive statutes fully within constitutional grants.17 The power of the Supreme Court to issue a mandamus is in the exercise of an appellate jurisdiction only. 13 So as to the writ of habeas corpus. The power to award this writ y any court of the United States must be given by

law.20 It exists in all cases of commitment by the judicial authority of the United States not expressly excepted by Congress.21 It is only when the proceedings below are entirely void that relief may be given on review by habeas corpus.22 The repeal of an act authorizing appeal in cases of habeas corpus does not affect the jurisdiction antecedently exercised.23 An enactment of the Confederate States enforced as a law of one of the States composing the Confederacy is a statute of such State, as to the jurisdiction of the supreme court over judgments and decrees in State courts.24

1 Cohens v. Virginia, 6 Wheat. 264; Marbury v. Madison, 1 Cranch. 137; Ex parte Vallandigham, 1 Wall. 252; Ex parte Yerger, 8 Wall. 98; Martin v. Hunter, 1 Wheat. 304.

2 Osborn v. Bank of United States, 9 Wheat. 738.

3 Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264. 4 Marbury v. Madison, 1 Cranch, 137.

5 The Alicia, 7 Wall. 571.

6 Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264; Dodge v. Woolsey, 13 How. 331; Ableman v. Booth, 21 How.506; 3 Wis. 1; Ferris v. Coover, 11 Cal. 176; Piqua Bank v. Knoup, 6 Ohio St. 342; 16 How. 369.

7 Benner v. Porter, 9 How. 244; Hunt v. Palao, 4 How. 589; Freeborn v. Smith, 2 Wall. 173.

8 McNulty v. Batty, 10 How. 79.

9 Bridge Prop. v. Hoboken &c. Co. 1 Wall. 116; Furman v. Nichol, 8 Wall. 57; Delmas v. Ins. Co. 14 Wall. 667; Home Ins. Co. v. Augusta, 93 U. S. 116; Ferris v. Coover, 11 Cal. 176. But see Johnson v. Gordon, 4 Cal. 368.

10 Gordon v. U. S. 2 Wall. 561.

11 Patrie v. Murray, 43 Barb. 323; Wetherbee v. Johnson, 14 Mass. 412. 12 Scott v. Jones, 5 How. 343.

13 Gaines v. Relf, 15 Peters, 17.

14 Barry v. Morcein, 5 How. 119; Ex parte McCardle, 7 Wall. 506; U. S. v. New Bedford Br. 1 Wood. & M. 437; Livingston v. Van Ingen, 9 Johns. 507 Marbury v. Madison, 1 Cranch, 137; Ex parte Bollman, 4 Cranch, 75; U. S. v. Hamilton, 3 Dall. 17; Ex parte Kearney, 7 Wheat. 33; Weston v. Charleston, 2 Peters, 449; Ex parte Crane, 5 Peters, 190. 15 Scott v. Jones, 5 How. 374; Ex parte McCardle, 7 Wall. 506; Ex parte Yerger, 8 Wall. 98; Darousseau v. U. S. 6 Cranch, 313; Ex parte Vallandigham, 1 Wall. 252; U. S. v. Moore, 3 Cranch, 159; Murdock v. Memphis, 20 Wall. 500; Martin v. Hunter, 1 Wheat. 304.

16 Houston v. Moore, 5 Wheat. 1; Prigg v. Commonwealth, 16 Peters, 539.

17 Wixart v. Dauchy, 3 Dall. 321; Clarke v. Bazadone, 1 Cranch, 212; U. S. v. Moore, 3 Cranch, 159; Darousseau v. U. S. 6 Cranch, 307; Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Peters, 193.

18 Marbury v. Madison, 1 Cranch, 137; Ex parte Yerger, 8 Wall. 97. 19 Ex parte Bollman, 4 Cranch, 75.

20 Ex parte Bollman, 4 Cranch, 75.

21 Kane's Case, 14 How. 103; Ex parte Yerger, 8 Wall. 99.

22 Ex parte Parks, 93 U. S. 18.

23 Ex parte McCardle, 7 Wall. 506.

24 Ford v. Surget, 97 U. S. 594; Williams v. Bruffy, 96 U. S. 176.

3 The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Trial for crimes.- This applies to proceedings in Federal courts, and is not suspended by the intervention of war.2 A citizen in civil life in nowise connected with military service cannot be tried by a military commission where courts are open to hear criminal accusations and redress grievances.& As soon as it judicially appears of record that the party has pleaded not guilty, an issue has arisen which courts are bound to direct to be tried by a jury. The trial is the examination before a competent tribunal, according to the law of the land.5 Congress must first make an act a crime, affix the penalty, and declare the court having jurisdiction; and any law dispensing with the requisites to constitute a jury is unconstitutional. A crime committed against the laws of the United States out of the limits of a State is not local, but may be tried at such place as Congress shall designate by law.8 A statute which provides that a party may be tried by the court on a charge of libel is void, although it gives him a right of appeal to a court where trial may be had by jury. A statute to confiscate the property of a person engaged in rebellion, in any district in which property may be found, is void. 10 A proceeding to annul the license of a pilot for neglect of duty is not a criminal proceeding.11 See Supplement, post, 316.

1 Murphy v. People, 2 Cow. 815; Anderson v. Durin, 6 Wheat. 215. See Amend. Arts. IV, V, VI.

2 Ex parte Milligan, 4 Wall. 123. 3 Ex parte Milligan, 4 Wall. 123.

4 U. S. v. Gilbert, 2 Sum. 10.

5 U. S. v. Curtis, 4 Mason, 232. 6 U. S. v. Hudson, 7 Cranch, 32;

U. S. v. Coolidge, 1 Wheat. 415.

7 Work v. State, 2 Ohio St. 296; State v. Cox, 3 English, 436.

8 U. S. v. Dawson, 15 How. 467. And see Anderson v. Dunn, 6 Wheat. 215.

9 Ex parte Dana, 7 Ben. 1.

10 Norris v. Doniphan, 4 Met. (Ky.) 345.

11 Low v. Commissioners, R. M. Charlt. 302.

SECTION 3.

Treason.

1. Definition and evidence of.

2. Punishment of.

Sec. 3. 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 on confession in open court.

Treason. The elements which constitute treason are: A combination or conspiracy by which several are united in one common purpose; the purpose must be to prevent the execution of some public law, and actual force must be employed by such combination 3 to overthrow the Government or coerce its conduct.4 It is the breach of allegiance, either perpetual or temporary. So, war levied under the pretended authority of the Confederate States is treason. The occupation of a fortress by men in military array to detain it, is treason; the offense is complete when force is directed to overthrow only certain portions of the country. The delivery of a prisoner to an enemy is treason." When an armed body is mustered in military array for a treasonable purpose, every step taken by any of them is an overt act.10 Though no man can be convicted of treason who was not present when war was levied, yet the crime may be committed by those not personally present, if they are leagued with the conspirators and perform any part, 12 but the overt act and the intention must concur to constitute the crime. 13 The only compulsion which will excuse one marching with rebels is force on the person and present fear of death.14 The crime of treas not to be extended by construction. 15 The con y to levy war and actual levying of war are distinct tenses. 16 So, resistance to the execution of a law must be of a political and not of a private nature.17 The mere enlistment of men who are not assembled is not a levying of war. 18 Enemies refer to subjects of a foreign power, and not to citizens of a State in rebellion. 19 If a party, being with a squadron, comes peaceably to the shore to procure provisions, it does not constitute an overt act.20 That two witnesses are required refers to the proof on the trial, and not to proceedings before the grand jury, or to preliminary investigations.21 1 In re Bollman, 4 Cranch, 75; Druecker v. Salomon, 21 Wis. 621. 2 Druecker v. Salomon, 21 Wis. 621.

3 U. S. v. Burr, 9 Wheat. 529; 2 Cranch C. C. 379; U. S. v. Mitchell, 2 Dall. 343; U. S. v. Hanway, 2 Wall. J. 139; U. S. v. Hoxie, 1 Paine, 265; U. S. v. Fries, 2 Whart. St. Tr. 482; 3 Dall. 515.

4 U. S. v. Greathouse, 2 Abb. U. S. 364.

5 U. S. v. Wiltberger, 5 Wheat. 76; 3 Wash. C. C. 515.

6 Shortridge v. Macon, Chase, 136.

7 U. S. v. Greiner, 4 Phila. 396.

8 U. S. v. Greathouse, 2 Abb. U. S. 364.

9 U. S. v. Hodges, 2 Wheel. C. C. 477.

10 U. S. v. Greiner, 4 Phila. 396.

11 U. S. v. Burr, 4 Cranch, 463; 2 Burr's Tri. 401; U. S. v. Wiltberger, 5 Wheat. 76; 3 Wash. C. C. 515.

12 In re Bollman, 4 Cranch, 75; U. S. v. Burr, 4 Cranch, 469; Druecker v. Salomon, 21 Wis. 621.

13 U. S. v. Fries, 3 Dall. 515; U. S. v. Hodges, 2 Wheel. C. C. 477; U. S. v. Burr, 4 Cranch, 469.

14 U. S. v. Greiner, 4 Phila. 306; U. S. v. Hodges, 2 Wheel. J. C. 477. 15 In re Bollman, 4 Cranch, 75.

16 In re Bollman, 4 Cranch, 75; U. S. v. Mitchell, 2 Dall. 348.

17 U. S. v. Hanway, 2 Wall. Jr. 139; U. S. v. Hoxie, 1 Paine, 265; U. S. v., Fries, 3 Dall. 515.

18 Ex parte Bollman, 4 Cranch, 75; U. S. v. Burr, 4 Cranch, 469; U. S. v. Hanway, 3 Wall. Jr. 140; People v. Lynch, 1 Johns. 553.

19 U. S. v. Greathouse, 2 Abb. U. S. 334; U. S. v. Cheneweth 4 West L. Mo. 165.

20 U. S. v. Pryor, 3 Wash. C. C. 334.

21 U. S. v. Hanway, 2 Wall. Jr. 138; U. S. v. Burr, 4 Cranch, 469; 1 Burr. Tri. 196; U. S. v. Greiner, 4 Phila. 396. But see U. S. v. Fries, 2 Whart. St. Tr. 480.

2 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.

Punishment.-Power to punish for treason against the United States is exclusive in Congress. The confiscation act provided against any forfeiture of real estate beyond the life of the offender. All than be sold under the confiscation act is the right to the property terminating with the life of the person for whose offense it had been seized. Only the life estate is subject to condemnation and sale. This act is a mere exercise of the war power; not a criminal procedure. This provision does not apply to the confiscation of enemies' property, even though guilty of treason. 6

1 People v. Lynch, 11 Johns. 553. 2 Bigelow v. Forrest, 9 Wall. 350.

3 Bigelow v. Forrest, 9 Wall. 339.

4 Day v. Micon, 18 Wall. 156.

5 Miller v. U. S. 11 Wall. 304.

6 Confiscation Cases, 1 Woods, 221.

DESTY FED. CON.-20.