cessive fines, as the history of criminal jurisprudence in other countries proves, were it not for this constitutional prohibition.

§ 13. Nor shall cruel and unusual punishments be inflicted. This needs no comment, except the remark that history shows that despots in the dark ages taxed their fiendish ingenuity to invent punishments the most horrid, cruel, and revolting. And this prohibition is for the purpose of avoiding all possibility of a repetition of such cruelties in this country.

ART. V.-CIVIL ACTIONS.

In all cases at common law wherein the value in controversy shall exceed twenty dollars,

1. The right of trial by jury shall be preserved.

2. No fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. 89.

§ 1. The common law includes those principles, usages, and rules of action, applicable to the government and security of person and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature. It grew into use among our English ancestry by gradual adoption; receiving from time to time the sanction of the courts of justice, without any legis lative act or interference. It was the application of the dictates of natural justice and of cultivated reason to particular cases.

A statute law is the will of the legislature in writing.1

§ 2. In paragraph 68 of the Constitution, provision is made for the trial of criminal cases by jury; but nothing is said there or elsewhere in that instrument, as it came from the hands of its authors, about trial by jury in civil cases. Those who assailed the Constitution when it was before the people for ratification claimed that this omission was intended to and did abolish trial by jury in civil cases. Hence this amendment was adopted at an early day, which put the matter at rest. This amendment, however, refers only to cases in the common-law courts, not to courts of admiralty

1 Kent's Comm., Lect. 21.

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 common 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 investigation by a successful motion for a new trial, on cause shown, or by writ of errer, or by an appeal to another and higher tribunal. 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.

ART. VI.

TREASON.

1. DEFINITION.Treason against the United States shall

consist,

1st. In levying war against them; or,

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

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.

§ 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. To 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.

§ 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.

§ 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.”

§ 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.

ART. VII.-OFFICIAL IMMUNITIES.

1. FROM ARREST.

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

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 of "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 constituents 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," "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 department 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

i Federalist, No. 72.