State and national authority, throughout all the particular communities; while, at the same time, it regulates by the same system of legislation, applied throughout the whole, the rights and duties of individuals that are committed to the national authority. It was for the want of this supremacy and of the means of enforcing it, that the Confederation, and all the other federal systems of free government known in history, had failed to create a powerful and effective nationality; and it is precisely this, which has enabled the Constitution of the United States to do for the nation what all other systems of free government had failed to accomplish.

In this connection, it seems proper to state the origin and purpose of that definition of treason which is found in the Constitution, and which was placed there in order, on the one hand, to defend the supremacy of the national government, and on the other, to guard the liberty of the citizen against the mischiefs of constructive definitions of that crime. No instructions had been given to the committee of detail on this subject. They, however, deemed it necessary to make some provision that would ascertain what should constitute treason against the United States. They resorted to the great English statute of the 25th Edward III.; and from it they selected two of the offences there defined as treason, which were alone applicable to the nature of the sovereignty of the United States. The statute, among a variety of other offences, denominates as treason the levying of war against the king in his

realm, and the adhering to the king's enemies in his realm, giving them aid and comfort in the realm, or elsewhere. The levying of war against the government, and the adhering to the public enemy, giving him aid and comfort, were crimes to which the gov ernment of the United States would be as likely to be exposed as any other sovereignty; and these of fences would tend directly to subvert the government itself. But to compass the death of the chief magistrate, to counterfeit the great seal or the coin, or to kill a judge when in the exercise of his office, however necessary to be regarded as treason in England, were crimes which would have no necessary tendency to subvert the government of the United States, and which could therefore be left out of the definition of treason, to be punished according to the separate nature and effects of each of them. The committee accordingly provided that "treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them."2

But here, it will be perceived, two errors were committed. The first was, that the levying of war against a State was declared to be treason against / the United States. This opened a very intricate question, and loaded the definition with embarrassment; for, however true it might be, in some cases, that an attack on the sovereignty of a State might

1 4 Blackstone's Com., Book IV. ch. 6.

VOL. II.

49

2 Art. VI. § 2 of the first draft of the Constitution. Elliot, V. 379.

tend to subvert or endanger the government of the United States, yet a concerted resistance to the laws of a State, which is one of the forms of " levying war" within the meaning of that phrase, might have in it no element of an offence against the United States, and might have no tendency to injure their sovereignty. Besides, if resistance to the government of a State were to be made treason against the United States, the offender, as was well said by Mr. Madison, might be subject to trial and punishment under both jurisdictions. In order, therefore, to free the definition of treason of all complexity, and to leave the power of the States to defend their respective sovereignties without embarrassment, the Convention wisely determined to make the crime of treason against the United States to consist solely in acts directed against the United States themselves.

The other error of the committee consisted in omitting from the definition the qualifying words of the statute of Edward III., "giving them aid and comfort," which determine the meaning of “adhering" to the public enemy. These words were added by the Convention, and the crime of treason against the United States was thus made to consist in levying war against the United States, or in adhering to their enemies by the giving of aid and comfort.3

With respect to the nature of the evidence of this

1 Elliot, V. 450.

2 The effect of these words is as if the statute read "adhering to the enemy by giving him aid and

comfort," and not as if they were two separate offences.

3 See the debate, Elliot, V. 447–

451.

crime, the committee provided that no person should be convicted of treason unless on the testimony of two witnesses. But to make this more definite, it was provided by an amendment, that the testimony of the two witnesses should be to the same overt act; and also that a conviction might take place on a confession made in open court. The punishment of treason was not prescribed by the Constitution, but was left to be declared by the Congress; with the limitation, however, that no attainder of treason should work corruption of blood, or forfeiture, except during the life of the person attainted.1

1 Ibid. Art. III. § 3 of the Constitution.

CHAPTER XIII.

REPORT OF THe Committee of Detail, coNTINUED. ELECTION AND POWERS OF THE PRESIDENT.

IN describing the manner in which the Constitution and powers of the Senate were finally arranged, I have already had occasion to state, that, after the report of the committee of detail came in,— vesting the appointment of the President in the national legislature, creating a term of seven years, and making the incumbent ineligible a second time, a direct election by the people was negatived by a large majority. This mode of election, as a means of removing the appointment from the legislature, would have been successful, but it was inadmissible on other accounts. In the first place, it would have given to the government a character of complete consolidation, so far as the executive department was concerned, to have vested the election in the people of the United States as one community. In the second place, not only would the States, as sovereignties, have been excluded from representation in this department, but the slaveholding States would have had a relative weight in the election only in the proportion of their free inhabitants. On the other hand, to provide that the executive should be appointed by