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410; Davis v Packard, 6 Pet. 41, 48; Mayor of New Orleans

v. De Armas y Pet. 234.) Crowell v. Randell, 10 Pet. 394–398. Give tho After this ill review, these propositions were stated :-1. That four requi- some one of the questions (stated in the 25th section) did arise in sites ?

the State court; 2. That the question was decided by the State court as required in the same section; 3. It is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms ipsissimis verbis, but that it is sufficient if it appear by clear and necessary intendo ment, that the question must have been raised, and must have been decided in order to have induced the judgment. 4. That it is not sufficient to show that a question might have arisen and been applicable to the case; unless it is further shown on the record, that it did arise, and was applied by the State court in the case. Crowell v. Randell, 10 Pet. 398. Affirmed, Choteam v. Margue. rite, 12 How. 510; McKinney v. Carroll, 12 How. 70. See Brightly's Digest, Tit. "ERRORS AND APPEALS," pp. 257-261, and volumi.

nous notes thereon. Define law " LAW AND FACT.”—Since the seventh amendment, Congress and fact !

can not confer upon the Supreme Court authority to grant a new 270-272

trial by a re-examination of the facts, and tried by a jury, except to redress errors of law. (Parsons v. Bedford, 3 Pet. 447, 449.

See Bank of Hamilton v. Dudley, 2 Pet. 192). Curtis' Com. $ 1!4. What gives It is the "case" and not the court which gives the appellate the appel- jurisdiction. (Martin v. Hunter, 1 Wheat. 394). Curtis Com. late jurisdiction?

$ 115. Therefore, if the question or the parties give federal juris. diction, it may be reached by appeal. Id. ; Cohens v. Virginia, 6 Wh. 413. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. Id. 416; Curtis' Com. 8 116. And see Osborn v. Bank of United States, 9 Wheat. 820, 821; Story's Const. S 1701.

If the objects can be attained without excluding the concurrent jurisdiction of the State courts, over cases which existed before, it would seem to be necessary to adopt such a construction as will sustain their concurrent powers. (Teal v. Felton, 12 How. 284, 292.) Curtis' Com. $ 121, 123, 124. As to when original juris. diction is exclusive, see same author, $ 129-135, and Martin v.

Hunter; Houston v. Moore, 5 Wheat. I, 12. What Juris- Congress can not confer jurisdiction upon any courts, but such diction can

as exist under the Constitution and laws of the United States, Congress

although the State courts may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the er. clusive jurisdiction of the federal courts. Houstou v. Moore, 5 Wheat. 24-28, $ 135, f. 178. And wherever the law of Congress furnishes the offense, the State law can only be opforced by the authority of Congress, or unless the power remain concurrent. Id.

If the jurisdiction be concurrent, the sentence of either court may be pleaded in law. Houston v. Moore, 5 Wheat. 40; i Chiro tis' Com. p. 180.

Where Congress has exercised a power over a particular sı.bStates superadd

ject given them by the Constitution, it is not competent for State uny thing? legislation to add to the provisions of Congress upon that subject.

had ?

The action by Congress seems to exclude State legislation. (Houston v.

Noore, 5 Wheat. 1, 22, 23; Prigg v. Pennsylvania, 16 Pet. 608.)

Story's Const. 3d ed. p. 615. "HERE A STATE SHALL BE A PARTY."-That is: 1. Where one in what State is plaintiff, and another State is defendant; 2. Where a three cases State is plain tiff, and an individual. whether a citizen of some other per pastato

be party! State or an alien, is defendant. 3. Where a foreign State is plaintiff against one of the United States as defendant. Curtis' Com. $ 153-157.

See Rhode Island v. Massachusetts, 12 Pet. 637; New Jersey v. New York, 5 Pet. 283; Pennsylvania v The Wheeling & Belmont

Bridge C. 13 Howard, 528; Cherokee Nation v. Georgia, 5 Pet. 1; Ex parte Juan Madrazo, 7 Pet. 627.

[3.] The trial of all crimes, except in cases of im- How and peachment, shall be by jury; and such trial shall be trials be held in

the State where the said crimes shall have been committeil; but when not committed within P 443. any State, the trial shall be at such place or places as the Congress may by law have directed.

212. * THE TRIAL.” (L. Lat. trialio. E.cactissima litis contestatæ, Define corum jue dice, per duod-cem virale exagititio. SPELMAN.) — The term trial? means here, the examination before a competent tribunal, according to the laws of the land, of the facts put in issue upon the indictment or presentment, for the purpose of determining the truth of such issues. United States v. Curtis, 4 Mason, 232; Co. Litt. 124b. And see Burrill's Law Dic, TRIAL; Magna Charta, ch. 29 (9 Henry III.); 2 Inst. 45; 3 Black. Com. 379-381; 4 Black. Com. 319, 330; 2 Kent's Com. Lect. 24, pp. 1-9; 3 Elliot's Debates, 331, 339; De Lolme, B. 1, ch. 13, B. 2, ch. 16; Paley, B. 6, ch. 8; 2 Wilson's Law Lect. P. 2, ch. 6, p. 305; Story's Const. 3 1778-1794.

** The trial” per pais. or by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the State. (Magna Charta.) Story's Const.

1179. * OF

ALL CRIMES EXCEPT IN CASES OF IMPEACHMENT.”_See What means * CRIJE "

defined, notes 193, 194. Here it means treason, piracy, felony, or some offense against the law of nations or an act of the Congress of the United States.

And this clause is to be taken subjeet to the exceptions, in the tifth amendment, as to trials in the land and naval service. The term “crime” here doubtless embraces Inisdemeanor. In the

case of the United States v. Hudson & Goodwin (7 Cranch, 32), it was held that the legislative authority must first

a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense," before the courts of the United States can exercise jurisdiction' over it. This doctrine was affirmed by the case of the United States v. Coolidge et al. (? Wheaton, 415), and Chief-Justice Marshall, in delivering the opinion of the court in Ex parte Bollman & Swartwout (+ Cranch,

* crimes" here!

89.

make an

acet

260.

95), said: "Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, can not transcend that jurisdiction.” And it was iu following these cases that Justice McLean held, in United States v. Lancaster (2 McLean's R. 433), that “the federal government has no jurisdiction of offenses at common law. Even in civil cases the federal government follows the rule of the common law as adopted by the States, respectively. It can exercise no criminal jurisdiction which is not given by statute, nor punish any act, criminally, except as the statute provides.” The same doctrine is followed in Kitchen v. Strawbridge, 1 Wash. C. C. R., 84; United States v. New Bedford Bridge, 1 Wood & Minot 401: Ex parte Sullivan, 3 Howard, 103; 12 Peters, 654; 4 Dallas, 10, and note; 1 Kent's Com. 354; Sedgwick on Statutory and Constitutional Law, 17; and Wharton, in reviewing this question, says: “However this may be on the merits, the line of recent decisions puts it beyond doubt that the federal courts will not take jurisdiction over any crimes which have not been placed directly under their control by act of Congress." (Am. Criminal

Law, 174.) Report on the Impeachment of the President, 75, 76. Define jury? * By JURY" is generally understood to mean, ex ii termini, a

trial by a jury of twelve men, impartially selected in accordance with law), who must unanimously concur in the guilt of the accused before a conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional. (l'ork v. The State, 2 Ohio St. R. 296; The State v. Cox, 3 English, 436; The State v. The People, 2 Parker C. C. 322. 329, 402, 562; 2 Leading Criminal Cases, 327, and note.) Story's Const.

3d edition, s 1779. Does it This does not constitute them judges of the law in criminal

United States v. Morris, 1 Curt. C. C. 23, 49; United States jury the Judges of the v. Shive, Bald. 510; United States v. Battiste, 2 Sumn. 240. And law ? see Townsend v. The State, 2 Blackf. (Ind.), 152; Pierce v. The

State, 13 N. H. 536: Commonwealth v. Porter, 10 Met. 263 : Commonwealth v. Sherry, Wharton on Homicides, 481. It only embraces those crimes which by former laws and customs had been tried by jury. United States v. Duane, Wall. 106. It did not secure to the conspirators who, assassinated the President ia Washington city during the war, and while martial law existed in Washington city, the right to trial by jury. The Trial of the

Conspirators. 281-237. This section compared with the fourth, fifth, and sixth amend.

ments. Ex parte Milligan, 4 Wallace, 119; Story's Const. $ 1782. The first of these secures a presentment or indictment bị a grand jury before there can be a trial by a jury. Id. And for the reason of these amendments in the shape of a Bill of Rights,

see 2 Elliot's Debates, 331, 380-427; 1 Id. 119-122 ; 3 Id. 139–153. Why in the

300. States where com

213. IN STATES WHERE COMMITTED. - This was to prerent the mitted ? defendant from being dragged into a distant State. (2 Elliot's

make the

cases.

treason?

Debates, 399, 400, 407, 420; 2 Hale's P. C. ch. 24, pp. 260, 264;
Hawk P. C. ch. 25, S 34; 3 Bl. Com. 383.)

Many of the States are divided into two or more districts (circuits) defined by law; and the rule of trying the accused in such district is believea to be now strictly adhered to.

214. “BUT WHEN XOT COMMITTED WITHIN ANY STATE, THE Where are TRIAL SHALL BE AT SUCH PLACE OR PLACES AS CONGRESS MAY BY offenders LAW HAVE DIRECTED.”—The offenses committed in the District of tried ? Columbia have always been tried in the District, under the “exclu. sive legislation;" those in the organized territories have been tried there by the local courts of the territories; those committed by whites, or by Indians against whites (to a limited extent), have been tried in the States to whose federal courts jurisdiction had been committed by the laws to regulate trade and intercourse with the Indian tribes; those committed in forts and arsenals, over which jurisdiction had been ceded by the States, have been tried in the United States District or Circuit Courts in that State ; those upon the high seas in the State where the vessel first arrives.

So that “ NOT COMMITTED IN ANY STATE,” may be defined to be offenses committed in the District of Columbia, in forts or arsenals to which jurisdiction has been ceded by the States; in the territories of the United States; in the Indian country; upon the higlı seas, and everywhere, when against the law of nations.

SEC. III.—[1.] Treason against the United States Define 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 By how on the testimony of two witnesses to the same overt witnesses ? act, or on confession in open court.

215. "TREASON.”—[Law Lat. Proditio. L. Fr. Treson, from Defino treer, trehir, trahir, to betray.] Burrill's Law Dic., Treason.

The word “ONLY was used to exclude from the criminal juris- law? prudence of the new republic the odious doctrines of constructive Define

Its use, however, while liimting the definition to plain "only": overt acts, brings these acts into conspicuous relief, as being always, and in essence, treasonable.

War, therefore, levied against the United States by citizens ou 461. the republic, under the pretended authority of the new State government of North Carolina, or the new central government which assumed the title of the “Confederate States," was treason against the United States. Chief-Justice Chase in Shortridge v. Macon (North Carolina), 16th June, 1867.

In the prize cases the Supreme Court simply asserted the right 117. of the United States to treat the insurgents as belligerents, and to claim from foreign nations the performance of neutral duties under the penalties kuown to international law. The decision recognized, also, the fact of the exercise and concession of belligerent rights, and affirmed, as

a necessary consequence, the proposition that

192.

treason at common

treason.

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to the

were during the war all the inhabitants of the country controlled by the relations the rebellion and all the inhabitants of the country loyal to the itants of the Union were enemies reciprocally each of the other. But there is rebel States nothing in that opinion which gives countenance to the doctrine to those loy, which counsel endeavor to deduce from it: that the insurgent Union : States, by the act of rebellion, and by levying war against the

nation, became foreign States, and their inhabitants alien enemies.

United States v. Stortridge. Id. What is the Held. that the enforced payment of a debt under the confederate effect of se; sequestration laws, was no protection. It was denied that the questration?

• Confederato States" was a de facto government.

For the enumeration of the acts of treason in England, see 4 Steph. Com. 185–193 ; 4 Bl. Com. 76-84; Wharton's American

Crim. Law, B. 7, ch 1, S 2715–2777. Burrill's Law Dic., TREASON. What war is There must be an actual levying of war; a conspiracy to subvert necessary? the government by force is not treason; nor is the mere enlistment of men, who are not assembled, a levying of war.

Ex parte Bollman, 4 Cr. 75; United States v. Hanway, 2 Wall

. Jr. 140; Id. 136; 4 Am. L. J. 83. And no man can be convicted of treason, who was not present when the war was levied. 2 Burr's Trial, 401, 439; and see the same case, Appendix to 4 Cranch, 469-508.

See United States v. Willberger, 5 Wheat 97. From The whole definition is copied from the statute of 25 Ed. III., ch. whence

2; 1 Hale's Pleas of the Crown, 259 ; Judge Marshall's charge in copied ?

Burr's Trial; Story's Const. § 1799. See 3 Wilson's Law Lect., ch. 5, pp. 95, 96; Montesquieu Spirit of Laws, B. 12, ch. 7; 4 BL. Com. 75-84. The definition admits of no constructive treasons. Federalist, No. 43; Story's Const. $ 1798; Jefferson's Correspondence, 72-103.

If war be actually levied, that is, if a body of men be actually levying of

assembled for the purpose of effecting by force a treasonable purwar?

pose, all 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 assemblage ot' men for the treasonable purpose, to constitute a levy of war. (Ex parte Bollman, 4 Cr. 126; United States v. Burr, 4 Cr. 469-508 ; Sergts. Const. ch. 30 [32]; People v. Lynch, 1 John. 553.)

And further, for the definition of treason, see United States 5. Hoxie, 1 Paine, 265; United States v. Hanway, 2 Wallace, Jr. 139; Regina v. Frost, 9 C. & P. 129; 2 Bishop on Cr. Law. § 1032.

Treason is a breach of allegiance, and can be committed by him only, who owes allegiance either perpetual or temporary. United

States v. Willberger, 5 Wheat. 97. To what

216. Two WITNESSES.--The evidence, it seems, refers to the trial does it proofs on trial, and not to the preliminary hearing before the com. refor!

nitting magistrate, or the proceeding before the grand inquest. United States v. Hanway, 2 Wall. Jr. 138; 1 Burr's Trial. 196. But see Fries's Trial, 14 Whart. St. Tr. 480, and the same in 2 pamphlet, 171.

There must be, as there should be, the concurrence of two witnesses to the same overt act, that is, open act of treason, who are

What is a

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