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chapter viii.: high treason. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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5.That penal trial which is the most important with reference to civil liberty, and in which the accused individual stands most in need of peculiar protection by the law, is the trial for treason. The English law does not know the term “political offence,” of which the trial for treason is, commonly, the highest in importance. Political Offence is a term belonging to the modern law of some countries of the European continent,1 and it was doubtless trials for offences of this character, which those jurists and publicists had partly in view, who, the reader will recollect, point out a well-guarded penal trial, almost as the sole characteristic of civil liberty.
If a well-guarded penal trial in general forms an important element of our liberty, because the individual is placed opposite to public power, a carefully organized trial for treason is emphatically so. In the trial for treason the government is no longer theoretically the prosecuting party, as it may be said it is in the case of theft or assault, but government is the really offended, irritated party, endowed at the same time with all the force of the government, to annoy, persecute, and often to crush. Governments have, therefore, been most tenacious in retaining whatever power they could in the trial for treason; and, on the other hand, it is most important for the free citizen that in the trial for treason he should not only enjoy the common protection of a sound penal trial, but far greater protection. In despotic countries we always find that the little protection granted in common criminal trials is withheld in trials for treason; in free countries, at least in England and the United States, greater protection is granted, and more” caution demanded, in trials for treason than in the common penal process. The trial for treason is a gauge of liberty. Tell us how they try people for treason, and we will tell you whether they are free. It redounds to the glory of England that attention was directed to this subject from early times, and that guarantees were granted to the prisoner indicted for treason, centuries before they were allowed to the person suspected of a common offence; and to that of the United States, that they plainly defined the crime of treason, and restricted it to narrow limits, in their very constitution. This great charter says, Article III., Section III.:
” I. 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.
” 2. 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.”
Whether political societies, not so fortunately situated as ourselves, yet equally prizing civil liberty, might safely restrict the crime of treason to such narrow limits as the wise and bold framers of our constitution have done, is a subject which belongs to a branch of political science that does not occupy us here; but it may be asserted that several cases have actually occurred in the United States, in which all nations except the American would have considered the provisions of our constitution insufficient, and in which nevertheless they have been found adequate.
We may consider the American law of high treason as the purest in existence, and it shows how closely the law of treason is connected with civil liberty. Chief-Justice Marshall said: “As there is no crime which can more excite and agitate the passions of men than treason, no charge demands more from the tribunal before which it is made a deliberate and temperate inquiry. Whether the inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both.”1
All constitutions of the different American states, which mention treason, have the same provision. Those that say nothing special about it, have the same by law, and in conformity with the principles which the respective constitutions lay down regarding penal trials.2 None admit of retrospective laws, of legislative condemnations of individuals, or of attainders.
The course which the development of the law of treason takes in history is this: At first there exists no law of treason, because the crime is not yet separated from other offences, as indeed the penal and civil laws are not separated in the earliest periods. The Chinese code, so minute in many respects, mixes the two branches, and debtors are treated as criminal offenders, reminding us, in this particular, of the early Roman law. When first treason comes to be separated from the other offences, it is for the twofold purpose of inflicting more excruciating pains, and of withholding from the trial the poor protection which is granted to persons indicted for common offences. The dire idea of a crimen exceptum gains ground. The reasoning, or rather unreasoning, is that the crime is so enormous that the criminal ought not to have the same chances of escape, thus assuming that the accused, yet to be proved to be a criminal, is in fact a criminal, and forgetting, as has been indicated before, that the graver the accusation is, and the severer therefore the punishment, in case of established guilt, may be, the safer and more guarded ought to be the trial. It is a fearful inconsistency, very plain when thus stated, yet we find that men continually fall into the same error, even in our own days. How often is lynch law resorted to in our country, on the very plea that the crime, still a suspected one, is so infamous that the regular course of law is too slow or too doubtful! The same error prevailed regarding witchcraft. The pope declared it a crimen exceptum-too abominable to be tried by common process. Protestant governments followed the example.1
At the same time we find that, at the period of which we are now speaking, the law of treason is vastly extending, and all sorts of offences, either because considered peculiarly heinous, or because peculiarly displeasing to the public power, are drawn within the meaning of treason. A list of all the offences which at some time or other have been considered to amount to treason, from the crime of “offended divine majesty,” (crimen læsæ majestatis divinæ,) in which stealing
from a church was included, to the most trivial common offences, and which I have made out for my own use, would astound the reader, if this were the place to exhibit it.
When political civilization advances, and people come to understand more clearly the object and use of government, as well as the dangers which threaten society and the individual, the very opposite course takes place. More protection is granted to the person indicted for treason, than in common penal trials, and the meaning of treason is more and more narrowed. The definition of treason is made more distinct, and constructive treason is less and less allowed, until we arrive at our own clear and definite law of treason.
It is thus that the law of treason becomes, as I stated before, a symptomatic fact, and is in politics what roads, the position of woman, public amusements, the tenure of land, architecture, habits of cleanliness, are in other spheres. They are gauges of social advancement. The more I studied this subject, the more I became convinced of the instruction to be derived from the history of the law of treason in ancient times, the middle ages, and modern periods, and it was my intention to append a paper to this work, which should give a survey of the whole. When, however, I came to arrange my long-collected materials, I found, although firmly resolved to disregard an author's partiality for materials of interest once collected, and to restrict the paper to the merest outlines, that it would be impossible to do any justice to the subject without allowing to it a dis-proportionally large place. I decided, therefore, to leave the subject for a separate work.
In conclusion I would repeat, experience proves that not only are all the guarantees of a fair penal trial peculiarly necessary for a fair trial for treason, but that it requires additional safeguards; and, of the one or the other, the following seem to me the most important:
The indictment must be clear as to facts and time when the indicted act has been committed;
The prisoner must have the indictment a sufficient time before the trial, so as to be able to prepare for it;
He must have a list of the witnesses against him, an equal time beforehand;
A sufficient time for the trial must be allowed; and the prisoner must not be seized, tried, and executed, as Cornish was, in 1685, in a week, as Burnet says, or, as McAulay has it, in ten days;
Counsel must be allowed, as a matter of course;
The judges must be impartial and independent, and ample challenges must be allowed; peers must judge. Consequently, judges must not be asked by the executive, before the trial, what their judgment would be if such or such a case should be brought before them, as was repeatedly done by the Stuarts;
Of all trials, hearsay must be excluded from the trial for treason;
Facts, not tendencies; acts, not words or papers written by the indicted person, and which have never been allowed to leave his desk, must be charged;
Perfect publicity must take place from beginning to end, and reporters must not be excluded; for it is no publicity in a populous country that allows only some twenty or forty by-standers;1
The trial must be in presence of the prisoner;
Several witnesses must be required to testify to the same fact, and the witnesses for the prisoner must be as much upon oath as those for the government;
Confession, if unconditionally admitted at all, must at least be in open court;
There must be no physical nor psychical torture or coercion;
There must be good witnesses, not known villains or acknowledged liars, as Titus Oates, or Lord Howard against Lord Russell;
The judges must not depend upon the executive;
No evidence must be admitted which is not admitted in other trials;
There must be a fixed punishment;
There must be no constructive treason;
And the judges must not be political bodies.
These guarantees have been elaborated by statute and common law, through periods of freedom and tyranny, by the Anglican race. The English law grants these safeguards, except indeed the last to lords, because, according to the principle that every one must be tried by his peers, a lord is tried by the house of lords. It showed great wisdom that the framers of our constitution did not assign the trial for treason to the senate,1 as the former French constitution appointed the house of peers to be the court for high treason. American impeachments are tried indeed by the senate, but it will be observed that the American trial of impeachment is not a penal trial for offences, but a political institution, trying for political capacity. The senate, when sitting as a court to try impeachments, can only remove from office, whatever the crime may have been; and the impeached person can be penally tried after the senate has removed him from office.2 In its political character, then, but in no other point, the American impeachment resembles the Athenian ostracism, which was likewise a political, and not a penal institution. The English impeachment is a penal trial.
The trials for treason going on in many countries of the European continent, especially in Naples and the Austrian dominions, are, by way of opposite, fair illustrations of what has been stated here3
The trial for treason has been treated of in this place because naturally connected with the subject of the penal trial in general. Otherwise it would have been more properly enumerated among the guarantees connected more especially with the general government of a free country. We return, therefore, once more to the guarantees of individual rights.1 .
[1.]The American reader ought to keep in mind that the term Political Offence is now a well-established term on the continent of Europe. It is used in legislation; thus the late French republic abolished capital punishment for political offenders, and in the treaty of extradition between France and Spain, “political offenders” are excepted, and not subject to extradition. It would, nevertheless, be difficult to give a definition of the term Political Offence sufficiently clear to be acceptable to a law-abiding administration of justice. Indeed, we may say that it was natural this term should have presented itself, in the course of things on the continent of Europe, and it is equally natural, and is full of meaning, that the English law does not know it.
[1.]The Writings of John Marshall, p. 42. Ex parte Bollman and Swartwout. The rebellion of the Mormons in 1858 has occurred since the remarks in the text were written. It would seem sound reasoning and statesmanship, that the narrower the limits are to which the public law restricts treason, the more necessary it becomes to execute the law fully within those limits.
[2.]Judge Story says: “A state cannot take cognizance, or punish the offence, (i.e. treason against the United States,) whatever it may do in relation to the offence of treason, committed exclusively against itself, if indeed any case can, under the constitution, exist, which is not at the same time treason against the United States.” Chap. 28, vol. iii. of Commentaries on the Constitution of the United States.
[1.]I seize upon this opportunity of advising every young reader of this work to study with earnest attention the history of the witch-trials forming, possibly, with the African slave-trade, the greatest aberrations of our Cis-Caucasian race. Such works as Soldan's History of the Witch-Trials [Gesch. der Hexenprocesse, Stuttgard, 1843] exhibit the psychology of public and private passion, of crime and criminal law, in so impressive and instructive a manner, that the sad course of crime and error having been run through, it ought not to stand on record in vain for us. We learn, in history and in psychology, as in nature, to understand the principles, motives, and laws of minor actions, by the changes and convulsions on a large scale; and the vast changes and revulsions by the microscopic observation of the minute reality around us.
[1.]When, in 1858, Count Montalembert was tried in Paris for having written a pamphlet in praise of England, a peculiarly small court-room was selected, only a few persons were admitted, by tickets, and no notes were allowed to be taken.
[1.]The American trials for treason are collected in Francis Wharton's State Trials of the United States, Philadelphia, 1846.
[2.][And, it may be, acquitted, as the court of ordinary justice would have its own definition of crime, and its own rules of evidence.]
[3.]The reader may be acquainted with the Right Hon. Mr. Gladstone's pamphlet on Neapolitan trials for treason, published in 1851. It is but a sample.
[1.]I would mention for the younger student, that when I study pervading institutions, or laws and principles which form running threads through the whole web of history, I find it useful to make chronological tables of their chief advancements and reverses. Such tables are very suggestive, and strikingly show what we owe to the continuity of human society. None of these tables has been more instructive to me than that on the history of the law of treason.