but he had managed to evade arrest, and in concealment his fertile brain conceived a plan to escape the fate of his friends. Two witnessess were necessary to convict him. It had already appeared at the trial of his accomplices that there were in fact only two persons, Porter and Goodman, who could prove his guilt. Fenwick was safe, therefore, if he could put either of these men out of the way. He first attempted to persuade Porter to abscond, but was unsuccessful. Porter and Goodman appeared against him before the grand jury, and he was indicted for high treason. After an unsuccessful attempt to escape to France, Fenwick was safely lodged in the Tower. Cunningly inducing delay by meaningless confessions, he managed to communicate with his friends, who now exerted every nerve to get Goodman out of the way. The latter was finally cornered by Fenwick's desperate emissaries, and offered the choice between absconding and receiving an annuity of £500, or having his throat cut on the spot. He was not long in deciding, and was promptly escorted to France. When, therefore, the government was ready to proceed with Fenwick's trial, they discovered to their consternation that it was too late. But the government was determined that Fenwick should not escape the consequences of his great crime merely because he had added to it the offense of bribing witnesses to suppress the evidence of his guilt. It was decided to proceed against him by an act of attainder. On the hearing on this bill, which lasted three days, Fenwick was represented by counsel. Porter testified to the treasonable conspiracy. By testimony which would have been inadmissible in a court of law, the plan and purpose of Goodman's disappearance were made plain. Goodman's sworn confession was put in evidence. Some of the grand jurymen who had found the indictment against Fenwick testified to Goodman's statement before them, and their testimony was supported by the

evidence of jurymen who had convicted another conspirator. This was the case before the House. The long debate that followed was one of the ablest discussions to be found in Parliamentary records. Every man of note took part, but the brunt of the argument was sustained by Cowper and Montague for the Whigs, and by Harcourt and Seymour among the Tories. The two-witness rule in treason cases was elaborately discussed. The Tory orators claimed for it an eternal obligation; it was part of the law of nature and of God. "Caiaphas and his Sanhedrim were ready enough to set up the plea of expediency for a violation of justice; they said-and we have heard such things said-We must slay this man, or the Romans will come and take away our place and nation.' Yet even Caiaphas and his Sanhedrim, in that foulest act of judicial murder, did not venture to set aside the sacred law which required two witnesses." "An eternal law!" replied Montague. "Where was this eternal law before the reign of Edward the Sixth? Where is it now, except in statutes which relate only to one very small class of offenses? If these texts from the Pentateuch and these precedents from the practice of the Sanhedrim prove anything, they prove the whole criminal jurisprudence of the realm to be a mass of injustice and impiety. One witness is sufficient to convict a murderer, a burglar, a highwayman, an incendiary, a ravisher. Nay, there are cases of high treason in which only one witness is required. One witness can send to Tyburn a gang of clippers and coiners. Are you, then, prepared to say that the whole law of evidence, according to which men have during ages been tried in this country for offences against life and property, is vicious and ought to be remodelled? If you shrink from saying this, you must admit that we are now proposing to dispense, not with a divine ordinance of universal and perpetual obligation, but simply with an English rule of

procedure, which applies to not more than two or three crimes, which has not been in force a hundred and fifty years, which derives all its authority from an act of Parliament, and which may therefore be by another

act abrogated or suspended without offense to God or men." In the end, the bill passed both Houses by narrow margins, and on January 28, 1697, Fenwick was beheaded.

TUDENTS of constitutional law must

STUD

seek far to find a case involving so many and such curious points of law as those discussed, but unfortunately never decided, in the trial of the Emperor Maximilian of Mexico, in the year of grace 1867. That the difficulties of the situation were tremendous cannot for a moment be denied; how far real or seemingly real obstacles should interfere with the administration of constitutional justice is a question as old as constitutions themselves, and likely to prove as lasting. Senor Romero, representing the Mexican government at Washington, set forth the more pertinent of these difficulties in a letter to the Honorable Hiram Barney, of New York, under date of May 31, 1867, in which he says:

"I have perused with interest your remarks about the way in which we ought to treat the enemies of Mexico. I do not know what disposition President Juarez will make of Maximilian, but I am afraid that if he is allowed to go back to Europe with impunity, he will be a constant menace to the peace of Mexico. He will keep on styling himself to our shame-Emperor of Mexico; all dissatisfied Mexicans will keep up an active correspondence with him about his supposed popularity there, and even may induce him to return at some future time, as they did with Iturbide; such of them as can af

ford it will go over to Austria and form a Mexican court for Maximilian at Miramar, and he will have enough of them to organize a legitimate Mexican government there, as the ex-king of the Two Sici lies did at Rome, after he was expelled from Naples; some European powers will keep recognizing him as the Emperor of Mexico, as Spain did with the ex-king of the Two Sicilies; whenever we may be likely to have complications with any European nation, the first step taken by the interested party will be to intrigue with Maximilian, and to theaten us with giving aid to our lawful sovereign to recover his authority from the hands of the usurpers, if we decline to accept their

terms.

"Besides, if Maximilian is pardoned and allowed to go home, nobody in Europe, I am sure, will give us credit for magnanimity, as weak nations are not supposed to be magnanimous; but, on the contrary, it will be said that we did so through fear of public opinion in Europe, and because we would not dare to treat harshly our sovereign.

"I do not mean by this to say that Maximilian must necessarily be shot; what I mean is that his power to do any further mischief in Mexico must be utterly destroyed before he is allowed to depart."

That President Juarez and his cabinet fully recognized the fearful responsibility of the

course they were to pursue cannot be doubted. They had seen the clemency accorded Jefferson Davis by the United States only a year or two before, and the respect with which the victorious French republic had treated Charles X. in 1830. The gravity of the situation, as outlined in the letter of Senor Romero, required a grave consideration. That the Mexican government having decided what it was in their opinion imperative they should do, should seek to put their purpose into execution through the medium of a trial by court of law, and the invocation of established precedents of constitutional and international law is one of those curious instances in which men try to hide a painful necessity under the cloak of imperative justice.

Maximilian was officially charged by the government and brought to trial for having. as was set forth in the original document, "offered himself as the principal instrument of the French government to carry out certain plans of intervention, which were to disturb the peace of Mexico, by means of a war, unjust in its origin, illegal in its form, disloyal and barbarous in its execution; and of arousing in Mexico the political faction that has sacrificed the national rights and interests in order to satisfy their particular interest; and which faction was already reduced and unable to offer further resistance without the assistance of foreign arms; in order to destroy the constitutional government of the nation established by the people, who were in the exercise of all its powers, and recognized by foreign nations, and even by the very powers which brought on the intervention; in order to transform the Republic into a monarchy, which would favor the policy of Napoleon III., in opposing American democracy, and favor the base interests of the French government" and its agents who had no other object in view than that "of obtaining so base and iniquitous advantages from

a war which had been called a War of Intervention."

Secondly, that Maximilian had assumed to himself the supreme power without any other title than that which the armed force of the French government gave him, and a few votes which he pretended to call the national will, "notwithstanding that such pretended expression of the national will is false in form and substance, since the Mexican Republic being established as it is on the fundamental charter of 1857, the only legitimate expression of the will of the people is that which is defined in the charter and regulated by the electoral law as laid down in the same."

Thirdly, that the Archduke Maximilian had accepted voluntarily the responsibilities of an usurper of the sovereignty of a people constituted as a nation free and independent; and, fourthly, with having, with an armed force, disposed of the lives, rights and interests of the Mexican people.

Fifthly, with having made war in many cases under the direction of the commanderin-chief of the French army in Mexico, and of having consented to innumerable atrocities. Of having, in his own name engaged in a filibustering war, inviting and enlisting foreigners of all nations to join him. Of having published and carried into effect barbarous decrees authorizing the execution of all prisoners of war upon the spot; of having assumed that the person at the head of the Constitutional Republican Government had abandoned the Mexican Territory; of having attempted to sustain his false title of Emperor of Mexico after the French army had withdrawn from Mexico.

Tenthly, with having abdicated the false title of Emperor, so that it should not take effect until he was conquered; of pretending to be entitled to the consideration due to a sovereign conquered in war, when for the Mexican nation he had not been such. And, finally, with having failed to recognize the competency of the national Council of War,

but of having protested against the same.

Each accusation to which the defendant returned no answer was taken as having been proven against him. Moreover the limits of his answers were closely circumscribed by the court, and the objections of his counsel invariably overruled.

The Emperor, seeing himself already sentenced under the guise of law, was yet anxious that his true legal position should be made known to educated men in the rest of the world. For this purpose he requested Mr. Frederic Hall, an American numbered among his legal advisers, to draw up a rough brief of his defence. This was done hurriedly, and sent to many prominent Americans. It makes exceedingly interesting reading at this day, because of the very curious circumstances of its occasion, and the attempt to answer fairly, and with reference to principles of established law, charges which had so palpably been prejudged.

The defence reads:

"Whereas, Maximilian is now a prisoner in the city of Queretaro, Mexico, by virtue of his surrender to the Mexican forces, heretofore, to wit, on the 15th of May, A. D., 1867; and whereas certain criminal proceedings have been ordered on certain charges and accusations against him by the Mexican authorities; and whereas the said Maximilian has, heretofore, made his solemn protest, denying the jurisdiction of the court established for the purpose of trying him on said accusations and charges: Therefore, be it known, that the said Maximilian hereby further protests against the jurisdiction of said military court or tribunal, and against the right of any military tribunal to try him; that he is only a prisoner of war, and was so considered and declared so to be by the commander-in-chief of the Mexican Liberal Army, to whom he surrendered himself, as aforesaid.

"1st. He contends that he is only a prisoner of war, and that according to the

generally recognized usages and rules of war, that if he is to be tried by any court, or by any law, the trial should be before a competent court, and in accordance with International Law, as understood among civilized. nations; which consists of those rules of conduct which reason deducts as consonant to justice from the nature of the society existing among independent nations, with such definitions and modifications as has been establshed by general consent.

"2nd. That, according to the generally recognized usages and rules of International Law, no use of force is lawful ercept so far as it is necessary. A belligerent has therefore no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may be lawfully killed; but those who, being in arms, submit and surrender themselves, may not be slain, because their destruction is not necessary for obtaining the just ends of war. The killing of prisoners can only be justified in those extreme cases where resistance on their part, or on the part of others who came to their rescue, renders it impossible to keep them. Both reason and general opinion concur in showing that nothing but the strongest necessity will justify such an act. (See Wheaton on the Law of Nations, Part 4th, Chapter 2d, Section 2d.)

"3rd. That, if it be lawful to try him by a court-martial, the officers who compose the court established by the order of the Mexican authorities of the Liberal Party are of too low a rank, according to the usage and rules of civilized nations.

"4th. That the internal sovereignty of a State does not, in any degree, depend upon the recognition by other States. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists. Upon this principle, the Supreme Court of the United States held, in 1808, that the internal sover