be governed by principle would, we presume, undertake to say that the courts of Great Britain or France, or of any other nation, had misunderstood their own statutes, and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liberty to depart from that construction than to depart from the words of the statute. On this principle, the construction given by this court to the Constitution and laws of the United States is received by all as the true construction; and on the same principle the construction given by the courts of the several States in the legislative acts of those States is received as true, unless they come in conflict with the Constitution, laws, or treaties of the United States." And in Green v. Neal, 6 Pet. 298, it is said by McLean, J.: "The decision of the highest judicial tribunal of a State should be considered as final by this court, not because the State tribunal in such a case has any power to bind this court, but because, in the language of the court in Shelby v. Guy, 11 Wheat. 361, 'a fixed and received construction by a State, in its own courts, makes a part of the statute law." And see Jackson v. Chew, 12 Wheat. 162, per Thompson, J. In further illustration of the same doctrine, the following cases are cited: Sims v. Irvine, 3 Dall. 425: McKeen v. Delancy, 5 Cranch, 22; Polk v. Wendal, 9 Cranch, 87; Preston v. Browder, 1 Wheat. 115; Mutual Assurance Co. v. Watts, Id. 279; Shipp v. Miller, 2 Wheat. 316; Thatcher v. Powell, 6 Wheat. 119; Bell v. Morrison, 1 Pet. 351; Waring v. Jackson, Id. 570; De Wolf v. Rabaud, Id. 476; Fullerton v. Bank of United States, Id. 604; Gardner v. Collins, 2 Pet. 58; Beach . Viles, Id. 675; Inglis v. Sailor's Snug Harbor, 3 Pet. 99; United States v. Morrison, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; Hinde v. Vattier, Id. 398; Ross v. McLung, 6 Pet. 283; Marlatt v. Silk, 11 Pet. 1; Bank of United States v. Daniels, 12 Pet. 82; Clarke v. Smith, 13 Pet. 195; Ross v. Duval, Id. 45; Wilcox v. Jackson, Id. 498; Harpending v. Reformed Church, 16 Pet. 445; Martin e. Waddell, Id. 367; Amis v. Smith, Id. 303; Porterfield v. Clark, 2 How. 76; Lane v. Vick, 3 How. 464; Foxcroft v. Mallett, 4 How. 353; Barry v. Mercein, 5 How. 103; Rowan v. Runnels, Id. 134; Van Rensselaer v. Kearney, 11 How. 297; Pease v. Peck, 18 How. 595; Fisher v. Haldeman, 20 How. 186; Parker v. Kane, 22 How. 1; Suydam v. Williamson, 24 How. 427; Sumner v. Hicks, 2 Black, 532; Chicago v. Robbins, Id. 418; Miles v. Caldwell, 2 Wall. 35; Williams v. Kirkland, 13 Wall. 306; Springer v. Foster, 2 Story, C. C. 383; Neal v. Green, 1 McLean, 18; Paine v. Wright, 6 McLean, 395; Boyle v. Arledge, Hemp. 620; Griffing v. Gibb, McAll. 212; Bayerque v. Cohen, Id. 113; Wick v. The Samuel Strong, Newb. 187; New England Screw Co. v. Bliven, 3 Blatch. 240; Bronson v. Wallace, 4 Blatch. 465; Van Bokelen v. Brooklyn City R. R. Co., 5 Blatch. 379; United States v. Wonson, 1 Gall. 5; Society, &c. v. Wheeler, 2 Gall. 195; Coates v. Muse, Brock. 539; Meade v. Beale, Taney, 339; Parker v. Phetteplace, 2 Cliff. 70; King v. Wilson, 1 Dill. 555. In Green v. Neal, 6 Pet. 291, an important question was presented as to the proper course to be pursued by the Supreme Court of the United States under somewhat embarrassing circumstances. That court had been called upon to put a construction upon a State statute of limitations, and had done so. Afterwards the same question had been before the Supreme Court of the State, and in repeated cases had been decided otherwise. The question now was, whether the Su preme Court would follow its own deci sion, or reverse that in order to put itself in harmony with the State decisions. The subject is considered at length by McLean, J., who justly concludes that "an adherence by the federal courts to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and federal tribunals. This rule is not only recommended by strong considerations of propriety, growing out of our system of jurisprudence, but it is sustained by principle and authority." And it accordingly reversed its rulings to make them conform to those of the State court. See also Suydam v. Williamson, 24 How. 427; Leffingwell v. Warren, 2 Black, 599; Blossburg R. Co. v. Tioga R. Co., 5 Blatch. 387; Smith v. Shriver, 3 Wall. Jr. 219. It is of course immaterial that the court may still be of opinion that the State court has erred, or that the decisions else. where are different. Bell v. Morrison, 1 Pet. 360. But where the Supreme Court has held that certain contracts for the price of slaves were not made void by the State constitution, and afterwards the State court held otherwise, the Supreme Court, regarding this decision wrong, declined to reverse their own ruling. Rowan v. Runnels, 5 How. 134. Compare this with Nesmith v. Sheldon, 7 How. 812, in which the court followed, without examination or question, the State decision that a State general banking law was in violation of the constitution of the State. The United States circuit court had held otherwise previous to the State decision. Falconer v. Campbell, 2 McLean, 195. This doctrine does not apply to ques tions not at all dependent upon local statutes or usages; as, for instance, to contracts and other instruments of a commercial and general nature, like bills of exchange, Swift v. Tyson, 16 Pet. 1; and insurance contracts, Robinson v. Commonwealth Ins. Co., 3 Sum. 220. And see Reimsdyk v. Kane, 1 Gall. 371; Austin v. Miller, 5 McLean, 153; Gloucester Ins. Co. v. Younger, 2 Curt. C. C. 322; Bragg . Meyer, 1 McAll. 408. Nor to decisions which sustain violations of the Constitution of the United States. State Bank v. Knoup, 16 How. 369; Jefferson Branch Bank v. Skelley, 1 Black, 436. And where a contract has been made under a settled construction of the State constitution by its highest court, the Supreme Court will sustain it, notwithstanding the State court has since overruled its former decision. Gelpcke v. Dubuque, 1 Wall. 176. C. CHAPTER XXXIX. DEFINITION AND EVIDENCE OF TREASON. § 1796. THE third section of the third article is as follows: "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." § 1797. Treason is generally deemed the highest crime which can be committed in civil society, since its aim is an overthrow of the government, and a public resistance by force of its powers. Its tendency is to create universal danger and alarm; and on this. account it is peculiarly odious, and often visited with the deepest public resentment. Even a charge of this nature, made against an individual, is deemed so opprobrious, that, whether just or unjust, it subjects him to suspicion and hatred; and, in times of high political excitement, acts of a very subordinate nature are often, by popular prejudices as well as by royal resentment, magnified into this ruinous importance.1 It is, therefore, of very great importance that its true nature and limits should be exactly ascertained; and Montesquieu was so sensible of it, that he has not scrupled to declare that if the crime of treason be indeterminate that alone is sufficient to make any government degenerate into arbitrary power. The history of England itself is full of melancholy instruction on this subject. By the ancient common law it was left very much to discretion to determine what acts were and were not treason; and the judges of those times, holding office at the pleasure of the crown, became but too often instruments in its hands of foul injustice. At the instance of tyrannical princes they had abundant opportunities to create constructive treasons; that is, by forced and arbitrary constructions, to raise offences into the guilt and punishment of treason which 1 3 Wilson's Law Lect. ch. 5, p. 95, &c. 2 Montesq. Spirit of Laws, B. 12, ch. 7; 4 Black. Comm. 75. VOL. II. 37 were not suspected to be such.1 The grievance of these constructive treasons was so enormous, and so often weighed down the innocent and the patriotic, that it was found necessary, as early as the reign of Edward III.,2 for Parliament to interfere and arrest it, by declaring and defining all the different branches of treason. This statute has ever since remained the pole-star of English jurisprudence upon this subject. And although, upon temporary emergencies and in arbitrary reigns, since that period, other treasons have been created, the sober sense of the nation has generally abrogated them, or reduced their power within narrow limits.3 § 1798. Nor have republics been exempt from violence and tyranny of a similar character. The Federalist has justly remarked, that new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other.4 § 1799. It was under the influence of these admonitions, furnished by history and human experience, that the convention deemed it necessary to interpose an impassable barrier against arbitrary constructions, either by the courts or by Congress, upon the crime of treason. It confines it to two species: first, the levying of war against the United States; and secondly, adhering to their enemies, giving them aid and comfort.5 In so doing, they have adopted the very words of the statute of treason of Edward the Third; and thus, by implication, in order to cut off at once all chances of arbitrary constructions, they have recognized the well-settled interpretation of these phrases in the administration of criminal law which has prevailed for ages. § 1800. Fortunately, hitherto but few cases have occurred in the United States in which it has been necessary for the courts of justice to act upon this important subject. But whenever they 1 4 Black. Comm. 75; 3 Wilson's Law Lect. 96; 1 Tuck. Black. Comm. App. 275, 276. 2 Stat. 25 Edw. 3, ch. 2; 1 Hale, P. C. 259. 8 See 4 Black Comm. 85 to 92; 3 Wilson's Law Lect. 96, 97, 98, 99; 1 Tuck. Black. Comm. App. 275. 4 The Federalist, No. 43; 3 Wilson's Law Lect. 96. 5 See also Journal of Convention, 221, 269, 270, 271. 6 See 4 Black. Comm. 81 to 84; Foster, Cr. Law, Discourse I. But see 4 Tuck. Black. Comm App. note B. have arisen, the judges have uniformly adhered to the established doctrines, even when executive influence has exerted itself with no small zeal to procure convictions.1 On one occasion only has the consideration of the question come before the Supreme Court; and we shall conclude what we have to say on this subject with a short extract from the opinion delivered upon that occasion: "To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States. 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 offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris, and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true, that in that case the soldiers enlisted were to serve without the realm; but they were enlisted within it, and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied. § 1801. "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." 2 § 1802. The other part of the clause, requiring the testimony of two witnesses to the same overt act or a confession in open 1 See 4 Jefferson's Corresp. 72, 75, 78, 83, 85, 86, 87, 88, 90, 101, 102, 103. See Burr's Trial in 1807; 3 Wilson's Law Lect. 100 to 106. 2 Ex parte Bollman, 4 Cranch, 126. See also United States v. Burr, 4 Cranch, 469 to 508, &c. ; Serg. on Const. ch. 30 (2d edit. ch. 32); People v. Lynch, 1 Johns. R. |