confirmatory of the principles of the common law, and are to be read and interpreted in the light of its history and principles, which were familiarly known to the founders of the gov ernment, and without reference to which that instrument could not be understood. The judicial ideas and legal definitions of American institutions are derived from the common law; and the code of constitutional and statutory construction which has been gradually formed by the judgments of the supreme court, in the application of the constitution and the laws and the treaties made in pursuance thereof has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority.1

§ 96. The federal constitution construed in the light of contemporaneous history. It is a rule of constitutional construction, supported by the soundest reasoning and the universal experience of mankind, that its provisions should be examined and applied by the aid and in the light of contemporaneous history. The constitution, itself, shows that the framers of that instrument examined the state of things as they existed at the time, and the courts in construing it must, by recurring to the history of the times, make a like examination of the state of things existing when it was framed and adopted, in order to ascertain the old law, and the then existing evils and mischief, and the remedy intended to be provided for them.2

§ 97. Same-Contemporaneous exposition.-A contemporaneous exposition and construction of the federal constitution, placed upon it by the discussions in the Federalist, and by the legislation of congress, by men who were contemporary with the formation of that instrument, and were members of the convention that framed it, are of themselves entitled to great weight, and, when long practiced and acquiesced in, are conclusive.3

§ 98. Construction of constitutional amendments.-In construing a constitutional amendment, the safe rule is to read its. language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way, so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted. But this rule of construction could not, of course, be so used as to limit the force and effect of an amendment in a manner which the plain and unambiguous language used therein would not justify or permit.*

§ 99. The first ten amendments are limitations on the federal government.-The first ten amendments to the federal constitution contain no restrictions on the powers of the states, but were intended to operate solely and exclusively on the federal government. In order to limit the powers which it was feared might be claimed or exercised by the federal government, under the provisions of the constitution as it was when adopted, the first ten amendments to that instrument were proposed to the legislatures of the several states by the first congress on September 25th, 1789. They were intended as restraints and limitations on the powers of the general government, and were not intended to and did not have any effect upon the powers of the respective states."

boat Co., 114 U. S. 411, 417 (29: 147); Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (28: 349); Cooley v. Philadelphia Port Wardens, 12 How. 299 (13:996); Cohens v. Virginia, 6 Wheat. 264 (5:257); Martin V. Hunter, 1 Wheat. 304 (4:97); Stuart V. Laird, 1 Cranch, 299 (2:115).

4 Maxwell v. Dow, 176 U. S. 581. 617 (44:597).

5 Brown v. New Jersey, 175 U. S. 172, 177 (44:119, 122); Maxwell v. Dow, 176 U. S. 581, 617 (44: 597, 611): Barron v. Baltimore, 7 Pet 243 (8:672); Fox v. Ohio, 5 How. 410 (12:231); Twitchell v. Pennsylvania, 7 Wall. 321

(19:223); United States v. Cruik shank, 92 U. S. 542, 552 (23:588, 591); Spies v. Illinois, 123 U. S. 131 (31:80); Re Sawyer, 124 U. S. 200 (31:402, 408); Eilenbecker v. Plymouth County Dist. Ct., 134 U. S. 31 (33:801); Davis v. Texas, 139 U. S. 651 (35:30); McElvaine v. Brush, 142 U. S. 155 (35:971); Thorrington v. Montgomery, 147 U. S. 490 (37:252); Miller v. Texas, 153 U. S. 535 (38:402); Holden v. Hardy, 169 U. S. 366 (42:787); Walker v. Sauvinet, 92 U. S. 90 (23:678); Edwards v. Elliott, 21 Wall. 532 (22:487); Pearson v. Yewdall, 95 U. S. 294 (24:436).

§ 100. Same-Effect of the fourteenth amendment.-The adoption of the fourteenth amendment to the constitution has not enlarged the operation of the first ten amendments; it has not had the effect to make the former amendments operate as restraints and limitations upon the state governments; nor has it had the effect of making all or any of the provisions of the first ten amendments, so far as they secure the fundamental rights of individuals against the exercise of federal power, immunities of a citizen of the United States; nor does it take from the states full control over the procedure in their own courts, in either civil or criminal cases, further than to require that such procedure must not work a denial of the fundamental rights, nor conflict with specific and applicable provisions of the federal constitution."

997

§ 101. Treason defined, the quantity of evidence requisite for conviction prescribed, and the penalty limited by, the constitution. The constitution declares that: "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. The congress shall have power to declare the punishment for treason; but no attainder of treason shall work corruption of blood, except during the life of the person attainted. This definition of treason reduces the constituent elements of the crime to two ultimate facts, either one of which, when established by the quantity of evidence prescribed, makes out the offense. The vague and indefinite terms of the British statute on the subject, and the doctrine of "constructive treason," the great number of acts held by the English judges to constitute it, the admission of hearsay evidence, the denial to the accused of counsel and compulsory process for witnesses, had placed in the hands of the crown the most powerful engine of oppressión against the people in their struggle for freedom known in English history, and it

• Maxwell v. Dow, 176 U. S. 581, 617 (44:597, 611); Brown v. New Jersey, 175 U. S. 172, 177 (44:119, 122).

7 U. S. Const., Art. III, sec. 3.

8 Hallam's Const. Hist. Eng. 102, 138, 198, 574, 575, 578, 579; IV Blackst. Com. 75-85; State Tr. I, 965; State Tr. IV, 1329; State Tr. VI, 153; State Tr. IX, 817, 861,

was no doubt one of the purposes of the framers of the constitution to prevent kindred evils in this country. And by the judicial procedure established by the legislative branch of the government, acting in obedience to the mandate of the constitution, no person shall be prosecuted, tried or punished for treason, unless the indictment is found within three years next after such treason is committed; and when any person is indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each juror and witness, shall be delivered to him at least three entire days before he is tried for the same; and he shall be allowed to make his full defense by counsel learned in the law, and the court before which he is tried or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him at all seasonable hours; and he shall be entitled to challenge peremptorily twenty jurors; and he shall be allowed, in his defense, to make any proof that he can produce by lawful witnesses, and shall have the like process of the court to compel his witnesses to appear at the trial, as is usually granted to compel witnesses to appear on behalf of the prosecution."

§ 102. Same Statutory definition-Punishment of treason. The legislative department has declared that, "every person owing allegiance to the United States who levies war against them, or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason. And the punishment of treason is declared as follows:

99 10

"Every person guilty of treason shall suffer death; or, at the discretion of the court, shall be imprisoned at hard labor for not less than five years, and fined not less than ten thousand dollars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so con

862; State Tr. XI, 297, 322; State Tr. XX, 923.

9 U. S. Rev. Stat. secs. 819, 1033, 1034, 1043. !

10 U. S. Rev. Stat. sec. 5331.

victed of treason shall, moreover, be incapable of holding any office under the United States."' 11

§ 103. Bills of attainder prohibited-Defined.-Both the federal government 12 and the states 13 are prohibited from passing bills of attainder, and the prohibition extends to and includes bills of pains and penalties. This species of legislative action is characterized by an English law writer as follows: "Bills of attainder and bills of pains and penalties, are instances of the transcendent power of the legislature to punish offenses otherwise than according to pre-ordained law, by a discretionary severity in lieu of an invariable standard. This occasional rigor too, is usually substituted for the ancient rule, at a time when men's minds are heated with contest, or disturbed with threatened dangers. They furnish an instance of the legislature quitting its proper province, and suspending the judicial functions; and that, in order to punish the transgressions of laws which they have neglected to propound. Or impeachments, the commons are accusers, and the peers are judges of the crime imputed. In punishing criminals by bill, the king, lords and commons are accusers and judges, charging, convicting and condemning uno flatu." 15 Discussing the political ethics of this extraordinary procedure in a review of the Earl of Strafford's case, the great historian of the British constitution said:

"It is undoubtedly a very important problem in political ethics, whether great offenses against the commonwealth may not justly incur the penalty of death by a retrospective act of the legislature, which a tribunal restrained by law is not competent to inflict. Bills of attainder had been by no means uncommon in England, especially under Henry VIII., but generally when the crime charged might have been equally punished by law. They are less dangerous than to stretch the boundaries of a statute by arbitrary construction. Nor do they seem to differ at all in principal from those bills of pains

11 U. S. Rev. Stat. sec. 5332. 12 U. S. Const. Art. I, sec. 9, cl. 3; Ex parte Garland, 4 Wall. 333 (18:366); Cummings v. Missouri, 3 Wall. 277 (18:356).

13 U. S. Const. Art I, sec. 10.

14 Ex parte Garland, 4 Wall. 333 (18:366); Cummings v. Missouri, 3 Wall. 277 (18:356).

15 Dwarris on Statutes (2nd Ed. 1848), 254.