ties which swell the public treasury. The Legislature is, then. prohibited from passing a law by which a man's estate, or any part of it, shall be seized for a crime which was not declared by some previous law to render him liable to that punishment."40 The classification of ex post facto laws contained in the decision of Calder v. Bull has ever since been followed by the United States courts;"1 and also in those rendered by the State courts.

The accused party is not entitled of right to be tried for a crime in the exact mode in all respects that may be prescribed for trial of criminal cases at the time of the commission of the offense charged against him, for example, a law changing the place of trial is not an ex post facto law.*3

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The prescribing of different modes of procedure and the abolition of courts and the creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime are not considered within the constitutional inhibition.**

The Act of Congress forbidding Chinese laborers from coming into this country is not an ex post facto law, even as to a Chinese person who had resided in the United States and seeks

40 Fletcher v. Peck, 6 Cranch, 87, 138.

"Carpenter v. Pennsylvania, 17 Howard, 456; Kring v. Missouri, 107 U. S. 221. See also Thompson v. Utah, 170 U. S. 343, 351. In this discussion it is said that the situation of the accused must have been materially altered to his disadvantage.

12 Thompson v. Utah, 170 U. S. 343, 351.

43 Gut v. State, 9 Wallace, 37; Cook v. United States, 138 U. S. 183.

"Duncan v. Missouri, 152 U. S. 377, 382, 383. See also Kring v. Missouri, 107 U. S. 241; Hopt v.

Utah, 110 U. S. 574. In that last case the decision in part was as follows: "Statutes which simply enlarge the class of person who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed."

to return.45 An act disfranchising all persons maintaining bigamous relations is not an ex post facto law, as the maintaining of such relations is a continuing crime."

Retrospective laws are those whose application is in any way made to apply to events which took place before their passage. "Retrospective laws" is a broader term than ex post facto laws; all ex post facto laws are also retrospective, but the converse is not true. Retrospective laws, no matter how unjust they may be in individual cases, are not prohibited to the United States unless they are also ex post facto laws.

§ 232. Treason. "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 of treason, but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted."

9947

It is of vital importance to the safety of the individual that the law regarding treason shall be clearly set forth and the crime of treason sharply defined, in order that prosecutions for treason may not be instituted for political purposes. This was recognized in England as far back as the fourteenth century and brought about the passage of the Statute of Treason,18 which has since served as the basis for the law on this subject, both in England and in this country.

"The petition upon which this act was founded simply prayed that 'whereas, the King's justices in different countries adjudge persons indicated before them to traitors for sundry matters not known by the Commons to be treason, would it please the King by his council and by the great and wise men of the land, to declare what are treasons in this present Parlia

ment? The King's answer to this petition, entitled 'A Declaration which offenses shall be called treason,' constitutes the existing statute. It was a matter of the greatest constitutional importance that the law of treason should be fixed and invariable. In subsequent reigns the law of treason was frequently extended to offenses not mentioned in the Statute of Edward III, but it was always a popular measure to reduce the crime to the limits of the ancient statute, which, with some modifications, remains at the present day the law on the subject." Congress can neither extend the scope of treason nor define it. It can only fix the punishment.50

The most famous United States case on the subject of treason is that of United States v. Burr.51 In this case it was decided that to levy war is to raise, create, make or carry on war, the term being used in the Constitution of the United States in the same sense that it was used in the English statute of 25 Edward III. When a body of men are assembled for the purpose of making war upon the Government this amounts to levying war if they are in a position to thus wage war; but an assemblage of men, even with a treasonable design does not constitute levying war, when the assemblage is not in force, nor in a condition to attempt the design, nor attended with warlike appearances. When war is levied all persons who perform any services in aid thereof, however slight or however remote from the actual scene of violence, are guilty of treason.

Persuading men to enlist is treason only when such enlistment. actually takes place. The commission of acts of violence by a number of persons with the intention of preventing an act of Congress from being carried into effect,52 or to compel the resignation of an excise office so as to render the law inoperative" is treason; but when the only object is to defeat the execution of a law in a particular instance, or when the object

54

parte Bollman, 4 Cranch, 75.

52 United States v. Fries, 3 Dallas, 515.

53 United States v. Virgal, 2 Dallas, 346.

1 Sprague, 602, 30 Fed. Cases, No. 18, 273.

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is of a local and private nature, the crime of treason has not been committed. Words alone, no matter how seditious, and whether oral or written, are never sufficient to constitute treason.50 No person except a citizen of the United States can be guilty of treason against the United States.57

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There are in the United States two different allegiances. A citizen of the United States owes allegiance both to the United States and to the particular State of which he is a citizen, and may be guilty of treason against either the United States or the individual State.58

§ 233.

Evidence for conviction of treason.-No person can be convicted of the crime of treason in the United States except upon the testimony of two witnesses to the same overt act or upon confession in open court.59 This differs from the English law on this point, in that while the English law also requires two witnesses, they need not be to the same overt act. The treasonable intent may be proved by one witness, or even by circumstantial evidence. A confession made out of court is not sufficient to convict even although proved by two witnesses.81

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A further guarantee of personal liberty is contained in the provision that conviction for treason shall not work corruption of blood, nor forfeiture except for the life of the party attainted.

If property is forfeited for the life of the traitor, his heirs take at his death by descent and not by grant or gift from the Government.

§ 234. Religious freedom.-"Congress shall make no law. respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech; or of the

press; or the right of the people, peaceably to assemble, and to petition the Government for a redress of grievances."62

By this amendment no state religion can be established in the United States, and no preference given to one religion over another. The United States in one of its early treaties incorporated the statement that the United States was in no wise founded upon the Christian religion. Nevertheless, the United States is recognized as a Christian country, and various Christian ceremonies are held in connection with the carrying on of its government; e. g., the opening of each session of each House of Congress by prayer by a Christian chaplain."*

The term "religion" has reference to one's view of his relations to the Creator, and to the obligations they impose of reverence for His being and character, and of obedience to His will.

"The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relation to his Maker and the duties they impose, as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. However free the exercise of religion may be, it must be subordinate to the criminal laws of the land passed with reference to actions regarded by general consent as properly the subjects of criminal legislation. Crime is not the less odious because

62 United Amendment I.

63

States Constitution,

Treaty with Morocco, 1787. "In Vidal v. Girard's Executors, 2 Howard, 127, 198, it was

held that in a qualified sense Christianity was part of the law of Pennsylvania. This is true of each State in the United States, but not of the United States itself.