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-it the least countenance. We have the right of every other independent country, to consider every one coming to our shores, and manifesting an intention of joining our society, as entitled to be received, and protected, by land, or water, within our municipal jurisdiction, and beyond it, by the arm of the nation. As to the expediency, I say nothing; I leave that to the politicians. I lay it down only, that naturalization involves the duty, and the pledge of protection; and a citizen of the United States, chusing to expatriate, in time of peace, is not liable to our treason law, even though found in arms with a foreign force invading us.

As to the expediency, I mean the policy, of naturalizing at all; and not repealing the whole body of the naturalization acts of congress; I do not mean to connect this, because I know it would be denying a natural right to those of a more populous country, emigrating to a country less populous in proportion to the soil, and it would be denying ourselves a right to take them; and it could be on the principle of self-preservation that we could dispense with the taking them. But as to the letting all go that chuse to go, I consider it not only their right, but our interest. We have no such Merino-breed of men, that there can be any thing in the way to hinder it. Those that emigrate from us, consult what they think their own interest, and we may be well rid of them. Whether Britain, were there not a matter of pride in the way, might not say the same thing, I leave it to her to determine.

But to return from my digression. The treason law of England has been rendered sanguinary by the construction of the judges. "One witness to one overt act, and a second witness to another overt act of the same specics of treason," is an instance of this. But still more the leaning of the judg es to convict on a charge of treason. I do not believe that in the whole state trials in England, there will be found a case, where there was not that leaning visible, where it was evident the crown wished a conviction, whether in a case of misdemeanor, or of felony of treason. In the case of Aaron Burr, with us, the leaning, if any, was the other way, and

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therefore I consider the principles laid down in that trial, as gaining much to the citizen of the United States, as a barrier against the application of British rules in the construction of treason. It contains some excellent land-marks, that may serve to guide in after times, when parties may prevail, and judges may have the same leaning with the prosecu tor for the state. Not that I mean to insinuate any thing the least disrespectful, to the executive, or to the court, in this instance, but the contrary, and as a trial, in opposition, to all that we have seen in England, where the accused, for high treason, could scarcely ever be said, to have had a fair chance for his life.

"In civil cases, we have seen that every defendant is bailable; but in criminal matters it is otherwise." 4 Bl. Com. 296.

WITH submission to Dr. Blackstone, says Junius, "I think he has fallen into a contradiction, which, in terms at least, appears irreconcileable. After enumerating several offences not bailable, he asserts, without any condition, or limitation whatsoever, "all these are clearly not admissible to bail." Yet in a few lines after, he says, "It is agreed that the court of king's bench make bail for any crime whatsoe ver, according to the circumstances of the case." To his first proposition he should have added, by sheriffs or justices; otherwise the two propositions contradict each other: with this difference, however, that the first is absolute, the second limited by a consideration of circumstances." These were the words of the first edition of the commentaries upon which Junius animadverts; a contradiction; which I will acknowledge perplexed me not a little at an early period. But in a subsequent edition, the words, "all these are clearly not admissible to bail," have been omitted. Nevertheless in another part, the words at the head of this note preserve the contradiction in some degree taken by themselves as they stand in the sentence. For if in all cases a defendant is

bailable; but in criminal matters it is otherwise, it must follow that in criminal matters, every defendant is not bailable. He still should have added, that it is otherwise in criminal matters, unless by a judge of the king's bench, or by that court.

In his letters to lord Mansfield, Junius undertakes to prove that unless in a case short of being taken in the mainor, the Lord chief justice of England, has no more right to bail than a justice of the peace; that a person positively charged with felonies, stealing, and taken in flagrante delicto, with the stolen goods upon him is not bailable. I agree with Junius that if the lord chief justice did bail, it was an abuse of his discretion. And upon this principle our constitution has settled it: by Art. 9. Sec. 14. "All prisoners shall be bailable, unless for capital offences, when the proof is evident or presumption great.”

This I take it to have been precisely what the common law was before the provision of statute in England, or constitution here. But the constitution here specifies what the discretion of the judge at common law would have dictated to be his duty.

"All presumptive evidence of felony should be admitted cautiously." 4 Bl. Com. 358.

THERE is what is called violent presumption; that is where such circumstances exist as usually attend the fact. Presumptive proof of this nature is held sufficient to convict.

In a playful work published some years ago; and where I thought myself at liberty to support even a paradox, it being evident that I did not mean to be serious in every thing, I advanced some sentiments on this head, which, as not being continued in the second edition, I may here extract. is from what I had entitled Modern Chivalry, Vol. I. p. 99; and is as follows.

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"I doubt much whether reason or experience, (that is of conviction or presumptive evidence) approve the doctrine:

Reason tells us that there may be all the circumstances that usually attend the fact; and yet, without the fact itself. Experience evinces that it has been the case; for we have heard of persons convicted of a capital offence; and yet with their last breath, asserting innocence. Nay, in the very case of some who have been supposed to have been murdered; they have afterwards been found to be alive. But, on ab stract principle, a conclusion of certainty cannot be drawn from presumptive proof. Because, in a case of the most violent presumption, there is still a possibility of innocence; and where there is a possibility, there must be a doubt; and will you hang man, woman, or child, where there is a doubt?

"In all cases, there ought to be complete proof, because the convicted person is to be completely hanged; and the jury previous to this, must find a verdict upon oath; that is, must make complete oath of the guilt.

"It is the ground of the doctrine of presumptive proof, that where you cannot help suspecting, you ought to be positive; whereas the just conclusion would be, that where you cannot help suspecting, there you ought to suspect still; but

no more.

"In algebra minus multiplied by minus, makes plus; but not so in arithmetic. In mathematics, the three angles of a triangle, are equal to two right angles: but these are all angles that are put together; they are things of the same kind; but the greatest angle, and the longest side, will never make a triangle, because there is no inclusion of space. There must be a number of things of the same kind, to make an aggregate whole; so that ten thousand possibilities, probabilities, and violent presumptions, can never constitute a certainty. It can never be made a question, how many uncertainties, will make a certainty.

"Semi plena probatio; or the going but half way towards proof, cannot amount to proof sufficient to convict. For a miss is as good as a mile. If the evidence is not positive to the fact, how can the jury find the fact; because as the current cannot rise higher than the source, so the verdict of the juror ought not to be more absolute than the oath of

the witness. In all cases, therefore, short of positive testimony, what can be done but to acquit?

"These hints may be of service to weak judges; so, that honest people may not lose their lives, or be rendered infamous, without full proof of the offence. It is hard enough to suffer, where there is full proof; but to be in the power of a juror, or a judge's imagination, comparing, and Construing circumstances, and weighing probabilities, contingencies, and what might have been; or what might not have been, as the humour, wheel or whim of the brain may suggest, is inconsistent with that fair trial, which in a free government ought to be allowed. Were I a juror, it would seem to me I should not find a verdict without positive evidence of the fact. For it would not be in my power to restore that fame or life which I had taken away; and if a guilty person should escape, it was none of my look out; but the business of providence to furnish proof; and if proof was not furnished, let providence take the matter on himself; and punish the culprit either in this life, or in a future state. Invisible things belong to the Omniscient; and it would seem great arrogance in man to take upon him to decide in cases of uncertainty. I can declare, that, in the course of my experience at the bar, I have known one hung, and two others within an ace of it, who were innocent. The one that was hung was a tory case, where the popular clamour was against the man, and light presumption became violent under such a charge, from the temper of the times, and that part of the country where the conviction took place."

So far the extract from this publication, and though I might not be disposed to lay it down at this time, to such extent; viz. that I would not convict at all upon circumstantial proof in criminal cases, yet a great distinction ought to be taken in the consequence. For though the life of man might not be safe, were it understood that nothing short of positive testimony should convict of murder; and circumstances. are said to speak as strong as words or stronger even; yet, I should think that death in case of conviction short of po

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