admiralty jurisdiction, he included a roadstead or bay within the " high seas.

§ 430. The conclusion would seem to be, that, under the authority conferred in Article I. Section VIII., Congress may pass statutes which define, and provide for the punishment of, felonies committed upon the tidal waters outside the territorial limits of any country; and that, under the judicial power over admiralty matters, in connection with the last paragraph of the eighth section of Article I., Congress may pass laws which define, and provide for the punishment of, offences done on tidal waters even within the territorial limits of a country, so far as the criminal jurisdiction of the admiralty extends.

III. Treason against the United States.

§ 431. It was most proper that Congress should be clothed with authority to declare the punishment of treason; indeed, in the absence of any express provision on the subject, there could be no doubt of the power of the government to define treason and punish traitors. As the people of the United States is one body politic possessing inherent sovereignty, and as the Constitution and the government established thereby, is the highest expression of that sovereignty, it could not, for a moment, be admitted, that the very crime of all crimes, the crime against the supremacy and life of the nation, should, under any circumstances, go unpunished. The provision in the Constitution is, therefore, in a certain sense, superfluous; it is rather a limitation upon, than a grant of, governmental power.

§ 432. I do not propose to go into any examination of the law of treason; such an attempt would be entirely foreign to the objects of this work. The constitutional provision defining the crime was inserted as a safeguard of the rights and liberties of the citizen. It places a limit beyond which neither the legislature nor the courts can pass. It was borrowed substantially from an ancient statute enacted in the reign of Edward

Wheaton's R. 336; United States v. Furlong, 5 Wheaton's R. 134; United States v. Holmes, 5 Wheaton's R. 412.

III., and was intended to destroy forever all opportunity for legislative or judicial extension of the crime so as to cover what are known as constructive treasons. By incorporating the definition in the organic law, the future as well as the present is secured, and the liberties of the people are preserved from one of the most terrible instruments of oppression ever wielded by rulers maddened through fear, and drunk with the excess of power.

Treason presupposes citizens and citizenship, and its essence consists in the violation of allegiance. As the allegiance of American citizens is due, not to the rulers, not to the government, but to the United States, to the one body politic, which is the nation, treason is described as a crime against the United States, and as consisting of acts done against their integrity and existence.

§ 433. The Constitution mentions two classes of acts, and two only, which may constitute the crime: (1.) Levying war against the United States; and, (2.) Adhering to the enemies of the United States, giving them aid and comfort. As the offence is so aggravated, and its consequences so terrible, more than ordinary certainty is required in the proof necessary to establish guilt; two witnesses must testify to the same overt act, or the accused must confess in open court. These provisions taken together require an overt, or open, act of levying war, or an open act of adherence to the nation's enemies, giving them aid and comfort; without one or the other there can be no treason. No mere words can, therefore, amount to treason; no mere conspiring, confederating, planning, can make men traitors; for none of these acts are overt. The English statute adds a third case, — compassing the death of the king; and this element of the crime may consist in simple conspiring and confederating. But it is not treasonable to compass the death of the President, or even to accomplish the design and take his life.

§ 434. The common law punishment for treason was death in a most terrible form; the offender was to be drawn to the gallows; hung by the neck, and cut down alive; his bowels were to be taken out while he was alive, and burned; he was

then to be beheaded and his body quartered. It was well that Congress should have express power to fix the penalty, and to abandon this horrible relic of a barbarous age. The power has been exercised by declaring death by hanging to be the punishment. The common law also annexed other penalties to the crime of treason, corruption of blood, and forfeiture of the estate of the attainted offender. Corruption of blood was the destruction of all inheritable qualities in the person; so that he could neither succeed as heir to any lands which might otherwise have come to him by descent, nor could other persons inherit from or through him. As the source, as the channel, and as the end of descent, his capacity was utterly gone. Upon conviction he also forfeited his lands from the time when the treasonable act was committed, and his goods and chattels from the time of the conviction. These rules of the law, visiting severe penalties upon the innocent, were supposed to have a strong moral effect in deterring persons from crimes which would thus bring ruin upon their families.

$435. The Constitution has abandoned these ideas and the rules which they suggested. No attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. The "attainder" here spoken of is a judicial conviction of the crime. Bills of attainder were known to the English law, and were legislative convictions; they are forbidden by express provisions of the Constitution, and the only attainder possible in the United States is a judgment of a competent court ascertaining and declaring the guilt of an accused person. Corruption of blood is entirely abolished; forfeiture of estate is permitted to a very limited extent.

How far Congress may provide for the confiscation of private property belonging to rebellious citizens with whom a civil war is waged, will be considered in subsequent sections which treat of the military functions of the government.

§ 436. While treason is expressly defined, and direct power is conferred upon the legislature to declare its punishment, it must be understood that the mention of the highest crime includes also those of inferior grades, but of a nature kindred to treason. If Congress may legislate concerning this greatest of all

offences, it certainly may define and punish those which resemble it in essence, but do not reach its height of enormity. Such are seditions, conspiracies to overthrow the government, and the like, in which there is no overt act, and which, therefore, do not amount to levying war, or adhering to the nation's enemies. At a very early day, (1790,) Congress assumed to exercise such a power, by defining misprision of treason to consist in the having knowledge of the commission of treasons, and the concealing the same, and by affixing as a punishment, imprisonment and a fine.

Second. The Implied Powers to define and punish Crimes.

§ 437. In addition to the express powers bestowed upon Congress, to define and punish crimes, which we have seen, may be grouped into three classes, there are a very large number of implied powers. These all exist from the very nature and necessity of the case. They are results and applications of the general principle which was set forth and illustrated in Part III. Chapter III. Section II. They are measures and means which conduce, which are, in fact, often absolutely necessary, to the effective exercise of the legislative function. A sanction is an essential element in every law; without it all the imperative qualities of a law would be lost; the statute would cease to be a command and become a mere request. Wherever Congress may adopt any particular measure, may require anything to be done, or anything to be foreborne, in carrying out the specific grants of the Constitution, it may declare acts of disobedience, or acts which tend to interrupt the accomplishment of the proposed design, to be crimes, and may affix such punishments as it deems proper. This proposition seems to be self-evident. Without the capacity most of the national legislation would be a nullity. Congress has, therefore, from the very commencement of the present government, assumed and exercised this power in instances too many to be enumerated:

§ 438. If it should be said that the penal legislation necessary to enforce the laws of the United States might be left to

the states, the answer is easy and conclusive. Every government which is supreme, must have the capacity to make its own commands obeyed; just so far as it must look to other bodies, to other governments for help, it is subordinate. But the United States is, within its sphere, absolutely supreme; and it would be no more proper for it to appeal to the several states for penal legislation in its behalf, than for it to invoke the assistance of Great Britain or France. But in addition, the states could not be compelled to legislate; their action would be voluntary; and the national government would, therefore, be entirely at their mercy. The considerations I have stated are so plainly correct, that none but a few impracticable theorists, who would exalt the states into a condition of practical supremacy, have ever denied the authority of Congress to define and punish crimes not expressly provided for by the Constitution.

§ 439. These views have been sustained by a solemn judg ment of the Supreme Court. Congress had passed a statute making the bringing of counterfeit foreign coins within the country, with the intent to utter the same, and the act of uttering such coins, crimes to be punished by imprisonment. It will be noticed that the clause of Article I. Section VIII. giving power to provide for the punishment of counterfeiting the current coin of the United States, does not in terms cover this case. In The United States v. Marigold,1 the defendant had been indicted under the law, tried, and convicted; and the only question before the court was as to the validity of the statute. The decision sustained the validity; and was rested upon the ground that such a law was one of the necessary and proper means for carrying out the power to coin money, and regulate the value of foreign coin. The principle involved in the case evidently applies with equal force to all the penal legislation of Congress in aid of its other general powers.

§ 440. The views stated in §§ 437 and 438, are also sustained by the uninterrupted practice of Congress. The statute book is crowded with enactments defining and providing for the punishment of crimes, which are not alluded to in the

19 Howard's R. 560.