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Punishment of Treason.
§ 144. The third clause of the third article contains a constitutional definition of the crime of treason, (which will be reserved for a separate examination) and then proceeds in the same section to provide, . The Congress shall have power 'to declare the punishment of treason.
But no attainder shall work corruption of blood, or forfeiture, except during the
life of the person attainted.' The punishment of treason by the common law partakes in a high degree of those savage and malignant refinements in cruelty, which in former ages were the ordinary penalties attached to State offences. The offender is to be drawn to the gallows on a hurdle ; hanged by the neck, and cut down alive ; his entrails taken out, and burned, while he is yet alive, his head cut off; and his body quartered. Congress is entrusted with the power to fix the punishment, and has, with great wisdom and humanity, abolished these horrible accompaniments, and confined the punishment to simple death by hanging.
The other clause may require some explanation, to those, who are not bred to the profession of the law. By the common law, one of the regular incidents to an atlainder for treason, (that is, to a conviction and judgment in court, against the offender) is, that he forfeits all his estate, real and personal. His blood is also corrupted, that is, it loses all inheritable qualities, so that he can neither inherit
real estate himself, nor can his heirs inherit any from or through him. So that if the father should commit treason, and be attainted of it in the life time of the grand-father, and the latter should then die, the grand-son could not inherit any real estate from the grand-father, although both were perfectly innocent of the offence; for the father could communicate no inheritable blood to the grand-son. Thus, innocent per
sons are made the victims of the misdeeds of their ancestors; and are punished, even to the remotest generations, by incapacities derived through them. The Constitution has abolished this corruption of blood, and general forfeiture ; and confined the punishment exclusively to the offenders ; thus adopting a rule, founded in sound policy, and as humane as
it is just.
The first section of the fourth article declares, 'Full faith and credit shall be given in each State to the pub'lic acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner, in which such acts, records, and proceedings shall be proved, and the effect thereof.'
$147. It is well known, that the acts, records, and judicial proceedings of foreign nations are not judicially taken notice of by our courts; but they must be proved, like other facts, whenever they are brought into controversy in any suit. The nature and modes of such proof are different in different countries ; and being wholly governed by the municipal law of each particular State, must present many embarrassing questions. Independent of the proof, another not less serious difficulty is, as to the effect to be given to such acts, records, and proceedings, after they are duly authenticated. For example, what effect is to be given to the judgment of a court in one country, when it is sought to be enforced in another country? Is it to be held conclusive upon the par. ties, without further inquiry? Or, is to be treated like common suits, and its justice and equity to be open to new proof and new litigation ? These are very serious questions, upon which different nations hold very different doctrines. Even in the American Colonies before the Revolution no uniform rules were adopted in regard to judgments in other colonies. In some, they were held conclusive ; in others, not.
$ 148. We may readily perceive, upon a slight examination, how inconvenient it would be, to hold all such judgments
open, to be controverted anew. Suppose a judgment in one State, after a trial and verdict by a jury upon a contract or for a trespass, in the place where all the witnesses lived ; and, afterwards, the desendant should remove into another State ; and some of the material witnesses should die, or remove, so that their testimony could not be had ; if the defendant were then called upon to satisfy the judgment in a new suit, and might controvert it anew, there could be no certainty of any just redress to the plaintiff. The Constitution, therefore, has wisely suppressed this source of heart-burning and mischief between the inhabitants of different States, by declaring that full faith" and credit shall be given to the acts, records, and judicial proceedings of every other State ; and by authorizing Congress to prescribe the mode of authentication, and the effect of such authentication,
Admission of Nero States.
Government of Territories.
$ 149. The first clause of the third section of the fourth article declares: 'New States may be admitted by the Con
gress into this Union. But no new State shall be formed 'or erected within the jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress. It was early foreseen, that, from the extent of the territory of some States, a division thereof into several States might be. come important and convenient to the inhabitants thereof, as well as to the security of the Union. And it was also obvious, that new States would spring up in the vacant western territory ceded to the Union, which could not be long retained
in a state of dependence upon the latter. It was indispensable, therefore, to make some suitable provisions for both these emergencies. On the one hand, the integrity of the States ought not to be severed without their own consent; for their sovereignty would, otherwise, be at the mere will of Congress. On the other hand, it was equally clear, that no State ought to be admitted into the Union without the consent of Congress; otherwise, the balance, equality, and harmony of the existing States might be destroyed. Both of these objects are, therefore, united in the present clause. To admit a new State into the Union, the consent of Congress is necessary; to form a new State within the boundaries of an old one, the consent of the latter is also necessary. Under this clause, besides Vermont, three new States formed within the boundaries of the old, viz. Kentucky, Tennessee, and Maine ; and seven others, viz. Ohio, Indiana, Illinois, Mississippi, Alabama, Louisiana, and Missouri, formed within the territories ceded to the United States, have been already admitted into the Union. Thus far, indeed, the power has been most propitious to the general welfare of the Union, and has realized the patriotic anticipation, that the parents would exult in the glory and prosperity of their children.
§ 150. The second clause of the same section is, “The Congress shall have power to dispose of, and make all need'ful rules and regulations respecting the territory, or other property, belonging to the United States. And nothing in this Constitution shall be so construed, as to prejudice any
claims of the United States, or of any particular State.' As the General Government possesses the right to acquire territory by cession and conquest, it would seem to follow, as a natural incident, that it should possess the power to govern and protect, what it had acquired. At the time of the adoption of the Constitution, it had acquired the vast region included in the North-Western Territory; and its acquisitions have been, since, greatly enlarged by the purchase of Louisi
ana and Florida. The latter is subject to treaty stipulations; the former has been peopled under the admirable Ordinance of 1787, which we owe to the wise forecast and political wisdom of a man, whom New-England can never fail to
$ 151. The proviso, reserving the claims of the Union, as well as of the several States, was adopted from abundant caution, to quiet public jealousies upon the subject of the contested titles, which were asserted to some parts of the Western Territory. Happily, these sources of alarm and irritation have been long since dried up.
§ 152. And here is closed our Review of the express powers conferred upon Congress. There are other incidental and implied powers, resulting from cther provisions of the Constitution, which will naturally present themselves to the mind in our future examination of those provisions, At present, it may suffice to say, that with reference to due energy in the General Government, due protection of the national interests, and due security to the Union, fewer powers could scarcely be granted, without jeoparding the existence of the whole system. Without the power of the purse,
the power to declare war, or to provide for the common defence, or promote the general welfare, would have been vain and illusory. Without the power exclusively to regulate commerce, the intercourse between the States would have been liable to constant jealousies, rivalries, and dissensions; and the intercourse with foreign nations would have been liable to mischievous interruptions, from secret hostilities, or open retaliatory restrictions. The other powers are principally auxiliary to these ; and are dictated by an enlightened policy, a devotion to justice, and a regard to the permanence (May it ripen into a perpetuity !) of the Union.
* The Hon, Nathan Dane, of Beverly, Massachusetts.