eign nations, they are not limited, as to the duration, any more, than as to the manner and extent of the

measure.

§ 647. That this measure went to the utmost verge of constitutional power, and especially of implied power, has never been denied. That it could not be justified by any, but the most liberal construction of the constitution, is equally undeniable. It was the favourite measure of those, who were generally the advocates of the strictest construction. It was sustained by the people from a belief, that it was promotive of the interests, and important to the safety of the Union.

§ 648. There remain one or two other measures of a political nature, whose constitutionality has been denied; but which, being of a transient character, have left no permanent traces in the constitutional jurisprudence of the country. Reference is here made to the Alien and Sedition laws, passed in 1798, both of which were limited to a short duration, and expired by their own limitation.

§ 649. The constitutionality of both the acts was assailed with great earnestness and ability at the time; and was defended with equal masculine vigour. The ground of the advocates, in favour of these laws, was, that they resulted from the right and duty in the government of self-preservation, and the like duty and protection of its functionaries in the proper discharge of their official duties. They were impugned, as not conformable to the letter, or spirit of the constitution; and as inconsistent in their principles with the rights of citizens, and the liberty of the press. The Alien act was denounced, as exercising a power not delegated by the constitution; as uniting legislative and judicial functions, with that of the executive; and by this Union

as subverting the general principles of free government, and the particular organization and positive provisions of the constitution. It was added, that the Sedition act was open to the same objection, and was expressly forbidden by one of the amendments of the constitution, on which there will be occasion hereafter to comment. At present it does not seem necessary to present more than this general outline, as the measures are not likely to be renewed; and as the doctrines, on which they are maintained, and denounced, are not materially different from those, which have been already considered.

CHAPTER XXVIII.

POWER OF CONGRESS TO PUNISH TREASON.

650. AND here, in the order of the constitution, terminates the section, which enumerates the powers of Congress. There are, however, other clauses detached from their proper connexion, which embrace other powers delegated to congress; and which for no apparent reason have been so detached. As it will be more convenient to bring the whole in review at once, it is proposed (though it is a deviation from the general method of this work) to submit them in this place to the consideration of the reader.

§ 651. The third section of the fourth article gives a constitutional definition of the crime of treason, (which will be reserved for a separate examination,) and then provides: "The congress shall have power to declare "the punishment of treason; but no attainder of trea"son shall work corruption of blood, or forfeiture, ex"cept during the life of the person attainted."

§ 652. The propriety of investing the national government with authority to punish the crime of treason against the United States could never become a question with any persons, who deemed the national government worthy of creation, or preservation. If the power had not been expressly granted, it must have been implied, unless all the powers of the national government might be put at defiance, and prostrated with impunity. Two motives, probably, concurred in introducing it, as an express power. One was, not to leave it open to implication, whether treason was to be exclusively punish

able with death according to the known rule of the common law, and with the barbarous accompaniments pointed out by it; but to confide the punishment to the discretion of congress. The other was, to impose some limitation upon the nature and extent of the punishment, so that it should not work corruption of blood or forfeiture beyond the life of the offender.

§ 653. The punishment of high treason by the common law, as stated by Mr. Justice Blackstone, is as follows: 1. That the offender be drawn to the gallows, and not be carried or walk, though usually (by connivance at length ripened into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and cut down alive. 3. That his entrails be taken out and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal. These refinements in cruelty (which if now practised would be disgraceful to the character of the age) were, in former times, literally and studiously executed; and indicate at once a savage and ferocious spirit, and a degrading subserviency to royal resentments, real or supposed. It was wise to place the punishment solely in the discretion of congress; and the punishment has been since declared to be simply death by hanging; thus inflicting death in a manner becoming the humanity of a civilized 12 society.

§ 654. It is well known, that corruption of blood, and forfeiture of the estate of the offender followed, as a necessary consequence at the common law, upon every attainder of treason. By corruption of blood all inheritable qualities are destroyed; so, that an attaint

ed person can neither inherit lands, nor other hereditaments from his ancestors, nor retain those, he is already in possession of, nor transmit them to any heir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remoter ancestor. So, that if a father commits treason, and is attainted, and suffers death, and then the grandfather dies, his grandson cannot inherit any estate from his grandfather; for he must claim through his father, who can convey to him no inheritable blood. Thus the innocent are made the victims of a guilt, in which they did not, and perhaps could not, participate; and the sin is visited upon remote generations. In addition to this most grievous disability, the person attainted forfeits, by the common law, all his lands, and tenements, and rights of entry, and rights of profits in lands or tenements, which he possesses. And this forfeiture relates back to the time of the treason committed, so as to avoid all intermediate sales and incumbrances; and he also forfeits all his goods and chattels from the time of his conviction.

§ 655. The reason commonly assigned for these severe punishments, beyond the mere forfeiture of the life of the party attainted, are these: By committing treason the party has broken his original bond of allegiance, and forfeited his social rights. Among these social rights, that of transmitting property to others is deemed one of the chief and most valuable. Moreover, such forfeitures, whereby the posterity of the offender must suffer, as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections; and will interest every depend