of at least $10,000. From the power of congress to fix the punishment for treason, its power also to fix punishments for crimes of lesser degree but of like character, such as insurrection, conspiracy, etc., is inferred.' The expression "attainder of treason" must be understood as referring only to a judicial sentence. judicial sentence. "Bills of attainder," that is, legislative sentences, which at one time played such an important part in English history, are unconstitutional.

The authority of congress is limited to cases of treason against the United States. The clause providing for the extradition of fugitive criminals (art. IV., sec. 2, § 2) shows that the constitution recognizes the possibility of treason against a single state. This is an important matter, for the usual assumption is that treason can be committed only against a sovereign power. If the separate states are, however, really "sovereign," and if treason can be committed against them, there may then be a dangerous and unfair conflict of duties for the individual

1 The act of April 30, 1790, provided that every traitor should "suffer death." Stat. at Large, I., 112. The same act further declared that whoever had knowledge of a treasonable crime, and did not as soon as possible give information of it, should “be adjudged guilty of misprision of treason and be punished by imprisonment of not more than seven years and by a fine of not more than $1,000."

2 The civil war gave extensive occasion for the use of this implied power. On July 31, 1861, an "act to define and punish certain conspiracies," and on August 6, 1861, an act in regard to the enlistment of soldiers and sailors "to engage in armed hostility against the United States," became laws. The penalties provided by these laws are extraordinarily mild. Then followed the law already mentioned, the act of July 17, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," and finally, on February 25, 1863, an "act to prevent correspondence with rebels." Stat. at Large, XII., 284, 317, 589, 696.

citizen. This was pointed out when the constitution was being drafted and when its adoption was being discussed.1 This appeared on a broad stage during the civil war. Many southerners, like General Robert E. Lee and Alexander H. Stephens, the vice-president of the Confederate States, were opposed to secession, but, after secession was once ordained by their respective states, they declared themselves not only willing to go with their states, but bound to go with them unless they were to be guilty of treason, for they owed allegiance to their respective states and indeed only to them. The federal government naturally refused to admit this, and Chief-justice Chase decided, in Shortridge vs. Macon, that no "rebel" could defend himself from the charge of treason by pleading the ordinances and commands of his state. Logically, however, this question, on account of its connection with other problems of constitutional law brought to the surface by the civil war, leads to a whirlpool of conflicting conclusions. But a further discussion of the question (upon which Hurd throws a penetrating light in the book already cited) must not be attempted here. This remarkable fact, however, should be stated, that the doctrines of constitutional law in relation to treason were not clearly stated and sharply defined by reason of the civil war, but were rather obscured thereby.

$45. OTHER CRIMINAL LAW POWERS. Further express

authorizations to enact criminal laws are not to be found in the constitution. It is, however, self-evident, and it has never been seriously denied, that congress may not only punish all violations of the federal laws, but may also impose penalties upon acts which, if committed with impunity, would render impossible the effective exercise

1 See Elliot, I., 382, 383; V., 488.

of its constitutional powers. This right is based upon the provision authorizing congress "to make all laws which shall be necessary and proper" to carry out the powers belonging to it or to any other factor of the gov ernment (art. I., sec. 8, § 18). That the constitution did not intend to charge the respective states with the duty of enforcing the observance of the federal laws by means of their own penal laws is so certain that, according to the decision of the federal supreme court in Martin vs. Hunter (Wheaton, I., 304), not even a part of the criminal-law powers of the United States can be conferred upon the state courts.2

$46. IMPEACHMENT. Impeachment is a judicial proceeding, and its discussion therefore belongs to this chapter on the powers of congress in regard to the administration of justice. It has undoubtedly nothing in common with the powers hitherto discussed, and is absolutely sui generis. Congress, as such, is not in question. It is not a legislative but a judicial power which comes into play. In this proceeding the two houses have entirely different. functions: the house of representatives acts as accuser, and the senate as judge. It is evident, therefore, that the constitutional provisions concerned cannot be interpreted by judicial decisions, because any controverted questions under them do not come before ordinary courts.

1 The latter principle was established by the decision of the supreme court in U. S. vs. Marigold, Howard, IX., 560.

2 See T. F. Waterman, U. S. Digest of Criminal Cases, N. Y., 1877: J. P. Bishop, Criminal Law, 6th ed., 2 vols., Boston, 1877; Ibid., Criminal Procedure, 3d ed., 2 vols., Boston, 1880; F. Wharton, Criminal Pleading and Practice, 8th ed., Phila., 1880; Ibid., American Criminal Law, 8th ed., 4 vols., Phila., 1881; R. Desty, American Criminal Law, San Francisco, 1882.

3 Art. I., sec. 2, § 5, and art. I., sec. 3, § 6. Both clauses use the phrase, "the sole power."

Impeachment is a political process. The decision as to what the law is is made by the powers which act in this process as accuser and judge, inasmuch as they carry out the constitutional provisions in accordance with the interpretation which seeins to them just. There is no appeal from their decision.

The constitution presupposes that it is well known what an impeachment is. And as it is a technical expression, this implies that the proceeding known in English law by this name is meant. But it is by no means to be said that the English idea must be accepted. without any modification. Whether it has been changed, and if so how, must be deduced from the further provisions of the constitution on this point, as interpreted by both houses of congress, when engaged in their respective functions in conducting impeachments.

Art. II., sec. 4, reads: "The president, vice-president, and all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes or misdemeanors." The wording of this paragraph raises a most significant question. Farrar (p. 436) thinks that emphasis must be laid upon the effect which conviction is to have upon the designated persons impeached for the causes assigned, and thus he comes to the conclusion that any other person may also be impeached. But since there is nowhere else in the constitution anything said as to who shall be subject to impeachment or in what cases it shall come to pass, while another paragraph contains more definite provisions as to the consequences of conviction,in view of this it has always been the opinion of the most prominent jurists and statesmen as well as of the entire public, that the clause cited must be held to settle these two questions, and, of course, that only the persons named

are subject to impeachment and they only for the causes mentioned. This must be held to be the valid constitutional law, as long as the house of representatives does not impeach, and the senate does not hold itself competent to try, under impeachment, a person who is not a "civil officer" of the United States. The two houses did not at first agree as to the limit of the power. Senator Blount was impeached by the house in 1798, but the senate, by a majority vote, declared itself incompetent to hear the case. It is self-evident that neither the house of representatives nor the senate is bound by this decision. But it will scarcely be questioned that members of congress are not "civil officers" of the United States, within the meaning of this constitutional provision. It has never been disputed that judges come under this designation. It has been asserted, however, that impeachment. is admissible only as long as the person concerned remains in office. One effect of this would be that every official threatened with impeachment could escape it by resignation. The house of representatives decided against this doctrine, in 1876, by the impeachment of Secretary of War Belknap.

There have been more vigorous discussions over the proper interpretation of the constitutional provisions in regard to the grounds of impeachment. It is agreed that the incriminating acts must have some relation to the official action of the person concerned, since impeachment aims at the preservation of public interests. But the two houses have by no means assented to the view, so energetically defended, that only official acts present a constitutional ground for an impeachment. Just as little have they ever held that the words "high crimes and misdemeanors " are to be understood in their technical sense, and that an impeachment can be based only upon