a jurisdiction which, according to art. III., sec. 2, § 1, is within the scope of the federal sovereignty. The federal supreme court has, moreover, decided that the large inland lakes and the navigable rivers also fall within the jurisdiction of the admiralty and maritime courts.1

The act of June 30, 1864 (Rev. Stat., § 5413), defines what is meant by the "securities and current coin of the United States," the counterfeiting of which congress may punish by law.

844. TREASON. Finally, the crime of treason against the United States falls within the criminal jurisdiction of congress. Art. III., sec. 3, sets forth: "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." Determining what shall be treason lies entirely without the sphere of congress, for this the constitution has itself done with painful care. Congress has solely the power of fixing the penalty for the crime. The interpretation of this highly significant provision of the constitution is to be sought, not among the laws of congress, but amid the decisions of the courts. These decisions lay down two important principles: first, the crime of “con

1 The Hine, Wallace, IV., 555. See S. R. Betts, Admiralty Practice, N. Y., 1838; E. C. Benedict, Am. Admiralty, 2d ed., N. Y., 1870; R. Desty, Admiralty and Shipping, San Francisco, 1879; T. M. Etting, Admiralty Jurisdiction of the United States, Phila., 1879.

2 An act of April 30, 1790, contains, indeed, a definition of treason, but the substance of it is a verbal transcript of the constitutional provision. Compare Revised Statutes, sec. 5331.

1

structive treason," which in England has caused more than one noble head to fall below the axe, does not exist in the United States; second, only a citizen of the United States can commit treason, for the crime presupposes allegiance. Apart from these principles, the decisions, gauged by both moral and political standards, present many striking features. War is "levied" as well by inciting war as by carrying on war. But a conspiracy to overthrow or coerce the government, as well. as the enlistment of men for such a purpose, is not, however, treason. Treason is committed only when persons assemble for the purpose of carrying out a treasonable plan. In such a case, all are guilty of treason who have taken part in the meeting, even in the slightest degree, and if ever so far removed from the place of action, provided they are connected with the general conspiracy. The act alone does not of itself constitute treason; there must also be a treasonable intent. The intent need not, however, be the overthrow of the government: Even the attempt to prevent the execution of a single law, or to compel its repeal, is treason, if force is used. and the resistance is of a public and general character. The amount of force used is a matter of indifference. These observations explain the provision - at first sight a curious one of the act of July 17, 1862, that treason is punishable either by death or by imprisonment in the penitentiary for not less than five years and a fine

1 See my Constitutional History, V., 292, 293.

2 U. S. vs. Wiltberger, Wheaton, V., 79. The act of April 30, 1790, already quoted, is in unison with this. On the other hand, quite a modified doctrine is stated in U. S. vs. Greathouse, 2 Abbott's U. S. Rep., 380. See Hurd, Theory of Our National Existence, 61.

3 Ex parte Bollman, Cranch, IV., 75.

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.2 The expression "attainder of treason" must be understood as referring only to a 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

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1The 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."