after to comment.1 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.2

1 The Alien and Sedition acts were the immediate cause of the Virginia Resolutions of December, 1798, and of the elaborate vindication of them, in the celebrated Report of the 7th of January, 1800. The learned reader will there find an ample exposition of the whole constitutional objections. See, also, 4 Jefferson's Correspondence, 23, 27. The reasoning on the other side may be found in the Debates in Congress, at the time of the passage of these acts. It is greatly to be lamented that there is no authentic collection of all the debates in Congress, in a form like that of the Parliamentary Debates. See, also, 4 Elliot's Deb. 251, 252; Debates on the Judiciary, in 1802, Mr. Bayard's Speech, pp. 371, 372; Addison's Charges to the Grand Jury, No. 25, p. 270; Id. No. 26, p. 289. These charges are commonly bound with Addison's Reports. See, also, 1 Tuck. Black. Comm. 296 to 300; Id. Part 2, App. note 6, pp. 11 to 36; Report of Committee of House of Representatives of Congress, 25th February, 1799, and Resolve of Kentucky, of 1798, and Resolve of Massachusetts, of 9th and 13th of February, 1799, on the same subject.

2 Mr. Vice-President Calhoun, in his Letter of the 28th of August, 1832, to Gov. Hamilton, uses the following language: "From the adoption of the Constitution we have had but one continued agitation of constitutional questions, embracing some of the most important powers exercised by the government; and yet, in spite of all the ability and force of argument displayed in the various discussions, backed by the high authority claimed for the Supreme Court to adjust such controversies, not a single constitutional question of a political character, which has ever been agitated during this long period, has been settled in the public opinion, except that of the unconstitutionality of the Alien and Sedition laws; and, what is remarkable, that was settled against the decision of the Supreme Court.' Now, in the first place, the constitutionality of the Alien and Sedition laws never cane before the Supreme Court for decision; and, consequently, never was decided by that court. In the next place, what is meant by public opinion deciding constitutional questions? What public opinion? Where and at what time delivered? It is notorious that some of the ablest statesmen and jurists of America, at the time of the passage of these acts, and ever since, have maintained the constitutionality of these laws. They were upheld, as constitutional, by some of the most intelligent and able State legislatures in the Union in deliberate resolutions affirming their constitutionality. Nay, more; it may be affirmed, that, at the time when the controversy engaged the public mind most earnestly upon the subject, there was (to say the least of it) as great a weight of judicial and professional talent, learning, and patriotism, enlisted in their favor, as there ever has been against them. If, by being settled by public opinion, is meant that all the people of America were united in one opinion on the subject, the correctness of the statement cannot be admitted, though its sincerity will not be questioned. It is one thing to believe a doctrine universally admitted, because we ourselves think it clear; and quite another thing to establish the fact. The Sedition and Alien laws were generally deemed inexpedient, and therefore any allusion to them now rarely occurs, except in political discussions, when they are introduced to add odium to the party by which they were adopted. But the most serious doubts may be

entertained whether, even in the present day, a majority of constitutional lawyers, or of judicial opinions, deliberately hold them to be unconstitutional.

If public opinion is to decide constitutional questions, instead of the public functionaries of the government, in their deliberate discussions and judgments (a course quite novel in the annals of jurisprudence), it would be desirable to have some mode of ascertaining it in a satisfactory and conclusive form; and some uniform test of it, independent of mere private conjectures. No such mode has, as yet, been provided in the Constitution. And perhaps it will be found, upon due inquiry, that different opinions prevail at the same time, on the same subject, in the north, the south, the east, and the west. If the judgments of the Supreme Court (as it is more than hinted) have not, even upon the most deliberate juridical arguments, been satisfactory, can it be expected that popular arguments will be more so? It is said, that not a single constitutional question, except that of the Alien and Sedition laws, has ever been settled. If, by this, no more is meant than that all minds have not acquiesced in the decisions, the statement must be admitted to be correct. And such must, under such a postulate, be forever the case with all constitutional questions. It is utterly hopeless in any way to satisfy all minds upon such a subject. But if it be meant that these decisions have not been approved, or acquiesced in, by a majority of the Union, as correct expositions of the Constitution, that is a statement which remains to be proved, and is certainly not to be taken for granted. In truth, it is obvious that, so long as statesmen deny that any decision of the Supreme Court is conclusive upon the interpretation of the Constitution, it is wholly impossible that any constitutional question should ever, in their view, be settled. It may always be controverted; and, if so, it will always be controverted by some persons. Human nature never yet presented the extraordinary spectacle of all minds agreeing in all things; nay, not in all truths, moral, political, civil, or religious. Will the case be better, when twentyfour different States are to settle such questions as they may please, from day to day or year to year, holding one opinion at one time and another at another? If constitutional questions are never to be deemed settled while any persons shall be found to avow a doubt, what is to become of any government, national or State? Did any statesman ever conceive the project of a constitution of government for a nation or State, every one of whose powers and operations should be liable to be suspended at the will of any one who should doubt their constitutionality? Is a constitution of government made only as a text, about which casuistry and ingenuity may frame endless doubts and endless questions? Or is it made as a fixed system, to guide, to cheer, to support, and to protect the people? Is there any gain to rational liberty, by perpetuating doctrines which leave obedience an affair of mere choice or speculation, now and forever? (a)

(a) The Alien and Sedition acts were, beyond all question, condemned by public sentiment, but that the condemnation, in the minds of any considerable number of the people, is placed on the ground of want of constitutional power is by no means clear. There are many things plainly within its constitutional competence which a prudent government would never venture to do even if so disposed; because of a moral certainty that the temper of the people would not sustain

them in so doing. The Sedition act was clearly in the highest degree impolitic, and, as the prosecutions under it showed, was susceptible of being used for the purposes of oppression and terrorism; and these facts afford reason abundant for its condemnation. It was far from being as questionable in point of constitutional authority as some other acts which have been adopted from a supposed necessity, and enforced almost without objection in troublous times.

C.

CHAPTER XXVIII.

POWER OF CONGRESS TO PUNISH TREASON.

As

§ 1295. 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 connection, which embrace other powers delegated to Congress, and which, for no apparent reason, have been so detached. 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.

§ 1296. The third section of the third 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 treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."

§ 1297. 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 it was to be exclusively punishable 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.

§ 1298. 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;2 thus inflicting death in a manner becoming the humanity of a civilized society.

§ 1299. 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 attainted 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 remote 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 could 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

14 Black. Comm. 92.

2 Act of 30th April, 1790, ch. 36.

82 Black. Comm. 252, 253; 4 Black. Comm. 388, 389.

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.' (a)

§ 1300. The reasons 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 dependent and relation he has to keep him from offending. 2 But this view of the subject is wholly unsatisfactory. It looks only to the offender himself, and is regardless of his innocent posterity. It really operates as a posthumous punishment upon them; and compels them to bear, not only the disgrace naturally attendant upon such flagitious crimes; but takes from them the common rights and privileges enjoyed by all other citizens, where they are wholly innocent, and however remote they may be in the lineage from the first offender. It surely is enough for society to take the life of the offender, as a just punishment of his crime, without taking from his offspring and relatives that property, which may be the only means of saving them from poverty and ruin. It is bad policy, too; for it cuts off all the attachments, which these unfortunate victims might otherwise feel for their own government, and prepares them to engage in any other service, by which their supposed injuries may be redressed, or their hereditary hatred gratified. Upon these and similar grounds, it may be presumed, that the clause was first introduced into the original draft of the Constitution; and, after some

14 Black. Comm. 381 to 388.

2 4 Black. Comm. 382. See also Yorke on Forfeitures.

8 See Rawle on Const. ch. 11, pp. 145, 146.

(a) But forfeiture, except for the life of the person attainted, is now abolished in England. Stat. 3 & 4 Will. IV. c. 106.