LECTURE LII. The United States have no general or common-law Authority to punish Crime; and their Criminal Jurisdiction is confined to the offences enumerated in the Constitution; to Violations of such "necessary and proper laws" as are made by Congress, and to Acts done in the Territories and such places as have been ceded by the States. In England Treason is an Offence against the Person or Sovereignty of the King, and may consist in a Conspiracy which is not carried into effect. It consists under our Constitution in levying War against the United States or giving Aid and Comfort to their Enemies. A Plot to subvert the Government or the Assassination of the President is not treason, but may be visited with Death or such other Penalties as may be prescribed by Congress. The Law of Nations requires every Government to use Diligence to prevent Acts that are of a nature to injure other Nations with which it is at peace. - Counterfeiting the Money or Securities of a Foreign Country, or manufacturing Spurious Notes or Coin with an Intent to circulate them abroad is an Offence within this Principle. Piracy is Robbery or other act done feloniously on the High Seas, contrary to International Law. THE police power to repress acts that are prejudicial to society or to individuals was not, save exceptionally, delegated to the General Government, and remains in the States.1 Although they are forbidden by the Fourteenth Amendment to authorize or sanction any act which operates as a deprivation of life, liberty, or property, and Congress are empow ered to enforce the prohibition, the criminal jurisdiction of the United States is not thereby enlarged, nor does it acquire the right to legislate for, or inflict penalties on, individuals.2 The United States consequently have no general 1 Ex parte Bollman, 4 Cranch, 75; United States v. Coolidge, 1 Whea ton, 415; Cohen v. Virginia, 6 Id. 264, 426; United States v. Cruik shank, 92 U. S. 542; Civil Rights Cases, 109 Id. 315. 2 Civil Service Cases, 109 U. S. 3. See ante, pp. 524, 533. CRIMINAL JURISDICTION. 1121 or common-law power to punish crime, and their authority in this regard is confined to the following heads: (1) the express power conferred by the Constitution in certain enumerated instances; (2) the implied authority resulting from the power to make all necessary and proper laws, and consequently to punish every person by whom such laws are. broken; (3) the power to exercise criminal as well as civil jurisdiction over the Territories, and in such localities as have been ceded by the States to the United States.2 For like reasons the federal courts cannot take cognizance of any act as criminal which has not been declared criminal by Congress; and Congress cannot declare any act criminal unless it is contrary to some law made, or duty imposed, in pursuance of the powers conferred on the General Government. But all laws, rights, and duties within the scope of the civil powers of the United States may be enforced by penal legislation, and punishment inflicted for their violation.1 As the law now stands, the criminal jurisdiction of the State and of the federal courts is severally exclusive, and neither can intrude on the domain of the other. If an offence is indictable in the State courts, an indictment will not lie for the same offence in the federal courts, and so, conversely, of offences cognizable in the last-named tribunals. But it is also true that as both governments are entitled to obedience, the same act may be punishable by both. An assault and battery is a breach of the peace of the State where the act is done, and punishable as such only by her 1 See ante, p. 116; Ex parte Yarbrough, 110 U. S. 651; Legal Tender Cases, 12 Wallace, 536. 2 The United States v. Connell, 2 Mason, 60; Fort Leavenworth v. Lowe, 114 U. S. 525, 533; Cohen v. Virginia, 6 Wheaton, 264, 426. * United States v. DeWitt, 9 Wallace, 41; United States v. Fox, 95 U. S. 670; United States v. Reese, 92 Id. 214; United States v. Cruikshank, Id. 542; Baldwin v. Franks, 120 Id. 678; see ante, pp. 522, 533. See Patterson's Federal Restraints on State Action, p. 200. United States v. Gleason, 1 Woolworth, 128; Scott v. United States, 3 Wallace, 642; United States v. Fox, 95 U. S. 670; Ex parte Yarbrough, 110 Id. 651, 658. 1122 TREASON AS DEFINED courts, whether the person assailed was or was not in the service of the United States. But if such was his official character, and he was hindered in the performance of his duty, the laws of the Union are violated as well as the laws of the State, and a conviction or acquittal in the courts of one government will not shield him from punishment by the other.1 Another qualification has been ingrafted on the Constitution, that when a defence to a prosecution in a local court depends on the Constitution or an authority conferred by Congress, the indictment may be removed to the Circuit Court of the United States for the proper district, and the guilt or innocence of the accused determined, with a due regard to the laws of both governments.2 Such a case may arise out of a homicide by the marshal in executing the process of a federal court, or a duty imposed by an order from the President, or an act of Congress. The express power of Congress to legislate for the punishment of crime is confined within narrow limits. By Article I., Section 8, Congress are empowered to provide for the punishment of counterfeiting the securities and current coin of the United States, and also to define and punish piracies and felonies on the high seas, and offences against the law of nations. In Article III., Section 3, which relates principally to the Judiciary, it is provided that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. By the second section of the same article, Congress 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 so attainted. In considering these provisions we may begin with that relating to the offence of treason. The gravamen of this crime is the injury done to the welfare of society by sub 1 Moore v. Illinois, 14 Howard, 13; Scott v. United States, 3 Wallace, 342; Ex parte Yarbrough, 110 U. S. 651, 659. 2 Tennessee v. Davis, 100 U. S. 257. See post, p. 1154; Bush v. Ray, 107 U. S. 110. BY THE ENGLISH LAW. 1123 verting the frame of government on which the maintenance of social order depends. And as the evil resulting from this cause may spread farther, and have more enduring consequences than can well arise from a wrong done to an individual, so treason is the gravest offence known to the law, and one meriting condign punishment. There may be instances where resistance to bad and oppressive government is dictated by patriotism and approved by morals; but this is a distinction which municipal law obviously cannot recognize. Where government is personal there can be no practical distinction between the sovereign and the State; and an assault on the one must necessarily be attended with danger or injury to the other. Everything wilfully done or attempted whereby the king's life may be endangered — as, for instance, conspiring to seize or imprison the king, or assembling company with that intent is treasonable. It is an old saying that the way is brief from the prison of a sovereign to his grave; and revolutions beginning with professions of respect to the monarch have not unfrequently ended in his exile or death. Moreover, in a monarchy the king is the pivot or keystone of the State, and his person cannot be restrained or injured without disturbing the whole fabric of society. This was peculiarly true under the feudal system, which summed up all the duties of the subject in allegiance to the crown. Accordingly treason, under the law of England as defined in the statute 25 Edward III., chap. 3, 22, was an offence done to the dignity, the life, or the honor of the king. To compass his death, that of the queen, or of their son and heir; to violate the king's companion, or the king's eldest daughter, unmarried, or the wife of the king's eldest son and heir; to levy war against the king, or to adhere to his enemies, giving them aid and comfort; to counterfeit the king's great or privy seal, to counterfeit the king's money, or to bring false money into the realm counterfeit to that of England; and finally, to slay the chancellor, treasurer, or king's justices of either bench, or other justices. 1 See Hallam's Constitutional History, vol. iii. chap. xv. p. 152. 1124 TREASON UNDER THE CONSTITUTION - assigned to hear and determine, being in their places doing their office, were all felonies rising to the grade of treason, as defined by the statute of Edward III. In some of these instances the injury to the king, considered merely as an individual, might seem too slight to merit so severe a penalty; but there was in all of them an actual or possible injury to the public which it was incumbent on government to repress. To counterfeit the current coin of the realm was not merely to diminish the revenue of the mint, it tended to create uncertainty and confusion in all commercial transactions throughout the kingdom. The seduction of the king's wife, of his eldest daughter, or of the wife of his eldest son, might entail the consequences of a disputed succession. Levying war against the king, or by overt means compassing his death, meant nothing less than the overthrow of the gov ernment, and the loss of the security which it gave to life and person. In these and other cases of a like kind the law might well show itself jealous of attempts which, though nominally directed against an individual, really jeoparded the safety of the community. The incongruous classification of the statute of Edward II. was superseded in the beginning of this century by the act of 57 George III., chap. 7, which carries out the same general design by providing that — "if any person or persons during the life of the King, and until the end of the next session of Parliament after a demise of the Crown, shall, within the realm or without, compass, imagine, in vent, devise, or intend the death or destruction, or any bodily harm tending to the death or destruction, maiming or wounding, imprisonment or restraint, of the person of the same our Sovereign Lord the King, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any of his Majesty's dominions or countries, or to levy war against his Majesty, his heirs and successors, within this realm, in order by force or constraint to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe both houses or either house of Parliament, or to move or stir any for |