266. According to that definition, treason against the United States consists only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

267. There may also be treason against a particular state, defined and punished as a crime by its laws; and the same acts do not necessarily constitute treason against the United States also.

That clause of the federal constitution which defines the crime of treason, and prescribes the proof required to sustain a conviction, was intended as an additional safeguard against tyranny and injus tice. It is in the following words: "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." Similar provisions have been adopted in the constitutions of many of the states. "By the ancient common law, it was left very much to discretion to determine what acts were and were not treason; and the judges of those times, holding office at the pleasure of the crown, became but too often instruments in its hands of foul injustice. At the instance of tyrannical princes, they had abundant opportunities to create constructive treasons; that is, by forced and arbitrary constructions, to raise offenses into the guilt and punishment of treason which were not suspected to be such. The grievance of these constructive treasons was so enormous, and so often weighed down the innocent and the patriotic, that it was found necessary, as early as the reign of Edward III., for parliament to interfere and arrest it, by de claring and defining all the different branches of treason. This statute has ever since remained the pole-star of English jurisprudence on this subject. It was under the influence of these admonitions, furnished by history and human experience, that the convention deemed it necessary to interpose an impassable barrier against arbitrary constructions, either by the courts or by congress, upon the crime of treason."

143

148 2 Story, Const. § 1799.

To constitute this specific crime, "war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war are distinct offenses. The first must be brought into open action by an assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. The actual enlistment of men to serve against the government does not amount to levying war. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." 144

There may also be treason against a particular state, defined and punished as a crime by its laws. And treason against a state is not necessarily at the same time treason against the United States. Treason may be committed against a state by opposing its laws and forcibly attempting to overturn or usurp the government. And conversely, treason against the United States is not an offense against the laws of a particular state. It is a crime which is exclusively directed against the national government and exclusively cognizable in its courts.145

CORRUPTION OF BLOOD AND FORFEITURE.

268. The constitution of the United States provides that "no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted." And the constitutions of nearly all the states provide generally that no conviction shall work corruption of blood

144 Ex parte Bollman, 4 Cranch, 75, 126. See, also, U. S. v. Hoxie, 1 Paine, 265, Fed. Cas. No. 15,407; U. S. v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299; U. S. v. Insurgents, 2 Dall. 335, Fed. Cas. No. 15,443; U. S. v. Mitchell, 2 Dall. 348, Fed. Cas. No. 15,788.

145 People v. Lynch, 11 Johns. 549; Respublica v. Carlisle, 1 Dall. 35.

or forfeiture of estates, though in a few, it seems, there may still be a forfeiture during the life of the person convicted.

Soon after the adoption of the federal constitution, congress passed an act declaring that no conviction or judgment, for any capital or other offense, should work corruption of blood or any forfeiture of estate.146 But in 1861, at the beginning of the civil war, new statutes for the punishment of treason were enacted, and these provided for the confiscation of the property of persons in rebellion against the government. But a question having been made, as to whether the fee in the realty of such persons might not be confiscated, it was expressly provided in the confiscation acts that no punishment or proceedings should be construed to work a forfeiture of the real estate of the offender, longer than for the term of his natural life.147

In English law, corruption of blood was the consequence of attainder. It meant that the attainted person could neither inherit lands or other hereditaments from his ancestor, nor retain those he already had, nor transmit them to any heir by descent, because his blood was considered in law to be corrupted. This was abolished

by St. 33 & 34 Vict. c. 23, and is unknown in America.

In England, if person is outlawed for treason, his lands are forfeited to the crown. If he is outlawed for felony, he forfeits to the crown all his goods and chattels, real and personal, and also the profits of his freeholds during his life, and after his death, the crown is entitled to his freeholds for a year and a day, with the right of committing waste. Formerly, a conviction for any kind of felony caused a forfeiture of goods and chattels, both real and personal, but this has been abolished by the St. 33 & 34 Vict. c. 23. This statute provides that no conviction, judgment, or sentence for treason or felony shall work corruption of blood or forfeiture. But it leaves the old law of outlawry for treason and felony, with its consequences, untouched.148

146 Rev. St. U. S. § 5326 (Act April 30, 1790).

147 See 2 Story, Const. § 1300, note; Bigelow v. Forrest, 9 Wall. 339; Day v. Micon, 18 Wall. 156; Wallach v. Van Riswick, 92 U. S. 202; Fire Department v. Kip, 10 Wend. 266.

148 See 4 Steph. Comm. (10th Ed.) 477; Williams, Real Prop. 126.

CHAPTER XXI.

LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.

269. Constitutional Provisions.

270. The Law Impairing the Contract.

271. The Obligation.

272. The Impairment of the Contract.

273-275. What Contracts are Protected.

276. Limitations on Power of Legislature to Contract, 277-281.

Charters as Contracts.

282-283. Exemption from Taxation.

284. Laws Affecting Remedies on Contracts.

CONSTITUTIONAL PROVISIONS.

269. The federal constitution provides that no state shall pass any law impairing the obligation of contracts. And the constitutions of many of the states impose the same restraint upon their legislatures.

The causes for the introduction of this clause into the constitution of the United States are to be found in the financial condition of the country at the close of the revolutionary war, and the disposition of the states, at that time, with reference to the enforcement of public and private obligations. It was much to be apprehended that they would repudiate their debts, unless restrained by some such provi sion of the paramount law. There was also a strong desire to issue paper money and make it circulate, even when that involved the discharge of previous contracts in an almost worthless currency. Further, the various states were much inclined to make such liberal provision for the relief and encouragement of the debtor class as would result in great injury and detriment to the class of creditors, and to the serious impairment of public and private credit. The means adopted to check these tendencies was the prohibition upon state action which we are about to consider. That it has been beneficent in its effects cannot be doubted. But it has given rise to an amount of litigation, and has involved the courts in a succession of adjudications, which are not equalled by those growing out

of any other clause of the constitution, unless it may be that which gives to congress the power to regulate commerce. This prohibition, it will be noticed, is directed only against the states, and there is no other clause in the constitution laying a like inhibition upon congress. It follows, therefore, that if congress should pass a law, falling within the scope of its jurisdiction, and not obnoxious to any other prohibition of the constitution, the courts would be obliged to sustain it, notwithstanding its effect might be to impair the obligation of existing public or private contracts. The injustice of such an act would not be sufficient ground for adjudging it unconstitutional. And in fact, such consequences have attended several of the acts of congress, such as the legal tender law and the various statutes of bankruptcy, but their constitutionality has not been questioned on that ground.1 But it has been held that the legislature of a territory has no more power to pass a law impairing the obligation of contracts than is possessed by the legislature of a state."

THE LAW IMPAIRING THE CONTRACT.

270. The prohibition against impairing the obligation of contracts applies not only to the ordinary statutes of the state, and the ordinances of its municipalities, but also to any clause in its constitution, or any amendment thereto, which produces the forbidden effect.

A provision in a state constitution, or an amendment thereto, is a "law" within the meaning of this clause. The federal constitution is the supreme law of the land, and its prohibitions upon state action apply just as much to the people of the state, when making or amending their constitution, as to their representatives sitting in the legislature to make ordinary laws. Hence if a constitutional provision or amendment impairs the obligation of contracts, it is void.3 But the prohibition is directed against the legis

1 Hepburn v. Griswold, 8 Wall. 637; Gunn v. Barry, 15 Wall. 610; Mitchell . Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312; Evans v. Eaton, Pet. C. C. 322, 837, Fed. Cas. No. 4,559; Hopkins v. Jones, 22 Ind. 310.

2 Morton v. Sharkey, McCahon (Kan.) 535.

• New Orleans Gaslight Co. v. Louisiana Light & Heat Producing & Manuf'g