ment of a competent court ascertaining and declaring the guilt of an accused person. Corruption of blood is entirely abolished; forfeiture of estate is permitted to a very limited extent.

How far Congress may provide for the confiscation of private property belonging to rebellious citizens with whom a civil war is waged, will be considered in subsequent sections which treat of the military functions of the government.

§ 436. While treason is expressly defined, and direct power is conferred upon the legislature to declare its punishment, it must be understood that the mention of the highest crime includes also those of inferior grades, but of a nature kindred to treason. If Congress may legislate concerning this greatest of all offences, it certainly may define and punish those which resemble it in essence, but do not reach its height of enormity. Such are seditions, conspiracies to overthrow the government, and the like, in which there is no overt act, and which, therefore, do not amount to levying war, or adhering to the nation's enemies. At a very early day, (1790,) Congress assumed to exercise such a power, by defining misprision of treason to consist in the having knowledge of the commission of treasons, and the concealing the same, and by affixing as a punishment, imprisonment and a fine.

Second. The Implied Powers to define and punish Crimes.

§ 437. In addition to the express powers bestowed upon Congress, to define and punish crimes, which we have seen, may be grouped into three classes, there are a very large number of implied powers. These all exist from the very nature and necessity of the case. They are results and applications of the general principle which was set forth and illustrated in Part III. Chapter III. Section II. They are measures and means which conduce, which are, in fact, often absolutely necessary, to the effective exercise of the legislative function. A sanction is an essential element in every law; without it all the imperative qualities of a law would be lost; the statute would cease to be a command and become a mere request. Wherever Congress may adopt any particular measure, may

require anything to be done, or anything to be foreborne, in carrying out the specific grants of the Constitution, it may declare acts of disobedience, or acts which tend to interrupt the accomplishment of the proposed design, to be crimes, and may affix such punishments as it deems proper. This proposition seems to be self-evident. Without the capacity most of the national legislation would be a nullity. Congress has, therefore, from the very commencement of the present government, assumed and exercised this power in instances too many to be enumerated.

$438. If it should be said that the penal legislation necessary to enforce the laws of the United States might be left to the states, the answer is easy and conclusive. Every government which is supreme, must have the capacity to make its own commands obeyed; just so far as it must look to other bodies, to other governments for help, it is subordinate. But the United States is, within its sphere, absolutely supreme; and it would be no more proper for it to appeal to the several states for penal legislation in its behalf, than for it to invoke the assistance of Great Britain or France. But in addition, the states could not be compelled to legislate; their action would be voluntary; and the national government would, therefore, be entirely at their mercy. The considerations I have stated are so plainly correct, that none but a few impracticable theorists, who would exalt the states into a condition of practical supremacy, have ever denied the authority of Congress to define and punish crimes not expressly provided for by the Constitution.

§ 439. These views have been sustained by a solemn judgment of the Supreme Court. Congress had passed a statute making the bringing of counterfeit foreign coins within the country, with the intent to utter the same, and the act of uttering such coins, crimes to be punished by imprisonment. It will be noticed that the clause of Article I. Section VIII. giving power to provide for the punishment of counterfeiting the current coin of the United States, does not in terms cover this In The United States v. Marigold,1 the defendant had

case.

19 How. 560.

been indicted under the law, tried, and convicted; and the only question before the court was as to the validity of the statute. The decision sustained the validity; and was rested upon the ground that such a law was one of the necessary and proper means for carrying out the power to coin money, and regulate the value of foreign coin. The principle involved in the case evidently applies with equal force to all the penal legislation of Congress in aid of its other general powers.

§ 440. The views stated in §§ 437 and 438, are also sustained by the uninterrupted practice of Congress. The statute book is crowded with enactments defining and providing for the punishment of crimes, which are not alluded to in the letter of the organic law. In the first place, may be mentioned the provisions which secure the faithful performance of official duties, which impose penalties, greater or less in extent, upon acts of misconduct in office, embezzlements, and frauds of officers, and the like.' In every department of the civil service, the public officers are restrained by criminal legislation. The power to regulate commerce, and the power to lay and collect taxes require penalties of fine and imprisonment at every step. If bonds are demanded from an importer, the forging such instruments must be declared a crime and properly punished. If oaths are required in any proceeding, false swearing must be prevented by a suitable sanction. The internal revenue law now in operation describes more than twenty-five different acts which are made criminal, and to which a punishment by fine or imprisonment is affixed. The establishment of postoffices and post-roads involves legislation respecting the crimes of robbing or obstructing the mail. The system of national banks is guarded by numerous statutory provisions which tend to preserve the integrity of the currency by punishing counterfeiters, and the good faith of bank officers, by punishing their frauds, embezzlements, and misapplications of money. Examples and illustrations might be multiplied; but these are

1 And so of a law making it criminal for a guardian to embezzle pension money collected for his wards of the government. United States v. Hall, 98 U. S. 343, in which the pension legislation is reviewed by Mr. Justice Clifford. ED.

enough to show that the power of Congress is amply sufficient to meet any emergency; that it may wield all the sanctions required to procure the observance of its laws.

SECTION X.

THE MILITARY AND WAR POWERS.

441. We now arrive at that most important group of powers which, collectively, may be termed the military and war powers. They are conferred in the following clauses: Congress shall have power . to declare war,

grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.'

In this connection should be read the prohibition in Section X. of the same Article, as follows: "No state shall, without the consent of Congress,

war in time of peace,

keep troops or ships of

or engage in war unless actually invaded, or in such imminent danger as will not admit of delay."

§ 442. It will be seen that these war powers are, in fact, divided into three general classes or groups: (1.) Those which relate to the inception and conduct of war; (2.) Those which relate to the raising, maintaining, equipping, and governing the regular land and naval forces, the army and navy proper; (3.) Those which relate to the employment of the militia in the service of the general government.

These classes will be considered separately and in their order.

First. The Powers which relate to the Inception and Conduct

of War.

I. The Power to Declare War.

§ 443. I shall enter into no explanation of the nature, kinds, and causes of war, or of the rules which govern its conduct. These are subjects which belong rather to the international law, and are fully treated in works upon that department of jurisprudence. It is sufficient to know that the people considered the act and state of war a matter of such transcendent importance and magnitude, involving such untold personal and material interests, hazarding the prosperity, and perhaps the very existence of the body politic, that they committed its formal inception to that department of the government which more immediately represents them, the Congress. In this they differed from England, and most, if not all, other monarchical nations, constitutional or despotic, in which the power to declare war is held by the Crown; the check upon its exercise in England being the authority of Parliament alone to raise and maintain armies and navies, -the control of the purse.

§ 444. The commencement of a state of hostilities is a political act, within the province of, and to be judged by, the political departments. We shall, therefore, find few judicial decisions throwing light upon the clause under consideration. One, however, of the highest importance, and of far-reaching effect, will be cited in this connection.

Congress has power to declare war: Does this import that there can be no state of proper war until Congress has, by a legislative act, asserted it to exist? If a foreign nation should make war against us during a recess of Congress, are the hands. of the government tied up until that body can be assembled ? Were this so we should be at the mercy of every powerful and ambitious nation. It has not been, nor can it be, questioned, that Congress may declare a state of war to exist, which had