« AnteriorContinuar »
them. It is proper, however, that the reader should be
fixed limitation of the time of their duration ; and to prohibit intercourse or commerce with a foreign nation for an unlimited period.
$ 210. And here terminates the eighth section of the Constitution professing to enumerate the powers of Con: gress.
But there are other clauses, delegating express powers, which, though detached from their natural conrection in that instrument, should be here brought under Teview, in order to complete the enumeration.
§ 211. The third clause of the third article contains a constitutional definition of the crime of treason, (which will be reserved for a separate examination,) and then proceeds, in the same section, to provide, - 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.” The punishment of treason by the common law, partakes, in a high degree, of those savage and malignant refinements in cruelty, which in former ages were the ordinary penalties attached to state offences. The offender is to be drawn to the gallows on a hurdle; hanged by the aeck, and cut down alive; his entrails taken out, and burned, while he is yet alive ; his head cut off; and his body quartered. Congress are intrusted with the power to fix che punishment, and have, with great wisdom and humanity, abolished these horrible accompaniments, and confined the punishment simply to death by hanging. The
power to punish treason is exclusive in Congress; and the trial for the offence, as well as the award of the punishment, belongs, also, exclusively to the National tribunals and cannot be exercised by any State tribunals.
$ 212. The other clause may require some explanation, to those, who are not bred to the profession of the law. By the common law, one of the regular incidents to an attainder for treason, (that is, to a conviction and judgement in court against the offender,) is, that he forfeits all his estate, real and personal. His blood is also corrupted, that is, it loses all inheritable qualities, so that he can neither inherit any real estate himself, from any ancestor or relation by blood, nor can his heirs inherit any
real estate from him, or through him, from any ancestor or relation by blood. So that, if the father should commit treason, and be attainted of it in the life time of the grandfather, and the latter should then die, the grandson could not inherit any real estate from the grandfather, although both were perfectly innocent of the offence ; for the father could communicate no inheritable blood to the grandson. Thus, innocent persons are made the victims of the misdeeds of their ancestors ; and are punished, even to the remotest generations, by incapacities derived through them. The Constitution has abolished this corruption of blood, and general forfeiture ; and confined the punishment exclusively to the offenders ; thus adopting a rule, founded in sound policy, and as humane, as it is just.
§ 213. The first section of the fourth article declares, "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner, in which such acts, records, and proceedings shall be proved, and the effect thereof."
§ 214. It is well known, that the acts, records, and judicial proceedings of foreign nations are not judicially taken notice of by our courts ; that is, their genuineness, validity, and authority are not admitted as of course by our courts, as is the case with the acts, records, and judicial proceedings of the Legislature and judicial tribunals of the State, but thay must be proved, like other
facts, whenever they are brought into controversy in a'y suit. The nature and modes of such proof are different in different countries ; and being wholly governed by the municipal law of each particular nation, must present many embarrassing questions. Independent of the provf, another not less serious difficulty is, as to the effect to be given to such acts, records, and proceedings, after they are duly authenticated. For example, what effect is to be given to the judgement of a court in one country, when it is sought to be enforced in another country? Is it to be held conclusive upon the parties, without further inquiry ? Or, is it to be treated like common suits, and its justice and equity to be open to new proofs and new litigation ? These are very serious questions, upon which different nations hold very different doctrines. Even in the American Colonies, before the Revolution, no uniform rules were adopted, in regard to judgements in other colonies. In some, they were held conclusive ; in others, not. Some foreign nations hold the judgements of foreign courts between the parties, as of no validity or force out of the territory, where the judgements are pronounced; others hold such judgements to be only primâ facie or presumptively valid and just, but open to be controverted and overthrown by any new proofs ; and others, again, hold such judgements, either absolutely, or under certain limitations and restrictions, to be binding and conclusive between the parties and their heirs and other representatives. Now, domestic judgements, that is, judgements rendered in the same State, are uniformly held, in all the tribunals of that State, to be conclusive between the parties and their heirs and representatives, so that they cannot be controverted, or their validity impeached, or new proofs offered to overthrow them in the ordinary administration of justice.
$ 215. We may readily perceive, upon a slight examination, how inconvenient it would be, to hold all the judgements rendered in one State to be controverted anew in any other State. Suppose a judgement in o je State, after a trial, and verdict by a jury, upon a contratt, or for a trespass, in the place where all the witnesses uved ; and, afterwards, the defendant should remove into
another State, and some of the material witnesses should die, or remove, so that their testimony could not be had ; if the defendant were then called upon to satisfy the judgement in a new suit, and he might controvert anew all the facts, there could be no certainty of any just redress to the plaintiff. The Constitution, therefore, has wisely suppressed this source of heart-burning and mischief between ihe inhabitants of different States, by declaring, that full faith and credit shall be given to the acts, records, and judicial proceedings of every other State ; and by authorizing Congress to prescribe the mode of authentication, and the effect of such authentication, when duly made. Congress have accordingly declared the mode, in which the records and judgements of the respective States shall be authenticated, and have further declared, that, when so authenticated, they shall have the same force and credit, and, of course, the same effect, in every other State, that they have in the State, where the records and judgements were originally made and rendered.
Admission of New States.— Government of Territories.
$ 216. The first clause of the fourth article declares, “New States may be admitted by the Congress into this Union. But no new State shall be formed or erected within the jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.” It was early foreseen, from the extent of the territory of some States, that a division thereof into several States might become important and convenient to the inhabitants thereof, as well as add to the security of the Union. And it was also obvious, that new States would spring up in the then vacant western territory, which had been ceded to the Urion, and that suci new States could not long bë re. tained in a state of dependence upon the National Gove ernment. It was indispensable, therefore, to make some suitable provisions for both these emergencies. On the one hand, the integrity of any of the States ought not to be severed without their own consent ; for their sovereignty would, otherwise, be at the mere will of Congress. On the other hand, it was equally clear, that no State ought to be admitted into the Union without the consent of Congress ; for, otherwise, the balance, equality, and harmony of the existing States might be destroyed. Both of these objects are, therefore, united in the present clause. To admit a new State into the Union, the consent of Congress is necessary ; to form a new State within the boundaries of an old one, the consent of the latter is also necessary. Under this clause, besides Vermont, three new States formed within the boundaries of the old States, viz., Kentucky, Tennessee, and Maine ; and nine others, viz., Ohio, Indiana, Illinois, Mississippi, Alabama, Louisiana, Missouri, Arkansas, and Michigan, formed within the territories ceded to the United States, have been already admitted into the Union. Thus far, indeed, the power has been most propitious to the general welfare of the Union, and has realized the patriotic anticipation, that the parents would exult in the glory and prosperity of their children.
$ 217. The second clause of the same section is, - The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory, or other property, belonging to the United States. And nothing in this Constitution shall be so construed, as to prejudice any claims of the United States, or of any particular State.” As the General Government possessEs tlre right to acquire territory by cession and conquest, it would seem to follow, as a natural incident, that it should possess the power to govern and protect, what it had acquired. At the time of the adoption of the Constitution, it had acquired the vast region included in the Northwestorn Territory; and its acquisitions have since been great1. enlarged by the purchase of Louisiana and Florida.
be two latter Territorier, (Louisiana and Florida,) sub