the separation of the territory and the transfer of the jurisdiction permitted to affect existing contracts between individuals.

Although the inhabitants of the District of Columbia, by its separation from Maryland and Virginia, ceased to be citizens of those respective states, yet, as citizens of the United States, they are entitled to the benefit of all commercial and political treaties with foreign powers, and to the protection of the Union at home, as well as abroad. And notwithstanding the power of Congress to exercise exclusive legislation over this Federal territory includes the power of taxing its inhabitants, they do not in any manner participate in the election of members of the House of Representatives. I have already had occasion to explain upon what principles this anomaly in the Constitution has been justified ; and it may now be added, that the adequate provisions for their local government, and the advantages derived from the residence of the General Government, are deemed by the inhabitants themselves sufficient to counterbalance their political disabilities; that no public inconvenience has been experienced from their existence; and that the circumstance was known before the cession of the territory, and when the inhabitants voluntarily established their residence within it.

III. The next power falling within this miscella neous class is the power of Congress "to declare the punishment of treason" against the United States.

It is a general principle, that every government contains within itself the means and capacity for its own preservation. Had the express enumeration, therefore, of this power been omitted in the Consti

* 6 Cranch, 192. † 2 ib., 243.

5 Wheaton, 324.

tution, it could not have been intended that the Federal Government was to depend upon the individual states to protect it from treason and conspiracies; yet, to have left the power of self-defence to inference or argument, would have been unwise and unsafe. As the crime of treason against the United States was one which might be committed, the United States themselves might, without this express authority, have punished its perpetrators; but as artificial and constructive treasons had been frequently made engines of oppression by tyrannical governments, and, during the prevalence of vindictive factions, by such as were comparatively free, it was deemed expedient to insert in the Constitution a definition of the crime, to prescribe the proof necessary for conviction, and to restrain Congress, in punishing it, from extending the consequences of guilt beyond the person of its author.

Treason against the United States is, accordingly, declared to "consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." The term "levying war" is of technical signification, and is adopted from the English statute of treasons, and receives the same construction with us which has been given to it in England; and the "war," included in the term, embraces internal rebellion, as well as hostilities from without. A conspiracy to subvert by force the government of the United States, violently to dismember the Union, to coerce the repeal of a general law, or to revolutionize a territorial government by force, if carried into effect, by imbodying and assembling an armed force in a military posture, is an overt act of levying war; and not only those who bear arms, but those who perform the various essential parts which must be assigned to different persons for the

purpose of prosecuting the war, are guilty of the crime.* But a mere conspiracy for any such purpose, unaccompanied by any overt act, is not treason; and to constitute a "levying of war," there must be an assemblage of persons, with intent to effect by force a treasonable purpose.† The mere enlistment of men for the purpose is not sufficient. Nor is it necessary, on the other hand, that an individual should appear in arms against his country to constitute the guilt of treason. If war be actually levied, that is, if a body of men be actually assembled in arms for the purpose of effecting by force a treasonable design, all those who perform any part in the conspiracy, however minute, or however remote themselves from the scene of action, if actually leagued in the general enterprise, are considered as traitors. Similar acts committed against the government or laws of a particular state are punishable according to the law of that state, but adhering to a foreign nation at war with the United States, and affording it aid in the prosecution of hostilities, is treason against the United States, and not against the particular state of which the party is a citizen.‡

The Constitution farther declares, that " 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." A confession out of court, although before a magistrate, is not sufficient ;§ but after the treason is proved by two witnesses, such confession may be given in evidence by way of corroboration. The testimony of the two witnesses must be to the same overt act, and not, as in England, to two different overt acts of the same treason. The restriction on Congress with respect to the pun11 J. R., 553. Fries's Case, in U. S. Circ. Ct. for Pennsylvania.

* 4 Cranch, 470. + 4 ib., 75-126.

ishment is, that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted." Corruption of blood, in common with many better things, we derive again from the common law. It signifies that an attainted person can neither inherit land from his ancestors, retain that of which he is in possession, nor transmit it to his heirs; and that he is, moreover, incapable of transmitting a title derived by descent through him, even from a remote ancestor. This is visiting the

sins of the fathers upon the children with a vengeance, as it is not confined to the third and fourth generations, but extends to a man's latest posterity. The doctrine is founded upon a legal fiction; and is equally at variance with the liberal principles of modern times, and the very elements of justice. And in carrying this power into execution, Congress has humanely stopped short of their constitutional authority; for, in affixing the punishment of death to the crime of treason, it has declared, that "no conviction or judgment shall work corruption of blood, or any forfeiture of estate," thus acting upon a construction of the Constitution which assumes a discretion in omitting the latter as a part of the punishment of treason, even during the life of the offender himself.

IV. The fourth power of a miscellaneous nature vested in Congress is that of "admitting new states into the Union."

No provision of this kind was made in the Articles of Confederation, and great inconvenience, and much assumption of power, were the necessary consequences. With great propriety and advantage, therefore, the new Constitution supplied this defect. But the

power was not granted without restriction; for "no new state" can" be formed or erected within the jurisdiction of any other state; nor can any state be form

ed by the junction of two or more states, without the consent of the legislatures of the states concerned, as well as of Congress." These precautions, which prevent either the partition of a large state, or the junction of small ones, without their consent, were necessary to allay the jealousies existing on the subject, both in the more powerful and in the weaker members of the confederacy.

Upon the purchase of Louisiana by the United States, some doubt was entertained whether the power of the General Government to admit new states into the Union extended to territories not comprised within the boundaries of the United States at the adoption of the Constitution. This question, although never presented in a form for judicial decision, was, however, decided in the affirmative by large majorities of both houses of Congress, on the several occasions of admitting different parts of that province into the Union, as the separate States of Louisiana, Mississippi, Missouri, and Arkansas; which acts were severally approved by successive chief magistrates of the Union. It must therefore be considered as practically settled, and it would savour too much of the spirit of controversy, and betray too much self-confidence, to offer, at this time of day, any argument in support of the negative side of that question, and to assert that such a measure required not only the consent of the inhabitants of the territory, but an amendment of the Constitution to render it valid. All doubt, indeed, seems long since to have subsided, and public opinion has sustained the government in this exercise of the power in question, on the ground of constitutional right, as strongly as it has been declared in favour of its policy.

V. The power "to dispose of and make all needful regulations respecting the territory or other prop