disability, the person attainted forfeits, by the common law, all his lands and tenements, and rights of entry, and rights of profits in the lands or tenements, which he possesses. And this forfeiture relates back to the time of the treason committed, so as to avoid all intermediate sales and incumbrances; and he also forfeits all his goods and chattels from the time of his conviction."

544. POWER OF CONGERSS OVER ATTAINDER. - The common law connected attainder with judgment of treason, and declared its consequences to be corruption of blood and forfeiture of estates. The Constitution leaves it to Congress to say whether attainder shall follow conviction or not, and if so what the consequences shall be; only the attainder shall not work corruption of blood or forfeiture except during the life of the person attainted. Congress has never included attainder in the punishment of treason, and the word is not found in the laws. An act to suppress insurrection, approved July 17, 1862, some times called the Confiscation Act, provided that the property of six classes of persons named, engaged in the Rebellion or giving it aid and comfort, should be seized and confiscated and the proceeds applied to the support of the army of the United States. But the operation of this act was limited, as will appear in the next paragraph. The present law expressly declares: "No conviction or judgment shall work corruption of blood or forfeiture.”

545. MEANING OF THE LIMITATION. A question has arisen as to the phrase, "except during the life of the person attainted." This question is, whether the phrase limits the time within which the corruption shall be worked, or the time that the forfeiture shall run in case there be one. Must the forfeiture be worked in the life of the traitor? Or shall the property of a traitor that has been confiscated be restored to his heirs on his death? If the first be the meaning, then the

1 Commentaries, 1299.

dam imposed by conviction of treason would be removed by the death of the offender, and property could pass by, as from grandfather to grandson.

President Lincoln understood the language in the second sense in the case of real estate. To meet his view, Congress adopted a joint resolution construing the act of June 17, 1862, as follows: "Nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." The question has not been judicially determined, and is therefore an open one. The Supreme Court has, however, sustained the act of 1862.

546. TREASON AGAINST STATES.-The Articles of Confederation did not recognize treason against the United States; all treason in that period was treason against a State. A motion to give Congress the sole power to declare its punishment was lost in the Convention, so that the powers of the States to punish treason remained unchanged. Practically these powers have amounted to little; but Mr. Johnston well remarks that "they fasten the idea of allegience to a State, and that carried into secession the multitude who disliked secession but dreaded to commit treason against the State."

Other provisions of the Constitution in relation to treason are discussed in connection with other subjects.

CHAPTER XXIII.

CONSTITUTIONAL LAW.

547. AMERICAN GOVERMENTS CONSTITUTIONAL. - The grand features of the American government are delineated in written constitutions. These constitutions are the paramount law, the Constitution of the United States of the whole. country, and the constitutions of the several States of those States, save in so far as they are limited by the Constitution, laws, and treaties of the United States. All laws, National and State, are enacted with reference to these constitutions. Accordingly, what is called constitutional law, if it did not originate in the United States, has here reached its fullest development, and forms the peculiar feature of our jurisprudence. A constitutional objection to a measure in the United States is, that the measure conflicts with the paramount law; a constitutional objection to a measure in England amounts only to this, the measure is a departure from the way in which things have heretofore been done.

548. CONSTITUTIONAL DECISIONS.-This supremacy of the Constitution over all laws, State and National, opens to the Federal courts a field unknown to the courts of the Old

World. They decide constitutional cases. The Supreme Court is called upon to decide cases involving the question whether a law of Congress is in conformity with the Constitution, and also cases calling in question the conformability of State laws to the Constitution, the laws, and the treaties of the United States. Once it was denied that the Court had such

powers, but it has asserted them and the assertion has been sustained by the country.'

549. THE STATE COURTS.-The State constitutions and courts are older than the National Constitution and courts; and it was in these courts that constitutional decisions were first made, and laws were first declared unconstitutional. Thus, the Supreme Court of New Jersey declared a law of that State unconstitutional in 1780; that of Virginia, one in 1782; and that of Rhode Island, one in 1786.

555. THE MEANING OF UNCONSTITUTIONAL. Judge Cooley states the meaning of the expression as follows: "When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their considerations are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force."2

551. THE EXERCISE OF THE POWER.-Obviously, to declare laws of Congress null and void is a responsible duty. The three branches of the government are of equal rank and dignity; each one is supreme in its own sphere; and invasions of the sphere of one by the others would soon destroy their harmonious working. This responsibility the Supreme Court has always felt. "It is an axiom of our jurisprudence," said Mr. Justice Swayne in 1866, "that an act of Congress is not to be pronounced unconstitutional unless the defect of power it is so clear as to admit of no doubt. Every doubt is

to pass

1 Marbury v. Madison, 1 Cranch, 137, and Cohens v. Virginia, 6 Wheaton, 412. 2Constitutional Limitations, 222.

to be resolved in favor of the validity of the law. Since the organization of the Supreme Court, but three acts of Congress have been pronounced by that body void or unconstitutional."

552. A CASE MUST ARISE.-The Supreme Court cannot express its opinion as to the constitutionality of a law until a case arises fairly involving that question. In one hundred years it has had no opportunity to declare the meaning of the phrase in relation to attainder, "except during the life of the person attainted." Should Congress enact a law making forfeiture of lands perpetual, and should a case arise under this law, the Court could then give the phrase an authoritative construction. In 1857 it pronounced the Missouri Compromise unconstitutional, although it had been on the statute-book since

1820.

553. THE POLITICAL POWER OF THE JUDICIARY.-The theory of the Constitution is, that the three departments are coördinate, each one being independent of the other two. No one is, outside of the impeaching power, amenable to the others. No power has been given to the Courts to construe the Constitution for Congress or the President. At the same time, judicial constructions of the laws and the Constitution directly affect the political departments.

(1) The ordinary mode of enforcing the laws is by means of the courts; the courts reach men by means of their decrees and judgments; and the question whether they will withhold or grant these or not, makes the judges the interpreters of the law. If the Court of final resort thinks a law unconstitutional, it will not enforce it. Congress can re-enact a law thus declared null and void, but the Court would again refuse to enforce it. Nor would the government be apt to bring a second suit to enforce a law once pronounced null and void. This is a practical restraint upon both the Legislature and the Executive.

1U. S. v. Rhodes, 1 Abbot's U. S. Reports, 52.