quires some explanation. The conceivable penalties for treason as crime against the sovereign are six: fine, confiscation of estate, either real or personal, or both; imprisonment; exile; torture; and death. Corruption of blood is rather an incident of forfeiture of estate than a separate penalty. It is the incapacity to inherit, or to pass an inheritance, in consequence of a conviction of treason. Congress may make the punishment of treason to consist in a fine of a given amount, and may authorize the sale of any property of the person convicted in satisfaction of the fine, without incurring any constitutional obligation to restore the amount of the fine or any part thereof to the heirs of the convicted person. If, however, Congress makes the confiscation of the property of the convicted person the penalty, then the government, as the representative of the sovereign, has, according to the constitution, a life estate, and only a life estate, in the property possessed by the convicted person at the time of the conviction, and also in such as may come to him afterwards; i.e. a life estate measured by the life of the person convicted. It is, of course, understood that the convicted person must have as much as a life estate in such property, and that his property of less than life estate can be held by the government for this corresponding period only. The government may transfer this estate to another person, but the transfer cannot enlarge the estate. The grantee takes, at the most, only a life estate, measured by the life of the convicted person. At the death of this person, the confiscated property must be restored to his lawful heirs. Death clears his blood. After his death, his heirs can inherit both from him and through him. Any other principle would cause the infliction of punishment upon his heirs, i.e. according to modern legal conceptions, upon innocent persons.2 It must be always kept in mind, however, that the general 1 Bouvier, Law Dictionary, Art. "Corruption of Blood.” 2 Bigelow v. Forrest, U. S. Reports, 9 Wallace, 339. government may capture property in time of war from those whom it regards as enemies, and that Congress may make absolute disposition of such captures, without any constitutional obligation to make restitution thereof at any time to anybody. In civil war the United States is both sovereign and belligerent, and may thus choose between its power to confiscate property as punishment for treason or as prize of war. When it follows the latter course, the judgment of the prize court in condemnation of the captured property transfers the whole estate in the property to the government, and no claim for restitution, in such case, is warranted by the constitution.1 It will be noticed lastly that the constitution defines treason only as against the United States, and therefore it is to be inferred that Congress is vested with the power to declare the punishment of treason against the United States only. Whether there can be such a thing as treason against a commonwealth, which is not, at the same time, treason against the United States, one may most seriously doubt. If there can be, then, so far as the provisions of the constitution are concerned upon this subject, the commonwealths may also define and punish treason against themselves. From the standpoint of political science, however, one would be obliged to regard the attribution of such a power to the commonwealths as too dangerous to be advantageous. It puts them in a position to suppress loyalty to the United States in case they themselves should become treasonable. Treason is crime against the sovereign pure and simple, and the sovereign in our political system is the United States alone. It is a crime, therefore, which should be dealt with only by the general government. 9. Legislation in respect to Revenue and Expenditures. The constitution vests the Congress with the power to 1 The Prize Cases, U. S. Reports, 2 Black, 659; Miller v. United States, U. S Reports, 11 Wallace, 268. lay and collect taxes,1 and appropriate money.2 By a subsequent clause the levy of a tax upon articles exported from any of the commonwealths is forbidden.3 With this exception Congress may, so far as the express provisions of the constitution are concerned, lay and cause to be collected every species of tax, which the wit of man can devise, upon any object. The Supreme Court however has declared that the general principles of the constitution forbid the Congress to tax the necessary governmental instrumentalities of the commonwealths, such as the salaries of officers, the revenues of municipal corporations, and State bonds, on the ground that such a power would enable the Congress to destroy the commonwealths, which nothing short of the amending power, the sovereignty, should be able to do in a federal system of government. The United States courts determine, of course, in what these necessary instrumentalities, in any particular case, consist. 6 The constitution gives Congress full discretion to determine also the amount of the tax. On the other hand, it places two limitations upon the method of the levy, vis; if the tax be direct, i.e. if it be a poll tax or a tax upon. property, it requires that it shall be laid within the commonwealths according to population; and if the tax be indirect, i.e. if it be any other form than poll or property tax, it (the constitution) requires that it shall be laid according to the principle of uniformity. The Court has interpreted the word uniformity to mean, in this connection, the same rate upon the same article wherever found.8 1 United States Constitution, Art. I, sec. 8, § 1. 2 Ibid. Art. I, sec. 9, § 7. 8 Ibid. Art. I, sec. 9, § 5. 4 Collector v. Day, U. S. Reports, 11 Wallace, 113. United States v. Railroad Co., U. S. Reports, 17 Wallace, 322. 5 Hylton v. United States, U. S. Reports, 3 Dallas, 171. Springer v. United States, 102 U. S. Reports, 586. Pollock v. Farmers Loan and Trust Co., 157 and 158 U. S. Reports, pp. 429 and 601. 6 United States Constitution, Art. I, sec. 2, § 3; Ibid. Art. I, sec. 9, § 4. 7 Ibid. Art. I, sec. 8, § 1. 8 Head Money Cases, 112 U. S. Reports, 580. The exact language of the constitution in the clause vesting the tax power is that “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States." Some students of the constitution have fancied that the latter part of the clause contains a definition of the purpose of taxation and a resultant limitation upon the tax power of the Congress. They have inserted the words "in order" after the word excises, and make the clause read, "Congress shall have power to lay and collect taxes, etc., in order to pay the debts," etc. Theoretically this may be the correct interpretation. I think it is. The difficulty appears when we descend to the practice. The voting of the tax is not the time generally when its specific purpose is revealed. The tax is usually voted for the general purpose of filling the treasury. We must look to the appropriation bill to find whether the public moneys are being devoted to public or private purposes. The constitution would have followed a more logical arrangement had it imposed this limitation, therefore, upon the power of the Congress to appropriate money. As a limitation upon the power to tax, it is practically inoperative. In regard to the power to appropriate money, the constitution provides that the appropriations for the army shall not be for a longer period than two years. It imposes no other restriction upon the Congress unless we transfer to this place the limitation of the purposes of taxation. This, as I have just pointed out, is its natural place. In this connection the restriction would be, at least, less vague. It is still difficult, however, to see how it could be enforced. When the Congress makes an appropriation, it must be always presumed to be for a legitimate purpose. The courts could not enjoin the Congress from making the appropriation, and I can con ceive no way whereby any individual tax-payer could secure 1 United States Constitution, Art. I, sec. 8, § 12. damages from any person immediately benefited by the appropriation. The individual tax-payer's interest would be too vague to form the basis for such a suit. The power of Congress over taxation is exclusive only in reference to duties and imposts upon exports and imports not connected with the execution of commonwealth inspection laws, and duties upon tonnage. So far as the express provisions of the constitution are concerned, the commonwealths may tax everything else, to any amount and in any manner they may deem proper. The Court, however, has decided that the commonwealths cannot tax the property of the United States and the instrumentalities of the general government, and that when both Congress and the commonwealths tax the same subjects, the general government has precedence and must be first satisfied.2 In connection with the power to tax, reference should be made to the power of Congress to take private property for public purposes, the power of eminent domain. The constitution does not expressly vest this power in the Congress. The constitution simply declares that private property shall not be taken for public use without just compensation being made therefor.3 The Court has decided that Congress possesses the power subject to this restriction.1 It is a power which the commonwealths also possess. It is not, therefore, exclusive to the Congress. In case, however, both Congress and a commonwealth should undertake to exercise it upon the same property, the right of Congress would, of course, take precedence. 10. Legislation in respect to the Military System. The constitution vests in the Congress the power to raise 1 United States Constitution, Art. I, sec. 10, §§ 2 and 3. 2 McCulloch v. Maryland, U. S. Reports, 4 Wheaton, 316; Dobbins v. Com missioners of Erie County, U. S. Reports, 16 Peters, 435; Bank Tax Cases, U. S Reports, 2 Wallace, 200; Van Brocklin v. Tennessee, 117 U. S. Reports, 151. 3 United States Constitution, Amendments, Art. V. United States v. Jones, 109 U. S. Reports, 513. |