Commentaries on the Constitution of the United States (1833)

by Joseph L. Story


Power of Congress to Punish Treason

§ 1290. AND here, in the order of the constitution, terminates the section, which enumerates the powers of congress. There are, however, other clauses detached from their proper connexion, which embrace other powers delegated to congress; and which for no apparent reason have been so detached. As it will be more convenient to bring the whole in review at once, it is proposed (though it is a deviation from the general method of this work) to submit them in this place to the consideration of the reader.

§ 1291. The third section of the fourth article gives a constitutional definition of the crime of treason, (which will be reserved for a separate examination,) and then provides: “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.”

§ 1292. The propriety of investing the national government with authority to punish the crime of treason against the United States could never become a question with any persons, who deemed the national government worthy of creation, or preservation. If the power had not been expressly granted, it must have been implied, unless all the powers of the national government might be put at defiance, and prostrated with impunity. Two motives, probably, concurred in introducing it, as an express power. One was, not to leave it open to implication, whether it was to be exclusively punishable with death according to the known rule of the common law, and with the barbarous accompaniments pointed out by it; but to confide the punishment to the discretion of congress. The other was, to impose some limitation upon the nature and extent of the punishment, so that it should not work corruption of blood or forfeiture beyond the life of the offender.

§ 1293. The punishment of high treason by the common law, as stated by Mr. Justice Blackstone,1 is as follows: 1. That the offender be drawn to the gallows, and not be carried or walk, though usually (by connivance at length ripened into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and cut down alive. 3. That his entrails be taken out and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters he at the king’s disposal. These refinements in cruelty (which if now practised would be disgraceful to the character of the age) were, in former times, literally and studiously executed; and indicate at once a savage and ferocious spirit, and a degrading subserviency to royal resentments, real or supposed. It was wise to place the punishment solely in the discretion of congress; and the punishment has been since declared, to be simply death by hanging;2 thus inflicting death in a manner becoming the humanity of a civilized society.

§ 1294. It is well known, that corruption of blood, and forfeiture of the estate of the offender followed, as a necessary consequence at the common law, upon every attainder of treason. By corruption of blood all inheritable qualities are destroyed; so, that an attainted person can neither inherit lands, nor other hereditaments from his ancestors, nor retain those, he is already in possession of, nor transmit them to any heir. And this destruction of all inheritable qualities is so complete, that it obstructs all descents to his posterity, whenever they are obliged to derive a title through him to any estate of a remoter ancestor. So, that if a father commits treason, and is attainted, and suffers death, and then the grandfather dies, his grandson cannot inherit any estate from his grandfather; for he must claim through his father, who could convey to him no inheritable blood.3 Thus the innocent are made the victims of a guilt, in which they did not, and perhaps could not, participate; and the sin is visited upon remote generations. In addition to this most grievous disability, the person attainted forfeits, by the common law, all his lands, and tenements, and rights of entry, and rights of profits in 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.4

§ 1295. The reason commonly assigned for these severe punishments, beyond the mere forfeiture of the life of the party attainted, are these: By committing treason the party has broken his original bond of allegiance, and forfeited his social rights. Among these social rights, that of transmitting property to others is deemed one of the chief and most valuable. Moreover, such forfeitures, whereby the posterity of the offender must suffer, as well as himself, will help to restrain a man, not only by the sense of his duty, and dread of personal punishment, but also by his passions and natural affections; and will interest every dependent and relation, he has, to keep him from offending.5 But this view of the subject is wholly unsatisfactory. It looks only to the offender himself, and is regardless of his innocent posterity. It really operates, as a posthumous punishment upon them; and compels them to bear, not only the disgrace naturally attendant upon such flagitious crimes; but takes from them the common rights and privileges enjoyed by all other citizens, where they are wholly innocent, and however remote they may be in the lineage from the first offender. It surely is enough for society to take the life of the offender, as a just punishment of his crime, without taking from his offspring and relatives that property, which may be the only means of saving them from poverty and ruin. It is bad policy too; for it cuts off all the attachments, which these unfortunate victims might otherwise feel for their own government, and prepares them to engage in any other service, by which their supposed injuries may be redressed, or their hereditary hatred gratified.6 Upon these and similar grounds, it may be presumed, that the clause was first introduced into the original draft of the constitution; and, after some amendments, it was adopted without any apparent resistance.7 By the laws since passed by congress, it is declared, that no conviction or judgment, for any capital or other offences, shall work corruption of blood, or any forfeiture of estate.8 The history of other countries abundantly proves, that one of the strong incentives to prosecute offences, as treason, has been the chance of sharing in the plunder of the victims. Rapacity has been thus stimulated to exert itself in the service of the most corrupt tyranny; and tyranny has been thus furnished with new opportunities of indulging its malignity and revenge; of gratifying its envy of the rich, and good; and of increasing its means to reward favourites, and secure retainers for the worst deeds.9

§ 1296. The power of punishing the crime of treason against the United States is exclusive in congress; and the trial of the offence belongs exclusively to the tribunals appointed by them. A state cannot take cognizance, or punish the offence; whatever it may do in relation to the offence of treason, committed exclusively against itself if indeed any case can, under the constitution, exist, which is not at the same time treason against the United States.10


     1.    4 Black. Comm. 92.
     2.    Act of 30th April, 1790, ch. 36.
     3.    2 Black. Comm. 252, 253; 4 Black. Comm. 388, 389.
     4.    4 Black. Comm. 381 to 388.
     5.    4 Black. Comm. 382. Bee also Yorke on Forfeitures.
     6.    See Rawle on Const. ch. 11, p. 145, 146.
     7.    Journal of Convention, 221, 269, 270, 271.
     8.    Act of 1790, ch. 36 § 24.
     9.    See 1 Tuck. Black. Comm. App. 275, 276; Rawle on Coast ch. 11, p. 143 to 115.
   10.    See The People v. Lynch, 11 Johns. R. 553; Rawle on Const. ch. 11, p. 140, 142, 143; Id. ch. 21, p. 207; Sergeant on Const. ch. 30, [ch. 32.]