Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/18

10 But, is the property thus alienated, gone forever from his heirs and his family, by virtue of the forfeiture? In England, they have two grades of treason: high and petit treason. But in this country, we have no petit treason; and the only thing that, under our Constitution, we can recognize as treason against the United States, is what they called high treason. Under the English law, in all cases of high treason, the alienation was absolute.

(2.) The word "forfeiture," which is used in this connection, has a significant bearing upon the point before us. It is used in two senses: one concrete, and the other abstract. As a concrete term, "it denotes," says Webster, "that which is forfeited," and so Worcester, "the thing forfeited." But as an abstract term, "it conveys," says Webster, "the act of forfeiting; the losing of some right, privilege, * * * by an offence or crime. * * * In regard to property, the forfeiture is of the right to possess, * * * but not generally the actual possession, which is to be transferred by some subsequent process." So Worcester, "(in law), the act of forfeiting: a loss of property, right, or office, as a punishment for some illegal act or negligence." Hence, the word denotes, in this connection, an instantaneous act, and not a continuous condition. In the other sense of the word "forfeiture," meaning thereby, the thing that is forfeited—to "work forfeiture" would be ungrammatical"; it should be, "work a forfeiture," and in that case the language could be understood to mean only to bestow labor upon it, as one does upon his farm; a thing which "attainder" could not do.

If we pass from the "natural sense" of the word "forfeiture," to consider the nature of the operation, we shall find the argument equally clear and strong, as I think, in favor of the view which I am presenting. Considered in this light, forfeiture implies not the punishment of the crime, but some of the consequences of it. For example, take the case of smuggling—the goods smuggled are forfeited; but the smuggler is liable to punishment besides, and totally independent of the value of what he may have lost by his forfeiture. In some of the states, the man who sells liquors without due license, not only forfeits the liquors, to be sold again by public authority or to be destroyed, but he is also liable to punishment by fine or imprisonment, or both, besides the loss of his property, (the liquor), by forfeiture.