Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/20

12 We must remember, that in England, a large part of the land was held by some form of entail, so that in reality the traitor, for the most part, would have only a life estate in it, and this, therefore, was all that he could lose by forfeiture. The property entailed would go to the heirs, not, however, as his heirs or through him, but as it were over him and from some ancestor who had entailed it, and, in the language of Wooddesson, "according to the form of the gift." His crime did not affect their rights in this case, since the property came to them independently of the fact that he had ever had an estate or interest in it.

Hence no argument can be drawn from the fact, that in some cases lands in which the criminal had an estate during his life, did, after his death, come to his children. The lands came to them, if at all, because they were entailed, or were estates in gavel-kind—that is, they were either entailed to some particular heirs or line of heirs—or to all heirs by what was called gavel-kind. But if the estates were held in fee simple, the forfeiture was absolute. Under the English law, a man forfeited what he had and nothing more—his life estate, if that was all he had, and the entire property if he held in fee simple, or was absolute owner. But the estate or interest which the criminal had in the lands was never restored. It could not be restored, for it was either a life estate, or an estate in fee, and the man to whom it had belonged, being dead, it could not have been restored to him. He was beyond the possession and use of it. His interest in it and right to it alike had terminated by that act of Providence which removed him from among his fellow men. Hence, the only forfeiture which, in the nature of things, can, by any possibility, extend beyond the life of the person attainted, is the forfeiture of rights implied in the corruption of blood. But in this country, a man's tights are born with him, and they die with him. His children have the right to inherit what he leaves intestate. But if he leaves nothing which is legally his own, they have no right to what he had previously owned and lost, whether by gift, the misfortunes of business, the waste of prodigality, or the fines and forfeitures consequent upon his crimes. To that extent, his children must suffer for his acts.

I have one suggestion more to make, in regard to the nature of a forfeiture, It is not a continuous act, so to call it. It is an