Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/33

25 The Constitution confers on Congress "power to declare the punishment of treason." This enables Congress, by prospective legislation, to occupy the whole range of punishment against traitors; and denounce upon them the loss of life, liberty, property, and all civil rights. The only restriction on the exercise of this power, confines it to the guilty traitor himself, and does not allow it to reach his innocent heirs, by corrupting his blood, or forfeiting his property after he is dead.

It appears by a message from the President to Congress, after the confiscation act was submitted to him for approval, that, in his opinion, the clause in the Constitution, viz. : "or forfeiture, except during the life of the person attainted," limited the power of Congress in declaring the punishment of treason, to a forfeiture of a traitor's life interest in his real estate, or in other words, that a forfeiture of his real estate should not operate upon, or affect such estate, beyond the period of his life. Although the President in his message remarks, "that the provision in the Constitution, put in language borrowed from Great Britain, applies only in this country, as I understand, to real or landed estate," yet, with the most profound respect for so high an authority, and with great diffidence in my own professional knowledge and research, I must say, that I neither know, nor can find, anything written or spoken, in this country or in England, showing, or tending to show, that this clause of the Constitution relates only to real property, and does not apply to personal. There is no intimation of any such distinction in the Constitution; nor does there appear to be any reason why the personal property of a traitor should be forfeited absolutely, and his real property only qualifiedly. I speak on this subject freely, as I am sure there are no gentlemen in this country, who would be more ready to admit, and if, in their power, correct an error, than our true and faithful President, and his learned and able legal adviser.

The error which has arisen respecting this clause of the Constitution, proceeds probably from two sources—one, in not giving due consideration to the cruel and unjust mode of punishing treason, which it was intended to prohibit—the other, in omitting to ascertain and duly regard the true meaning and legal effect of the term "forfeiture." Scarcely any word occurs more frequently in the system of jurisprudence which prevails in this country and England. Long before our Constitution was adopted, it had