It will, doubtless, go far to account for this barbarity, to consider that treason was not regarded, under hereditary monarchs, as chiefly or mainly, a crime against the people or the public welfare, but as a crime against the King. Not only resistance to the laws of the land, or the King's laws, but any word or act that might be regarded as in any way disrespectful to him, tending to bring him into disrespect or contempt, or disapproving of any of his acts or measures, might be made into "constructive treason," at least, and punished as such by bill of attainder, if not by conviction in open court.
But in this country, we take a different view of the matter. Treason has been limited to "overt acts" of war against the legitimate authority of the United States. The punishment for treason has also been modified, and stripped of all unnecessary cruelty. We have abolished "corruption of blood" altogether, and adopted the humane doctrine, that no man shall be made to suffer unnecessarily for the crimes of another. And in the prosecution of this doctrine, we have also placed some restrictions upon the other consequences of attainder—the forfeitures. With us, attainder shall "work no forfeiture, except during the life of the person attainted." What is the import of this restriction?
I think that this language is used along with reference to English law and usages, and was designed to abolish some things which were practiced under that law. Does it then prohibit the absolute confiscation of the property of the convicted traitor, or an alienation of it, not during his lifetime only, but from him and his heirs, forever? Many think so, but I do not.
(1.) In the first place, the expression "work * * * forfeiture," shows clearly, that the framers of the Constitution were not, in this case, speaking of what might be included in the punishment as a part of it, but only of certain consequences which it might "work," although not necessarily involved in it. In this view of it, the Constitution would not prohibit the confiscation of property from being a part, of " the punishment," which Congress has the "power to declare" against the traitor. The Constitution provides, that if confiscation is to ensue, it must be as a part of the punishment included and expressly declared in the sentence of the court, by which he was convicted; it could not be permitted to follow, as a consequence of that punishment or sentence.