Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/19

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So, again, a forger may have many valuable tools, but the forfeiture of them is considered, in the eye of the law, as no part of the punishment of his crime.

We must carefully note, that it was not the property merely of the person attainted that he lost, but his right to property. What he had went with his right to hold it, of course. Thus, Wooddesson, (Lect, vol. LL p. 259). "If a son be attainted of treason during the life of his father, donee in tail, and die, having issue, and then the father dies, the estate shall descend to the grandchildren secundum formam doni, notwithstanding the attainder; but it is otherwise in case of a fee simple." They took the estate if it was entailed to them, not in consequence of his having had any estate in it, but because it was given to them by an ancestor further back than the attainted person, and was theirs according to the form of the gift. But if the estate was held in fee simple—that is, if it were absolutely his own, no other person at that time having any estate in it or right to it, as wife by dower, child by inheritance, the case was otherwise, says Wooddesson, that is, the forfeiture was absolute, and his heirs could not come into possession of it after his death. So also Blackstone, (vol. IV, p. 385). "In the case of petit treason, the offender forfeited all his personality absolutely, and his lands in fee simple to the Crown for a short time—a year and a day, and after that, 'by way of escheat to the lord.' But it was gone from the offender and his heirs forever. In case of high treason, however, the guilty party 'forfeited to the King all his lands, &c., whether fee simple or fee tail, to be forever afterwards vested in the Crown.'" P. 381.

I am well aware that the English laws concerning treason, attainder, &c., have been greatly modified since the adoption of our Constitution, and even before its adoption, as for example. ll and 12 W. III; 7 of Anne. By the Statute 54 of Geo. III, passed some twenty-five years after the adoption of our Constitution, the English have taken very much the same grounds as we had done a quarter of a century before, in regard to the punishment of traitors, Still, however, in citing English law as explanatory of our Constitution, we must take the laws as they were at the time when our Constitution was framed, and not as they may have been made since that time.