Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/21

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act which, like a sale, is made once and at a definite moment, and though the article which changes owners by the sale, remains sold, yet the sale itself cannot be said to remain. So a forfeiture: it takes place at a given time and the article remains forfeited forever, and forever alienated from him who owned it before, and the forfeiture cannot be said to remain, and to keep taking place. Hence a forfeiture, after the life of the person attainted had come to an end (and though it might be a forfeiture for his crime), could not be a forfeiture of anything that was his. It would not be his forfeiture at all. It could not be said to be a forfeiture of his property or rights; that must take place during his life, if at all. And hence the Constitution, in prohibiting forfeitures, except during the life of the person attainted, could not be prohibiting or limiting a forfeiture of the estate of the traitor, but only declares that the forfeiture must take place during his life, and must not be visited upon the property of his children, after it had become theirs. What gives emphasis to this view, is the fact, that in England, at the time of the adoption of the Constitution, a man might be attainted after his death. In that case, of course, all the penalties and forfeitures would fall upon his children. His attainder would not only work a corruption of his blood, but it would be a forfeiture of their property, which would be, of course, therefore, a forfeiture after the life, or rather after the death of the person attainted. But in this country, and under our Constitution, the attainder works no corruption of blood; it works no forfeiture after the death of the guilty person. The punishment must fall upon him and his property while it is his; it cannot fall upon it, after it has become theirs. Suppose we now insert the word "sale" and see how the Constitution reads: "No attainder of treason shall work a sale, except during the life, &c." Would anybody suppose for a moment, that the language was designed for anything more than to protect the property of the heirs? Would anybody suppose, that the property sold before the death of the traitor was to be restored to his heirs after his death, by virtue of these words of the Constitution? Clearly not. The matter is too plain to admit of a doubt. Forfeiture is a conveyance; it is one mode of changing title. It is so reckoned by Blackstone, and all the elementary writers, whose works are within my reach. But as a mode of conveyance, it must be an instant act. One cannot be always or permanently acquiring,