Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/25

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crown, and for that purpose, it must be taken from the heirs of the traitor, and this was often done, in order that it might be bestowed upon some favorite or―at least some loyal person, as a reward for services rendered, or as a pledge for the future.

But in this country we have no such element of national policy—no such reason for disturbing the rights of the dead or the rights and possessions of the living. If a rebel is to be attainted, it must be while he lives; if his property is to be forfeited for his treason, it must be while it is his, and not after it has passed, by his death, into the hands of his heirs, or belongs of right to other persons.

Now, by the interpretation which I suggest for these words of the Constitution,—"forfeiture, except during the life of the preson attainted,"— we secure this beneficent object of the framers of our institutions, and not without. For, on my interpretation, the forfeiture being regarded as a mere act or mode of changing the title to property, effects the change and has no longer an existence. And, as the Constitution requires that the act should take place while the offender lives, it forbids its taking place after he is dead. Otherwise, what was manifestly the object of the framers of the Constitution and the obvious policy of our Government, would not be secured. Their intention would be only partly expressed and not effectually accomplished. But on my view, the work is complete, the theory is fully carried out, fully and perfectly expressed in all its parts and proportions.

I think that we have thus fulfilled the two conditions of the rule laid down by the Supreme Court and already cited.

(1.) The word "forfeiture," in its most "natural sense," denotes an act of alienation or change of title to property, and in itself no more implies a return or restoration of the property to the party from whom it was lost by the forfeiture, than a sale, or any other mode of changing the title whatever.

(2.) "The purpose for which the word was used" was manifestly to protect the children and heirs of the guilty man from any visitation of his sins upon them; from being held in any way responsible for crimes of which they were innocent, in which they had no participation, and against the commission of which they had no means or power of influence.

The loss of his property, it is true, might be a damage to them. And so would the loss of his life, by the public execu-