Page:Attainder of treason and confiscation of the property of Rebels - 1863.pdf/29

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so far as I have been able to discover. Comyn says (Digest, Vol. IV., p. 222,) "if the owner is attainted for high treason, he forfeits all his lands and tenements, goods and chattels." Even when there was no corruption of blood, the land held in fee simple was forfeited to the King for a year and a day, and after that, it escheated to the lord, and the alienation from the offender and his heirs was as absolute as if there had been only simple confiscation. If, therefore, constitutional scruples were the ground of this resolution, it is difficult to see why it should have taken this form. If the Constitution intended to prohibit forfeitures which should alienate property beyond the lifetime of the offender, this resolution does not go far enough. It should protect personal property as well as real.

Another remark occurs comparing the words of the resolution with those of the Constitution. The words of the Constitution are: "forfeiture except during the life." The words of the resolution are: "beyond his natural life." Here is a manifest discrepancy. If Congress meant the same as the framers of the Constitution, why depart from their words? I don't think they could find better ones. But the words of the Constitution, as I have argued, intended, simply, that forfeiture is an act which, by the Constitution, cannot take place except during the life of the offender; how long soever its consequences may last—while the words of the resolution imply, by "forfeiture," not the act, but the consequences of the act; since these could, but that could not, by its very nature, last beyond the moment when it became complete. This discrepancy is certainly significant, and shows, it seems to me, most clearly and conclusively, that either Congress did not pass this resolution out of regard to the restriction of the third clause of the third article of the Constitution, or else that they had in their minds, as the meaning of the clause, an idea, which the framers of the Constitution never intended to express by the words which they used.

And this brings me again to the opinions already expressed, namely, that the prevalent views on the subject are based on the act of 1790, rather than upon the Constitution itself. In passing that act, just as in providing for the naturalization of foreigners, Congress clearly did not aim to interpret the Constitution, and to go to the utmost extent which it would allow. They aimed rather