treason, there is not, under the laws of the United States, any "attainder." The criminal laws of the United States are all embraced in specific statutes, defining crimes and all their penalties. No consequential penalties of this character are known to this law. And if a person is convicted and sentenced to death for treason, there can be no corruption of blood, nor forfeiture of estate except by express terms of the statute. The leading principles of the constitution forbid the making of laws which should leave the penalty of crime to be determined by ancient or antiquated common law proceedings of English courts. Forfeiture of estate, by express terms of statute, may be in the nature of forfeiture by a bill of pains and penalties, or præmunire, but is not forfeiture by attainder; nor is it such forfeiture as is within the sense of the constitution, which limits the operation of attainders of treason. This distinction was well known to the framers of the constitution. They thought it best to guard against the danger of those constructive and consequential punishments, giving full power to Congress, in plain terms, to prescribe by statute what punishment they should select; but in case of resort to attainder of treason, as one of those punishments, that form of punishment should not be so construed as, ex vi termini, to corrupt blood nor forfeit estate except during the life of the person attainted.

TECHNICAL LANGUAGE TO BE CONSTRUED TECHNICALLY.

The language of the constitution is peculiar; it is technical; and it shows on the face of it an intention to limit the technical operation of attainders, not to limit the scope or extent of legislative penalties. If

the authors of the constitution meant to say that Congress should pass no law punishing treason by attainder, or by its consequences, viz., forfeiture of estate, or corruption of blood, they would, in plain terms, have said so; and there would have been an end to the penalties of attainder, as there was an end to bills of attainder. Instead of saying, "Congress shall have power to declare the punishment of treason, but shall not impose the penalties of attainder upon the offender," they said, "Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."

This phraseology has reference only to the technical effect of attainder. The "working of forfeitures" is a phrase used by lawyers to show the legal result or effect which arises from a certain state of facts. If a traitor is convicted, judgment of death is passed upon him; by that judgment he becomes attainted. Attainder

works forfeitures and corruption of blood; forfeitures and corruption of blood are, in the ordinary course of common law, followed by certain results to his rights of property. But the constitution provides, if the traitor is attainted, that attainder shall not, ex vi termini, and of its own force, and without statute to that effect, "work" forfeiture or corruption of blood. The convict may still retain all those civil rights of which he has not been deprived by the strict terms of the statute which shall declare the punishment of treason.

The punishment of treason, by the statute of the United States of April 30, 1790, is death, and nothing more. Can any case be found, since the statute was enacted, in which a party convicted and adjudged guilty

of treason and sentenced to death, has been held to be "attainted" of treason, so that the attainder has worked forfeiture of any of his estate, real or personal? Would not any lawyer feel astonishment if a court of the United States, having sentenced. a traitor to death. under the law of 1790, should announce as a further penalty the forfeiture of the real and personal estate of the offender, "worked" by the attainder of felony, notwithstanding no such penalty is mentioned in that statute?

If Congress should pass an act punishing a traitor by a fine of five dollars, and imprisonment for five years, who would not feel amazed to learn that by the English doctrine of forfeitures worked by attainders, by operation of law, the criminal might be stripped of property worth thousands of dollars, over and above the penalty prescribed by statute?

TRUE MEANING OF ART. III. SECT. III. CL. II.

The constitution means that if traitors shall be attainted, unlimited forfeitures and corruption of blood shall not be worked by attainders. It means to leave untrammelled the power of Congress to cause traitors to be attainted or otherwise; but if attainted Congress must provide by statute for the attainder; and the constitution settles how far that attainder shall operate constitutionally; and when the legislature has awarded one punishment for treason, the court shall not evoke the doctrine of forfeitures worked by attainder, and thus, by technical implication, add punishments not specifically set down in the penal statute itself; or if this implication exist, the results of the technical effect of attainder shall not be corruption of blood, or forfeiture,

except during the life of the offender. The third article does not limit the power of Congress to punish, but it limits the technical consequences of a special kind of punishment, which may or may not be adopted in the statutes.

From the foregoing remarks it is obvious that no person is attainted of treason, in the technical sense, who is convicted under the United States act of 1790. There can be no attainder of treason, within the meaning of the constitution, unless there be, first, a judgment of death, or outlawry; second, a penalty of attainder by express terms of the statute. A mere conviction of treason and sentence of death, or outlawry, and forfeitures of real and personal estate, do not constitute an attainder in form, in substance, nor in effect, when made under any of the present statutes of the United States.

IF CONGRESS MAY IMPOSE FINES, WHY NOT FORFEITURES?

No one doubts the power of Congress to make treason punishable with death, or by fines to any amount whatever. Nor would any reasonable person deem any fine too large to atone for the crime of involving one's own country in civil war. If the constitution placed in Congress the power to take life, and to take property of the offender in one form, why should it deny the power to take property in any other form? If the framers of the constitution were willing that a traitor should forfeit his life, how could they have intended to shelter his property? Was property, in their opinion, more sacred than life? Would all the property of rebels forfeited to the treasury of the country repair the injury of civil war?

FORFEITURES NOT LIMITED TO LIFE ESTATES.

Could the lawyers who drafted the constitution have intended to limit the pecuniary punishment of forfeit ure to a life interest in personal estate, when every lawyer in the convention must have known than at common law there was no such thing as a life estate in personal property? Knowing this, did they mean to protect traitors, under all circumstances, in the enjoy ment of personal property? If so, why did they not say so? If they meant to prevent Congress from passing any law that should deprive traitors of more than a life estate in real estate, the result would be, that the criminal would lose only the enjoyment of his lands for a few days or weeks, from the date of the judgment to the date of his execution, and then his lands would go to his heirs. Thus it is evident, that if the constitution cuts off the power of Congress to punish treason, and limits it to such forfeitures as are the consequence of attainder, and then cuts off from attainder its penal consequences of corruption of blood and forfeiture of estate, except during the life of the offender, then the framers of that instrument have effectually protected the personal and real estate of traitors, and have taken more care to secure them from the consequences of their crime than any other class of citizens. If so, they have authorized far more severity against many other felons than against them. If such were the purpose of the authors of the constitution, they would have taken direct and plain language to say what they meant. They would have said, " Congress may punish treason, but shall not deprive traitors of real or personal property, except for the time which may elapse between sentence of death and execution." Instead

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