The Cass County Republican. [volume] (Dowagiac, Mich.) 18??-1880, 1862-05-15

means OF gripping an enemy mas Oeen
totally abdicated and thrown away by
the whole American people, and for all
time. This. it is true, is an argumen,
ab inconvenierti ; but it is impossible
to disregard it, for it seems to me in.
credible that in framing aud adopting
the Constitution it was intended for.
ever and in all emergencies to discard
one of the well known means OF wag
ing war. M 6t .
But we are met by another objection,
and told by some honorable Senators
that this is bill of attainder, and, be.
ing such, we are forbidden to pass it by
that clause of the ninth section of the
first article of the Constitution which
declares, "no bill of attainder or ca
post facto law shall be passed.
/ What is bill of attainder in tho
sense of the Constitution? Upon
every principle of sound construction,
the word of attainder ought in this
clause to receive the same meaning as
given to it in other parts of the instru.
ment. In the first clause of section ten,
it is declared that "no State shall pass
any bill of attainder." Several if not
all, of the States had, during the revo.
lutionary war, passed statutes, in imi
tation of numerous English Statutes,
expressly attaining persons by name
and declaring them guilty of treason OF
felony for the part they had acted in
the struggle; but in every case of the
kind the term attainted is applied Ia
persons, and never to property only.
The meaning of the word attaint, as
used in English history and jurispru.
dence, is to stain to stignaatize, TO dis
grace, or, to use q more modern ANA
homely phrase, to spot and it would
not only be violation of all grammar
but of the well known use of the word
to apply it to property. There is nc
instance in our own Legislative or judi
cial history in which it has been SD ap.
piled, so for as my own researches have
gone, and venture to say no such in.
stance can be found in English history.
The term always refers to person. and
never to property only. 1t would, in.
deed, be a singular use of the language
to talk Of attaining horses and cattle
steamboats,, wagons, casks of sugar
and bales of cotton.
Again, as if to set this question also
at rest, the Constitution declares tha,
"no attdinder of treason shall work
corruption of blood or forfeiture, ex
cept during the life of the person at
tainted" Nothing can be clearer than
that the term attainder here means :
judicial conviction of an accused per
son of treason. 1t is called an attain
der, and the person convicted is said
To be attainted; and the language i:
plainly borrowed from former Englisl
and American statutes and judicia
proceedings. The clause relate ex
clusively TO the punishment of an ac
of treason committed by person. !
contents itself-when that person i.
convicted, that is attainted-with tax
ing his life or sending him to prison, i
Congress shall SO ordain, and forfeitin.
his estate during the remainder of hi
, days; but it wiihholls us the power
upon such conviction, to declare tba
heirs at.law shall not inherit the prop
erty he may leave behind him. 1t re
fuses in its humanity, to punish then
for his misdeeds. l repeat, an attain
der is conviction of the person. BE
fore the Constitution, 1t might hav
!? been in the form of a Legislative act, o
of formal accusation, trial, and sen
I tence in court of justice, as the SOW
(; ereign power might see fit; and tn
only change in the mode of ascertain,
. ing the guilt of the accused which tn
Constitution has made consists in di
q vesting the Legislatures of all jurisdic
: ton to.try the accused, and in prohibit,
/ ing the corrupting of the herilable ca
g pacity of his heirs. But the a,taindc
!. clause has no more TO do with the sei7
0 ure and confscation of mere enem
j. property in time of war, as measur
!. of war, than it has with the levy of a
g execution or the foreclosure of NOR,
i gage. 1t has nothing whatever to d
$ with it, and does not relate to the sui
e |ject. That power stands on groun
y very distinct and very distant from tb
! mere judicial proceeding to convict
4 man of treason.
e Undoubtedly bill of attainder, bt
|. ing mere legislative act, may, as wa
n observed by Chief Justice Marshall
!. claruna ct yenerd6ilc nonaen-in Fletcf
t. cl vs. Peck, (6 Cranch,) affect the lii
e of an individual, or may con6scate hi
e property, or both;" but it must be r,
r. membered that he was speaking of tn
!. sovereign power of the State to pas
s. acts affecting persons and propert,
d and not of the meaning and effect ,
IS the words, "attainder" and "attainted,
!. as employed in the Constitution. NJ
e did he in that case hint at what migl
l. be the power of Congress to forfeit an
l. confiscate as war power. And Il
Is was, indeed, entirely correct IN what Il
.e said; for, beyond all doubt, it was
y all competent for the legislatures,
their bills of attainder against the pc
\, son, to provide for pnnishipg his pc
.e son either by death, imprisonment, c
n other personal suffering, or by mercl
n taking from him his property. Yet,
If the subsequent case of Brown vs. III
e. United States, (s Cranch,) that illu
% trious Judge expressly asserts that s.f
a power of confiscating the enemy's pro,
n ,r,y is in the legislature" 1t is tn
IL he is speaking of foreign enemies, an
Y. not of rebels in arms, and waging W.
x upon the Government; but l have q