Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1863-12-31
1 CONSTITUTIONAL QUESTION


at the instance Of President Lincolu, accompanied
with declaratory resolution defining its scope IN
the following words:
Nor shall any punishment or proceedings under sac
act be 40 construed as TO work forfeiture OF the rea es
tate of the offender beyond his nafarat Ws.
This explanatory declaration was suggested by
the President and adopted by Congress in confer
nifty With the following provision of the Constltu-
ton, as understood at the time the law was passed
Congress shall have power to declare the punishment
Of but atainder Of treason shall work corrup
ton blood forfeiture except during the o 81 the per-
soa attainted"
The intention of the National Legislature In
passing the law and of the President in approving
controversy. 1t was meant to signify to all judges
charged with the administration of the law that no
proceedings under it should work forfeiture of
the real estate Of an offender beyond his natural
life" Such was the explicit direction Of Con-
gress, embodying the known views Of the Execu-
tive.
And yet, notwithstanding this express language
of the law, it is known that Judge Underwood, of
the United States District Court for the Eastern
District of Virginia, recently decreed the sale of
certain real estate owned by Hugh Latham, sd-
judged guilty of treason, and directed its transfer
in fee simple to the purchaser when the same
should be sold under the order of the court. And
our able contemporary, the New York Evening
Post, in commenting on this decision, expresses
the hope that the attention of Congress will be
directed by some of its members at early period
in the present session to the necessity of amending
such recent Legislation restricts the confsca-
ton of real estate in of treason to term COM
mensurate with the life of the criminal" 1t
would be impossible for the Post, in making this
recommendation, to stigmatize with greater Sc
verify the conduct of Judge who, it admits, has
violated the plain Injunction of the law as it now
stands.
1t is argued by the advocates of this change that
the provision of our Constitution under this head
employs language which in this country has be-
come fairly obsolete, and such as requires re-
course to history in order to make its meaning
clear And the historical explanation which they
bring to the calculation Of this obsolete" phrase
oogy is found in the fact that it was formerly the
practice in England for Parliament te pronounce
persons guilty Of treason after their DEATH and TO
declare their blood so tainted and corrupted by this
crime that they could not transmit an inheritance
to their descendants. BY means of this pretext
their heirs were deprived of the property which
would otherwise be theirs by the law of inheri-
lance. This" says the Post, was the abuse,
aud grave abuse it really was, which the Consti-
tuition intended to prohibit, and in referring to it
the peculiar technical language Of bills of attander
was employed"
| The careful reader Of the Constitution will per-
ceive that this view is plainly erroneous, and pro-
ceeds from that "litte learning" which is as dan
gerous in the Interpretation of symmetrical instlu
ment like the Constitution il is in every other
department of knowledge or research. The politi-
cal abuse to which reference is made under Ibis
head is expressly met by another clause of the
Constitution where it is provided that ono bill Of
attainder or &c post jdcto law shall be passed"
Bills Of attainder," as they are called, were spe-
cal acts of the Legislature which inflicted capital
punishment upon persons supposed to be guilty of
high offences, such treason and felony, without
any conviction IN the ordinary course Of judicial
and purpose of this restrictive clause as found in the
9Th section of Article | of the Constitution, that
Judge Story says
Such acts have been often ed 10 foreign Gov
ernments common engine Of state and Eng
land they have been pushed 10 the extent
bad times reaching well to the absent and the deaf
TO the living. Sir Edward Coke has mentioned IL 10 be
among the transcendnt powers Of Pariament that
may passed TO aftatn after he is dead Add tie
regnDg monarch, who sain at Bswcrtb, 10 said to
have been attained by act OF Parliament eo months
after his death, notwithstanding the absudi'y of deemng
HIM at IL possession Uf the throne and traitor The
punishment has often been inflicted without calling upon
The party accused 10 answer without the ornsli
~ proof and sometimes because the law Ia ts ordinary
course OF proceedngs would acqu the offender The njus
tice and inquy OF such acts general stute irre
sstbe argument against the existence Of the power In
free Government il would be utorrabe and in the hands
Of Tegung faction it might be, add probably would be,
abused 10 the ruin and death OF the most vruous cit
Bills Of this have been most usually passed in Eng
land 10 times o rebellion Of gross sGbserv ncy 10 the
Crown Of violent political excitemrnis-periods in
which al nations liable (ss well the free the
ensaved) forget their duties and to trampe upon the
rights and Liberties Of others"
We need not pause to remark on the absurdity
of the supposition that the trainers Of the Consti
tuition, alter having expressly forbidden the pas
sage Of any bill of sttainder' Of any Tex post
facto law" should have thought it necessary to
provide in later section Of the nstrum ut that no
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