Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1864-02-19

yet do t1nd that the trainers Of the Con-
stitution gave to Congress full power to
punish treason. They intended, however,
to limit that punishment, whatever 1t
might be, to the life and person Of the Of
fender.
Now, ask, in all good faith, is not the
person Of the offender punished by taking /
from him his property equally with incar.
cerating him in the penitentiary 2 Is it |
not punishment of the person to take |
from him his estate as much as it is pun |
ishment of bis person to deoapitste him |
So that the punishment is adjudged against |
the person during the lifetime Of that per- |
son, apprehend the Limitation Of the Con- |
stitution is satisfied.
If this was res S0vd, Mr. Speaker, il it
WAS new question, 1 should at once most
heartily agree with the learned gentleman
from Maryland Mr.. Davis, who made an
able argument upon this side Of the ques-
tion the other day. But, sir, am some
what staggered in my belief when 1 look
into the legislation of Congress immedi-
ately upon the adoption Of the Constitu-
ton. When l find in the act Of 1870 the
punishment Of treason death, and also q
proviso that that punishment should carry
with 1t no ,onfscstion Of estate whatever,
| l am led to believe that the members Of
that Congress, very many Of whom were
members Of the Convention that framed
the Constitution, understood the phraseol-
ogy to mean, that upon the attainder Of
trersou no forfeiture Of land should fol-
low, except during the life of the offender.
Now, my learned colleague Mr.. Bliss
suggests that there seems to be here an ab-
surdity. felt conscious that the astute
legal mind Of that gentleman could not
avoid that perplexity, and hence desire
to be made acquainted with his mode of
escape from so embarrassing dilemma.
In all civilized countries the punishment
of treason is ordinary death. 1t is the
highest crime known to the law, AMI is or
dinsrily punished by death. If, then, the
coniisCation of the lands must be only for
the life Of the offender, how long would
that confscstion endure My sstute friend
said, for time equal TO The length Of
his halter" And this is true. l could
not show the sbsuTdity Of the conclusion
attempted to be drawn by the gentleman
on the other side in any more forcible Ian
! guage than by saying that the trainers Of
the Constitution have gravely provided in
article three, section three, that q traitor,
con 1emned to be hung as penalty for his
} treason, shall forfeit his estate until he can
be taken from his cell to the gallows and
executod-simply "fOr the length Of his
halter" That is the necessary conclusion
If we adopt, in its full force, the reasoning
Of the gentlemen on the other side. The
} first Congress that sat after the adoption
Of the Constitution passed what is called
the crimes act, defining and punishing
treason. Il provides that any person or
= persons owing allegiance to the United
: States Of America shall levy war sgainst
them, or shall adhere to their enemies, by
giving them aid and comfort, and shall be
thereof convicted, on confession in opeu
court or on the testimony Of two witnesses,
such person or persons shall be adjudged
/ guilty Of treason against the United
States, and shall suffer death. If gentle
; men will turn to the twenty. fourth section
r Of the same enactment they will find this
} proYiso:
? provided always, and be it enacted,
3 that no conviction or judgment for any Of
= the offenses aforesaid shall work o9Frup-
ton Of blood or any forfeiture Of es-
{ tate"
. Of course an Intelligent Congress would
provide that it should work no forfeiture
t Of estate at all, if the were limited to a
! forfeiture for "the length OF the halter"
8 1t would be simply ridiculous to provide
D that the estate should be forfeited during
the life Of the feloD, from the time of his
r sentence to the time Of mis- execution.
: Now 1t may be that this enactment does
f not furnish any evidence of the construo-
: ton given to that clause of the Cons itu-
r tion by the Congress of 1890. Still think
= that the legislation goes somewhat in that
J direction, and it is but fair to consider it,
so far as it is an authority, on the ether
: side.
J After leaving this, I encounter the Com
: mentsries Of Mr.. Justice Story on the
Constitution; and must oonfsso ibet al
though l listened with great deal Of sat-
} isfsction to the able argument Of the mem
J Der from Massachusetts, Mr.. Boutwell,,
was amazed to hear him say that this DIS
tinguished jurist was no more than a sec
ond rate lawyer in our country.
, Mr.. Boutwsll.-Ilr. Speaker, think the
gentleman from Ohio slightly errs in quo
4ipg my observation. Il was not that Jus.
] tice Story was only second. d.clsss lawyer,
but that, az eontrasted with other men
producsd in tiiE ooGatFg, in the quality Of
strength and grasp Of intellect, he must
be reekoped among the second class of
great men.
Mr. Spalding-I accept the amendment,
aud still my smazement does not cease. l
was not prepared to hear lawyer from
AisssachUsetts say that Justice Story rank
ed even behind the gresiess men Of the
country. If We want proof of the stand
ing of that man as o lawyer, let US 60 to
Westmilietar Hall where his judicial de-
cisions are from day TO Day an6 month 70
month, and year to year cited, not only
with appreciation, but with the most ex-
alted marks Of confidence and respect. If
| understand the judicial life and history
of Justice Story, he hss done for this
country little less than Mansfield did for
, England in building up complete system
Of commercial law. Is that man to be
ranked behind any lawyer Of our country
and our age Oh If the shade Of Mar
shall could speak on this subject he would
respond and tell you whether his long en-
dearsd associate on the bench was second
to any Of the greatest jurists of the age in
which he lived.
But, sir, wander. Justice Story givea
it as his opinion that by the terms of this
third section Of the third article Of the
Constitution the punishment OF treason, SO
far as oonfscation is concerned, is restric.
ted to forfeiture for the life of the offender
only; and, sir, when I venture to differ
with that great man oA the exposition CT a
constitutional clause, must be better in
formed Of the laws than ever expect to be
in this world. leave that branch Of the
subject just here.
Issy to you, am entirely satisfied with
the argument Of the learned gentlemen
from Maryland and Massachusetts, and
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