Delaware State journal and statesman. [volume] (Wilmington, Del.) 1855-1870, 1864-02-05
1omrMal anu Statesman
SPEECH OF
HON. N. B. SMITHERS,
OF DELAWARE,
On the COnfiscatlOn Bill.

On the Confscatlon Bill.
Delivered in The House Of Representatives, Jan
9Th, 1864.
The House then resumed the consideration Of
the Joint resolution III. Il. No. l8) to amend 0
joint resolution explanatory Of an act to suppress
insurreclou, to punish treason and reoellion' TO
seize and con6seatO the property oi rebels, ana
for other purposes, approved July ~, looo, on
which the gentleman from Delaware Mr. smith
ers entitled to the hoor
MIR. SMlTHERS. MIR Speaker, though the
question before the House is strictly the consid-
grafton Of the amendment to the resolution ex-
planntory of the act of 1862, yet, as il has been
considered as involving the power of Congress
10 inaict forfeiture in fee as punishment for
treason, | propose, among other things, ia
present my views briefly upon that subject.
offer no apology for occupying the time OF the
House on questions alike novel and important
and though may fail to affect the opinion Of
any gentleman upon the floor, shall, however
imperleclly, have but performed duty.
The rare occurrence of the crime since the
Adoption Of the Constitution has prevented any
authoritative judicial Interpretation, and the
meaRer comments of elementary writers afford
little aid in its exposition II must therefore be
treated us u case of first impression, and the
instrument must be it's own interpreter. In de.
in their natural and common aoceptatiOn, except
only where technical terms are employed they
are to receive legal and artificial construction.
The trainers Of the Constitution fully understood
mo force of the words used in relation to mat
ter so familiar. Perfectly cognizant Of the ter
rible evils attendant upon power IN the judi
oiary to declare cases Of constructive treason or
in Congress to define in what il should consist,
tbey ordained "A constitutional definition, aud
presoribcd that il should ''only consist in levying
var AGAINST the United States or in adhering to
their enemies, giving them aid and comfort. -
Having thus limited and hedged about The crime
nv exclusive words, they left to Congress the
whole power Of declaring its punishment, coupled
with a qualification the object and construction
OF which, it the matter in dispute, II will be
observed that the power is granted in general
terms
"The Congress shall have power to declare the
punishment of treason, but no attainder OF trea-
son shall work corruption Of blood, or forfeiture
except during the life of the person atainted."
If there be any denial or restriction upon the
capacity by Legislative enactment TO attx any
measure or mode OF punishment known TO the
common law, or to the parliament of Great Brit
ain, upon the trial and conviction Of the traitor,
it is contained in this clause, and in that other
provision which declares that "cruel and unusual
punishmenis shall not be- inflicted" say upon
the trial and conviction Of the offender, for
maintain that this section has reference to the
ndiOus and Abominabe practice of declaring
nos. NuB attainted by bill without indictment or
io,,n =, .ris, az practiced by the British Parlia-
man, and Shich is specially prohibited by
preceding clau. 80 Of the Constitution careful
,nsnso,;nn az An. sentence will chow that the
obiect vas moi IN lin &c the power of Congress,
hnt To res,ric, tba onera aOp Of attainder in its
LII L,,., a.,n,h,,r 40 - ~GinE unlimited cor
ruption of blood aud perpetua, ~" y. 20 ..
tate. For it will be observed tha us pvr.s "
attaint is not denied, but implicitly 6. @.e ~
recognized Gs within the power of Cong. -. ~
impose rs q specific punishment. The forfeit S'
restricted by the Constitution to the period o.
the lite OF the offender was that worked by at
tainder and has no reference to forfeiture epeci-
icaly imposed as punishment uncOupled with
attander and prescribed in the exercise of the
general power precedentedly given to declare the
punishment OF ttenson.
The clause is properly no restriction on the
power Of Congress to impose Il penalty, but only
IA constitutional definition Of the consequence and
limitation upon the operation of a particular
mode of punishment, known as attainder. 1t
declared in effect, that Congress might attaint, but
that such nttainder should be deemed to work
forfeited Ona during the life of the person at
tainted.
In this connection it is suggestive that the
clause under consideration Ii contained in the
article of the Constitution vestng Judicial power,
and from its location would seem TO be rule OF
Judicial construction limiting the courts in de-
termining the consequences of attainder TO
con6ne its operation to the period of life only
II announced that when the heir came to claim
the estate which had descended to him from his
attainted parent, or through that parent from a
more remote ancestor, he should not be held in
law as being debarred from his inheritance by
the technical operation Of o common law pun
iehment following conviction and working nbso-
lutte forfeiture and indefinite corruption Of blood.
incline to differ from those who oenstruc the
words "except during lie as referring TO the
point of time at which the forfeiture is worked,
and not to the quantity of estate Invested.
differ because OF the nature of the attainder
whose operation is thus restricted. Unless my
reading OF the provisions he erroneous, the at
tander referred to IL such only as at common
law resulted from conviction on Indictment. II
has no relation TO such httainders as were I'M
posed by statutes, operating Immediately without
process, ordinarily called bills of attainder.
These were the terrible engines OF despotic
cruelty by which men were punished for acts
which when committed we're not criminal ex
humed after death, and branded with infamy of
treason without trial their estates forfeited
without process of law, and their posterity
rendered incapable of inheritng from or through
them to the remotest generations The power
to enact such statutes is expressly denied to
Congress by that clause which ordains that "no
bill Of atttainder or er post faeto law shall be
passed." and the clause under consideration
contemplates IL as being specially provided as
punishment for crme-to be pronounced upon
the conviction Of the offender as part OF the
sentence of the law upon the Judgement Of the
court II the view be correct, il would seem TO
follow that the operation of the attainder TO work
forfeiture must necessarily arise during the life
Of the person attained, and that upon the CON
struction contended for by those who limit the
words as defining the point of time when its
operation commences this provision was unpe
cessary, as the attainder imposed 10 punishment
upon conviction, and which alone is recognized
by the constitution, must of necessity work
during the life Of the culprit; and as the divestl-
ture OF estates, which occurred after the death
Of the person attained, resulted from corruption
Of blood, and did not accrue by way of forfeiture
as the immediate consequence of attaiuderr
corruption of blood being wholly taken away,
these words would seem to indicate the quantity
of estate forfeited.
But ii is also suggested that by the imposition
and execution Of the sentence OF death the for
fixture worked by The Rttainder was no materia
punishment, and that therefore these words aEt
TO receive construction as declaring the time o
which forfeiture shall be worked. This argu
ment would be potential il Congress had no RICH
to impose any other penalty, and if the Objec
of the Constitution had been to vest in Congress
the power to declare that form Of puni5hmeli
instead of being to vest general discretion II
exclude the conclusion of the necessity OF resoi
ting to that form, and to limit the effect of al
tainder when prescribed. But Congress is in
trusted by the Constitution with the unlmitt
power to declare what penalty it will inflict.
has chosen to prescribe death, emitting attain
der; but imprisonment, Punishment, forfeiture