Delaware State journal and statesman. [volume] (Wilmington, Del.) 1855-1870, 1864-02-05

0ten
cited, that, in my Judgement properly consider
ed, initiates against this construction. The
comment Of MIR. Madison, contained in No
forty-three Of the Federalst, is confidently relied
on as an authority. Now, to my mind il is
perfectly clear that Mr.. Madison was treating of
the operation Of the common law punishment of
attainder. quote his language, not an uncon-
nected clause, but the whole paragraph:
"As treason may be committed against the
United States, the authority Of the United States
ought to be enabled to publish it, but as new
tangled and artificial treasons have been tn great
engines by which violent factions, the natural
offspring of free governments, have usually
wreaked their alternate maignity on each other,
the ConVention have, with great judgment, OPP
posed barrier to this peculiar danger by insert
ing constitutional definition Of the crime, fixing
the proof necessary for conviction Of it and re-
strainng the Congress, even in Furnishing it,
from extending the conseq uences Of guilt beyond
the person Of it's author"
It is manifest that the distinguished author,
in this comment, alluded to the practice of cor
rupt and subservent judges Of invepting con-
structve treasons, of allowing convictions upon
insufficient proof; and dominant factions pos
sessed Of Legislative power, OF enacting modes
Of punishment operating through corruption of
blood, to visit the guilt of the parent upon hls
antecedenty prescribed and operating immedi-
ately upon the party convicted visit punishment
otherwise than upon the person of the guilty
author. The estate Invested in his, the fine
collected is out Of his property, and the sentence
Of death, if executed is upon him personally
1t is true that his children are forestnlled in the
one case OF the wealth, and in the other deprived
of the society OF the parent, but in either case
only in the form of punishment applied directly
TO the criminal.
The great name of Judge Story has been
invaked as conclusive against the doctrine of the
right of Congress to forfeit. lfndeed he has so
written, although not of tue force of q judicial
determination, it wonld 60 far towards settling
the controversy, not only in my mind, but,
which ID far more material, in the opinion Of this
House and in the judgment of the country
Before yielding, however, unqualified assent
to the position claimed as having been establish
ed by this authority, it will be well to review
what Judge Story has really written. Comment
ing cn this clause, he says:
1.-TWO motives PS0bably, concurred in intro
ducing it as an express power. One was not to
leave it open to implication whether 1t was to be
exclusively punishable with death, according to
the known rule Of the common law and with the
barbarous Accomplishments pointed out by il,
but to coniide the punishment to the discretion
Of Congress-"
Now, it is incontestable that he here not only
admits that the whole matter of deter mining how
treason should DO punished, is vested in Congress-
but declares that it was so vested purposely to
prevent the conclusion which might otherwise
have been drawn, that the only allowable mode
was that praotoed in England, death and attain
der, and closes WITH the express declaration that
tho choice of the measure of punishment is con-
fded 10 The discretion Of Congress, and clearly
evidencing as his opinion that n the exercise Of
that discretion it might prescribe death Or any
other form and measure which il might deem
adequate and appropriate. He then proceeds
"The other was to impose some limitation upon
the nature aud extent OF the punishment, so that
il should not work corruption Of blood, or for
feiture beyond the life of the offender"
Can any one fail to perceive that the great
commentor had in his mind the common law
penalty of attainder? He speaks of punish
ment which worked corruption of blood and
forfeiture What punishment had this effect
sEeept attander? What other worked cOrrup-
I'M. II bloOdl What other reached beyond the
;sa og 'he offender lie Is not speaking Of
,uniAhme,. = specifically imposed imposed, such
I. daath fort N,tnre, Imprisonment, and the IKE,
mi of tbat one " hioh in addition to its own inn
,osition wrought by its operation, corruption
II hlond and forfeiture If estate. 1t 10 true that
n treating of the policy Of forfeiture he urges
with much power its tendency to alternate Tue
affections of the children from tina, Government
which has deprived them of enjoying the pos
sessions of their ancestors. But this ls mere
question of policy, and does not affect the con-
sideraton Of constitutional power. II is Tor
Congress to determine whether it may not DO the
better policy to divest whole estate Of traitors
not only to prevent the alienation Of the residue
falling in after the life estate shall have been
exhausted, as suggested by the gentleman from
Mr.. Boutwell,, but, which
consider of more importance as securing the ia-
tnre peace of the Republic, to leach those who
may hereafter be inclined to rush into rebellion
against the United States, that they cannot do
so without exposing themselves to the utter
forfeiture of their Estates and their posterity to
the loss of that property whit they might other
wise have inherited
On this subject have no mawkish sentiment
ality, no such acute senshility as to lead me to
be more careful of the prospective interest off,
children of traitors than those to whom they
were nature Entrusted, and who. as Vigilant
guardians, should have looked well to the future
before taking up arms against Government
under whose benign protection they have ac-
quired and held all that property which they
have now 80 justly forfeited by rebellion against
its authority. No such consideration Of sympa'
thy will restrain me from voting any measure of
punishment whatsoever. / shall act irrespec
lively of their advantage and only for the inter-
est OF the Republic, and in my judgment that
interest will be best promoted, future peace most
effectively maintained, and the permanency OF
the Union most efficiently guaranteed by visiting
upon the wicked leaders utter coniiscatiOn OF
estates and deprivation of political rights, and by
showing mercy and amnesty to the delnded
masses who by their devices have been deceived
and by their bayonets driven into rebellion.
But MIR. Speaker, though l maintain that,
under the third section of article three, Congress
has DO yer to punish treason by the forfeiture Of
the whole estate Of the traitor, do not consider
the act of 1862 as within his provision.
1t prospectively announces to the rebellious
subjects Of the Government that they shall lay
down their weapons aud return to their duty as
citizens, and prescrbes the penalty of their fail
ure This act proposes to aid in the Suppression
of the rebellion by the seizure and conhsoation
of that which helps to foster and sustain it. 1t
is restricted in its operation to the seizure OF the
property of those who are actively engaged IN
armed hostility to the Government, or who are
exercising the functions of usurping power set
up against its lawful authority and directing or
aiding in its administration. 1t prescribes the
mode of its enforcement, snd declares that it
shall be made operative by proceedings IN rem,
and only upon proof that the owner ID actually
engaged in rebellion, and then that it shall be
condemned for the use of the Government.
ask what principle renders such property
incapable of condemnation by court acting in
rsmS What provision of the Constitution inhib.
it's Congress from declaring such penalty and
enforcing it by any tribunal from which it shall
confer Jurisdiction 1t ia too late to contend
that it is obnoxious to censure, as violating that
clause which declares that no person shall be de-
nrived of property without due process of law.
Such proceedings have been too often resorted
TO and are TOO familiar in practice, operating to
divest property and to deprive the owner of his
| .illa an thnt Ia nareaaaru To nnnfar inriadie.