Year: 1862

it in respect to any oense? This is not explained
by any of the Senator's who advocate the passage
of this bill


Let me bring the statement of my colleague in
iuxtaposition with the statements OF the Consttu-
tion upon the same subject lie says:


"The right to coniscate the property of rebel
or traitor attaches without any conviction Of the
offender"


The Constitution says:


'No person shall be held to answer for capt
tal or otherwise infamous crime, unless on pre-
sentiment or indictment of grand jury, except in
cases arising in the land or naval forces, in the
militia, when in actual service in time of war or
public danger; nor shall any person be subject for
the same offense to be twice put in jeopardy Of
life or limb; nor shall be compelled in any crimi-
nal case to be witness against himself; nor be
deprived of life, liberty or property, without due
process of law"


And yet in the face of these safeguards which
the Constitution has endeavored to throw around
person and property, ii is confidently announced
as a general principle that "the right to confscate
the property of a rebel traitor attaches without
any conviction of the offender" and this by CT
parte legislative proceeding, without indictment,
trial or opportunity of defence.


Can such things be,


And overcome us like a. sum er's cloud,


Without our special wonder,'


If the right to punish for treason by the cofds-
cation Of property attaches without the conviction
of the offender, why does not the same right at
tach, in the same way, in respect to every other
offence? What distinction does the Constitution
make in the mode of proceeding for the punish
ment of treason and other offences? Does not
this newly invented, Inda-rubber, in rem pro-
ceeding for the punishment of offences commit
ted by the person, and in which the property
not implicated, stretch itself over the entire cate
CORY of crimes and cover them all? And, if so,
what becomes of the provisions of the COnsttu-
ton to which have referred? To what end and
] for what purpose were they made? What does
I the Constitution mean, if anything, when it de-
clares that no person shall be held to answer for
crime unless on presentment or indictment of
grand jury? That in all criminal prosecutions
the accused shall enjoy the right of trial by jury,
and that he shall not be deprived of his property
without due process of law? After blunderinr
blindly and stupidity along for three-quarters of
century in the belief that these provisions were
limitations upon the powers of the Government.
and guarantees of individual right which we could
not disregard, the scales have now suddenly fall
/ len from our eyes, and we perceive they we're in-
tended to apply only in the event of the arrest of
the offender; but that, when he has fled from
justice nothing is easier than to proceed to pun
ish him without indictment, without trial, without
due process of law, simply by arresting his horse
and cow, instead ofhimself and proceeding against
| them in by some newly-invented military
/ machinery. True, the Constitution makes no
such exception but now it is discovered that we
may shoot enemies in battle without indictment or
trial and therefore the same principle of punish
ment without indictment or trial may be applied
to all offenders who flee from Justice How long
will it be before this patent is improved as to
/ embrace all offenders, whether they flee or not?
| Can it be necessary to pursue this branch of
/ the argument furtherI Can it be possible that
we have wandered so far from the political faith
of our fathers as to be ready to admit, in the au-
gust characters Of Senator's the fatal heresy of the
BILL and the arguments in support oft, that 1.-THE
right to confscate the property of a rebel trai-
tor attaches without any conviction of the offend
er." To do so is to subvert the Constitution and
to concentrate not only all the powers of the Gov
erilment, but all the sovereignty of the people in
a single department of the Government, which
was intended to be only coordinate with two 9TH
ers. To do so is to rend away all restraints and
limitations sought to be imposed by the Consttu-
ton, and to establish legislative despotism more
capricious, more fatal 10 order, and more danger
Gus to the liberty and security of the citizen than
any form of government on earth.


What is a bill of attninder? 1t
is an act passed by Legislative body, declaring
a citizen or subject, by name other sufficient
description, guilty of treason or other felony and
inhicting punishment therefor; and it is equally
bill of attainder whether the punishment com
bines corruption of blood and forfeiture of life
and property, whether it is limited to any one
/ of them separately.


Now, what does this bill propose to do but to
declare large number of citizens guilty of trea-
son, and punish them therefor by forfeiture of
their estates Then is not this bill of attain
| der? And if it is not, what is it 1t is
swer to say that bill of attainder punishes
crime already past, and that this is prospective in
| its provisions. 1t declares that certain acts com
mitted or to be committed shall be followed bg
forfeiture of estate, and proceeds to infict the
penalty without judicial inquiry determine
ton and what the Constitution intended to guard
against was punishment for imputed crime with
out indictment and trial. If the acts intended to
be reached by this bill had already been commit
ted, then think, in the face of the authorities |
have read, it would hardly be denied the char
acter of bill of attainder. Is its character
changed and is the Constitution satisfied by de-
clarng that certain acts hereafter to be commit
i ted shall be punished as crime, and by proceed
| ing to inflict the punishment without trial |
say again that this is exactly what the Consttu-
tion intended to hedge against, punishment in any
form, or by any device, without indictment and
trial, and its provisions cannot be in this way
evaded.


The Constitution does;no. declare that there
shall be no attainder of treason. 1t admits that
|
forfeiture of estate except for the life of the
offender shall ensue as a consequence. The at
tainder may still take place, but it must be judi
cial attainder. There can be no legislative at
tander in any case, nor under any circumstances
or conditions, deprivation of life, liberty, or
property without due process of law.
! To demonstrate the unconstitutonality of the
bill, it is not necessary that it shall be assumed
or proven to be bill of attainder Give it what
ma me vou will IL Is still hill tn nunSh for treason
and rebellion not upon the battlefield by the mil
itary arm Of the Government, but by legislative
enactment, and legislative enforcement OF the en-
actment, without indictment and trial without due
process of law which the Constitution forbids,
under whatever name and by whatever contri-
vance it may be attempted. But if it ,cere neces-
sary to prove it bill of attainder, Is not that al
ready sufficiently done by the English authorities
cited? To these let US again add the most Illus
trious names which have illustrated and adorned
American jurisprudence. Mr.. Justice Story, in
treating of this subject in his very able Com
mentaries on the Constitution, holds this LAM
guage:


bills of attainder, as they are technically
called, are such special acts of the Legislature as
infiict capital punishment upon persons supposed
to be guilty of high offenses, such treason and
felony, without any conviction in the ordinary
course of judicial proceedings. If an act iniicts
a milder degree of punishment than death, il is
called bill of pains and penalties. But, in the
sense of the Constitution, il seems that bills of
attainder include bills.of pains and penalties; for
the Supreme Court has said, "a bill of attainder
may affect the life of an individual, or may con-
6scate his property, or BOTH


"In such cases the Legislature assumes judicial
magistracy, pronouncing upon the guilt of the
party without any of the common forms and
guards of trial, and satisfying itself with proofs,