Year: 1862

ure of their property in perpetuity. Now suppose
for the sake of the argument, it be admitted that
this is not bill of attander is the difficulty got
over by the admission? Surely not. The Con
stitution not only declares that "no bill of at
tainder shall be passed, but also that "nO at
tainder of treason shall work corruption of blood
or forfeiture. except during the life of the person
attainted." And it matters not whether the trea-
son is ascertained by Indictment trial and convic-
ton before the judicial tribunals or whether it is
determined by legislative enactments, the prohi-
blsOn of forfeiture is equally imperative in either
case. Is not the offense by which you are seek
ing to enforce this sweeping forfeiture treason
If it is not treason, what is it? Will Senators
who urge the passage of this bill tell us? And
if it IS treason, does not the Constitution posi-
lively forbid you to declare such forfeiture for
such causel


Will it be answered that this bill is not within
the constitutional inhibition because the persons
against whom it is leveled have not been con
vcted of treason? Then you are brought to the
monstrous proposition that. by assuming guilt,
you may punish with severity which the Con-
stitution absolutely forbids when the assumed Of
fence has been ascertained by proof and udicially
established. The Constitution intended to abol-
ish, in all cases of treason, the absolute forfeit
of estates punishment for the crime and
expresses that intention in the strongest and ters-
est terms, that not even an attainder shall be at
tended BY such a consequence Can it be suppO-
sed that il ever in the maginatons OF the
trainers of that wonderful instrument-the sub
limest political production of human genius and
wisdOm-that this humane amelioration of the
barbarOuS seventies of criminal jurisprudence
could be evaded by seeking victims among the
uncOnvicted, when they had taken much pains
to protect the family of even the attainted fe.on?
Nor is the difficulty obviated by alleging that the
hill pmbracPS only tnOSp VIM have levied "
against the United States, or who have adhered
to their enemies giving them aid and comfort for
this is the exact definition of treason, and what
alone constitutes treason; and if we punish in
the manner proposed, we punish in my judgment
in palpable disregard of the Constitution. And
yet the extraordinary proposition is put forward
that, by legislative assumption and declaration
of guilt, Congress acquires a power, under the
Constitution, to infiict punishments which could
not be visited upon the offender for the same pre-
else otfense even after his guilt was judicialy as
certained. 1t is upon this ground that my distin-
guished colleague rests his argument in support
of the bill. Iquote his own languages:


Surely, the prohibition against confiscating
beyond life the property of the man who is ar
rested and made to suffer in his person for his
crimes cannot prevent the absolute confscation
of the property of the criminal who is beyond
our reach and cannot be arrested, but who has
left property within jurisdiction which we can
reach"


And again.


''It is manifest that the clause of the constitu-
tion limiting the punishment for treason can have
no more application to the confscation of the
property OF person who cannot be arrested and
tried for treason than has the punishment pre-
scribed by statute for murder t., do with that for
larceny"


Now, sir, 1 would be glad to know from the
honorable chairman of the committee who re-
ported this bill how and where we get the power
to punish for treason at all without arrest and
trial and conviction in the State where the Of
fence was committed? And further, / should be
glad to know whence he derives the power to
Congress TO ''infiict punishment upon any person
for treason or any other offence whatever, where.
ever or however committed" Congress may
pass laws within constitutional limits, declaring
what the punishment of offences shall be, but il
cannot decide the question of guilt and infiict the
punishment. The Constitution provides that


"NO person shall be held to answer for cap
ital, or otherwise infamous crime, unless on a
presentment or indictment of grand jury, ex-
cept in cases arising in the land or naval forces,
or in the militia, when in actual service in time
of war, or public danger" &c.


And again:


'ln all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial by an
impartial jury of the State and district wherein
the crime shall have been committed, which dis
trict shall have been previously ascertained by
law, and to be informed of the nature and cause
of the accusation; to be confronted with the wit
nesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have
the assistance of counsel for his defence"


But this bill is for the punishment of treason
by Congress, and for nothing else, and that by
penalties positively prohibited by the Constitu-
ton; and this upon the sole ground that the trai-
tor cannot be arrested and brought for trial before
the judicial tribunals of the country in the man.
ner prescribed by the Constitution.


1t this doctrine be true, and if this power of
legislative punishment really exists, what is to
prevent us in any individual case of treason or
other offence, where the offender has fled from
justice and got beyond the reach of the process of
law-what, ask, is to prevent US, in any such
case, from proceeding to legislative outlawry
OF the fugitive and the absolute confscation of
all his estate, both real and personal, and the to-
tai impovershment of his familyr


If, for the reason that the rebels in the Sc
ceded States are beyond the reach of legal pro-
cess, Congress may proceed to declare them
guilty of treason, and inflict punishment for
bidden by the Constitution, what is to hinder us
from doing the same thing in regard to any citi-
zen or citizens of any of the States who maybe
charged with the commission of treason, and who
may have fled beyond the reach of the process of
the courts2 1t is no answer to say that the rebels
are numerous. The mode of proceeding to pun
ish offenders against our laws, and the kind and
measure of punishment to be inflicted, in no de-
gree depend upon the number who may have
been guilty of the same offense at the same time.
If we can pass an act of outlawry and forfeit
ure-not to call it bill of attainder-against
a thousand or ten thousand or a hundred thou
sand, surely may do the same precise thing
against one or a dozen. 1t seems 10 me il
would be preposterous to say that we could
not.


Now. suppose citizen of Illinois. residing
there, having his home, bis family, ard his
property there, to have committed treason by
giving aid and comfort to the enemy; suppose
him 10 have been detected; suppose warrant
to have issued for his arrest, and him to have
escaped the clutches of the Marshal and fled be-
yond the jurisdiction of our courts and the reach
of legal process, leaving his family and property
behind him: may Congress then proceed to pass
bill for the forfeiture of his property and exc
cute it by robbing his family by way of punish
ment of his crime7 i presume Senator will
venture to claim for Congress any such power
And yet may clearly do so if we may properly
pass the bill under consideration. They stand
precisely upon the same ground and We have ex-
actly the same power in the one case that We
have in the other. We to pass this bill
against the rebels because they are citizens oi
the United States who have committed treason
against the Government and temporarily be
yond the reach of process. This is the basis
upon which my colleague places it, 1t has nc
other foundation, and is shown by the portions o
his speech already quoted. He repeats the sams
proposition in other parts Of his speech. He reit
erates it whenever he attempts to demonstrate thu
possession of power by Congress to pass the bill
again quote his own language:


"This bill provides for the forfeiture Of es
tates in certain cases, punishment for crime
hereafter to be committed, when the person o