CONGRESS, U. S. 



373 



his authorities, to overthrow the error into 

 which those Senators had fallen. 



" I am delighted, sir, to see that the Presi- 

 dent has indicated a desire to regard the Con- 

 stitution in this measure. I pray God that he 

 will do it in all cases, and I am sorry he has 

 not heretofore done it more resolutely than he 

 has. I now ask the clerk to read the manu- 

 script that I have placed in his hands." 



The Secretary read as follows : 



Forfeiture Confiscation. " Personalty, by the Eng- 

 lish law, was never forfeited by an attainder of trea- 

 son. It was the realty, and the realty only, that the 

 attainder acted on ; and when they say no attainder 

 shall hereafter work a forfeiture, they mean it shall 

 not hereafter work a forfeiture upon the same estate 

 that it heretofore acted upon. An attainder never did 

 act upon the personalty at all, never touched it ; it 

 affected the realty only, leaving the personalty to be 

 dealt with as the wisdom of Congress might see fit." 

 Senator Browning, Congressional Globe, 2171. 



" It is admitted by Senators that the words of the 

 Constitution do not forbid the forfeiture of personal 

 estate ; so that a person attainted of treason would be 

 made to forfeit all his personal estate, no matter what 

 its amount." Senator Sum'ner, Congressional Globe, 

 2190. 



To prevent a repetition of such gross, pernicious 

 blunders, the attention of those Senators and others is 

 invited to the following citations from so familiar and 

 accurate an authority as Blackstone's Commentaries : 



" By attainder for treason or other felony, forfeiture 

 of lands and of whatsoever else the offender possessed, 

 was the doctrine of the old Saxon law." Vol. 2, 251. 



" Upon judgment of outlawry or of death, for trea- 

 son or felony, a man shall be said to be attainted." 

 Vol. 4, 331. 



" The forfeiture of goods and chattels accrues in 

 every one of the higher kinds of offence : in high trea- 

 son or misprision thereof, petit treason, felonies of all 

 sorts, whether clergyable or not," &c. Vol. 4, 386. 



" There is a difference between the forfeiture of lands 

 and of goods and chattels. Lauds are forfeited upon 

 attainder and not before ; goods and chattels are for- 

 feited by conviction. Because, in many of the cases 

 where goods are forfeited there never is any attainder ; 

 which happens only where judgment of death or out- 

 lawry is given. The forfeiture of lands has relation to 

 the time of the fact committed, so as to avoid subse- 

 quent sales and conveyances ; but the forfeiture of 

 chattels has no relation backwards ; so that those only 

 which a man has at the time of conviction shall be for- 

 feited. Therefore, a traitor or felon may, bonafide, sell 

 any of his chattels, real or personal, between the fact 

 and conviction, for no buyer could be safe if he were 

 liable to return the goods he had fairly bought, pro- 

 vided any of the prior vendors had committed treason 

 or felony." Vol. 4, 387. 



Therefore the Constitution, in saying " no attainder 

 of treason shall work forfeiture except during the life 

 of the person attainted," includes personal as much as 

 real estate. 



Therefore, also, Congress can in no way, directly or 

 indirectly, punish treason by emancipation, for quo ad 

 the punishment of treason the owner of a slave has 

 only a life estate, and the owner of such life estate has 

 no power of emancipation. Or, at most, all that Con- 

 gress could do in the way of penalty, would be to 

 emancipate during the life of the owner ; but this 

 would be so manifestly unjust to the remainder-man 

 that no fair-minded p'erson would contend for that 

 mode of exercising the power. 



There is still a stronger reason against such exercise 

 of the supposed power. Senator Sumner, in the same 

 speech (page 2190) admits : " Congress has no power 

 under the Constitution over slavery in the States." 

 "Congress has no direct power over slavery in the 

 States so as to abolish or limit it." Now, all the slave 



States prohibit emancipation, except in the manner 

 their statutes specially prescribe. Congress can right- 

 fully, legally, do nottiing in reference to this peculiar 

 property, whether by way of punishment or other- 

 wise, in violation of this necessary settled policy of 

 those States. Congress may forfeit and hold, or for- 

 feit and sell slaves by due process of law in punish- 

 ment of treason, but the Government or its purchaser 

 must take and hold the property subject to the State law. 



This equally disposes of all claim of power in the 

 President, or of one of his sub-military commanders, to 

 emancipate by proclamation. They can have in that 

 particular, or any other no power not given by Con- 

 gress expressly or impliedly. As Congress can not give 

 such power directly, it cannot be implied. If claimed 

 as an incident to the right of eminent domain, then it 

 becomes private property taken for public use, for 

 which just compensation must be made to the owner 

 according to the recent precedent of emancipation in 

 the District of Columbia. If claimed as an incident to 

 the power of carrying on the war, then it is met by that 

 highest authority, the Declaration of Independence, 

 denouncing it as contrary to the usages of civilized 

 warfare. It therefore cannot be implied in the silence 

 of the rules and articles of war, nor can Congress right- 

 fully make it part of them. 



Respectfully submitted by S. S. NICHOLAS. 



The amendment moved by Mr. Powell was 

 rejected. 



Mr. Harris, of New York, thus explained the 

 proposition before the Senate : " Mr. President, 

 the bill in question, as it has passed both House 

 of Congress, provides for the seizure and con- 

 demnation of the property of rebels in two 

 ways : first, where the traitor has been pro- 

 ceeded against personally and convicted. In 

 that case, the first section of the bill provides 

 that a fine may be imposed upon him, and that 

 his property may be sold for the payment of 

 that fine. His whole estate in the realty may, 

 under the provisions of that section, be divest- 

 ed. The Senator from Illinois thinks that pro- 

 vision is unconstitutional, and yet he has sup- 

 ported the bill and desires to have it a law. 

 He thinks that, under the provisions of that 

 section, only the life estate can be divested. 

 So the President thinks. Thus far they agree. 



" Now there is another provision of that bill 

 which the Senator from Illinois does not seem 

 to understand. He has stated that it is pro- 

 vided in the bill that the real estate of the rebel 

 may be seized by the army, and made a prize 

 or capture of war. The Senator is mistaken 

 about that. The seventh section of the bill 

 provides that where the proceeding is not 

 against the rebel in personam, where there are 

 no personal proceedings against him, his estate 

 may be seized by the Government by a proceed- 

 ing in rem, and condemned and sold. The 

 President thinks that that proceeding in rem 

 against the property instead of the person is 

 equally unconstitutional with the other ; and I 

 am not sure that the Senator from Illinois 

 would not think so. It is accomplishing indi- 

 rectly what the first section accomplishes di- 

 rectly, in my judgment. The one is a judg- 

 ment in rem against the property, the other is 

 a judgment in personam, accompanied with a 

 fine under which the property is sold. The 

 Senator from Illinois and the President differ 



