27G 



CONGRESS, U. S. 



" After Congress had passed and the Presi- 

 dent had approved that act and the explanatory 

 resolution, he returned them to Congress, use- 

 ing this language in his message returning 

 them with his approval : 



Considering the bill for "An act to suppress insur- 

 rection, to punish treason and rebellion, to seize and 

 confiscate the property of rebels, and for other pur- 

 poses," and the joint resolution explanatory of said 

 act as being substantially one, I hare approved and 

 signed both. 



" So that w have from the President a state- 

 ment: first, that any attempt by Congress or 

 hy the law-making power, to make as a part 

 punishment of treason the forfeiture of a great- 

 er estate in lands than a life estate of the of- 

 fender, would be unconstitutional ; and second- 

 ly, that he only approved the act because he 

 regarded the joint resolution, now proposed to 

 be changed, a part of the act. And as the law 

 now stands, there is no doubt that the forfeit- 

 ure incurred as to the real estate of the traitor 

 is only of his life estate. Believing as I do 

 that that is as far as we can affect real estate 

 as a part punishment of treason, I deem it 

 wise to allow the law to stand. I agree with 

 the President that the true construction of the 

 Constitution is, that we have no power to cut 

 off the inheritance of innocent heirs as part 

 punishment for treason." 



Mr. Kernan then passed to the consideration 

 of the expediency of the change. It would 

 render the meaning of the law doubtful ; per- 

 sons buying an estate under a decision of an 

 inferior court that may be reversed in a higher 

 court, might be involved in the misfortune of 

 losing what they had paid ; would it be wise 

 to take away forever the estate in the land ? 



Mr. Kernan further said : " I submit that the 

 punishment for treason, like the punishment 

 for every other crime, should fall upon the 

 guilty party only, and that we should not seek 

 to affect his innocent children and heirs. Take 

 away from the guilty party his life estate, his 

 right to dispose of it, but do not take away 

 the right .of inheritance from the innocent 

 heirs, who will show themselves loyal, else 

 they never will have the right to come into 

 court and ask to be heard. 



" I submit again, if there is a desire to press 

 this matter through now, that this law and 

 joint resolution are and speak as one law as 

 they stand ; that the law could not have been 

 passed but from the fact that the joint resolu- 

 tion was made a part of it. The act was 

 amended in accordance with the President's 

 suggestion of what it ought to be. ]STow, re- 

 peal the joint resolution, or so amend it that it 

 speaks anew from this time, and how will it 

 affect men who have been guilty of treason 

 since July, 1862, when the law was enacted? 

 At least it will raise very embarrassing ques- 

 tions iu reference to proceedings now pending, 

 because the rule is that, if you repeal a penal 

 law, all proceedings under it not completed be- 

 fore the repeal, fall." 



Mr. Orth, of Indiana, followed, with a brief 

 sketch of the prominent features of the law of 

 treason in Great Britain, whence is derived the 

 principal part of our jurisprudence, and pro- 

 ceeded to examine the law-making power of 

 Congress over the subject, and the penalties 

 which it was authorized to prescribe, and said : 

 " The whole question, then, of the extent of our 

 power to provide a punishment for treason, 

 which in our judgment shall be adequate to 

 the suppression of the crime, rests upon the 

 construction to be given to the limitation in 

 the clause of the Constitution. The words of 

 limitation are: 'but no attainder of treason 

 shall work corruption of blood or forfeiture 

 except during the life of the person attainted.' 



" The intent of the framers of the Constitu- 

 tion," he said, "was not to be found expres|ed 

 either in the debates of the Convention, or in 

 contemporaneous exposition." He then quoted 

 the opinions of Eawle, Story, and Curtis, as 

 commentators, as not being of sufficient weight 

 to deter further examination, and proceeded as 

 follows: "The language of this section, we 

 must remember, is, ' but no attainder of trea- 

 son shall work corruption of blood or forfeiture, 

 except during the lite of the person attainted.' 

 If the Constitution had intended to prohibit 

 corruption of blood or forfeiture altogether, 

 why add the words ' except during the life of 

 the person attainted ? ' Had these latter 

 words been omitted the restriction would have 

 been absolute, and Congress could not, by any 

 punishment whatever, have deprived the person 

 attainted of any property for even a single day 

 or hour. But these words, ' except during the 

 life of the person attainted,' are part of the 

 Constitution ; and shall we be driven, in their 

 construction, to the absurd position that such 

 forfeiture shall only extend to the lifetime of 

 the traitor and then cease ? Did our Constitu- 

 tion, else so redolent with wisdom and states- 

 manship, intend to provide for such a farce as 

 that the property of the traitor should be for- 

 feited to the Government only for that brief 

 space of time which should intervene between 

 the day of sentence and the day of execution ? 

 Is it rational or logical to suppose that such a 

 construction of this section, where the forfeit- 

 ure at best would probably be from thirty to 

 ninety or one hundred and twenty days, could in 

 any just sense of the term be called a punish- 

 ment ? Can it be supposed that the Constitu- 

 tion intended to regard the high and damning 

 crime of treason with more lenity than the 

 criminal code regards the comparatively insig- 

 nificant crime of horse-stealing or petit larceny? 



"If you cannot by forfeiture deprive the 

 traitor of his property, how can you collect any 

 fine which may be assessed against him ? For- 

 feiture is a method of alienating property, and 

 hy the act of the last Congress you authorized 

 a fine to be assessed against the traitor of not 

 less than $10,000. This fine becomes a judg- 

 ment of court, and a lien upon the real estaie 

 of the culprit, and the same judgment also de- 



