strument itself, and of the history of the English law of attainder, will make it evident that the framers of the constitution, in drafting Sect. 3 of Art. III. did not design to restrain Congress from declaring against the traitor himself, his person or estate, such penalties as it might deem sufficient to atone for the highest of crimes. Whenever a person had committed high treason in England, and had been duly indicted, tried, and convicted, and when final judgment of guilty, and sentence of death or outlawry, had been pronounced upon him, the immediate and inseparable consequence, by common law, of the sentence of death or outlawry of the offender for treason, and for certain other felonies, was attainder. Attainder means, in its original application, the staining or corruption of the blood of a criminal who was in the contemplation of law dead. He then became "attinctus — stained, blackened, attainted.” CONSEQUENCES OF ATTAINDER. Certain legal results followed attainder, among which are the following: The convict was no longer of any credit or reputation. He could not be a witness. in any court. He was not capable of performing the legal functions of any other man; his power to sell or transfer his lands and personal estate ceased. By anticipation of his punishment he was already dead in law,* except when the fiction of the law would protect him from some liability to others which he had the power to discharge. It is true that the attainted felon could not be murdered with impunity, but the law preserved * 3 Inst. 213. † Foster, 73. his physical existence only to vindicate its own majesty, and to inflict upon the offender an ignominious death. CORRUPTION OF BLOOD. Among the most important consequences of attainder of felony, were those resulting from "corruption of blood," which is the essence of attainder. Blackstone says,t "Another immediate consequence of attainder is the corruption of blood, both upwards and downwards; so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king's superior right of forfeiture; and the person attainted shall also obstruct all descents to his posterity whenever they are obliged to derive a title through him, to a remote ancestor." The distinctions between escheat and forfeiture it is not necessary now to state, because, whether the forfeiture enured to the benefit of the lord or of the king, the effect was the same upon the estate of the criminal. § By this legal fiction of corruption of blood, the offender was deprived of all his estate, personal and real; his children or other heirs could not inherit any thing from him, nor through him from any of his ancestors. "If a father be seized in fee, and the son commits treason and is attainted, and then the father dies, then the lands shall escheat to the lord." SAVAGE CRUELTY OF ENGLISH LAW. By the English system of escheats to the lord and forfeitures to the king, the innocent relatives of the offender were punished, upon the theory that it was *See Co. Litt. 391. § Co. Litt. 391. Bla. Com. Vol. II. † 4 Com. b. 388. See Co. Litt. 13. || Co. Litt. 13. the duty of every family to secure the loyalty of all its members to the sovereign; and upon failure to do so, the whole family should be plunged into lasting disgrace and poverty. A punishment which might continue for twenty generations, was indeed inhuman, and received, as it merited, the condemnation of liberal men in all countries; but aristocratic influence in England had for centuries resisted the absolute and final abandonment of these odious penalties. The framers of the constitution have deprived Congress of the power of passing bills of attainder. They might have provided that no person convicted of treason should be held to be attainted, or be liable to suffer any of the common law penalties which resulted from attainder, but only such penalties as Congress should prescribe by statute. They have, however, not in terms, abolished attainders, but have modified their effect, by declaring that attainder shall not work corruption of blood. FORFEITURES. By the law of England, forfeiture of estates was also one of the necessary legal consequences of attainder of felony. Real estate was forfeited upon attainder, personal estate upon conviction before attainder. By these forfeitures all the property, rights, and claims, of every name and nature, went to the lord or the king. But forfeiture of lands related back to the time when the felony was committed, so as to avoid all subsequent sales and encumbrances, but forfeiture of goods took effect at the date of conviction, so that sales of personal property, prior to that time, were valid, unless col * See 4 Bla. Com. 388. * lusive. The estates thus forfeited were not mere estates for life, but the whole interest of the felon, whatever it might be. Thus forfeiture of property was a consequence of attainder; attainder was a consequence of the sentence of death or outlawry; and these penal consequences of attainder were over and above, and in addition to, the penalties expressed in the terms of the judgment and sentence of the court. The punishment, and in many instances the only punishment, to which the sentence of the court condemned the prisoner, was death or outlawry. The disabilities which resulted from that sentence were like the disabilities which in other cases result from the sentence of a criminal for infamous crimes. Disability to testify in courts, or to hold offices of trust and honor, sometimes follows, not as part of the punishment prescribed for the offence, but as a consequence of the condition to which the criminal has reduced himself. There is a clear distinction between the punishment of treason by specific penalties and those consequential damages and injuries which follow by common law as the result or technical effect of a sentence of death or outlawry for treason, viz., attainder of treason, and corruption of blood and forfeiture of estates. To set this subject in a clearer light, the learned reader will rec ollect that there were different kinds of attainder: * See Stat. 13 Eliz. chap. 5; 2 B. & A. 258; 2 Hawkins's P. C. 454; 3 Ins. 232; 4 Bla. 387; Co. Litt. 391, b. † See 2 Greenleaf's Cruise on Real Property, p. 145, and note; 2 Kent, 386; 1 Greenleaf's Cruise, p. 71, sect. 1, and note. ‡ There is a provision in the new constitution of Maryland (1851), that “no conviction shall work corruption of blood or forfeiture of estate." (Decl. of Rights, Art. 24.) The constitution of Ohio (1851) contains the same words in the 12th section of the Declaration of Rights. The constitutions of Kentucky, Delaware, and Pennsylvania declare that * 1. Attainders in a pramunire; in which, " from the conviction, the defendant shall be out of the king's protection, his lands, tenements, goods, and chattels forfeited to the king, and his body remain in prison during the king's pleasure, or during life." But the offences punishable under the statutes of præmunire were not felonies, for the latter are punishable only by common law, and not by statute. 2. Attainder by bill. 3. Attainders of FELONY and treason; and the important distinction between attainders in treason and attainders in præmunire is this: that in the former the forfeitures are consequences of the judgment, in the latter they are part of the judgment and penalty. Blackstone recognizes fully this distinction. "I here omit the particular forfeitures created by the statutes of præmunire and others, because I look upon them rather as a part of the judgment and penalty inflicted by the respective statutes, than as consequences of such judgment, as in treason and felony they are." Lord Coke expresses the same opinion.§ And statutes of præmunire and attainders of treason are both different in law from bills of pains and penalties; of which English history affords, among many other examples, that against the Bishop attainder of treason shall not work forfeiture beyond the lifetime of the offender. In Alabama, Connecticut, Indiana, Illinois, Maine, Missouri, New Jersey, Rhode Island, and Tennessee, all forfeitures for crime are abolished, either by statutes or constitutions. "In New Hampshire, Massachusetts, Virginia, Georgia, Michigan, Mississippi, and Arkansas, there are statutes providing specifically for the punishment of treason and felonies; but no mention is made of corruption of blood or forfeiture of estate; and inasmuch as these offences are explicitly legislated upon, and a particular punishment provided in each case, it may be gravely doubted whether the additional common law punishment of forfeiture of estate ought not to be considered as repealed by implication." 1 Greenleaf's Cruise Dig. 196, note. * 1 Inst. 129; 3 Bla. p. 118; and for the severity of the penalties, see 1 Hawk. P. C. 55. † 4 Bla. 118. ‡ 4 Com. p. 386. § Co. Litt. 391, b. |