FORFEITURES NOT LIMITED TO LIFE ESTATES.

Could the jurists who drafted the constitution have intended to limit the pecuniary punishment of forfeiture to a life interest in personal estate, when every lawyer in the convention must have known that at common law there was no such thing as a life estate in personal property? Knowing this, did they mean to protect traitors, under all circumstances, in the enjoyment of personal property? If so, why did they not say so? If they meant to prevent Congress from passing any law that should deprive traitors of more than a life estate in real estate, the result would be, that the criminal would lose only the enjoyment of his lands for a few days or weeks, from the date of the judgment to the date of his execution, and then his lands would go to his heirs. Thus it is evident, that if the constitution cuts off the power of Congress to punish treason, and limits it to such forfeitures as are the consequence of attainder, and then cuts off from attainder its penal consequences of corruption of blood and forfeiture of property, excepting only the life estate of the offender, the framers of that instrument have effectually protected the personal and real estate of traitors, and have taken more care to secure them from the consequences of their crime than any other class of criminals. If so, they have authorized far more severity against many other felons than against them. If such were the purpose of the authors of the constitution, they would have taken direct and plain language to say what they meant. They would have said, "Congress may punish treason, but shall not deprive traitors of real or personal property, except for the time which may elapse between sentence of death and execution." Instead

of this, they gave full power to provide for the punishment of treason by fines, forfeitures, death, and attainder, only limiting the technical effect of the last-mentioned penalty, if it should be adopted. Thus Congress has power, under the constitution, to declare, as the penalty for treason, a forfeiture of the entire estate of the offender, in his real and personal property, and is not limited, as has been supposed by some, to a forfeiture of real estate for life only.

NOTE. Since the publication of the seventh edition, it has been decided by Underwood, J., in the Eastern District Court of the United States for Virginia, in the case of United States v. Latham, first, that the Confiscation Act above cited is authorized by the Constitution; second, that by the terms of that act (dated July 17, 1862, chap. 195), as modified by the joint resolution of July 27, 1862 (No. 63), the punishment of treason is not limited to forfeiture of the life estate of the offender, and is not required to be so limited by the Constitution; but the forfeiture extends to the entire estate in fee simple.

Note to Forty-third Edition. - Judge Underwood's construction of this statute has not been sustained by the Supreme Court; but its constitutionality is now conceded. Since this edition was in press, that court has decided in Bigelow v. Forrest (9 Wallace, 339), that the Confiscation Act of July 17, 1862, in connection with the explanatory resolution of the same date, is to be so construed that upon a decree of condemnation, all that could be sold was a life estate of the criminal. Appendix, p. 610. This decision, however, has no bearing upon the question of the constitutional right of Congress discussed in this chapter. See Note, p. 409; also Index, "Lincoln, President."

CHAPTER VI.

STATUTES AGAINST TREASON. WHAT THEY ARE, AND HOW THEY ARE TO BE ADMINISTERED.

THE United States statute of April 30th, 1790, provides that,

If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."

Concealment of knowledge of treason (misprision of treason) is, by the same act, punished by fine not exceeding one thousand dollars, and imprisonment not exceeding seven years. By the statute of January 30th, 1799, corresponding with foreign governments, or with any officer or agent thereof, with intent to influence their controversies with the United States, or to defeat the measures of this government, is declared to be a high misdemeanor, though not called treason, and is punishable by fine not exceeding five thousand dollars, and imprisonment during a term not less than six months, nor exceeding three years. So the law has stood during this century, until the breaking out of the present rebellion.

The chief provisions of the law passed at the last session of Congress, and approved July, 17th, 1862, chap. 195. are these:

Section 1. Persons committing treason shall suffer one of two punishments: 1. Either death, and freedom

to his slaves; or, 2. Imprisonment not less than five years, fine not less than ten thousand dollars, and freedom of slaves; the fine to be collected out of any personal or real estate except slaves.

Sect. 2. Inciting rebellion, or engaging in it, or aiding those who do so, is punishable by imprisonment not more than ten years, fine not more than ten thousand dollars, and liberation of slaves.

Sect. 3 disqualifies convicts, under the preceding sections, from holding office under the United States.

Sect. 4 provides that former laws against treason shall not be suspended as against any traitor, unless he shall have been convicted under this act.

Sect. 5 makes it the duty of the President to cause the seizure of all the property, real and personal, of several classes of persons, and to apply the same to the support of the army, namely: 1. Rebel army and navy offi cers; 2. Government officers of Confederate States in their national capacity; 3. Confederate State officers; 4. United States officers turned traitor officers; 5. Any one holding any office or agency, national, state, or municipal, under the rebel government, provided persons enumerated in classes 3, 4, and 5 have accepted office since secession of the State, or have taken oath of allegiance to support the Confederate States; 6. Persons who, owning property in loyal States, in the terri tories, or in the District of Columbia, shall hereafter assist, aid, or comfort such rebellion. All transfers of property so owned shall be null, and suits for it by such persons shall be barred by proving that they are within the terms of this act.

Sect. 6. Any persons within the United States, not above named, who are engaged in armed rebellion, or

aiding and abetting it, who shall not, within sixty days after proclamation by the President, "cease to aid, countenance, and abet said rebellion," shall be liable to have all their property, personal and real, seized by the President, whose duty it shall be to seize and use it, or the proceeds thereof. All transfers of such property, made more than sixty days after the proclamation, are declared null.

Sect. 7. To secure the condemnation and sale of seized property, so as to make it available, proceedings in rem shall be instituted in the name of the United States, in any District Court thereof, or in any territorial court, or in the United States District Court for the District of Columbia, within which district or territory the property, or any part of it, may be found, or into which, if movable, it may first be brought. Proceedings are to conform to those in admiralty or revenue cases. Condemnation shall be as of enemy's property, and it shall belong to the United States; the proceeds thereof to be paid into the treasury.

Sect. 8. Proper powers are given to the courts to carry the above proceedings into effect, and to establish legal forms and processes and modes of transferring condemned property.

Sect. 9. Slaves of rebels, or of those aiding them, escaping and taking refuge within the lines of our army; slaves captured from them; slaves deserted by them, and coming under the control of the United States government; slaves found in places occupied by rebel forces, and afterwards occupied by the United States army, shall be deemed captives of war, and shall be forever free.

Sect. 10. No fugitive slave shall be returned to a person claiming him, nor restrained of his liberty, except for crime, or offence against law, unless the claimant