as to work a 'forfeiture' of the real estate of the offender beyond his natural life." There is no forfeiture in express terms provided for in any part of the Act. The punishment of treason, in the first section, is either death and freedom of slaves, or imprisonment, fine, and freedom of slaves. The judgment of death for treason is the only one which could, even by the common law, have been so construed as to "work any forfeiture." It may have been the intention of Congress to limit the constructive effect of such a judgment. But the words of the resolution are peculiar; they declare that no" proceedings" under said act shall be so construed as to work a forfeiture, &c. Then the question will arise whether the "proceedings " (authorized by section 6, in which the President has the power and duty to seize and use all the property of rebels in arms who refuse, after warning, to return to their allegiance) are such that a sale of such real estate, under the provisions of sections 7 and 8, can convey any thing more than an estate for the life of the offender? But the crime punished by section 6 is not the crime of treason; and whether there be or be not a limitation to the power of the legislature to punish that crime, there is no limit to its power to punish the crime described in this section.*

Forfeiture and confiscation of real and personal estates for crimes, when there was and could have been no treason, were common and familiar penal statutes in several States or colonies when the constitution was framed. Many of the old tories, in the time of the revolution, were banished, and their real estate confiscated, without having been tried for or accused of

See Note, page 111, United States v. Latham.

treason, or having incurred any forfeiture by the laws against treason. Such was the case in South Carolina in 1776. In that State, one set of laws was in force against treason, the punishment of which was forfeiture worked by attainder. Another set of laws were confisca tion acts against tory refugees who had committed no treason. These distinctions were familiar to those who formed the constitution, and they used language relating to these subjects with technical precision.

THE SEVERITY OF DIFFERENT PUNISHMENTS COMPARED.

Forfeiture and confiscation are, in the eye of the law, less severe punishments than death: they are in effect fines, to the extent to which the criminal is capable of paying them. It would not seem to be too severe a punishment upon a person who seeks, with arms in his hands, to destroy your life, to steal or carry away your property, to subvert your government, that he should be deprived of his property by confiscation or fine to any amount he could pay. Therefore, as the provisions of section 6, which would authorize the seizure and appropriation of rebel real estate to public use, are not within the prohibitions of Art. III. Sect. 3 of the constitution, it is much to be regretted that the joint resolution of Congress should have been so worded as to throw a doubt upon the construction of that part of the statute, if not to paralyze its effect upon the only class of rebel property which they cannot put out of the reach of government, viz., their real estate.

See Willis v. Martin, 2 Bay 20. See also Hinzleman v. Clarke and Al., Coxe N. J., 1795.

THE SIXTH SECTION OF THE CONFISCATION ACT OF 1862 IS NOT WITHIN THE PROHIBITION OF THE CONSTITUTION, ARTICLE III. SECTION III.

Congress cannot, by giving a new name to acts of treason, transcend the constitutional limits in declaring its punishment. Nor can legislation change the true character of crimes. Hence some have supposed that Congress has no right to punish the most flagrant and outrageous acts of civil war by penalties more severe than those prescribed, as they say, for treason. Since a subject must have performed some overt act, which may be construed by courts into the "levying of war," or "aiding the enemy," before he can be convicted of treason, it has been supposed that to involve a great nation in the horrors of civil war can be nothing more, and nothing else, than treason. This is a mistake. The constitution does not define the meaning of the phrase "levying war." Is it confined to the true, and genuine signification of the words, namely," that to levy war is to raise or begin war; to take arms for attack;" or must it be extended to include the carrying on or waging war, after it has been commenced? The crime committed by a few individuals by merely levying war, or beginning without prosecuting or continuing armed resistance to government, although it is treason, may be immeasurably less than that of carrying on a colossal rebellion, involving millions in a fratricidal contest, Though treason is the highest political crime known to the codes of law, yet wide-spread and savage rebellion

To levy war is to raise or begin war; to take arms for attack; to attack.-Webster's Quarto Dict.

To levy is, 1. To raise, as a siege. 2. To raise or collect; to gather. 3. To raise, applied to war. -Worcester's Quarto Dict.

is a still higher crime against society; for it embraces a cluster of atrocious wrongs, of which the attack upon government treason is but one. Although there can be no treason unless the culprit levies war, or aids the enemy, yet it by no means follows that all acts of carrying on a war once levied are only acts of treason. Treason is the threshold of war; the traitor passes over it to new and deeper guilt. He ought to suffer punishment proportioned to his crimes..

It must also be remembered, that the constitution does not indicate that fines, forfeitures, confiscations, outlawry, or imprisonment are "severer penalties than death." The law has never so treated them. Nor is there any limit to the power of Congress to punish traitors, as has been shown in a previous chapter.** Who will contend that the crime of treason is in morals more wicked, in its tendencies more dangerous, or in its results more deadly than the conspiracy by which it was plotted and originated? Yet suppose the conspirator is artful enough not to commit any overt act in presence of two witnesses; he cannot be convicted of treason, though he may have been far more guilty than many thoughtless persons who have been put forward to execute the "overt acts," and have thereby become punishable as traitors. Suppose a person commit homicide; he may be accused of assault and battery, or assault with intent to kill, or justifiable homicide, or manslaughter, or murder in either degree. Suppose the constitution limited the punishment of wilful murder to the death of the criminal and forfeiture of his real and personal estate for life; would any person contend that neither of the other above-mentioned crimes could

See Chap. V.
p. 93.

be punished, unless the criminal were convicted of wilful murder? If he had committed murder, he must have committed all the crimes involved in murder. He must have made an assault with intent to kill; and he must have committed unjustifiable homicide, or manslaughter. If the government should, out of leniency, prosecute and convict him of manslaughter, and impose upon him a penalty of fine, or confiscation of his real and personal estate, instead of sentence of death, would any one say that the penalty imposed was severer than death? or that murder was legislated into any other crime? or that any other crime was legislated into murder? Many crimes of different grades may coexist, and culminate in one offence. It is no sign of undue severity to prosecute the offender for one less than the highest. The same course of crime may violate many of the duties the loyal citizen owes to his country. To pass laws declaring the penalty for each and all of these crimes does not transcend the true scope of the criminal legislation of Congress, where an offender has brought upon his country the horrors of civil war by destroying the lives of those who have given him no cause of offence, by violating the rights of the living and the dead, by heaping upon his guilty act the criminality of a thousand assassins and murderers, and by striking at the root of the peace and happiness of a great nation; it does not seem unduly severe to take from him his property and his life. The constitution does not protect him from the penalty of death; and it cannot be so interpreted as to protect him against confiscation of his real estate.