President considered the provision to mean
that there was no power of the Government
to forfeit aman's estate except during his life,
no power of absolute forfeiture. But the
majority in Congress believed that the pro-
vision in the Constitution did not affect
the right of Congress specifically to pre-
scribe an absolute forfeiture as the punish-
ment upon conviction, but that it referred to
cases not upon conviction. Everybody knows
that so far as the personal estate of the party
is concerned, it is absolutely forfeited by a
proceeding in rem; in a great many instances
forfeited not during his life but forever.
Mr. CLARKE, The gentleman has not de-
nied the proposition I assert, which is just
the difference between the President and Con-
gress.
Mr. STIRLING. The gentleman has gone on
to say that the effect of that interpretation is
that a party may be convicted after his death.
Now the Constitution says :
"Art. 6, In all criminal prosecutions the
accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State
and district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be in-
formed of the nature and cause of the accu-
sation, to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor; and to have
the assistance of counsel for his defence,"
Of course that denies the right to try a man
after his death. But the words leave it in the
power of legislation to prescribe what, on
conviction, shall be the punishment of trea-
son, that it may be the forfeiture of his estate.
The gentleman wants that restricted to for-
feiture during life. I am opposed to any for-
feiture but on conviction; but on conviction
I am in favor of an absolute forfeiture, if
Congress or the Legislature see fit. It is well
known that that was the practice of this
State. The Legislature of this State, at the
time of the Revolution, did absolutely forfeit
the estates of a vast number of persons ' and
it afterwards sometimes restored that property
to the descendants by act of Assembly, upon
their proving that they were innocent parties,
and not responsible for the act of their an-
cestors. That was the practice of our ances-
tors, absolutely to forfeit the estates of per-
sons who under our Revolutionary Govern-
ment still held their allegiance to the crown
of Great Britain. But while they forfeited it
absolutely, the Legislature had the right to
say that if the children had not committed
any crime, they should have the estate. Un-
doubtedly the Legislature never would take
the property away from the widow or the
children who did not sympathise with the
treason. This article is almost the same as
that in the Constitution of 1776. The bill of
rights in that Constitution says :
'' That there ought to be no forfeiture of |
any part of the estate of any person for any
crime except murder or treason against the
State, and then only on conviction and at-
tainder."
Now I propose" to leave out the word " mur-
der," and let it read "except treason against
the State;" and I will add at the proper
time "and then only on conviction," to my
amendment.
Mr. CLARKE. The language of the Consti-
tution of the United States is this :
" Congress shall have power to declare the
punishment of treason; but no attainder of
treason shall work corruption of blood, or
forfeiture, except during the life of the person
attainted."
The construction of this clause has always
been this: If the party has been convicted,
and it was understood that the party could
only be found guilty of treason by con-
viction—
Mr. STIRLING, Will the gentleman allow
me one moment? Certainly the argument of
Congress was not that a man could be con-
victed after his death; but that the attainder
should not work forfeiture after his death.
Congress might and did prescribe forfeiture
as a specific punishment. The provision was
only to prevent the Court from prescribing
forfeiture—a necessary consequent in England
in common law upon the fact of conviction—
as a punishment without conviction,
Mr. CLARKE. I could show by the record
that the gentleman's position is not the true
one taken in reference to it, if the documents
were before us. I will state what the con-
struction is. The construction always main-
tained has been that the party could only be
found guilty of treason on conviction, that
is, during his life. Then comes in the pro-
vision that it shall only work corruption of
blood or forfeiture during the life of the per-
son attainted. Therefore, if a person was
convicted during his life, this clause of the
Constitution is clear and positive that it shall
oily extend during the life of the person at-
tainted; and not what is here contended,
that if a party is tried and convicted during
his life, under this provision of the Con-
stitution any court had the right to for-
feit his property except during his life.
They wanted to meet another class of
cases. When men had been guilty of fight-
ing against the Government, they wished
to provide by this law that they should pro-
ceed against this property in rem; and on
this proceeding in rem, against the property,
if the court found that the man who was dead
had been guilty of treason, then they should
have the right to forfeit it absolutely. This
provision of the Constitution only touches
the case of conviction during life; but It is
proposed to give the court the power to pro-
ceed in rem, and proceeding in rem, to try a
man for treason, and, if you do not convict
him during his life, if, after he is dead, you |
