William Dexter Wilson and Samuel Alfred Foot

“ The Constitution confers on Congress "power to declare the punishment of treason." This enables Congress, by prospective legislation, to occupy the whole range of punishment against traitors; and denounce upon them the loss of life, liberty, property, and all civil rights. The only restriction on the exercise of this power, confines it to the guilty traitor himself, and does not allow it to reach his innocent heirs, by corrupting his blood, or forfeiting his property after he is dead. ”

“ Hence, the only forfeiture which, in the nature of things, can, by any possibility, extend beyond the life of the person attainted, is the forfeiture of rights implied in the corruption of blood. But in this country, a man's tights are born with him, and they die with him. His children have the right to inherit what he leaves intestate. But if he leaves nothing which is legally his own, they have no right to what he had previously owned and lost, whether by gift, the misfortunes of business, the waste of prodigality, or the fines and forfeitures consequent upon his crimes. ”

“ But in this country, and under our Constitution, the attainder works no corruption of blood; it works no forfeiture after the death of the guilty person. The punishment must fall upon him and his property while it is his; it cannot fall upon it, after it has become theirs. Suppose we now insert the word "sale" and see how the Constitution reads: "No attainder of treason shall work a sale, except during the life, &c." Would anybody suppose for a moment, that the language was designed for anything more than to protect the property of the heirs? ”

“ Let us suppress this rebellion, as I have no doubt we shall, and we may congratulate ourselves and the world upon the ultimate and final triumph of the principles of political freedom and self-government―a Government which is "of God and not of men," and under which, in the language of the Declaration of Independence, "all men are" in fact as well as in theory, "created equal and ordained by their Creator with the inalienable rights of life, liberty and the pursuit of happiness." ”

“ In some of the states, the man who sells liquors without due license, not only forfeits the liquors, to be sold again by public authority or to be destroyed, but he is also liable to punishment by fine or imprisonment, or both, besides the loss of his property, (the liquor) , by forfeiture. So, again, a forger may have many valuable tools, but the forfeiture of them is considered, in the eye of the law, as no part of the punishment of his crime. ”

“ It is certainly no more than fair, that they should be estopped by their own acts and compelled to abide by the construction which they have put upon the law. It may, indeed, be hard upon their children so to confiscate their property, but the payment of the expenses of this war is a hardship that must fall upon somebody; it must take somebody's property, and if it does not take that of the rebels, by confiscation, it must take ours and that of our children by taxation. ”

“ But for the man who has aimed at the life of the Nation, not death only, but utter loss of all civil rights and privileges would seem to be the natural and appropriate manifestation of the Nation's sense of the enormity of the wrong that has been attempted against it. ”

“ And in conclusion, my dear Judge, permit me to say, that I should hardly have undertaken the discussion of subjects which properly belong to your profession, but for the consideration, that we live in troublous times, when our country is in need of the services of all her loyal sons―in times when we should not be too fastidious about mere forms of decorum and professional courtesy—when he who can say a word or do a deed for his country's cause should not withhold his hand. ”

“ Hence, there are cases constantly occurring, in which punishment for crimes does work alienation of property, extending beyond the life of the person convicted and disgraced by the crime. Why should an exception be made in favor of traitors and rebels? Is their crime less heinous than forgery or horse-stealing? Did the fathers of our country intend to deal tenderly with them; to make of treason a light thing ”

“ It must be remembered, however, that it is the punishment for treason that we are speaking of, and to which these restrictions of the Constitution apply, and not the mere arrest of one suspected of treason. There is no restriction imposed upon the power or right to arrest and detain any persons who are guilty of treason, or are suspected on sufficient grounds, any more than in the case of other offences. ”

“ The lands came to them, if at all, because they were entailed, or were estates in gavel-kind—that is, they were either entailed to some particular heirs or line of heirs—or to all heirs by what was called gavel-kind. But if the estates were held in fee simple, the forfeiture was absolute. Under the English law, a man forfeited what he had and nothing more—his life estate, if that was all he had, and the entire property if he held in fee simple, or was absolute owner. ”

“ And the prospect of such consequences, as well as the known certainty that they must and will inevitably follow, are among the most powerful motives that can act upon the human heart to deter men from the commission of crime. And in this view, whatever of severity there may seem to be in such a policy, it is a severity which man cannot abolish if he would, and a severity which he should not abolish if he could―for it is but mercy under the sterner form of severity―this is mercy. ”

“ And there is something peculiarly appropriate in the punishment of treason by confiscation of property. It has been practised, I believe, under every form of municipal law and by every government that has existed. For lighter offences we punish by fine and imprisonment. We take the life of him who has merely taken the life of a fellow-man, with malicious intent. ”

“ Some few days since, while in conversation with you, on the all-absorbing topic of the day—the state and prospects of our country—I expressed my doubts, in which you concurred, whether the opinion, which is so commonly entertained, whether, under our Constitution, Congress has a right to confiscate rebel property for anything more than the lifetime of the rebel who is the owner of it, is correct. ”

“ A portion of this Western Virginia should not, of course, be included in any confiscation; but there is more than property enough in the other states, viz., Delaware, Maryland, Kentucky, Tennessee, and Missouri, which is held by rebels, and is liable to confiscation, to make up for all that is held by loyal men in the States of Virginia, North Carolina, South Carolina, Florida, Georgia, Alabama, Mississippi, Louisiana, Texas, and Arkansas, which I have included in the above amount. ”

“ It may not add much to the force of my argument, to remark, that the rebels with these same words in their Montgomery constitution, are applying it in the sense for which I am arguing. They are confiscating the property of loyal men, who may happen to own real estate within their power, and as I understand, with no reservation or remainder to the heirs. As I said, the argument from that source may not be worth much in the estimation of loyal men ”