of the Constitution, so far as the Senate can settle it, as to the power of Congress, in punishing treason, to take the real estate of the traitor from the heirs, I desire to have the yeas and nays upon it. This section proposes a fine of not less than $10,000. Of course that would take the real estate of most traitors, as altogether the largest number of persons engaged in this rebellion, or who are engaged in treasonable practices, doubtless are worth less than $10,000; and as this involves that question, I desire to have the yeas and nays upon it.

Mr. DOOLITTLE. I have no objection to having the yeas and nays taken upon the amendment, but I must protest to my friend that I do not see that that question is involved in it at all.

Mr. CLARK. He cannot conclude the rest of us.

Mr. LANE, of Kansas. I should like to ask the Senator from Illinois what he proposes to substitute if the section be stricken out?

Mr. TRUMBULL. I do not propose to substitute anything for this section. I am satisfied with the punishment for treason as it is. If an individual should be convicted of treason against this Government I would execute him. That is the disposition I would make of him. I do not believe that this is the time to mitigate the punishment for treason; but I propose an efficient measure to confiscate the property of men who are engaged in fighting this Government, whether they are convicted of treason or not. I have no sympathy for a convicted traitor. My friend from Wisconsin can see that this section is perfectly constitutional. I am glad that he can; I shall be entirely satisfied if the whole Senate see it so; but if under a conviction for treason you can take the real estate of the convicted traitor and sell it for a fine, I want to know whether that is not a perfect evasion of the Constitution, if the Constitution means that you cannot, on an attainder or conviction of treason, take the property except for life? While I am for striking this out the Senator from Kansas must not understand that I am opposed to taking the property of traitors.

Mr. LANE, of Kansas. Do you propose to introduce anything?

ernment as that under which we live, has justly
forfeited his life, and that he ought to lose it, and
that it is mere tameness to speak of mercy towards
that class of persons; I mean such as have delib-
erately committed the crime of treason. I think
the punishment is already sufficiently mild, and I
shall therefore vote to strike out this section en-
tirely.

Mr. LANE, of Kansas. I desire to say to the
Senator from Illinois that I favor the bill intro-
duced by the Judiciary Committee. I should be
glad to vote for it; but rather than have no con-
fiscation bill, I prefer to take this, and I therefore
do not desire to mutilate it. It seems to me the
better way would be to test the sense of the Sen-
ate by offering the bill proposed by the Judiciary
Committee as a substitute for this bill, and let us
see how the Senate stands upon that question. I
am prepared to meet the question, to vote upon
it, and I should be glad to do so, but I do not wish

to mutilate this bill.

Mr. TRUMBULL. As I seem not to be understood fully by the Senator from Kansas, I will state that I am for an efficient confiscation bill, as he knows. Of course I shall be for any bill that accomplishes, as I think, anything in that direction; but I want to make it as perfect as I can. If I cannot get such a bill as I would like, I will come as near it as I can. I do not propose to vote against amendments to this bill. I want to perfect this, and make it better. I fear that I cannot get just such a confiscation bill as I want. This is not a confiscation bill at all. The first section is a mere mitigation of the punishment of treason, and it is a mitigation of the punishment of treason by imposing fine and imprisonment in a way that I am inclined to think is unconstitutional. When you go into the courts with the traitor, my impression, and I may almost say my conviction, is, that the Constitution of the United States has inhibited and intended to inhibit the taking of the estate of the traitor beyond life, and I do not think you can by indirection, by calling it a fine, take it when you cannot directly do it. But I shall be very well satisfied if the Senate decides differently and establishes the principle that you may, even on a conviction for treason, take the real estate. Now, I do not propose to put this rebellion down by the courts. I think there is no more trouble in taking the real estate of a rebel than there is in taking his life; and I would just as soon think of impanneling a jury when our armies met to know whether we should kill the enemy that was shoot

Mr. TRUMBULL. I shall certainly propose an amendment, if nobody else does, before this bill is through, that will reach the property of traitors who are not convicted of treason, of all the men who are engaged in rebellion against this Government and who shall continue to fight and|| war upon it. I cannot understand how it is that there is this delicacy about touching the propertying upon us, as of impanneling a jury to know of rebels engaged in attempts to destroy the Gov

ernment.

Mr. HOWARD. The motion now before the Senate, I believe, is to strike out the first section of the bill.

whether we can take his real estate. It is for
these reasons that I propose to strike out the first
section of this bill.

Mr. LANE, of Kansas. I desire to say to my
friend from Illinois that he is scattering his forces
by the motion he makes. I am not satisfied but
that there is a clear majority of the body in favor
of the position that the Committee on the Judi-

The PRESIDING OFFICER. It is.
Mr. HOWARD. I shall vote for the motion;
but I do not propose now to go into an inquiry as
to the constitutionality of the latter part of the sec-ciary took originally. I hope there is. The select
tion, although I entertain rather a strong convic.
tion that it is a mere attempt to evade the plain
language of the Constitution, and to do that indi-
rectly which cannot be done directly under the
Constitution, for the Constitution declares plainly
enough that no attainder of treason shall work cor-
ruption of blood or forfeiture except during the
life of the offender. I look upon this as a cun-
ningly devised scheme to evade that plain mandate
of the Constitution, and to do it under the forms
of judicial proceeding, for this whole bill is con-
fined to the proceedings of a court of justice, and
has no relation whatever-at least this section
and the following section have no relation what-
ever to the prosecution of the war in which we
are engaged. I greatly doubt whether Congress
have power thus to seize upon a man's real estate
and sell it under an execution in satisfaction of a
fine under a conviction of treason. Under a con-
viction for any other crime, certainly, they would
have that power, but I hardly think they have it
under a conviction of treason. But that is not my
principal objection to this section. My principal
objection to it is that it is entirely too tame; that
it does not meet the occasion; that it proposes to
let go without the taking of life of men who are
guilty of the highest possible crime that a human
being can commit-treason against the Govern-
ment under whose protection he lives. I think
that a man who deliberately commits treason
against his Government, especially such a Gov-l

committee that we have appointed have produced
this bill as a whole, and if we cannot get the ori-
ginal bill as introduced by the Committee on the||
Judiciary, I want to take this bill as a whole.
Now, the Senator from Illinois votes one way on
this motion and I vote another, and he scatters
and wastes his strength, when, by proposing his
bill at once as a substitute, we can test this ques-
tion.

estate that a man had. All the estate that a man may himself dispose of, the Government may seize and forfeit for treason, notwithstanding this inhibition. It was the corruption of blood that they principally intended to guard against. By the old common law, if a man was convicted of treason his children, and all who had to claim an estate through him, forfeited or lost it, because he had no inheritable blood. His blood was corrupted, and therefore the inheritance could not pass through him to anybody else.

Mr. HOWARD. Could not pass from him or through him.

Mr. WADE. If a man who was convicted of treason under the common law had a large estate which would go to his children under ordinary circumstances, according to lineal descent, his children could not take it because they must trace their title through the person convicted. A man could not inherit an estate from his grandfather if his father had been convicted of treason; nor could he take one from any of his collaterals, inasmuch as he must trace the descent through this attainted person. That was absurd, unjust; and the framers of the Constitution intended to prevent, and did prevent, in this country, any such absurd consequence following from a conviction of treason; but they did not intend to deprive you of the power of forfeiting all the estate a man had that he might convey himself, both realty and personalty. The letter of the Constitution does not any more apply to the forfeiture of real estate than of the personal estate. If you stick in the bark, as Lord Coke says-if you stick to the literal construction that. some contend for here, you could no more forfeit personal estate than forfeit real estate. Look at the absurdity of it. A man is convicted to-day of treason in a court of justice, and according to the old English custom, on Thursday next he is to be hung. What, then, is the use of talking about forfeiting the life estate that a convicted felon just about to be hung has in property?

No such absurdity was in the contemplation of the framers of our Constitution, and that would as well apply, as I said, to personal as to real estate. Suppose it was a three-year old colt; the man is hung to-morrow and the horse lives twenty years; if you cannot forfeit anything beyond his life, it applies just as much to a horse as to an estate in fee in land. Why make that distinction, then? It is an absurdity that it would be a disgrace to the framers of the Constitution to charge them with, and it applies no more to the one than the other. You can take his estate. The estate in fee is knit together in the person of the owner, and you can take it all. Undoubtedly at common law the conviction did not forfeit an estate tail; and why not? Because the statute creating the entailment gave the interest directly over to the issue in tail; the donee in tail, the tenant for life, had no interest whatever in the remainder, and of course it could not be affected even at common law by any act of his. All that the Constitution intended in this case of treason was to deprive Congress of the power to prevent the innocent descendant of an attainted traitor from taking an estate that he might have from his grandfather, from his uncle, or any of his collateral relatives. They intended that, they intended no more. Do you suppose they intended the absurd idea that the estate for three or four days between the time a traitor was convicted and hung should go to the Government and then go to the heir? No lawyer conceived such an idea that really thought on the subject. You may forfeit all his estate that he has in fee, everything that he can dispose of himself, but it was intended that you should not have the power to take from others an estate coming to them through him, as in the case of a limitation in tail. The Constitution left us full

Mr. WADE. As I am called upon to vote on this motion to strike out the first section of the bill, it becomes necessary that I should state the reasons why I disagree somewhat with my friend from Illinois, [Mr. TRUMBULL.] I have never agreed with the construction he has put on the constitutional limitation of forfeiture. I am not going into that question at length, but I do not believe that the constitutional prohibition was in-power to affect all that he really owned, realty as tended to deprive the Government of the right of forfeiting all the estate that a man had, both real and personal, for the crime of treason. It is a very strict and literal interpretation that restricts it. I think such a construction leads to absurdities enough to show that the framers of the Constitution never intended any such consequences. I believe the language of the Constitution is, that conviction of treason shall work no corruption of Mr. BROWNING. Mr. President, I intend blood or forfeiture of estate beyond the life of the to say only a very few words before the vote is individual convicted. I do not suppose it was in- taken on the pending question, to avoid any mistended by the framers of the Constitution to de-apprehension that might arise from the assertions prive Congress of the power of forfeiting all the of gentlemen that those of us who may choose to

well as personalty; and as I said before, it is no more a violation of the Constitution to forfeit his estate in fee in lands than to forfeit his three-year old colt. If you stick to the letter of the Constitution, you may take the use of this personal property for two or three days between the conviction and the hanging, and that is all you can have. They intended no such thing.

1862.

THE CONGRESSIONAL GLOBE.

vote against striking out this first section and for retaining it in the bill do thereby affirm the power of Congress to forfeit the estates of persons convicted of treason. I am not willing that any one shall by the opinions he entertains and chooses to express put me upon the record in that way, and I therefore want to enter my disclaimer against that.

has ascertained to be due from him to another.
Now, sir, will the Senator assert that in the event
of his failure to do that, Congress may pass a law
forfeiting all his estate as a punishment for his
failure?

Mr. HOWARD. I will not assert that, be-
cause we lawyers generally suppose there is some
slight show of distinction between a penalty im-

the recovery of a simple debt as between individ-
uals.

Mr. BROWNING. The fine is a debt.

Mr. CLARK. Nothing but a judgment debt. Mr. HOWARD. A fine is punishment; it is a penalty. It is not merely a debt, although it partakes somewhat of the character of a debt; there is superadded to it the character of a punishment for

crime.

The first section of the bill has not a single feat-posed in the shape of a fine or a forfeiture, and ure or element of a forfeiture or confiscation about it. It is said, however, that we are attempting to do indirectly what we are forbidden to do directly. It is conceded by my colleague that under the Constitution we cannot make a forfeiture of the real estate of a person convicted of treason a part of the punishment; the Constitution forbids and prohibits it; but he says we are seeking to do by indirection what the Constitution forbids us to do directly. How are we seeking to accomplish that by indirection? Will the Senator contend that we possess any power to make forfeiture of estate a part of the punishment for assault and battery? I apprehend not. I do not suppose he will insist that it would be competent for Congress to make forfeiture of estate a part of the penalty and punishment of any other crime; and yet under the laws of Congress persons in the District of Columbia guilty of assault and battery may be punished. How? They may be punished by fine and imprisonment if Congress chooses so to declare. If that fine is paid, as in this case if the fine that is imposed by this section be paid by the party convicted after his conviction, there is an end of it; there is no forfeiture of his estate; we do not touch his estate; he may take the money from his pocket and pay his fine and there is an end of it.

But the gentleman chooses to say that because he is punished by fine, it is indirectly a forfeiture of his estate. How, sir? The presumption is, and that is the purpose of the law, that when the fine is imposed, the fine will be paid, the judgment of the court will be submitted to and complied with. If it is, there is an end to it. So it is with the person that you convict of assault and battery. But, sir, suppose he does not pay his fine, what do you do then? Forfeit his estate? No. You do in this case just as you do in the case of assault and bat- || tery or any other case where there is a judgment against a party which he will not satisfy voluntarily you coerce payment of what he will not without coercion; you issue an execution and pay levy it upon his property. It is not necessarily to be levied upon his real estate; it may not touch it; he may have personalty enough accessible to the execution to raise the whole amount of the fine, and when it is levied on the personalty and paid there is an end of it. There is no forfeiture of his estate. You do not touch his estate at all in any other way than you touch his estate upon any other judgment. And yet it is said because we may reach it ultimately-it may come to that, concede; it may ultimately take not only all of his personalty, but all of his realty to pay the fine; but does that prove that we have thereby forfeited it as a part of the punishment? No, sir; because, returning again to the case of assault and battery, you do precisely the same thing there; and yet I repeat once again, that I apprehend no Senator will rise in his place and assert that, as a part of the punishment for assault and battery committed in the District of Columbia, we may declare a forfeiture forever of all the real estate of the offender.

Mr. HOWARD. I declare it most distinctly and confidently that we have full power to forfeit estates, real and personal, for the crime of assault and battery in this District.

Mr. BROWNING. I should be glad if the gentleman at some time would tell us where he gets the power.

Mr. HOWARD. I will do so.

Mr. BROWNING. A judgment when it is
rendered is a debt as much as anything else; it is
a debt of record; it is a debt of the highest possi-
ble dignity; but it answers my purpose just as
well whether it be a debt or not; I do not care a fig
about that, because the argument is the same and
the strength of the argument is the same. The gen-
tleman concedes that we cannot forfeit the estate
as a punishment for failing to pay the debt. Why?
We have no power to do it, we cannot do that
directly, he says; but can we collect that debt by
levying upon his estate? No, sir, if the argument
is of any value that has been made against this bill;
because to do it by levying upon his estate is to
do that indirectly which the gentleman admits we
have no power to do directly, just as much as it is
in this case. Is there any difference or any dis-
tinction in the force of the argument and in its ap-
plication to the one case and to the other? When
we have recovered a debt, he concedes that we
have no power directly to forfeit the estate for it,
but we proceed to do it indirectly by authorizing
an execution upon the judgment and the levy of
that execution upon his estate, and we sell his
estate, and all his estate, for the satisfaction of the
execution, and deprive him and his heirs of it for-
ever. Therefore, according to the argument, we
have done indirectly what the Constitution forbids
us to do directly, and I do not care whether you
call it a fine or anything else.

But, sir, put another casc. Suppose an action
in tort to be brought by one person against another
in the District of Columbia. There is no debt due,
but the plaintiff recovers damages, and these dam-
ages are as a punishment, not only as a satisfac-
tion to the one party, but as a punishment of the
other for his wrong. The damages are unliqui-
dated; the verdict of the jury ascertains them; the
We cannot for that as a
judgment of the court declares it a debt of record
against the defendant.
punishment upon him for his tort committed
against his neighbor forfeit his estate directly, but
we issue an execution, and do indirectly, gentle-
men say, what we cannot do directly. Why, sir,
the truth is, and there is the whole of it, it is just
like proceeding in any other case of punishment
by fine; if the fine is paid, the estate is not touched;
if it is not paid, we coerce payment by taking any
estate we may reach.

Now, sir, one word in response to a suggestion
of the Senator from Ohio, and I shall be done,
because I have no intention, at this stage of the
case, to enter upon any discussion of constitu-
tional or other questions; my only design was to
throw out a suggestion to exclude a conclusion
that we have all been converted suddenly to the
doctrine that the power of Congress is omnipotent
to forfeit estates, if we choose to do it, notwith-
standing the Constitution. The Senator from
Ohio insists, however, that the Constitution never
intended to prevent a forfeiture forever of all the
estate, real and personal, of a person convicted
of treason; and he dogmatized with a good deal
of emphasis upon the subject, and said that no
Well, that unfrocks a
good many of the profession upon this floor. We
may not be lawyers in anything else than name;
but there are those who wear the name, and some,
I am happy to say, who have worn it far longer,
I apprehend, than the Senator from Ohio has, and
worn it with distinguished honor, who do believe
that it was the purpose of the framers of the Con-
stitution to prevent that very thing. The mistake
the Senator from Ohio makes is in insisting that
realty and personalty, in the contemplation of the
Constitution, stand upon the same basis, and that

Mr. BROWNING. I shall be happy to hear
you; I shall be glad to be enlighened on that sub-lawyer ever believed so.
ject. Now, let me put another case. Suppose a
judgment is recovered in any of your courts in
the District of Columbia by one person against
another for a debt of $100, and the defendant does
not pay the money, may Congress pass a law for-
feiting his estate because he does not pay it? I
apprehend the Senator will hardly contend that
we can do that. We cannot do that directly; we
cannot go directly and forfeit his estate because
he has failed to comply with the judgment of the
court by discharging the debt that the judgment

the same power that can reach one can reach the other, and that it was intended that it should be so. Now, Mr. President, is that so? Just examine for one minute only the premises from which the Senator from Ohio starts on his argument, and his argument falls to the ground; it is baseless. If we concede his premises, that the Constitution places the realty and the personalty in the same category, subject to be dealt with in the same way, his conclusion follows; but his premises are not conceded. What is the language of the Constitution? If the gentleman had taken the pains to read it, I think he would not have fallen into the error which 1 very respectfully submit he has fallen into:

"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."

"No attainder of Why was that inserted? treason shall work corruption of blood or forfeitForfeiture of what? Hereafter, after the ure." adoption of this Constitution, no attainder of treason shall thenceforward work a forfeiture of such property as attainder did before the adoption of this Constitution. What was that? What property was forfeited by an attainder of treason? Not the gentleman's three-year old colt. That was not touched; that was in no danger; that was in no peril. The personalty, by the English law, was never forfeited by an attainder of treason; it was the realty and the realty only that the attainder acted upon; and when they say no attainder shall hereafter work a forfeiture, they mean that no attainder shall hereafter work a forfeiture upon the same estate that it heretofore acted upon. An attainder never did act upon the personalty at all, never touched it; it affected the realty only; and to prevent that hereafter ensuing as a consequence of the attainder of treason, this provision of the Constitution was inserted; but it left the personalty to be dealt with as in the wisdom of Congress it might see fit; if it chose to do so, to be acted upon by the conviction of treason hereafter as it had been acted upon by the conviction of treason heretofore. That is the whole of it; and this provision of the Constitution, therefore, relates to precisely that class of property, and that class of property only, that was affected by the attainder of treason before the adoption of the Constitution.

I have wandered, Mr. President, very much further into this subject than I intended. I rose only to enter my protest against being put against my will upon the record as a convert to the doctrines of confiscation that have been urged here.

Mr. TRUMBULL. I do not propose to prolong this debate, and am sorry to have to say anything, but the views which gentlemen take seem to me so singular that I must be pardoned for repeating, in a few words, what I understand this question to be.

My colleague assumes that it is incompetent for for crime. think he is entirely mistaken. He Congress to prescribe a forfeiture as a punishment puts the question whether for assault and battery we could prescribe forfeiture as a penalty. Undoubtedly we could within this District where we have jurisdiction over assaults and batteries, and any Legislature of any State of the Union may make the forfeiture of rights the consequence of conviction for crime. Nothing is more common. There are numerous statutes in my own State that do it. I apprehend there is not a State in the Union that has not a statute which, for some offense or other, prescribes a forfeiture either as the whole or a part of the penalty. This very first section provides that the slaves of a person convicted of treason shall be freed. Is not that a forfeiture of the right of the owner to the labor and service of those slaves? It does not propose by a fine to do it.

Certainly.

Mr. BROWNING. Will my colleague permit me to say one word? Mr. TRUMBULL. Mr. BROWNING. I have never questioned, that I know of, at any period of my life since I began to know what law was, the power of Congress to forfeit the personalty if it chose to do so, under our Constitution, for treason.

Mr. TRUMBULL. Then there is a power to forfeit. A few moments ago I understood my colleague to ask the question with a great deal of triumph, if it was in the power of Congress to forfeit a right for the conviction of crime. It is con

mitigate the punishment for this highest of human crimes. It is enough that the power remains in your Chief Magistrate to pardon; and if an individual shall be convicted of treason under the law as it now stands, who is a fit subject for clemency,¦¦tion; but if you adopt the rule that it can only be I doubt not the Chief Executive of the nation will extend it to him, and commute his punishment or pardon him altogether. I am satisfied to leave the matter there in regard to the punishment of trea

put in a personal punishment, at the suggestion the second section, after the word " 'punished," of the Senator from Illinois, to make it agreeable the words "by imprisonment for a period not to that Senator. I shall make that motion pres-exceeding ten years or;" so that it will read:

self on that point.

But I do not intend to go into this matter more at length at present. I have already expressed my views upon the subject. While our countrymen are stain by these armed rebels; while the||ently, so that the Senator need not trouble himpeaceful citizens along the whole frontier are subjected from day to day, and from night to night, to the weapon of the private assassin; while our people are murdered, and every act of violence is committed upon them all along this long line of hostile array, and treason stalks among us at noonday and at midnight; when, if there ever was an occasion for a severe, exemplary, and speedy punishment of treason by the highest possible penalty, this is that occasion, a very respected select committee of this body bring into the Senate a bill, not to subdue the rebels, not to prosecute this war, but to mitigate and lessen the penalty of treason, which, as established by our fathers, was death by the halter. At such a time as this to ask the Senate of the United States to declare that, instead of death, a person convicted of treason shall be simply fined and imprisoned, is, to me, I must confess it, "most strange and unnatural." This is the time for the infliction of severe punishment, of speedy punishment. It is a time for relentless energy against the common foe. Instead of this, we have the old punishment of treason mitigated in the first section of this bill from death to a fine not less than $10,000, and imprisonment not less than five years. And this is for treason!

Now, sir, I take the acknowledgment of the learned Senator from New York, [Mr. HARRIS,] to be correct, that the second section of this bill describes precisely the same crime as is punished under the denomination of treason in the first section of the bill. If you look into it with care you will see that the acts punished by the second section are in and of themselves nothing more nor less than treason. We are, told by that distinguished Senator that a careful pleader in drawing up his indictment and charging an accused person, would not fail to charge him in the first count of his indictment with the crime of treason as defined in the Constitution, thus charging him under the first section of the bill, and in the second count of the indictment charging him with the various offenses, if there be various, embraced in the second section of the bill.

Now, sir, I propose to take another step in considering this matter. Suppose this skillful pleader, to whom the learned Senator from New York refers the matter, has drawn up his indictment. In the first count of his indictment he simply charges the accused with the commission of treason; that is to say, that he either made war upon the United States, or that he had adhered to their enemies, giving them aid and comfort. Those enemies, of course, must be foreign enemies not owing allegiance to the United States. In his second count he charges the same person arraigned at the bar with the offense or offenses mentioned in the second section:

That if any person shall hereafter incite, set on foot, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by the forfeiture of all his personal property of every kind whatsoever, including choses in action, and by the forfeiture of his life estate in any real property of which he may be the owner, wherever situated in the United States, and by the liberation of all his slaves, if any he have; and all such property, excluding slaves, shall be forfeited to the United States.

We are told by the advocates of this bill that it may be very difficult to obtain convictions in cases where the punishment is death, and it is for the purpose of procuring convictions that are not attended with the punishment of death that this second section is incorporated in the bill. Well, sir, what will be the result? Here is the accused person, charged in the first count with treason; in the second count with the offenses mentioned in the second section of the bill; and, sir, the punishment affixed by the second section of this bill is not personal at all. It does not even imprison or fine the accused. I beg to ask my friend from New York whether, if he ever got any conviction in any case in any southern State, it would not necessarily be a conviction under this second section?

Mr. CLARK. If the Senator will pardon me a moment, perhaps I can shorten the debate by saying that I propose to amend that section, and

Mr. HOWARD. Now, sir, you have in the rebel States some two or three millions of rebels. You go there with your courts and juries. These trials are to be had before juries, most, if not all, of whom have taken part in this rebellion, who are themselves traitors. Most, if not all, of the jurors, will also have been engaged in these same acts of rebellion and insurrection. I ask my friends, upon any principle of common sense, how it is they can anticipate even a conviction under the second section of this bill in a southern State before such a court and such a jury? It seems to me, sir, like something else of which Falstaff spoke: "it is past praying for." The thing is idle. It is all moonshine. It is useless to talk about it. I undertake to say that for twenty years to come you cannot bring about a single conviction of treason in the southern States by a southern jury; and you must try them in the district where the crime was committed. An act of treason committed in South Carolina must be tried in South Carolina, and it is not competent for the court even to change the venue and send the party to a trial elsewhere. Such an act committed in Mississippi must be tried in Mississippi; in Georgia, in Georgia; and there you are. It is totally impossible, as it strikes me, judging from the present state of things and the probable state of things for the future, to expect to find an impartial jury in any one of these rebellious States, so that it is out of the question, in my judgment, even to suppose that a conviction in a court of justice can be had in any of these States under this bill, or even under the old act punishing treason.

Well, sir, if you obtain any convictions they will, as a matter of course, be under the second section, in which there is no personal punishment whatever, not even imprisonment for a single day, not even a fine, but simply a forfeiture of all the property, real and personal, of which the accused person may have been possessed at the time of the commission of the act. I believe that is it. It will be a very interesting state of things to see a Federal court organized in one of the rebellious States and half a dozen ragamuffins brought before them for trial upon charges of treason, not one of whom may be worth an old hat or even the coat he wears upon his back; tried for treason, and if you please, convicted of treason, and sentence pronounced upon them that they should forfeit all their property, real and personal, for all time to come. That would be a most interesting spectacle for the American Senate to set upon the subject of treason! Why, sir, I confess it is entirely too namby-pamby for me. It is degrading the office of punishment. It is putting down the standard which it belongs to us, as the Senate of the United States, to keep elevated and high as a protection and guard against the commission of the highest of all crimes. It is for that reason, that it is inefficient, that it is totally useless, that I move to strike it out. I look upon it as nothing more than a mere tantalization of, as a mere trifling with, the enemy. They will laugh at you. They will laugh you to scorn when you go before them and say you have passed an act reducing and mitigating the punishment of treason with a view of punishing them. Sir, it is too contemptible to talk about.

Mr. CLARK. To answer one objection made by the Senator from Michigan, and with the assent of some members of the committee, I move to amend the section before it is stricken out by inserting in the seventh line, after the word " punished," the words " by imprisonment for a period not exceeding ten years or.

Mr. TRUMBULL. Why not say both?
Mr. ANTHONY. Either or both.
Mr. CLARK. I have no objection to that. One
would seem to be sufficient.

Mr. TRUMBULL. Suppose you imprison
him. Do you not then forfeit his property?
Mr. CLARK. If you prefer it.

Mr. TRUMBULL. I suggest it to you.
Mr. CLARK. I did not suppose it would be
best. If it will make it satisfactory to you, you
can have it in that way.

The PRESIDING OFFICER. The question
is on the amendment moved by the Senator from
New Hampshire, to insert in the seventh line of

Such person shall be punished by imprisonment for a period not exceeding ten years, or by the forfeiture of all his personal property of every kind whatsoever, &c.

Mr. CLARK. Then I will move to add at the end of the section, as part of the same amendment, the words "or both said punishments, at the discretion of the court."

The amendment was agreed to.

Mr. CLARK. I am not going to make a speech. I simply want to say that I agree with all that has been said by the Senator from Michigan about the enormity of this rebellion, but I want the Senator to bear in mind that we provide by this bill an additional method of punishing that rebellion. Instead of making the punishment less severe, by this section of it we furnish a punishment by which some persons may be punished who would not be punished by the other section. I know that does not satisfy the Senator from Michigan. I know what he wants-a much more efficient bill. I know that he began by declaring his hostility to this bill. I know that he calls it namby-pamby; but let me say to the Senator it is better to feed on namby-pamby than not have any food at all, and starve to death. This may be all the bill he will get. He had better not make it any worse; he had better make it more efficient if he wants an efficient bill, than attempt to cripple it. That is what the Senator is evidently doing-striking out all the different punishments that may be inflicted for this crime, and then accusing us of weakening it when we desire to make it more efficient. I hope the section will be retained, and I will give way to have a vote.

The PRESIDING OFFICER. The question is on the motion of the Senator from Michigan,

to strike out the second section of the bill.

Mr. CLARK. On that I ask for the yeas and nays. ["Oh, no!"] Senators say I had better withdraw the call, and I will do so.

Mr. POWELL. I renew it.

The yeas and nays were ordered.

Mr. DAVIS. I should vote to retain this second section but for that emancipation feature. Of course, I cannot vote for any proposition that has that feature in it.

The question being taken by yeas and nays, resulted-yeas 5, nays 33; as follows:

YEAS-Messrs. Davis, Howard, Powell, Saulsbury, and Wilson of Missouri-5.

NAYS-Messrs. Anthony, Browning, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Henderson, Howe, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Simmons, Stark, Summer, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, Wilmot, Wilson of Massachusetts, and Wright-33.

So the motion was not agreed to.

Mr. WADE. I suppose it is not expected to proceed further with this bill to-night; and if that is so, I desire to take up a little territorial bill that has come from the House, which, I am told by the Delegate from the Territory, ought to be passed at once, in order to enable them to postpone the meeting of their Legislature. I am told it is necessary that it should be passed immediately. It passed the House at once, because the propriety of it was conceded to be plain and clear. 1 do not fully understand it, but I hope it will be

read.

The PRESIDING OFFICER. Does the Senator move to postpone the pending bill, in order to take up that joint resolution from the House? Mr. WADE. Yes, sir.

Mr. FESSENDEN. It can be laid aside informally.

Mr. WADE. Very well; I do not care how it

is done.

Mr. CLARK. Is it a matter of public necessity? Mr. WADE. I believe it is, from what I am told.

The PRESIDING OFFICER. The pending bill will be laid aside by general consent.

ADJOURNMENT TO MONDAY.

Mr. WADE. I now move to take up the joint resolution in relation to the time of holding the second session of the Legislstive Assembly of the Territory of Colorado.

Mr. POWELL. Before that resolution is taken up, with the consent of the Senator from Ohio, I