Annotation 25 - Article III

Clause 2. Punishment


The Confiscation Act of 1862 ''to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels'' 1310 raised issues under Article III, Sec. 3, cl.2. Because of the constitutional doubts of the President, the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason, 1311 the Court in one case 1312 quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attained person ''to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him.'' 1313  


[Footnote 1310] 12 Stat. 589. This act incidentally did not designate rebellion as treason.

[Footnote 1311] Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871).

[Footnote 1312] Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).

[Footnote 1313] Lord de la Warre's Case, 11 Coke Rept. 1a, 77 Eng. Rept. 1145 (1597). A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Ill. Central Railroad v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 203 (1876); Armstrong's Foundry, 73 U.S. (6 Wall.) 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle v. United States, 83 U.S. (16 Wall.) 147, 154 -155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863), which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason ''is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.'' However, see In re Shinohara, Court Martial Orders, No. 19, September 8, 1949, p. 4, Office of the Judge Advocate General of the Navy, reported in 17 Geo. Wash. L. Rev. 283 (1949). In the latter, an enemy alien resident in United States territory (Guam) was held guilty of treason for acts done while the enemy nation of which he was a citizen occupied such territory. Under English precedents, an alien residing in British territory is open to conviction for high treason on the theory that his allegiance to the Crown is not suspended by foreign occupation of the territory. DeJager v. Attorney General of Natal (1907), A.C., 96 L.T.R. 857. See also 18 U.S.C. Sec. 2381.

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