government, but of social order itself, has been a cardinal article in the faith of a large portion of the people in the Southern States; and that they have been induced, by the arts and sophistries and falsehoods of unprincipled leaders, to believe that their future safety and well-being required the exercise of the right. Those leaders should atone for their crime by the just penalty of the law. But you cannot, says Burke, "indict a whole people: you cannot apply to them the ordinary rules of criminal jurisprudence." To state the proposition to confiscate the property of eleven States is to confute it; is to shock our common sense, and sense of justice; is to forget not only the ties of history and of kindred, but those of a common humanity; is to excite the indignation of the civilized world, and to invoke the interposition of all Christian governments.

It is said that just retaliation requires the confiscation of the property of the rebels. Doubtless nations may feel compelled to resort to measures of severe retaliation; it may be their only security against future outrage but a firmly established government does not resort to cruelty and injustice because its rebellious subjects have done so. It must maintain a higher standard of rectitude and justice. Its object is, not vengeance, but to deter men from crime. It knows that harsh and severe punishments but rouse pity for the criminal, and indignation against the Government.

Nor will the difference between confiscation by the rebels and by this Government be overlooked. Our acts of confiscation, if within the limits of the Constitution, are effective and permanent: theirs, void in law, are temporary in their effect. The title to one square

inch of land will not be changed by any confiscation by the rebel authorities. Every man who has occupied the land of a loyal citizen under their pretended acts of confiscation will be liable for the full rent and damages to the estate. Every man who is in possession of personal property under them will be compelled to disgorge. Every debt paid under them into rebel treasuries will still be due to the loyal creditor. The restoration and indemnity will, I know, be imperfect. Many grievous wrongs will go unredressed; but every rebel, whatsoever functions he may have usurped, -judicial or executive, who has invaded the rights of person or of property of a loyal citizen, will be liable to his last farthing for indemnity. So far, therefore, as our Government confiscates the property of rebels to its own use, it takes from the loyal citizen the sources to which he may justly look for redress.

The acts of general confiscation proposed would defeat the great end the Government has in view, - the restoration of order, union, and obedience to law. They would take from the rebels every motive for submission; they would create the strongest possible motives to continued resistance. In the maintenance of the Confederate Government, they might possibly find protection; in the restoration of ours, spoliation. Spoliatis arma supersunt. You leave them the great weapon of despair. Sallust said of the old Romans, "Majores nostri religiosissimi mortales nihil victis eripiebant præter injuriæ licentiam," -"Our ancestors, the most religious of men, took from the vanquished nothing but the license of wrong-doing,"-" words," says Grotius, "worthy of having been said by a Christian."

It seems to be taken for granted, that our efforts to

suppress the Rebellion will be successful in proportion to the severity of the measures we adopt. The assumption is at war with the lessons of history and with the nature of man. The most vigorous prosecution of the war possible is best for the Government and its subjects in arms against it. But the war is means to an "Wise men labor in the hope of rest, and make war for the sake of peace." It is only when justice is tempered with mercy that it is justice.

end.

Apart from the injustice and impolicy of these acts of sweeping confiscation, I have not been able to find in the Constitution the requisite authority to pass them. There are two aspects in which the legal question may be viewed, first, the confiscation and forfeiture of property as the punishment for crime; secondly, under what has popularly been called the "war-power" of the Go

vernment.

Looking at confiscation as the penalty of crime, treason, or any lower grade of offence, some things seem to be plain :

That such forfeiture can be created by statutes applicable only to offences committed after their passage. Congress cannot pass an ex post facto law (Constitution, art. 1, sect. 9).

The subject charged with treason may justly claim all the muniments and safeguards of the Constitution.

He cannot be deprived of life, liberty, or property, without due process of law (Amendments, art. 5); that is, judicial process, as understood from the days of Magna Charta.

He cannot be held to answer for a capital or otherwise infamous crime, except in cases arising in the land or naval forces, or in the militia when in actual service

in time of war or public danger, unless on presentment or indictment by a grand jury (ibid.).

After indictment, he must have a 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 (art. 3, sect. 2; Amendments, art. 6).

No attainder of treason can work a forfeiture, except during the life of the person attainted (Constitution, art. 3, sect. 2). By attainder is here clearly meant judicial attainder; as a bill of attainder (that is, an act of the Legislature) is, by a prior provision of the Constitution, expressly forbidden (art. 1, sect. 9).

These sacred provisions of the Constitution, which as common-law muniments of life, liberty, and property, have existed in substance for six centuries, — “the least feeling their care, and the greatest not exempted from their power,"-lie directly in the path, and are fatal obstructions to any legislation confiscating property as the penalty of treason, except as the result of the judicial trial and sentence of the offender.

It has been assumed, — I think, without sufficient reflection, that, under our laws against treason, the most obnoxious traitors even will escape the righteous punishment of their crimes, because they must be tried by a jury in the State and district wherein the offence shall have been committed. Their only escape will be by exile. Where war is actually levied against the United States, where bodies of men have been actually assembled to effect by force of arms their treasonable purposes, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be

considered as traitors (Ex parte Bolman, &c., 4 Cranch, 75). We have not, indeed, adopted the law of constructive presence, which holds that a man who incites or procures a treasonable act, is, by force of the incitement or procurement merely, legally present at the act. But it may be sufficient to constitute presence, if he is in a situation in which he can co-operate with any act of hostility, or furnish counsel and assistance to the parties if attacked (United States vs. Burr, 4 Cranch, 470). The modern facilities of communication greatly enlarge the field of co-operation. A commander at the end of a telegraph-wire, directing the assault upon a fort of the United States, or at a railroad station with troops ready to be moved to the assistance of the rebel army in action, is, in law, present at the overt acts of treason. The leaders of this Rebellion will be found, therefore, to have committed treason, and to be liable to indictment and trial in many States and districts in which a jury will be ready, upon adequate proof, to convict.

In the proposed measures, the thing sought to be done is the confiscation of the property of the rebel as the penalty of his offence, and the attainment of this end without the trial and conviction of the offender. Though, under the Constitution, upon a trial and conviction of a traitor, you can only take the life estate, these measures assume, that, without any trial or conviction, you may take the fee-simple. Our legal instincts shrink from such a proposition. Its intrinsic difficulties have been seen and felt; and a resort has been had to analogies and precedents, judicial and legislative, to find for it some sanction and support; I think, without success.

1. It is true, as has been said, that, under the Constitution, men may be deprived of life and property without