trial by jury. Cases arising in the land and naval forces, and in the militia when in actual service in time of war or public danger, are in terms excepted from the general rule (Amendments, art. 5); but the exception, instead of impairing, by the law of logic as of common sense, confirms the rule.

2. Property is taken for taxes, and certainly without trial by jury, where the tax, and mode of assessment, are valid; but this is under an express grant of power to Congress "to lay and collect taxes" (art. 1, sect. 8), the principle and general method of which were perfectly well understood when the Constitution was adopted. Nor does the exercise of this power, as has been suggested, take private property for public use without just compensation: on the contrary, the true and just theory of taxation is, that the price paid is the reasonable compensation for the protection and security of life, liberty, and property, which a wise and efficient government affords.

3. The forfeiture of goods for breach of the revenuelaws has slight, if any, analogy to the confiscation of property as a punishment for the crime of its owner. To Congress is given the power to "regulate commerce," and "to levy and collect imports;" and, of course, to prescribe the terms and conditions upon which goods may be imported. It may well avail itself of a familiar principle by which property used in violating, defeating, or defrauding the law is liable to forfeitThough the forfeiture of the common law did not, strictly speaking, attach in rem, but was a part or consequence of the judgment of conviction of the offender, this doctrine was never applied to seizures and forfeitures created by statute in rem, and cognizable on

ure.

the revenue side of the exchequer. The thing was then primarily considered as the offender, and the offence was attached to it. The same principle is applied to proceedings in rem, and seizures in the admiralty (2 Wheaton, The Palmyra). It is upon this distinction that the statutes of July 19 and of Aug. 6, 1861, find their support. The principle is, that the thing used in violating the law may be seized and condemned without a judgment upon the guilt of the owner.

I proceed to inquire how far, if at all, the powers of Congress are enlarged by the existence of this Rebellion, and the use of the appliances of war to subdue it.

It would seem to be plain, that the resistance of any portion of the people to the Constitution and laws cannot operate to confer upon Congress any new substantive power, or to abrogate any limitations of the powers of Congress which the people have imposed. When the Constitution intends that the existence of war or rebellion shall put an end to any restriction on the power of the Government, it says so: when it does not say so, the fair inference is that it does not mean so. Examples of such removals of restraint are found in article one, section eight, providing that the privilege of the "writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it ;" and in article three of the Amendments, forbidding, in time of peace, the quartering of soldiers in any house without the consent of the owner, but in time of war permitting it to be done "in a manner to be prescribed by law."

Engaged in suppressing a great and formidable rebellion, the Government may use the instrumentalities of war, so far as they are adapted to the end: but it is

never freed from the restraints of the Constitution; can never rise above it. The Constitution is never silent in

the midst of arms. In war, as in peace, it is the supreme law; itself salus populi et suprema lex

When Government is compelled to use the power of war, it observes its limitations. How far, in the use of this power, it may confiscate, or subject to forfeiture, private property, is the next question before us.

Some things are tolerably well settled. That property used in promoting the rebellion, in levying war against the United States, is lawful prize of war. This would include the arms, munitions, and provisions of war, in actual use or procured for the purpose. The rule extends to goods used, not strictly as munitions or implements of war, but so as to defeat the military and naval operations resorted to to subdue the rebellion: as goods on their way to relieve besieged towns or forts; or ships or cargo violating a blockade, or proceeding to or from ports with which commercial intercourse has been interdicted. It may extend to ships and cargo upon the high seas, the property of those levying war against the United States; enemies, not because of their domicile or residence upon one part rather than another of the territory of the Union, but because they are in arms against it.

Perhaps we should add to these, requisitions or contributions, within military districts, levied upon those at war with the Government, for the support of the invading army. Such requisitions were, however, regarded by Wellington, a great statesman as well as great commander, as iniquitous; as a system for which the British soldier was unfit. I would refer also to the excellent remarks on this subject by President Woolsey,

as

in his admirable Introduction to "International Law," p. 304.

Beyond the points suggested, it is believed the usages of international war do not extend. By the modern usages of nations, private property on the land is exempt from confiscation. This exemption, Mr. Wheaton says (and there is no higher authority), is now held to extend "to cases of the absolute and unqualified conquest of the enemy's country" (Wheaton's "Elements of International Law," p. 421). We refer also, as tending to the same result, to Vattel, book 3, chap. 8, sect. 147; to 1 Kent's "Commentaries," pp. 102, 104; 3 Phillimore, p. 140; Woolsey, p. 304. To this mitigated rule of war, there are doubtless exceptions. Of these, Mr. Wheaton says,

"The exceptions to these general mitigations of the extreme rights of war, considered as a contest of force, all grow out of the same original principle of natural law, which authorizes us to use against an enemy such a degree of violence, and such only, as may be necessary to secure the object of hostilities. The same general rule which determines how far it is lawful to destroy the persons of enemies, will serve as a guide in judging how far it is lawful to ravage or lay waste their country. If this be necessary in order to accomplish the just ends of war, it may be lawfully done; but not otherwise. Thus, if the progress of an enemy cannot be stopped, nor our own frontier secured, or if the approaches to a town intended to be attacked cannot be made without laying waste the intermediate territory, the extreme case may justify a resort to measures not warranted by the ordinary purposes of war."- Page 421.

The exceptions growing out of military exigencies, and measured and governed by them, cannot be foreseen and provided for by legislation, but must be left, where the law of nations leaves them, with the military commander.

It has been said that these acts of general confiscation find support under the provision of the Constitution which authorizes Congress "to make rules concerning captures by land and water." The Constitution does not define the meaning of the word "captures." It refers us in such cases to the law of nations, as in others to the common law. Congress has power to declare "war." What war is, the just causes of war, the rights and duties of nations in conducting it, are to be found in the law of nations. The "captures" referred to are very plainly not seizures of property under legal process, confiscation, or forfeiture, but the taking of enemy's property by force or strategy, jure victoriæ. The title is acquired by capture, and liable to be lost by recapture. To make rules concerning "captures" is not to make rules in conflict with or beyond the law of nations. The extent to which the power conferred by the law of nations shall be exercised, and the disposition to be had of captures when made, are the proper subjects of municipal law and of the provision of the Constitution.

The case of Brown vs. the United States (8 Cranch, 110) has been cited as expressly deciding that Congress has power to pass a confiscation bill. I submit, with great respect, that it decides no such thing. The only point decided in the case was, that British property found in the United States, on land, at the commencement of international hostilities (war of 1812), could not be condemned as enemy's property, without an act of Congress for that purpose. The court, dealing with a question arising under war with a foreign nation, had no occasion to consider the powers or duties of Congress in the case of rebellion. The discussions of the court recognize a distinction between the right of the sove