THE CONFISCATION ACT OF 1862 IS NOT A BILL OF ATTAINDER. NOR AN EX POST FACTO LAW.

This act is not a bill of attainder, because it does not punish the offender in any instance with corruption of blood, and it does not declare him, by act of legislature, guilty of treason, inasmuch as the offender's guilt must be duly proved and established by judicial proceedings before he can be sentenced. It is not an ex post facto law, as it declares no act committed prior to the time when the law goes into operation to be a crime, or to be punishable as such. It provides for no attainder of treason, and therefore for none of the penal consequences which might otherwise have followed from such attainder.

The resolution, which is to be taken as part of the act, or as explanatory of it, expressly provides that no punishment or proceedings under said act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. Thus, to prevent our courts from construing the sentence of death, under Sect. 1, as involving an attainder of treason, and its consequences, Congress has, in express terms, provided that no punishment or proceeding shall be so construed as to work forfeiture, as above stated. Thus this statute limits the constructive penalties which result from for feitures worked by attainders, and perhaps may be so construed as to confine the punishments to those, and those only, which are prescribed in the plain terms of the statute. And this limitation is in accordance with the constitution, as understood by the President, although the forfeiture of rebels' real estate might have been made absolute and unlimited, without exceeding the constitutional power of Congress to punish treason.*

See note to page 111.

CHAPTER VII.

THE RIGHT OF CONGRESS TO DECLARE THE PUNISHMENT

OF CRIMES AGAINST THE UNITED STATES OTHER THAN TREASON.

THE NEW CRIMES OF REBELLION REQUIRE NEW PENAL LAWS.

SEVERAL crimes may be committed not defined as treason in the constitution, but not less dangerous to the public welfare. The prevention or punishment of such offences is essential to the safety of every form of government; and the power of Congress to impose penalties in such cases cannot be reasonably questioned. The rights guaranteed in express terms to private citizens cannot be maintained, nor be made secure, without such penal legislation; and, accordingly, Congress has, from time to time, passed laws for this purpose. The present rebellion has given birth to a host of crimes which were not previously punishable by any law. Among these crimes are the following: Accepting or holding civil offices under the Confederate government; violating the oath of allegiance to the United States; taking an oath of allegiance to the Confederate States; manufacturing, passing, or circulating a new and illegal currency; acknowledging and obeying the authority of a seceded State, or of the Confederate States; neglecting or refusing to return to allegiance and to lay down arms after due warning; attempting to negotiate treaties with foreign powers to intervene in our affairs; granting or taking letters of marque; conspiracy

against the lawful government; holding public meetings to incite the people to the commission of treason; plotting treason; framing and passing ordinances of secession; organizing and forming new governments within any of the States, with the intent that they shall become independent of the United States, and hostile thereto; the making of treaties between the several States; refusal to take the oath of allegiance to the United States, when tendered by proper authority; resistance to civil process, or to civil officers of the United States, when such resistance is not so general as to constitute war. Each of these and many other public wrongs may be so committed as to avoid the penalty of treason, because they may not be overt acts of levying war, or of aiding and comforting the enemy, which the offender must have committed before he can have rendered himself liable to be punished for treason as defined in the constitution. These and other similar offences are perpetrated for the purpose of overthrowing government. Civil war must inevitably result from them. They might be deemed less heinous than open rebellion, if it were not certain that they are the fountain from which the streams of treason and civil war must flow, sweeping the innocent and the guilty with resistless tide onward to inevitable destruction.

ALL ATTEMPTS TO OVERTURN GOVERNMENT SHOULD BE PUNISHED.

Of the many atrocious misdeeds which are preliminary to or contemporaneous with treason, each and all may be and should be punishable by law. It is by no means desirable that the punishment of all of them should be by death, but rather by that penalty, which, depriving the criminal of the means of doing harm,

will disgrace him in the community he has dishonored. Imprisonment, fines, forfeitures, confiscation, are the proper punishments for such hardened criminals, because imprisonment is a personal punishment, and fines, forfeitures, &c., merely transfer the property of the offender to the public, as a partial indemnity for the wrong he has committed.

When the terrible consequences of the crimes which foment civil war are considered, no penalty would seem too severe to expiate them. But it has been erroneously suggested that, as the levying of war-treason -itself is not punishable by depriving traitors of more than a life estate in their real estate, even though they are condemned to death, it could not have been the intention of the framers of the constitution to punish any of the crimes which may originate a civil war, by penalty equally severe with that to which they limited Congress, in punishing treason itself. A lower offence, it is said, should not be punished with more severity than a higher one. This objection would be more plausible if the power to punish treason were in fact limited. But, as has been shown in a previous chapter, such is not the fact.*

ACT OF 1862, SECTION VI., DOES NOT PURPORT TO PUNISH TREASON.

If the penalty of death be not inflicted on the guilty, and if he be not accused of treason, no question as to the validity of the statute could arise under this clause of the constitution limiting the effect of attainders of treason. No objection could be urged against its

See Chap. V. page 93.

validity on the ground of its forfeiting or confiscating all the property of the offender, or of its depriving him of liberty by imprisonment, or of its exiling him from the country.

Section 6 of the act of 1862 does not impose the penalty of death, but it provides that if rebels in arins shall not, within sixty days after proclamation by the President, cease to aid and abet the rebellion, and return to their allegiance, they shall be liable to have all their property seized and used for the benefit of the country.

Suppose the rebels in arms refuse to obey the procla mation, and neglect or refuse to return to their allegiance; the mere non-performance of the requisition of this act is, not levying war, or aiding and comforting the enemy, technically considered, and so not treason— although, if they go on to perform overt acts in aid of the rebels, those acts will be treasonable. Will it be denied that the rebels in arms ought to be required by law to return. to their allegiance and cease rebellion? If their refusal to do so is not technically treason, ought they not to be liable to punishment for violating the law? Is any degree of pecuniary loss too severe for those who will continue at war with their country after warning and proclamation, if their lives are not forfeited?

LEGAL CONSTRUCTION OF THE ACT OF 1862.

What will be the construction put upon section 6th of the Act of July 17, ch. 195, 1862, when taken in connection with the joint resolution which accompanied it, is not so certain as it should be. The language of the last clause in that resolution is, " Nor shall any punishment or proceedings, under said Act, be so construed