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with compensation for loyal masters. It is my duty to examine, as briefly as I may, the wisdom, the justice, and the constitutionality of the measures proposed. And, first, of confiscation.

The propositions for confiscation include the entire property of the rebels, real and personal, for life and in fee. Within the class whose estates are to be confiscated are included not only those personally engaged in the Rebellion, in arms against the Government, but also those who adhere to them, giving them aid or comfort: so that within the sweep of the bills would be brought substantially the property of eleven States and six millions of people.

The mind instinctively shrinks from a proposition like this. It relucts to include in one "fell swoop" a whole people. It asks anxiously, if no consideration is to be had for different degrees of guilt; if the same measure is to be meted to those who organized the Rebellion and those who have been forced into it; if no consideration is to be given to the fact, that allegiance and protection are reciprocal duties; and that, for the last ten months, the National Government has found itself incapable of giving protection to its loyal subjects in the "seceding States," neither defending them, nor giving them arms to defend themselves; and that, deprived of our protection and incapable of resistance, they have yielded only to superior force; if a wise Government is to forget the nature of man and the influences of birth, of soil, of home, of society, and of State, by which his opinions are insensibly moulded; and that this pestilent heresy of the right of secession, fatal

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as it is now seen to be, not only to the existence of good 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 Govern

ment.

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 inju

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riæ 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 end. "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.

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 Government.

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 Carta.

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 punish

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