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ment 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 suc

cess.

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

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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, 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 miti

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