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"The trial of all crimes, except in cases of impeachment, shall be by jury."— Const., art. 3, sect. 2.

The property to which the bill applies is not, under the laws of nations, prize; it is not booty; it is not contraband of war; it is not enforced military contribution; it is not property used or employed in the war or in resistance to the laws, and therefore clearly to be distinguished from that covered by the statute of Aug. 6, 1861. It is private property outside of the'

conflict of arms; forfeited, not because it is the instrument of offence, but as a penalty for the crime of the owner. The disguise of the proceeding in rem is too thin and transparent. No lawyer, no man of common sense, will be deceived by it. The proceeding, in spirit, in substance, and in effect, is the punishment of treason by the forfeiture of a man's entire estate, real and personal, without trial by jury, and in utter disregard of the provision of the Constitution, which limits the forfeiture for treason to the life of the person attainted (art. 3, sect. 3).

Was there ever a balder contrivance to get around the plainest and most sacred provisions of the Constitution than this attempt to get a man's farm, his cattle and fodder, his plough, spade, and hoe, into a maritime court, and try them by the law of prize? With all respect for my excellent friends upon the committee, such a proposition "shocks our common sense as our sense of justice and right. You make the plea of necessity, and necessity is the mother of invention; but do you expect to satisfy sensible men, when reason resumes its sway, that under a Constitution which de

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fines treason to consist in levying war against the United States, which will not suffer the traitor to be condemned except by the judgment of his peers, and, when condemned, will not forfeit his estate except during his life, you can, by this proceeding in rem, without indictment, without trial by jury, without the proof of two witnesses (art. 3, sect. 3), for treason, for the act of levying war, deprive him of all his estate, real and per'sonal, for life and in fee? Nay, more; and that, after he has thus been punished, without trial by jury, and by the loss of his whole estate, you can, for the same act of levying war, try him and hang him? To suggest a doubt, whether, after all, this is plain sailing under the flag of the Constitution, is to have too nice constitutional scruples!

I have touched but upon one or two legal objections to these bills. Their name is Legion; but I must hasten to a more minute examination of the bills themselves. I do not wish to say the bills are hastily drawn. If right in principle, defects of form, or want of detail, can be supplied. In attempting, however, legislation involving a new principle, or a new application of a principle, it is a pretty good test to let it be run through the machinery of a carefully drawn statute, and see how it works. I should have liked to have seen that test applied here.

Looking now to the general features of the confiscation bill, I desire the House to observe that the bill, though not in form, is, in substance and effect, retroactive. It takes effect from its passage. It applies to all acts committed after its passage. As there are whole

districts, States even, where the law cannot be promulgated, and who will remain in ignorance of its passage, the law, as to them, will be ex post facto. They will neither know, nor have the means of knowing, of the existence of the penalty when the act is committed. Will you say it is their own fault? I beg you to consider, that since your protection has been lost, and until it is restored, there has been and can be no really free choice with the individual citizen whom he shall obey. What measure of punishment would you mete to a citizen of Jacksonville, who, after the withdrawal of your army, should yield to "the powers that be," though certainly not "ordained of God"?

I ask the attention of the House, and a just and humane people, if these words shall ever reach them, to the wide sweep of this bill. You would infer from the arguments of its friends, that the bill was to reach only the leaders and instigators of rebellion. How, if that were so, the limitation and the payment of the expenses of rebellion from confiscation would hang together, has not been explained. But the fact is far otherwise.

The first section includes several classes; and, first, all officers of the rebel army or navy, non-commissioned as well as commissioned. Officers of high rank should be included; but there is no sound reason whatever for going down to sergeants and corporals. The second, third, and fourth classes embrace persons who shall hold certain offices in the Confederate States, or any of them, including judges of the State Courts, and members of State Legislatures and conventions. In all

these cases, the mere holding of the office is made the ground of confiscation, without regard to the manner in which the duties shall be discharged, or to whether those duties involve any active service against the National Government; men, it may be, whom the Rebellion found in office, and who continue in the regular exercise of their functions. Here, for example, is the judge of probate or surrogate of a county. Rebellion breaks out: men will die, and estates must be settled, and care had of widows and orphans. To visit this man with the confiscation of his estate, for continuing quietly to discharge his duties, is equally harsh and absurd.

The same remark applies, possibly with increased force, to persons embraced in the fifth class; those holding any office or agency under any of the States of the Confederacy, or any of the laws thereof, whether such office or agency be State or municipal in its name or character. Every justice of the peace, notary public, or town-clerk, treasurer, assessor, constable, overseer of the poor, undertaker even, must resign his functions, or become a pauper. The result, if successful, is a suspension of civil order; or, on the other hand, the severest punishment for a venial offence, if it be an offence.

The second section includes all persons who, being engaged in rebellion, or aiding and abetting it, shall not, within sixty days after proclamation from the President, desist, and return to their allegiance. Sixty days seems to be a reasonable notice; but, if the parties are in such condition that the notice cannot reach them, then it is not notice. What may be fairly and justly

required is, that men shall return to their allegiance the moment they have reasonable assurance of permanent protection from the National Government. It is idle to look for it before such protection is possible. To ask a man in the interior of a cotton State to abjure the rebel Government and return to his allegiance, in the present condition of things, is to ask a moral impossibility. To confiscate his property for not doing so, is itself a crime.

A word upon another harsh feature of the bill. With respect to every person within its scope, and without the least discrimination as to degrees of guilt, a clean sweep of property is made. There is no exemption of necessary household furniture, or of provisions, or of tools of trade. Nothing is spared; the bed on which the wife sleeps, the cradle of the child, the pork, or flour-barrel. Taken in connection with the fact, that the bill declares that the President shall cause the seizure to be made, and not merely that he may; that provision is made for the sale of perishable property, and that none is made for the remission, in whole or part, of the forfeiture; and we cannot fail to understand the spirit in which the bill is conceived, or the impression it will not fail to make on the friends of this country abroad, who cannot fully appreciate the bitterness which civil conflict engenders; or, if they do, will not pardon statesmen for yielding to its influence. It is plain that the angel of mercy never found his way to the committee-room; or, if he went in with my friend from Kentucky [Mr. Mallory] or my friend from New Jersey [Mr. Cobb], he was politely bowed out, with the

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