content "stare super antiquas vias," to cling to the old established doctrine of the limitation of the powers of the general Government and the inviolable sovereignty of the States.

It has also been said, that even if a State cannot theoretically forfeit any of its constitutional rights, yet that the general Government, after the rebellion is subdued, will be practically left free to accomplish such reforms in its Constitution as may be deemed advisable, because the whole community having committed treason, there will be no citizens, at least not enough to be worth regarding, who can insist upon a strict fulfilment of constitutional obligations; that the constitutional rights will therefore remain in abeyance for the want of the individuals to assert and exercise them; that Congress can provide by law for the exclusion of traitors from the exercise of the elective franchise; and that before the population which has committed no offence against the laws, will increase sufficiently to entitle it to resume the functions of self-government, the institutions of the State may be permanently modelled as may be desired. But a careful consideration of the subject will show that however plausible such a theory may appear, a palpable violation of the Constitution by Congress can alone reduce it to practical operation.

Among the various modes of exercise of legislative power none is more unequivocally condemned

by the Constitution than that of passing acts of ttainder, which was, till comparatively recently, he practice of the English Parliament, and the use of which disgraced even our own legislatures during the Revolution. Judge Rawle, in his treatise on the Constitution (p. 119) defines a bill of attainder as one "by which a person without judicial trial is declared by the legislature to be guilty of some particular crime;" and he adds, that "the definition itself shows the atrocity of the act." Judge Story, in his treatise, says, that such an exercise of power in a free government would be intolerable; and the most eminent modern jurists and publicists of all nations have condemned it. Accordingly, the Constitution, in its restraints upon the power of Congress, says explicitly-"No bill of attainder shall be passed;" and it secures the citizen, by two separate and distinct provisions, against any punishment for crime, except upon conviction by a jury of the State where the crime shall be alleged to have been committed. So long as the Constitution is recognized as subsisting, it will therefore be impossible to declare any of the citizens of the southern States guilty of treason by act of the Federal legislature, or in any other way than in pursuance of the sentence of a regular judicial tribunal, and the verdict of a jury taken from the State in which the treason was committed. I doubt not that it will be practicable so to legislate as to procure a jury

which will convict of treason in isolated cases, bu I think that I need not spend any time in demon strating the impracticability of indicting and con victing of treason the people of a whole State, or a -sufficient number of them to make any appreciable difference in the number of those who will wield the political power of the State. Nor can the same. result be accomplished indirectly by a test oath. The Constitution confers no power upon Congress, either expressly or by implication, to prescribe the qualifications of electors for members of the national House of Representatives, much less for members of the State legislature, or any of the State offices. On the contrary, those matters are expressly and exclusively left to State legislation. So palpable is the want of power in Congress to overthrow State power in the South by prescribing the qualifications of voters, that the author of "Our Domestic Relations" concedes the impossibility of effecting his cherished scheme by any such means.

It has also been argued that inasmuch as the southern people have been recognized as belligerents, not only by foreign powers but by the United States Supreme Court, and our legislative, executive and military authorities have dealt with them, in all respects, as if we were waging a foreign war, we shall enjoy at the conclusion of the war all the rights of conquerors, including the right of reorganizing the southern territory as we shall think

proper. But the answer to this suggestion is that we have never treated our war as a foreign war, but as a civil war merely; and that the belligerent rights which we have assumed, and the belligerent liabilities to which we have held the insurgents, were imposed by us partly to mitigate the horrors of the war, by subjecting its operations to the rules of civilized warfare, and partly for our own convenience, and to increase the efficiency of our military operations. The necessity and convenience which led us to treat our adversaries as belligerents, did not at all depend upon the fact that the State governments profess to be actors in the war, but they arose solely from the magnitude of the scale upon which the war was waged. The result would have been the same if the State governments had been overpowered by the insurgents at the outset of the rebellion, and if the latter had attempted to obliterate the States entirely, and to set up an imperial government, embracing the whole insurgent territory, instead of a union of confederate republics similar to our own. And as we still profess that the restoration of the Union is the object for which we are fighting, the assumption of belligerent relations between us and the rebels is necessarily temporary only, and must be abandoned when the war results in the accomplishment of that object. This is, in fact, confessed by the confiscation and penal laws, and the avowed purpose of the

administration party to punish the leaders of the rebellion for treason, if the fortune of the war shall place them in our power. I find the principles to which the decision in the prize cases leads, so ably defended in another recent decision, from the revolutionary imputation which it is attempted to put upon them, that I copy a portion of the latter. It is from the opinion of Judge Sprague, of the United States District Court, pronounced at Boston in April, 1862, in the case of the "Amy Warwick." He says:

"An objection to the prize decisions of the district courts has arisen from an apprehension of radical consequences. It has been supposed that if the Government has the rights of a belligerent, then, after the rebellion is suppressed, it will have the rights of conquest: that a State and its inhabitants may be permanently divested of all political privileges, and treated as a foreign territory acquired by arms. This is an error-a grave and dangerous

error.

"Conquest of a foreign country gives absolute and unlimited sovereign rights. But no nation ever makes such a conquest of its own territory. If a hostile power, either from within or without a nation, takes possession and holds absolute dominion over any portion of its territory, and the nation by force of arms expels or overthows the enemy and suppresses hostilities, it acquires no new title, but