The New York herald., 1861-12-06

egtmately taken as il condemned !. forfeiture by The
judicial authorities in districts In which 4ssa process
was not obsructed want no other authority for put
ting down this gigantic rebellion than such
be derived from tho constitution properly interpreted
II Is equal even to this great emergency and the more
we study its provisions the more 1t Is tried IN tfouoios
times, the greater will DO admir- lation for the
Instrument and our vonsration for its authors,
moment among tho thoughtless, here declare that
for suppressng this monstrous rebellion according to
law, and in no other way and believe that Cngoss has
only 10 discharge its duty, and the army perform It's
with energy and activity, to bring the to speedy
and successful issue. We fighting to maintain the
constitution and II especially becomes appealing
the people to como to It's rescue, not 70 violate II our
selves How better than the rebels both alike
set at nought the constitutions | warn my countrymen
who stand ready TO tolerate any done in good faith for
the suppression OF the rebellion to sanction usurra
tsons OF power which may hereafter become precedens
for the destruction Of constitutional liberty The consti
tu.ion declares that Congress shall have power to do
clare war" and make rules concerning captures on
and and water" "to raise and support armics" 'to
for the government Of the land and naval forces TO pro-
vide for calling forth the militia to execute the laws OF
the Union suppress instructions and repel nvasons,'
and ITO make all laws which shall be necessary and
proper for carrying into execution the foregoing powcrs
Acting under those grants Of power Congress has pro-
vided for bringing into service more than half million
Of men, who are now engaged In suppiessng the inslr
recton and has, TO extent, made rules for tho
government Of these forces which, far they are
obligatory them but, in the absence of any regua
ton as TO how tho army Is to DO USED IA
suppressing the insurroction, its commander would
with the rules Of civilized warfare, as he
believed must bo conducive to the service OF the
State and best calculated TO secure the end for
which IL was callod into being upon the
principle that every entrusted with An employment
duty is presumed to bo invested with all the power
necessary 10 enable him 10 perform the service Honce
the power Of the army the oppression OF nsurrec
tion to seizo prison shoot the insugeus to desc
late the country they occupy TO seize and appropriate
for the time beng their property aud free the persons
they hold in bondage, is ample and complete under
tho constitution as that Of court in peaceful times
rpeti iapri a a i'll
dca tribunals have right or power TO interfere with
the army in tho exercise OF It's powers in supprcssng an
nsurecton either BY issuing writs Of hateas corpus or
otherwise, Is apparent from the fact that the only
ground which the military authority be Invoked
incompetent to the task. The judicial authority ends
at tho very point where the mt try begins. IT may be,
and often Is delicate question TO determine this par
ticuiar point ard decide in what localities the military,
and in what judicial atho,ty shoald have sway. This
the constitution has left to be provided for By Congress-,
by declaring that it shall have power call forth the
militia to suppress nsurrecton and Congress, after
the adoption of the constitution passed. act authorz
ing tho President to call forth the militia for that purpose
whenever the laws of the United States obstruced
BY combinations too powerful to be suppressed by
the ordinary course OF judicial proceedings, and by
net passed at tho nrst session Of the present
Congress, the President is authorized, in certain
ca es, TO declare the inhabitants Of State, part
thereof, in state of insurrection and make use
Of tho army to suppress it. Tho responsibility,
therefore, OF determining when and in what districts OF
tho United States the military power may used sup
press rebellion devolved by Congress the Excc,tvo
and when the military power Is called into reluisiton
the judicial authority can no interfere with its
ton than can the military with tho judicial tribunals in
lime Of peace. Under certain circumstances either may
be called to the aid Of the other Tho courts sometimes
make Of the military in aid Of the execution CT
their powers and the military would doubtless have like
authority make Of the at OF Judicial tribunals
districts under insure Ct onary control, should they be
deemed proper means ,ss BY the military power to aid
power called to the aid Of the other, whether 1t
be the military time Of peace to tho assistance Of the
judicial, tho judicial in times of REBELLION the
Sstancc OF tho military would bO ,rdnate to the
power making the call. In accordance with these prnc
PIES ii has my oboet framing the bill under G, n
stieration distinguish between the property on which
the military may operate and that subject judicial
troll and clearly TO define the jurisdiction OF each
ing the seizure and forfeiture Of property situated dis
cts Of the United STATES under nsurreconary
tho military powor, and its condemnation and forfeit
other portions Of the United States to the judicial
power. Whichever first takes hold of the property with
in its jurisdiction would upon principles ofcomy
possession till its final disposition upon the prnci
PIE that Of two courts Of concurrent jurisdiction tie
which first gets possession of affecting either
persons or property, is entitled TO retain juris-
dicton until its final disposition 1t is upon this principle
also persons captured by the military authorities
nsurrectonary districts may still be retained prison
ers by the military power, without interference with the
courts till their finally disposed Of notwith-
standing they may be for purposes OF soty, other
q State. brought within districts where tho u
dcdl Is in full operation. Having shcwn that the
military called forth under tho constitution TO suppress
an nsnrrection may be vested with MI the power
sary the end consistent With he usages Of civilized
warfare il follows that II hostile armies may ever cons
encnys property tho lights Of the United States
IL Inc case Ol reDclS lS 0nqueSti0naDO,
surcy WAS ever more atrocious than the one now
being wagcd by tho rebels for tho overthrow Of this GO
vetnment. They surely cannot complain OF treatment
wo would hive right 70 extend to foreign armies.
The right of seizure and conscaion OF the property Of
tie enemy prize Of wat is aottled question OF
int irrational law, which hts ben affirmed by
supreme Court. In the ol Brown the United
states reported Ia The eighth Cranch, tile SAYS
aRespcc.ng the pewerof gavcrnmept no doutt is enter
tanned That war gives to hc sovereign full t take
the persons and connscate tho property OF the enemy
Wherever found. s conceded. The mitigaiions If this
times has introduced 10 practice, viii less affect
the OF this right but cannot impair the right
Itself That remains uniimnishcd, ard when the
hor,y shall choose to bring It into operation. tho
judicial derartnent must give elect to its WILL But until
can exist in the court That also decides "that the
power Of conscatng enemys property is in tho Lessa
ture" Wheaton, in commenting on the case. says''The
property cannot be seized and condemned prize Of war;
without legislative act expressly authorizing its
scatjon The Court held that the law of Congress de-
caring war was not such That declaration did
by its operation vest the property Of tho enemy
in the government TO support Judicial proceedings for
its and confiscation 1t vested only right to
hscue the assertion OF which depended the will Of the
sovereign power In regard to the transfer OF private
rights Of property, Wheaton holds, this further Ian
guago-ssIt competent for tho national authority to
work transmutaton total or partial Of the property
belonging the vanquished party and II actually conls
Gated the fact must be taken for right But TO work
such transfer Of proprietary rights, some positive
| and unequvoca act Of cennscation is essential"
Most OF the nations Of Europe acquired title to territory
they possess conqneSs and private persons have de-
rived their titles from that Of the government thus OBJ
tancd According the modern usage of natiors pr
vatc property alien enemies land has generally
been orfeitei but the right Of forfeiture is unques
tionable and may be exercised IL necessary
the lust ends of the war; in retaliation for forfeures
by the enemy. The rebels wherever they have til,
power seized and conscated the property Of loyal
men and this, according even TO modern usage as be
tween nations would give to the United States
the right confscatc in turn. Much would they
possess that right against rebels who have causeessy
taken up arms against the government. Tie right to
free the slaves Of lchcs would be equally clear with that
conscate their property generally for it as property
that they profess hod them; but of the most
efficient means for attaining the end for which tho armies
OF the Union been called FORTH the right to
to them tho God given liberty Of which they have been
uuus;y deprived is doubly clear II only remains to in
auire whether, in making Of lawful means to crush
this wicked rebellion, 1t is policy to conilscate the
property Of rebels, and take from thcm the sup.
uort Of unrcanited labor Can there be a question
on this point9 Who does not know that trea-
son has not gained strength by the leniency with
which ii has been treated? We have daled with
il quite too long already Instead Of being looked upon
the worst Of crimes, really IS It has to be
garded trivial offence to be atoned for by promise
to do so 10 The dospoilers Of loyal citizens the
conspraors against the peace Of nation the punderes
OF the public property tho assassins Of liberty when
they have fallen into hands have been suffered to
care on taking oath Of allegiance which many have
not scruped to violate the first opportunity Thousands
OF industrious and cnerrrsng have been ruined by
4 ,iS oballtO Mproth m