, 1862-04-09

that the clanse Of the Constitution limiting II
Fun1sament Tor treason can have no more al
p1cation 10 the conflscation Of the property
person who cannot be arrested and tried it
Lreason than, has the punishment prescribe
cenv.
The Senator from Pennsylvania further Of
Jects to the costitutiona1ity Of the bill
- ~: By ne afth amendment to the Constitution
"'Eo peraon shall be held to ansge. for a can
tai or otherwise Infamous crime, unless on rT,
sentiment or Indictment Of grand jury. except /
cascs arising in the land or naval forces or IL t
pull lie Ganger: nor shall any person be subject. ia
rhe same ofenBe. to be tn Ice put in Jeopardy {
lls Or limb; nor eha1l be compelled IN any crimi
i na1 case to ba WitDeEs against h1mEel{: nor h
deprived Of life, liberty Of properly, without dp
p1ocess Of law nor shall private property Be take
fos PhbG re wIsnoqt ust
peEsous Of all their estates and property. Eithuu
my arrest, VII h4,ut any prcsentnent 81 81 % sran,
H Tf1t sb3 1s aay 81 # s5a ss Rstt a x6e
to deprive them Of their property In tie very fac
Of the pr9yieion requiring that It shan only 3.
tators and ali lawyers agree menus p1oceedinas ac
eofc1ng 70 tho eourae: Of the common law
II viii be observed that the fifth amend
mcht throws the eame and even stronger safe
guards around the life and liberty Of person
/ tAASottA l1S property 10E LuE
doubtless, that life and liberty are more y:llu
able than property. Ii, then, 1t is unconst;tu
| Eonul " to deprive large class of pcrsonb d
~ Their estates and property without any
9r1est, without any prcscntment By q grand
@uly, without any trial by petit jury, without,
indeed, any t1fal ut all in any court,' is it no|
| equally unconstitutional to dep1ive them oj
!lie or liberty except by " due process ofLT .;
Is it then unconstitutional to shoot and take
| prisoners the rebels on the battle field? Are
| Ine Pa1I1ohe soldiers who do it murderers ?
| eene. Moula 1ae senator from Pennsylvania have a
petit jury on the field Of battle OF each Derson
IN tue enemy's ranks who was firing upon ouF
soldiers, in order that he might not be shot
ano deprived Of life in the very facc Of the pro-
VISION requiring that it shall onIG be done
- by due process OF law, which all cornment1-
tors and Al lawyers agree means proceedines
according to the course Of the common law ",
1s IL not clear that If VIC cannot take the nror-
erty Ct our enemies in war except "by due
process of law" neither can nc take their
HIVES in any other way?
What is the answer to all this? How IT
IN the face OF the fifth amendment, that Con.
gross may provide for taking the lives and
property OF rebels without q due process Of
IL" :: The answer is to be found In the
Erants grants Of power ia other paris Of the Consti-
tutlon, Which declare that Congress shall have
power to declare war; and "make rules
concerning captures on land and #ater;'' Nto
raise and support armies - to provide and
MAINTAIN navy; to make rules for the gov
srnment and regulation Of the land and naval
forces; to provide for calling forth the militia
to execute the laws Of the Union. suppress
insurrectlons, and repel inrasions, and
"to make all laws which shall be- neces-
Ea1y and proper for Carrying into execution
thc foregoing powers" These provisions of
me Constitution do lot mean that Congress
may raise armies and call forth the militia to
SQDDrEEE j1Gl1rrnrfipI1
O. the common law" but to put it down by
iorce and violence 1t is because the peacI.
can1ot be preserved, tho enemy overcome
and t1e rebellion suppressed by proceedings
accoIqng to the course Of the common law,
that the army is called into being, and when
20 called into being it operates, 10. ACCORDING
10 the course OF the common law, but accord
1pg 10 the usage Of armies engaged in war in
deaLng with their enemies. Hence the au.
thor1ty o. the army By violence to deprive an
enemy OF h1c, liberty and property in time Of
4 person OF either bT due process Of law ia
tlthe o1 peace, Tor the reason that it is BY
1orce and violence that armies overcome their
enenles; and when the Constitution conferred
on congress the power to raise and support
ailhles, y conferred, also, as incident to that
power, the authority to use them in the man
ner lhat armies are accustomed to operate,
The Senator from PENNSYLVANIA and nv col-
ltague further object that this bill is obnox-
lous to the clause Of the Constitution which
aeclafe5 that no bill Of attainder or en- poste
Penns, lyania admits that the bill is not within
me letter Of the Constitution, but thinks it
within its spirit. by colleague, less ibera1
ara without, as l think, his usual fairness and
eonaor N the argument OF a question disposes
q the bill in single sentence by saying, uI
nen5Ee 1t Is not denied that this is bill OF at
lalnocr within the meaning Of the Coustitu-
t7on." Is my colleague so uncharitablc as to
suFTose would advocate measure which I
pf}lt " unconstitutional T. who have declar-
GO y IN my place during the present session that
want no Other authority for putting down
5. teen 1hls gigantic rebellion than such as may
pc derived from the Constitution, properly IN
te1pr.ted'" that :. while fighting this battle in
EeEaE1 OF constitutional liberty. it behooFes ns
especially to see to it that the Constitution
Irecelyts no dctsimcnt At our hands - and who
aase tia warned my eountrymen u not to sane
tion asu1palon OF poTtr which may hereafter
become pIeceden1s for the destruction uf con
stltuIone1 liberty 81
no, sir, If / admitted tlis to be a bill Of at
tolndcr, it would Of course be au admission
that it would be unconstitutional, aud it could
noI ,eor Io1 moment receive my support The re-
one ccnied that thfs is a bill Of attuindcr.', is
still the more remarkable, when taken in I
consection with what said iu explanation Of |
tie lle bill When it was reported to the Senate.
HIS WIS my language: |
'Seme have objected to the constitutional no7r-
It i not bill Of atander at ali; It does moi car
fupt the blood Of the party but is bill! as said
tbne1aTg tbns nifgga eRon property The Court
Of Brown rs The tinted statesWheb rcferaad ras
% % On formes occaslon-that Congress has author-
~ 10 Pass an act Of confscation, and If Congress
ny, the act Of confecation must be something i7if
from bill of attainder because the Con
ier ab Be- declares that no bill OF attain
How, with this statement on the records of
-he senate, made st the time the bill was re-
9or1ed Tor it's consideration, my colleague
;olld say that be believed it Was not denied,
nat this Is bill Of attainder,'' can only be &C.
;ouoted Ter on the supposition that in lis con
laence N bis own opinion he did not take the
io9ole to inquire What others had admitted
u cenied The only authority referred to iy
NJ Senator for denominatiar this a hij1 of
''alnderi fcrlark Of Chief Justice Marshall,
nc'le ntal!y made, by way of illustration ID
,.e h case o. Eletcher 7s Peck, Is Cranch, wheu
'eforc hin. in which he said, "a bill Of
atalnder may affect the life Of an indiyii-
'aJ, nr may conhecatc his property or
'oth.' Story and Kent both Qf1ote this
emark OF Judge Marshall in their comuent.
TIC TICS put this reiteration Of an obiter die
as an authority. To this Incidental rcmark
! duoge Marshall, made in case in which the
over 10 pass bills OF attainder, or what thew
'eIe, was not involved, oppose the solemn |
ef1saoh iha o. N nc same Judge At later period,
ranch, in which he held that it vas comm.
cnt lcr Congress to pass a confiscation acf
ne 1orce OF this authority caunot be avoided
y sas ipg that Judge Marshall was deciding
Fon Tue right to condscatc the property of 8
fgrt,gn : aGts seneny when be declared the power
COTHEH3?jnOr !