New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-04-19

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munioipal regulations only, there would b
force "a the1 objection tkat Congress haa
diaregaxded the festrictioqs u the fifth and
sixth amendments Of the consultation.
Those restrictions, 20 tar ~ material to tho
argument, are, that NO person shall be held
to answer for capital or otherwise infam-
GUS crime unless on presentment or in
dictment Of grand jury; that no person
shall be deprived Of his property without
due process Of law, and that in all criminal
prosecutions the accused shall enjoy the
partial jury Of the State and district
wherein the crime shall have been COM
mitted. But if the assumption Of the plain
tiff in error is not we'll made, if the statutes
were not enacted under the municipal
power Of Congress to legislate for the pm
ishment Of crimes against the sovereignty
Of the United States, if, ON the contrary,
they ale an exercise of the war powers Of
the government, it is clear they are not
affected BY the restrictions Imposed bv the
fifth and sixth amendments. This we un.
derstand to have been conceded in the argu-
ment. The question, therefore. is whether
the action OF Congress was q legitimate cx-
ercise OF the war power. The constitution
cOnfers upon Congress expressly power to
declare war, grant letters Of maraue and
reprisal, and make rules respecting cap
lures on land and water. Upon the exer-
else of these powers no restrictions are inn
posed. Of course the power to declare war
involves the power to prosecute il by all
nun II
may be legitimately prosecuted. 1t there
fore includes the right to seize and confis-
cate all property of an enemy, and to dis
pose of it at the will of the captOr. This is
and always has been IN undcubted bellig-
erent ight. ii there were any uncertainty
respecting the existence of such q right it
would be set at rest by tho express grant of
power to make rules respecting captures on
land and water. 1t is argued that though
there are no express constitutional restric-
tions upon the power Of Congress to declare
and prosecute war, or to make rules
respecting captures on land and water,
there are restrictions implied in the nature
of the powers themselves. Hence it is said
the power to prosecute war is only power
to prosecute it according to the law of
nations, and power to make rules re&0ect-
ing captures is power to make such rules
only as are within the laws of nations.
Whether this Ia 50 or not we do not care to
inquire, for it is mot Necessary to the pres
ent case. It is sufficient that the right to
cOnfiscate the property Of oil public enc
mics is a conceded right. Now, what is
that right, and why is it allowed! 1t may
be remarked that it has no reference what
ever to the personal guilt Of the owner of
cOnfiscated property, and the act of confis-
cation is not q proceeding against him.
The confiscatiOn is not because of
crime, but because of the relation
Of the property. to the opposing bel:
hgerent, relation in which it
has been brought in consequence Of its
the owner be an alien or. . friend, or even
a citizon or subject Of the power that at
tempts I'd appropriate the property. Venus,
8 Cranch, 1881 In either case the property
may be liable to con6scation under the
rules of war. 1t is certainly enough to
warrant the exercise of this belligerent
right that the owner be resident Ut the
enemy's country, no matter what his
nationality. The whole doctrine of confis-
cation is built upon the foundation that it
is an instrument Of coercion, which, by de
OF his power, whether within his territory
or without it, impairs his ability to resist
the cOnfiscating government, while at the
same time it furnishes to that government
means for carrying on the war. Hence any
property which the enemy can use, either
by actual appropriation or by the exercise
of control over its owner, or which the ad.
herents Of the enemy have the power Of de-
voting to the enemy's use, is proper sub
ject Of c0nfscation.
1t is s.lso to be observed that when the
acts of 1861 and 1862 were passed, there
was state Of war existing between the
tod S<o<u III
the country. Whether its beginning was
on the twenty-seventh or the thirtieth Of
April, 1861, or whether it was not until the
act of Congress Of July 13, of that year, is
unimpOrtant to this case, for both acts were
passed after the existence of war was alike
an actual and q recognized fact. prize
cases, 2 Black, $751; War existing, the
United States were invested with belliger-
emit rights in addition to the sovereign pow
ers previously held. Congress had then
full power to provide for the seizure and
enemy or adherents of the enemy could
uoe for the purpose of maintaining the war
against the government. It is true the war
was not between tive independent nations.
But because q civil war, the government
was not shOrn of any of those rights that
belong to belligerency. Mr.. Wheaton, in
his work on international law (see 1861, as
sertS the doctrine 10 be that the general
usage of nations regards such a war as
emitting both the contenling parties to all
the rights Of war as against each other,
and even as it respects neutral nations"
1t would be absurd to hold that, while in a
foreign war enemies property may be cap
tured and confiscated as means of bring
ing the struggle to successful completion,
in q civil war of equal dimensions, requir-
ing quite as urgently the employment Of all
means to- weaken the belligerent in arms
against the government, the right to confis-
cate the property that may strengthen such
belligerent does not exist. There is no such
distinction to be made. Every reason for
the allowance Of right to confiscate in
case of foreign wars exists in full force
when, the war is domestic or CIVIL 1t il,
however, unnecessary to pursue this branch
Of the subject further. In the Amy War
wick, 2Sprague, 122, and in the prize cases,
2 Black, it was decided that in the war of
the rebellion the United States sustained
the double character Of belligerent and
sovereign, and had the rights of both.
Rose vs.. Himely, A Cranch, 272; Cherriot
vs: Toussat, Bin, 252; Dobire vs.. Napier,
Scott, 225; Santissima Trinidad, Wheat,
JOG; United States va Palmer z Wal 635