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ments, and of the tendency of rival factions in republics to seek revenge on each other, that the convention which framed the constitution, having given no power to the judiciary, like that possessed by English judges, to make constructive crimes, introduced several provisions limiting the power of Congress to define and punish the political crime of treason, as well as other offences.

The various clauses in the constitution relating to this subject, in order to a clear exposition of their meaning, should be taken together as parts of our system.

## ATTAINDER AND EX POST FACTO LAWS.

The first and most important limitation of the power of Congress is found in Art. I. Sect. 9: "No bill of attainder, or ex post facto law, shall be passed." By prohibiting bills of attainder, no subject could be made a criminal, or be deprived of life, liberty, or property, by mere act of legislation, without trial or conviction. The power to enact ex post facto laws having been withheld, Congress could not pass "a statute which would render an act punishable in a manner in which it was not punishable when it was committed." No man's life could be taken, his liberty abridged, nor his estate, nor any part of it, seized for an act which had not, previously to the commission thereof, been declared by some law as a crime, and the manner and extent of punishment prescribed.* Hence no law of Congress can make that deed a crime which was not so before the deed was done. Every man may know what are the

* See Fletcher v. Peck, 6 Cranch, 133.

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CONSTITUTION OF THE UNITED STATES.

laws to which he is amenable in time of peace by read-
ing the statutes. There can be no retrospective crimi-
nal legislation by any State, or by the United States.

TREASON DEFINED BY STATUTE.

These points having been secured, the next step was
to *define* the CRIME OF TREASON. Countless difficulties and
dangers were avoided by selecting from the English
statutes *one crime only*, which should be deemed to con-
stitute that offence.

The constitution provides that, "Treason against the
United States shall consist only in levying war against
them, or in adhering to their enemies, giving them aid
and comfort."* Hence many acts are not treasonable
which were so considered according to the law of Eng-
land, and of the colonies and States of this country.
Each State still retains the power to define and punish
treason against itself in its own way.

Nothing but *overt acts* are treasonable by the laws of
the United States; and these overt acts must be overt
acts of war.† These acts must be proved either by
confession in open court, or by two witnesses to the
same act. ‡ Our ancestors took care that no one
should be convicted of this infamous crime, unless his
guilt is made certain. So odious was the offence
that even a senator or representative could be arrested
on *suspicion* of it. § All civil officers were to be removed
from office on impeachment and conviction thereof. ||
And a person charged with treason against a State, and
fleeing from that State to another, was to be delivered

* Art. III. Sect. 3.

§ Art. I. Sect. 6.

† Ibid.

|| Art. II. Sect. 4.

‡ Ibid.

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up, on demand, to the State having jurisdiction.* The crime being defined, and the nature of the testimony to establish it being prescribed, and conviction being possible only in "open court," the constitution then provides, — that "Congress shall have power to declare the *punishment* of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."†

CONGRESS HAVE UNLIMITED POWER TO DECLARE THE PUNISHMENT OF TREASON.

By this article, the constitution has in express terms given to Congress the power to declare the *punishment* of treason; and the nature and extent of the punishment which they may declare are not limited. Congress may impose the penalty of fine, or imprisonment, or outlawry, or banishment, or forfeiture, or death, or of death and forfeiture of property, personal and real. Congress might have added to all these punishments the more terrible penalty which followed, as a consequence of attainder of treason, under the law of England, had the constitution not limited the effect and operation of that species of attainder.

A COMMON ERROR.

Some writers have supposed that this article in the constitution, which qualifies the *effect* of an attainder of treason, was a *limitation* of the power of Congress to declare the *punishment* of treason. This is an error. A careful examination of the language used in the in-

* Constitution, Art. IV. Sect. 6.

† Art. III. Sect. 3.

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strument itself, and of the history of the English law
of attainder, will make it evident that the framers of
the constitution, in drafting Sect. 3 of Art. III. did not
design to restrain Congress from declaring against the
traitor himself, his person or estate, such penalties
as it might deem sufficient to atone for the highest of
crimes.

Whenever a person had committed high treason in
England, and had been duly indicted, tried, and con-
victed, and when final judgment of guilty, and sentence
of death or outlawry, had been pronounced upon him,
the immediate and inseparable consequence, by com-
mon law, of the sentence of death or outlawry of the
offender for treason, and for certain other felonies, was
attainder. Attainder means, in its original application,
the staining or corruption of the blood of a criminal
who was in the contemplation of law dead. He then
became *attinctus* — stained, blackened, attainted.”

CONSEQUENCES OF ATTAINDER.

Certain legal results followed from attainder, among
which are the following: The convict was no longer of
any credit or reputation. He could not be a witness
in any court. He was not capable of performing the
legal functions of any other man; his power to sell or
transfer his lands and personal estate ceased. By anti-
cipation of his punishment he was already dead in law,*
except when the fiction of the law would protect him
from some liability to others which he had the power
to discharge. It is true that the attainted felon could
not be murdered with impunity,† but the law preserved

• 3 Inst. 213.

† Foster, 73.

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99

his physical existence only to vindicate its own majesty,
and to inflict upon the offender an ignominious death.

CORRUPTION OF BLOOD.

Among the most important consequences of *attainder*
of *felony*, were those resulting from "corruption of blood,"
which is the essence of attainder.* Blackstone says,†—

"Another immediate consequence of attainder is the corruption of
blood, both upwards and downwards; so that an attainted person can
neither inherit lands or other hereditaments from his ancestors, nor
retain those he is already in possession of, nor transmit them by descent
to any heir; but the same shall escheat to the lord of the fee, subject
to the king's superior right of forfeiture; and the person attainted
shall also obstruct all descents to his posterity whenever they are
obliged to derive a title through him, to a remote ancestor."

The distinctions between escheat and forfeiture it is
not necessary now to state, † because, whether the for-
feiture enured to the benefit of the lord or of the king,
the effect was the same upon the estate of the criminal. §
By this legal fiction of *corruption of blood*, the offender
was deprived of all his estate, personal and real; his
children or other heirs could not inherit any thing from
him, nor through him from any of his ancestors. "If
a father be seized in fee, and the son commits treason
and is attainted, and then the father dies, then the
lands shall escheat to the lord." ||

SAVAGE CRUELTY OF ENGLISH LAW.

By the English system of escheats to the lord and
forfeitures to the king, the innocent relatives of the
offender were punished, upon the theory that it was

• See Co. Litt. 391.

† 4 Com. b. 388.

‡ See Co. Litt. 13.

§ Co. Litt. p. 391. Bla. Com. Vol. II. p. 254

|| Co. Litt. p. 13.

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the duty of every family to secure the loyalty of all its
members to the sovereign; and upon failure to do so,
the whole family should be plunged into lasting dis-
grace and poverty. A punishment which might con-
tinue for twenty generations, was indeed inhuman, and
received, as it merited, the condemnation of liberal men
in all countries; * but aristocratic influence in England
had for centuries resisted the absolute and final aban-
donment of these odious penalties. The framers of
the constitution have deprived Congress of the power
of passing bills of attainder. They might have pro-
vided that no person convicted of treason should be
held to be attainted, or be liable to suffer any of the
common law penalties which resulted from attainder,
but only such penalties as Congress should prescribe
by statute. They have, however, not in terms, abolished
attainders, but have modified their effect, by declaring
that attainder shall not work corruption of blood.

FORFEITURES.

By the law of England, forfeiture of estates was also
one of the necessary legal consequences of attainder of
felony. Real estate was forfeited upon attainder, per-
sonal estate upon conviction before attainder. By
these forfeitures all the property, rights, and claims, of
every name and nature, went to the lord or the king.
But forfeiture of lands related back to the time when
the felony was committed, so as to avoid all subsequent
sales and encumbrances, but forfeiture of goods took
effect at the date of conviction, so that sales of person-
al property, prior to that time, were valid, unless col-

* See 4 Bla. Com. p. 388.

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101

lusive.* The estates thus forfeited were not mere estates for life, but the whole interest of the felon, whatever it might be. Thus forfeiture of property was a consequence of attainder; attainder was a consequence of the sentence of death or outlawry; and these penal consequences of attainder were over and above, and in addition to, the penalties expressed in the terms of the judgment and sentence of the court.† The punishment, and in many instances the only punishment, to which the sentence of the court condemned the prisoner, was death or outlawry. The disabilities which resulted from that sentence were like the disabilities which in other cases result from the sentence of a criminal for infamous crimes. Disability to testify in courts, or to hold offices of trust and honor, sometimes follows, not as part of the punishment prescribed for the offence, but as a consequence of the condition to which the criminal has reduced himself.

There is a clear distinction between the punishment of treason by specific penalties and those consequential damages and injuries which follow by common law as the result or technical effect of a sentence of death or outlawry for treason, viz., attainder of treason, and corruption of blood and forfeiture of estates.‡ To set this subject in a clearer light, the learned reader will recollect that there were different kinds of attainder:

* See Stat. 13 Eliz. ch. 5; 2 B. & A. 258; 2 Hawkins's P. C. 454; 3 Ins. 232; 4 Bla. 387; Co. Litt. 391, b.

† See 2 Greenleaf's Cruise on Real Property, p. 145, and note; 2 Kent, 386; 1 Greenleaf's Cruise, p. 71, sect. 1, and note.

‡ There is a provision in the new constitution of Maryland, (1851,) that "no conviction shall work corruption of blood or forfeiture of estate." (Decl. of Rights, Art. 24.) The constitution of Ohio (1851) contains the same words in the 12th sect. of the Decl. of Rights. The constitutions of

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1. Attainders in a præmunire; in which, "from the conviction, the defendant shall be out of the king's protection, his lands, tenements, goods, and chattels forfeited to the king, and his body remain in prison during the king's pleasure, or during life."* But the offences punishable under the statutes of præmunire were not felonies, for the latter are punishable only by common law, and not by statute.† 2. Attainder by bill. 3. Attainders of FELONY and treason; and the important distinction between attainders in treason and attainders in præmunire is this: that in the former the forfeitures are consequences of the judgment, in the latter they are part of the judgment and penalty. Blackstone‡ recognizes fully this distinction. "I here omit the particular forfeitures created by the statutes of præmunire and others, because I look upon them rather as a part of the judgment and penalty inflicted by the respective statutes, than as consequences of such judgment, as in treason and felony they are." Lord Coke expresses the

Kentucky, Delaware, and Pennsylvania declare that attainder of treason shall not work forfeiture beyond the lifetime of the offender. In Alabama, Connecticut, Indiana, Illinois, Maine, Missouri, New Jersey, Rhode Island, and Tennessee, all forfeitures for crime are abolished, either by statutes or constitutions.

"In New Hampshire, Massachusetts, Virginia, Georgia, Michigan, Mississippi, and Arkansas, there are statutes providing specifically for the punishment of treason and felonies; but no mention is made of corruption of blood or forfeiture of estate; and inasmuch as these offences are explicitly legislated upon, and a particular punishment provided in each case, it may be gravely doubted whether the additional common law punishment of forfeiture of estate ought not to be considered as repealed by implication." 1 Greenleaf's Cruise Dig. 196, note.

† 1 Inst. 129; 3 Bla. p. 118; and for the severity of the penalties, see 1 Hawk. P. C. 55.

† 4 Bla. 118.

‡ 4 Com. p. 386.

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same opinion.* And statutes of præmunire and attainders of treason are both different in law from bills of pains and penalties; of which English history affords, among many other examples, that against the Bishop of Rochester;† in the latter the pains and penalties are all expressly declared by statute, and not left as consequences of judgment. That clause in the constitution which gives power to Congress to make laws for the punishment of treason, limits and qualifies the effect of attainder of treason, in case such attainder should be deemed by the courts as a legal consequence of such sentence as the statute requires the court to impose on traitors. This limitation applies, in terms, only to the effect of attainders of treason.

CHARACTERISTICS OF ATTAINDER OF TREASON.

There is no attainder of treason known to the law of England, unless, 1. The judgment of death or outlawry has been pronounced against the traitor. ‡ 2. Where the crime was a felony, and punishable according to common law; § and, 3. Where the attainder was a consequence of the judgment, and not part of the judgment and penalty. || Congress may pass a law condemning every traitor to death, and to the consequential punishment of "attainder;" but such attainder will not of itself operate to corrupt blood or forfeit estate, except during the life of the offender. But unless Congress pass a law expressly attainting the criminal of

* Co. Litt. 391, b.

‡ 4 Bla. 387.

|| Ib.; Co. Litt. 391, b.; 4 Bla. 386.

† Stat. 9 Geo. I. ch. 17.

§ 4 Bla. 387.

104

treason, there is not, under the laws of the United
States, any "attainder." The criminal laws of the
United States are all embraced in specific statutes, de-
fining crimes and all their penalties. No consequential
penalties of this character are known to this law. And
if a person is convicted and sentenced to death for
treason, there can be no corruption of blood, nor for-
feiture of estate except by express terms of the statute.
The leading principles of the constitution forbid the
making of laws which should leave the penalty of
crime to be determined by ancient or antiquated com-
mon law proceedings of English courts. Forfeiture of
estate, by express terms of statute, may be in the nature
of forfeiture by a bill of pains and penalties, or præmu-
nire, but is not forfeiture by attainder; nor is it such
forfeiture as is within the sense of the constitution,
which limits the operation of attainders of treason.
This distinction was well known to the framers of the
constitution. They thought it best to guard against
the danger of those constructive and consequential
punishments, giving full power to Congress, in plain
terms, to prescribe by statute what punishment they
should select; but in case of resort to attainder of
treason, as one of those punishments, that form of pun-
ishment should not be so construed as, ex vi termini, to
corrupt blood nor forfeit estate except during the life
of the person attainted.

TECHNICAL LANGUAGE TO BE CONSTRUED TECHNICALLY.

The language of the constitution is peculiar; it is
technical; and it shows on the face of it an intention
to limit the technical operation of attainders, not to
limit the scope or extent of legislative penalties. If

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105

the authors of the constitution meant to say that Con-
gress should pass no law punishing treason by attainder,
or by its consequences, viz., forfeiture of estate, or cor-
ruption of blood, they would, in plain terms, have said
so; and there would have been an end to the penalties
of attainder, as there was an end to bills of attainder.
Instead of saying, "Congress shall have power to de-
clare the punishment of treason, but shall not impose
the penalties of attainder upon the offender," they
said, "Congress shall have power to declare the punish-
ment of treason, but no attainder of treason shall work
corruption of blood, or forfeiture, except during the
life of the person attainted."

This phraseology has reference only to the technical
effect of attainder. The "working of forfeitures". is a
phrase used by lawyers to show the legal result or effect
which arises from a certain state of facts. If a traitor
is convicted, judgment of death is passed upon him;
by that judgment he becomes attainted. Attainder
works forfeitures and corruption of blood; forfeitures
and corruption of blood are, in the ordinary course of
common law, followed by certain results to his rights
of property. But the constitution provides, if the
traitor is attainted, that attainder shall not, ex vi termini,
and of its own force, and without statute to that effect,
"work" forfeiture or corruption of blood. The con-
vict may still retain all those civil rights of which he
has not been deprived by the strict terms of the statute
which shall declare the punishment of treason.

The punishment of treason, by the statute of the
United States of April 30, 1790, is death, and nothing
more. Can any case be found, since the statute was
enacted, in which a party convicted and adjudged guilty

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106

of treason and sentenced to death, has been held to be "attainted" of treason, so that the attainder has worked forfeiture of any of his estate, real or personal? Would not any lawyer feel astonishment if a court of the United States, having sentenced a traitor to death under the law of 1790, should announce as a further penalty the forfeiture of the real and personal estate of the offender, "worked" by the attainder of felony, notwithstanding no such penalty is mentioned in that statute?

If Congress should pass an act punishing a traitor by a fine of five dollars, and imprisonment for five years, who would not feel amazed to learn that by the English doctrine of forfeitures worked by attainders, by operation of law, the criminal might be stripped of property worth thousands of dollars, over and above the penalty prescribed by statute?

TRUE MEANING OF ART. III. SECT. III. CL. II.

The constitution means that if traitors shall be attainted, unlimited forfeitures and corruption of blood shall not be worked by attainders. It means to leave untrammelled the power of Congress to cause traitors to be attainted or otherwise; but if attainted Congress must provide by statute for the attainder; and the constitution settles how far that attainder shall operate constitutionally; and when the legislature has awarded one punishment for treason, the law shall not evoke the doctrine of forfeitures worked by attainder, and thus, by technical implication, add punishments not specifically set down in the penal statute itself; or if this implication exist, the results of the technical effect of attainder shall not be corruption of blood, or forfeiture,

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except during the life of the offender. The third article does not limit the power of Congress to punish, but it limits the technical consequences of a special kind of punishment, which may or may not be adopted in the statutes.

From the foregoing remarks it is obvious that no person is attainted of treason, in the technical sense, who is convicted under the United States act of 1790. There can be no attainder of treason, within the meaning of the constitution, unless there be, first, a judgment of death, or outlawry; second, a penalty of attainder by express terms of the statute. A mere conviction of treason and sentence of death, or outlawry, and forfeitures of real and personal estate, do not constitute an attainder in form, in substance, nor in effect, when made under any of the present statutes of the United States.

IF CONGRESS MAY IMPOSE FINES, WHY NOT FORFEITURES?

No one doubts the power of Congress to make treason punishable with death, or by fines to any amount whatever. Nor would any reasonable person deem any fine too large to atone for the crime of involving one's own country in civil war. If the constitution placed in Congress the power to take life, and to take property of the offender in one form, why should it deny the power to take property in any other form? If the framers of the constitution were willing that a traitor should forfeit his life, how could they have intended to shelter his property? Was property, in their opinion, more sacred than life? Would all the property of rebels forfeited to the treasury of the country repair the injury of civil war?

108

FORFEITURES NOT LIMITED TO LIFE ESTATES.

Could the lawyers who drafted the constitution have intended to limit the pecuniary punishment of forfeiture to a life interest in personal estate, when every lawyer in the convention must have known than at common law there was no such thing as a life estate in personal property? Knowing this, did they mean to protect traitors, under all circumstances, in the enjoyment of personal property? If so, why did they not say so? If they meant to prevent Congress from passing any law that should deprive traitors of more than a life estate in real estate, the result would be, that the criminal would lose only the enjoyment of his lands for a few days or weeks, from the date of the judgment to the date of his execution, and then his lands would go to his heirs. Thus it is evident, that if the constitution cuts off the power of Congress to punish treason, and limits it to such forfeitures as are the consequence of attainder, and then cuts off from attainder its penal consequences of corruption of blood and forfeiture of estate, except during the life of the offender, then the framers of that instrument have effectually protected the personal and real estate of traitors, and have taken more care to secure them from the consequences of their crime than any other class of citizens. If so, they have authorized far more severity against many other felons than against them. If such were the purpose of the authors of the constitution, they would have taken direct and plain language to say what they meant. They would have said, "Congress may punish treason, but shall not deprive traitors of real or personal property, except for the time which may elapse between sentence of death and execution." Instead

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109

of such a provision, they gave full power to punish treason, including fines, absolute forfeitures, death, and attainder, only limiting the technical effect of the last-mentioned penalty, if that form of punishment should be adopted; and Congress has the power, under the constitution, to declare as the penalty for treason the forfeiture of all the real and personal estate of the offender, and is not limited, as has been supposed by some, to a forfeiture of real estate for life only.

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## CHAPTER VI.

### STATUTES AGAINST TREASONS. WHAT THEY ARE, AND HOW THEY ARE TO BE ADMINISTERED.

The United States statute of April 30th, 1790, provides that,—

> "If any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort, within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged *guilty of treason* against the United States, and *shall suffer death*."

Concealment of knowledge of treason (misprision of treason) is, by the same act, punished by fine not exceeding one thousand dollars, and imprisonment not exceeding seven years. By the statute of January 30th, 1799, corresponding with foreign governments, or with any officer or agent thereof, with intent to influence their controversies with the United States, or to defeat the measures of this government, is declared to be a high misdemeanor, though not called treason, and is punishable by fine not exceeding five thousand dollars, and imprisonment during a term not less than six months, nor exceeding three years. So the law has stood during this century, until the breaking out of the present rebellion.

The chief provisions of the law passed at the last session of Congress, and approved July 17th, 1862, are these:—

STATUTES AGAINST TREASON.

111

Section 1. Persons committing treason shall suffer one of two punishments: 1. Either death, and freedom to his slaves; or, 2. Imprisonment not less than five years, fine not less than ten thousand dollars, and freedom of slaves; the fine to be collected out of any personal or real estate except slaves.

Sect. 2. Inciting rebellion, or engaging in it, or aiding those who do so, is punishable by imprisonment not more than ten years, fine not more than ten thousand dollars, and liberation of slaves.

Sect. 3 disqualifies convicts, under the preceding sections, from holding office under the United States.

Sect. 4 provides that former laws against treason shall not be suspended as against any traitor, unless he shall have been convicted under this act.

Sect. 5 makes it the duty of the President to cause the seizure of all the property, real and personal, of several classes of persons, and to apply the same to the support of the army, namely: 1. Rebel army and navy officers; 2. Government officers of Confederate States in their national capacity; 3. Confederate State officers; 4. United States officers turned traitor officers; 5. Any one holding any office or agency, national, state, or municipal, under the rebel government, provided persons enumerated in classes 3, 4, and 5 have accepted office since secession of the State, or have taken oath of allegiance to support the Confederate States; 6. Persons who, owning property in loyal States, in the territories, or in the District of Columbia, shall hereafter assist, aid, or comfort such rebellion. All transfers of property so owned shall be null, and suits for it by such persons shall be barred by proving that they are within the terms of this act.

112

Sect. 6. Any persons within the United States, not above named, who are engaged in armed rebellion, or aiding and abetting it, who shall not, within sixty days after proclamation by the President, "cease to aid, countenance, and abet said rebellion," shall be liable to have all their property, personal and real, seized by the President, whose duty it shall be to seize and use it, or the proceeds thereof. All transfers of such property, made more than sixty days after the proclamation, are declared null.

Sect. 7. To secure the condemnation and sale of seized property, so as to make it available, proceedings in rem shall be instituted in the name of the United States, in any District Court thereof, or in any territorial court, or in the United States District Court for the District of Columbia, within which district or territory the property, or any part of it, may be found, or into which, if movable, it may first be brought. Proceedings are to conform to those in admiralty or revenue cases. Condemnation shall be as of enemy's property, and it shall belong to the United States; the proceeds thereof to be paid into the treasury.

Sect. 8. Proper powers are given to the courts to carry the above proceedings into effect, and to establish legal forms and processes and modes of transferring condemned property.

Sect. 9. Slaves of rebels, or of those aiding them, escaping and taking refuge within the lines of our army; slaves captured from them; slaves deserted by them, and coming under the control of the United States government; slaves found in places occupied by rebel forces, and afterwards occupied by the United States army, shall be deemed captives of war, and shall be forever free.

Sect. 10. No fugitive slave shall be returned to a

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113

person claiming him, nor restrained of his liberty, except
for crime, or offence against law, unless the claimant
swears that the person claiming the slave is his lawful
owner, has not joined the rebellion, nor given aid to
it. No officer or soldier of the United States shall sur-
render fugitive slaves.

Sect. 11. The President may employ, organize, and
use as many persons of African descent as he pleases
to suppress the rebellion, and use them as he judges
for the public welfare.

Sect. 12. The President may make provisions for
colonizing such persons as may choose to emigrate, after
they shall have been freed by this act.

Sect. 13. The President is authorized by proclamation to pardon any persons engaged in the rebellion, on such terms as he deems expedient.

Sect. 14. Courts of the United States have full powers to institute proceedings, make orders, &c., to carry the foregoing measures into effect.

A resolution, explanatory of the above act, declares
that the statute punishes no act done prior to its passage; and no judge or member of a State legislature, who has not taken the oath of allegiance to support the constitution of the Confederate States; nor shall any punishment or proceedings be so construed as to "work forfeiture of the real estate of the offender beyond his natural life."

The President's proclamation, in accordance with the
above act, was issued July 25th, 1862. Thus all persons engaged in the rebellion, who come within the provisions of the sixth section, will be liable to the penalties after sixty days from July 25th. This is one of the most important penal acts ever passed by the Congress of the United States.

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114

THE CONFISCATION ACT OF 1862 IS NOT A BILL OF ATTAINDER, NOR AN EX POST FACTO LAW.

This act is not a *bill of attainder*, because it does not punish the offender in any instance with corruption of blood, and it does not declare him, *by act of legislature*, guilty of treason, inasmuch as the offender's guilt must be duly proved and established by judicial proceedings before he can be sentenced. It is not an *ex post facto* law, as it declares no act committed prior to the time when the law goes into operation to be a crime, or to be punishable as such. It provides for no *attainder* of treason, and therefore for none of the penal consequences which might otherwise have followed from such attainder.

The resolution, which is to be taken as part of the act, or as explanatory of it, expressly provides that no punishment or proceedings under said act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. Thus, to prevent our courts from construing the sentence of death, under Sect. 1, as involving an attainder of treason, and its consequences, Congress has, in express terms, provided that no punishment or proceeding shall be so construed as to work forfeiture, as above stated. Thus this statute limits the constructive penalties which result from forfeitures worked by attainders, and perhaps may be so construed as to confine the punishments to those, and those only, which are prescribed in the plain terms of the statute. And this limitation is in accordance with the constitution, as understood by the President, although the forfeiture of rebels' real estate might have been made absolute and unlimited, without exceeding the constitutional power of Congress to punish treason.

THE POWER TO PUNISH REBELS.

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## CHAPTER VII.

THE RIGHT OF CONGRESS TO DECLARE THE PUNISHMENT OF CRIMES AGAINST THE UNITED STATES OTHER THAN TREASON.

THE NEW CRIMES OF REBELLION REQUIRE NEW PENAL LAWS.

SEVERAL crimes may be committed not defined as treason in the constitution, but not less dangerous to the public welfare. The prevention or punishment of such offences is essential to the safety of every form of government; and the power of Congress to impose penalties in such cases cannot be reasonably questioned. The rights guaranteed in express terms to private citizens cannot be maintained, nor be made secure, without such penal legislation; and, accordingly, Congress has, from time to time, passed laws for this purpose. The present rebellion has given birth to a host of crimes which were not previously punishable by any law. Among these crimes are the following: Accepting or holding civil offices under the Confederate government; violating the oath of allegiance to the United States; taking an oath of allegiance to the Confederate States; manufacturing, passing, or circulating a new and illegal currency; acknowledging and obeying the authority of a seceded State, or of the Confederate States; neglecting or refusing to return to allegiance and to lay down arms after due warning; attempting to negotiate treaties with foreign powers to intervene in our affairs; granting or taking letters of marque; conspiracy

116

against the lawful government; holding public meetings to incite the people to the commission of treason; plotting treason; framing and passing ordinances of secession; organizing and forming new governments within any of the States, with the intent that they shall become independent of the United States, and hostile thereto; the making of treaties between the several States; refusal to take the oath of allegiance to the United States, when tendered by proper authority; resistance to civil process, or to civil officers of the United States, when such resistance is not so general as to constitute war. Each of these and many other public wrongs may be so committed as to avoid the penalty of treason, because they may not be overt acts of levying war, or of aiding and comforting the enemy, which the offender must have committed before he can have rendered himself liable to be punished for treason as defined in the constitution. These and other similar offences are perpetrated for the purpose of overthrowing government. Civil war must inevitably result from them. They might be deemed less heinous than open rebellion, if it were not certain that they are the fountain from which the streams of treason and civil war must flow, sweeping the innocent and the guilty with resistless tide onward to inevitable destruction.

ALL ATTEMPTS TO OVERTURN GOVERNMENT SHOULD BE PUNISHED.

Of the many atrocious misdeeds which are preliminary to or contemporaneous with treason, each and all may be and should be punishable by law. It is by no means desirable that the punishment of all of them should be by death, but rather by that penalty, which, depriving the criminal of the means of doing harm,

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will disgrace him in the community he has dishonored. Imprisonment, fines, forfeitures, confiscation, are the proper punishments for such hardened criminals, because imprisonment is a personal punishment, and fines, forfeitures, &c., merely transfer the property of the offender to the public, as a partial indemnity for the wrong he has committed.

When the terrible consequences of the crimes which foment civil war are considered, no penalty would seem too severe to expiate them. But it has been erroneously suggested that, as the levying of war — treason — itself is not punishable by depriving traitors of more than a life estate in their real estate, even though they are condemned to death, it could not have been the intention of the framers of the constitution to punish any of the crimes which may originate a civil war, by penalty equally severe with that to which they limited Congress, in punishing treason itself. A lower offence, it is said, should not be punished with more severity than a higher one. This objection would be more plausible if the power to punish treason were in fact limited. But, as has been shown in a previous chapter, such is not the fact.*

ACT OF 1862, SECTION VI., DOES NOT PURPORT TO PUNISH TREASON.

If the penalty of death be not inflicted on the guilty, and if he be not accused of treason, no question as to the validity of the statute could arise under this clause of the constitution limiting the effect of attainders of treason. No objection could be urged against its

* See Chap. V. page 93.

118 CONSTITUTION OF THE UNITED STATES.

validity on the ground of its forfeiting or confiscating all the property of the offender, or of its depriving him of liberty by imprisonment, or of its exiling him from the country.

Section 6 of the act of 1862 does not impose the penalty of death, but it provides that if rebels in arms shall not, within sixty days after proclamation by the President, cease to aid and abet the rebellion, and return to their allegiance, they shall be liable to have all their property seized and used for the benefit of the country.

Suppose the rebels in arms refuse to obey the proclamation, and neglect or refuse to return to their allegiance; the mere non-performance of the requisition of this act is, not levying war, or aiding and comforting the enemy, technically considered, and so not treason—although, if they go on to perform overt acts in aid of the rebels, those acts will be treasonable. Will it be denied that the rebels in arms ought to be required by law to return to their allegiance and cease rebellion? If their refusal to do so is not technically treason, ought they not to be liable to punishment for violating the law? Is any degree of pecuniary loss too severe for those who will continue at war with their country after warning and proclamation, if their lives are not forfeited?

LEGAL CONSTRUCTION OF THE ACT OF 1862.

What will be the construction put upon section 6th of the act of 1862, when taken in connection with the joint resolution which accompanied it, is not so certain as it should be. The language of the last clause in that resolution is, "Nor shall any punishment or proceedings, under said act, be so construed as to work a

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'forfeiture' of the real estate of the offender beyond his natural life." There is no forfeiture in express terms provided for in any part of the act. The punishment of treason, in the first section, is either death and freedom of slaves, or imprisonment, fine, and freedom of slaves. The judgment of death for treason is the only one which could, even by the common law, have been so construed as to "work any forfeiture." It may have been the intention of Congress to limit the constructive effect of such a judgment. But the words of the resolution are peculiar; they declare that no "proceedings" under said act shall be so construed as to work a forfeiture, &c. Then the question will arise whether the "proceedings" (authorized by section 6, in which the President has the power and duty to seize and use all the property of rebels in arms who refuse, after warning, to return to their allegiance) are such that a sale of such real estate, under the provisions of sections 7 and 8, can convey any thing more than an estate for the life of the offender? But the crime punished by section 6 is not the crime of treason; and whether there be or be not a limitation to the power of the legislature to punish that crime, there is no limit to its power to punish the crime described in this section.

Forfeiture and confiscation of real and personal estates for crimes, when there was and could have been no treason, were common and familiar penal statutes in several States or colonies when the constitution was framed. Many of the old tories, in the time of the revolution, were *banished*, and their real estate confiscated, without having been tried for or accused of

120

treason, or having incurred any forfeiture by the laws
against treason. Such was the case in South Carolina
in 1776.* In that State, one set of laws was in force
against treason, the punishment of which was forfeiture
worked by attainder. Another set of laws were confiscation
acts against tory refugees who had committed no
treason. These distinctions were familiar to those who
formed the constitution, and they used language relating
to these subjects with technical precision.

THE SEVERITY OF DIFFERENT PUNISHMENTS COMPARED.

Forfeiture and confiscation are, in the eye of the law,
less severe punishments than death: they are in effect
fines, to the extent to which the criminal is capable of
paying them. It would not seem to be too severe a
punishment upon a person who seeks, with arms in his
hands, to destroy your life, to steal or carry away your
property, to subvert your government, that he should
be deprived of his property by confiscation or fine to
any amount he could pay. Therefore, as the provisions
of section 6, which would authorize the seizure and
appropriation of rebel real estate to public use, are not
within the prohibitions of Art. III. Sect. 3 of the constitution,
it is much to be regretted that the joint resolution
of Congress should have been so worded as to
throw a doubt upon the construction of that part of
the statute, if not to paralyze its effect upon the only
class of rebel property which they cannot put out of
the reach of government, viz., their real estate.

* See *Willis v. Martin*, 2 Bay 20. See also *Hinzleman v. Clarke and Al.*, Coxe N. J., 1795.

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121

THE SIXTH SECTION OF THE CONFISCATION ACT OF 1862 IS NOT WITHIN THE PROHIBITION OF THE CONSTITUTION, ARTICLE III. SECTION III.

Congress cannot, by giving a new name to acts of treason, transcend the constitutional limits in declaring its punishment. Nor can legislation change the true character of crimes. Hence some have supposed that Congress has no right to punish the most flagrant and outrageous acts of civil war by penalties more severe than those prescribed, as they say, for treason. Since a subject must have performed some overt act, which may be construed by courts into the "levying of war," or "aiding the enemy," before he can be convicted of treason, it has been supposed that to involve a great nation in the horrors of civil war can be nothing more, and nothing else, than treason. This is a mistake. The constitution does not define the meaning of the phrase "levying war." Is it confined to the true, and genuine signification of the words, namely, "that to levy war is to raise or begin war; to take arms for attack;" or must it be extended to include the carrying on or waging war, after it has been commenced?* The crime committed by a few individuals by merely *levying* war, or beginning without prosecuting or continuing armed resistance to government, although it is treason, may be immeasurably less than that of carrying on a colossal rebellion, involving millions in a fratricidal contest. Though treason is the highest political crime known to the codes of law, yet wide-spread and savage rebellion

* To *levy war* is to *raise* or *begin war*; to take arms for attack; to attack.—Webster's Quarto Dict.

To *levy* is, 1. To *raise*, as a siege. 2. To raise or collect; to gather.

3. To *raise*, applied to *war*.—Worcester's Quarto Dict.

16

122

is a still higher crime against society; for it embraces
a cluster of atrocious wrongs, of which the attack upon
government—treason—is but one. Although there
can be no treason unless the culprit levies war, or aids
the enemy, yet it by no means follows that all acts of
carrying on a war once levied are *only* acts of treason.
Treason is the threshold of war; the traitor passes over
it to new and deeper guilt. He ought to suffer punish-
ment proportioned to his crimes.

It must also be remembered, that the constitution
does not indicate that fines, forfeitures, confiscations,
outlawry, or imprisonment are "severer penalties than
death." The law has never so treated them. Nor is
there any limit to the power of Congress to punish
traitors, as has been shown in a previous chapter.*
Who will contend that the crime of treason is in morals
more wicked, in its tendencies more dangerous, or in
its results more deadly than the conspiracy by which it
was plotted and originated? Yet suppose the con-
spirator is artful enough not to commit any overt act
in presence of two witnesses; he cannot be convicted
of treason, though he may have been far more guilty
than many thoughtless persons who have been put
forward to execute the "overt acts," and have thereby
become punishable as traitors. Suppose a person com-
mit homicide; he may be accused of assault and battery,
or assault with intent to kill, or justifiable homicide,
or manslaughter, or murder in either degree. Suppose
the constitution limited the punishment of wilful mur-
der to the death of the criminal and forfeiture of his real
and personal estate for life; would any person contend
that neither of the other above-mentioned crimes could

* See Chap. V. p. 93.

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123

be punished, unless the criminal were convicted of wil-
ful murder? If he had committed murder, he must
have committed all the crimes involved in murder.
He must have made an assault with intent to kill;
and he must have committed unjustifiable homicide, or
manslaughter. If the government should, out of leni-
ency, prosecute and convict him of manslaughter, and
impose upon him a penalty of fine, or confiscation of
his real and personal estate, instead of sentence of
death, would any one say that the penalty imposed was
severer than death? or that murder was legislated into
any other crime? or that any other crime was legis-
lated into murder? Many crimes of different grades
may coexist, and culminate in one offence. It is no
sign of undue severity to prosecute the offender for one
less than the highest. The same course of crime may
violate many of the duties the loyal citizen owes to his
country. To pass laws declaring the penalty for each
and all of these crimes does not transcend the true
scope of the criminal legislation of Congress, where an
offender has brought upon his country the horrors of
civil war by destroying the lives of those who have
given him no cause of offence, by violating the rights
of the living and the dead, by heaping upon his guilty
act the criminality of a thousand assassins and mur-
derers, and by striking at the root of the peace and
happiness of a great nation; it does not seem unduly
severe to take from him his property and his life. The
constitution does not protect him from the penalty of
death; and it cannot be so interpreted as to protect
him against confiscation of his real estate.

124

TREASON AND CONFISCATION LAWS IN 1862. THEIR PRACTICAL
OPERATION.

To understand the practical operation of the statutes
now in force for the punishment of treason and rebel-
lion, and for the seizure and confiscation of rebel prop-
erty, it is necessary to observe the effect of other
statutes which regulate the modes of procedure in the
United States courts. Section 1 of the act of 1862,
which, as well as the act of 1790, prescribes the pun-
ishment of death for treason; section 2, which imposes
fines and penalties; section 3, which adds disqualifica-
tion for office; and, in fact, all the penal sections of
this statute,— entitle the accused to a judicial trial.
Before he can be made liable to suffer any penalty, he
must have been "pronounced guilty of the offence
charged," and he must have suffered "judgment and
sentence on conviction." The accused cannot by law
be subjected to a trial unless he has previously been
indicted by a grand jury. He cannot be adjudged
guilty unless upon a verdict of a petty jury, impanelled
according to law, and by courts having jurisdiction of
the person and of the alleged offence. A brief exami-
nation of the statutes regulating such proceedings will
show that treason and confiscation laws will not be
likely to prove effectual, unless they shall be amended,
or unless other statutes shall be so modified as to adapt
them to the present condition of the country.

LEGAL RIGHTS OF PERSONS ACCUSED OF TREASON.

All judicial convictions must be in accordance with
the laws establishing the judiciary and regulating its
proceedings. Whenever a person accused of crime is
held by the government, not as a belligerent or prisoner

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125

of war, but merely as a citizen of the United States,
then he is amenable to, and must be tried under and
by virtue of, standing laws; and all rights guaranteed to
other citizens in his condition must be conceded to him.

WILL SECESSIONISTS INDICT AND CONVICT EACH OTHER?

No person can lawfully be compelled to appear and
answer to a charge for committing capital or other-
wise infamous crimes, except those arising in the army
and navy, when in actual service, in time of war or
public danger, until he has been indicted by a grand
jury.* That grand jury is summoned by the marshal
from persons in the district where the crime was com-
mitted.

By the statute of September 24, 1789, section 29,
"in all cases punishable with death, the trial shall be
had in the county where the offence was committed;
or where that cannot be done without great inconve-
nience, twelve petit jurors at least shall be summoned
from thence." It has indeed been decided that the
judges are not obliged to try these cases in the county
where the crime was committed, but they are bound
to try them within the district in which they were
perpetrated.†

HOW THE JURIES ARE SELECTED, AND THEIR POWERS.

The juries are to be designated by lot, or according
to the mode of forming juries practised in 1789, so far
as practicable: the qualifications of jurors must be the
same as those required by the laws of the State where

* Constitutional Amendment V.

† *United States v. Wilson*, Baldw. 117; *United States v. Cornell*, 2 Mass. 95-98; *United States v. The Insurgents*, 3 Dall. 518.

126

the trial is held, in order to qualify them to serve in
the highest court of that State; and jurors shall be
returned from such parts of the district, from time to
time, as the court shall direct, so as to be most favor-
able to an impartial trial. And if so many jurors are
challenged as to prevent the formation of a full jury,
for want of numbers, the panel shall be completed from
the bystanders.

STATE RIGHTS AND SECESSION DOCTRINES IN THE JURY ROOM.

The jury are by law judges of the law and the fact,
according to the opinion of many eminent lawyers
and judges. Whether this be so or not, their ver-
dict, being upon the law and the fact, in a criminal
case, they become in effect judges of law and fact.
Suppose that the judge presiding at the trial is honest
and loyal, and that the jury is composed of men who
believe that loyalty to the State is paramount to loy-
alty to the United States; or that the States had, and
have, a lawful right to secede from the Union. What-
ever the opinions of the judge presiding in the United
States court might be on these questions, he would have
no power to root out from the jury their honest belief,
that obedience to the laws of their own seceding State
is not, and cannot be, treason. The first step towards
securing a verdict would be to destroy the belief of
the jury in these doctrines of State rights, paramount
State sovereignty, and the right of secession. To de-
cide the issue, according to the conscientious judgment
of the jurymen upon the facts and the law, would re-
quire them to find a verdict against the United States.

THE POWER TO PUNISH REBELS.

127

### SYMPATHY.

But this is not the only difficulty in the operation of this statute. The grand jurors and the petit jury are to be drawn from those who are neighbors, and possibly friends, of the traitors. The accused has the further advantage of knowing, before the time of trial, the names of all the jurors, and of all the witnesses to be produced against him; he has the benefit of counsel, and the process of the United States to compel the attendance of witnesses in his behalf.* How improbable is it that any jury of twelve men will be found to take away the lives or estates of their associates, when some of the jurymen themselves, or their friends and relatives or debtors, are involved in the same offence! Could any judge reasonably expect a jury of horse thieves to convict one of their own number, when either of the jurymen might be the next man required to take his turn in the criminal box? Under the present state of the law, it is not probable that there will ever be a conviction, even if laws against treason, and those which confiscate property, were not unpopular and odious in a community against whom they are enacted. When an association of traitors and conspirators can be found to convict each other, then these statutes will punish treason, but not sooner.

LAWS ARE MOST EFFECTIVE WHICH REQUIRE NO REBEL TO ADMINISTER THEM.

Those sections of the act of 1862, empowering government to seize rebel property, real, personal, and mixed, and to apply it to the use of the army, to secure the condemnation and sale of seized property, so as to

* Statute of April 30, 1790, Sect. 29.

128

make it available, and to authorize proceedings in rem, conformably to proceedings in admiralty or revenue cases, are of a different and far more effective character. Those clauses in the act which allow of the employment in the service of the United States of colored persons, so far as they may be serviceable, and the freeing of the slaves of rebels, whether captured, seized, fugitive, abandoned, or found within the lines of the army, may be of practical efficacy, because these measures do not require the aid of any secession jury to carry them into effect.

STATUTES OF LIMITATION WILL PROTECT TRAITORS.

The statutes limiting the time during which rebels and traitors shall be liable to indictment ought also to be considered. By the act of 1790, no person can be punished unless indicted for treason within three years after the treason was committed, if punishable capitally; nor unless indicted within two years from the time of committing any offence punishable with fine or forfeiture. Thus, by the provisions of these laws, if the war should last two years, or if it should require two or three years after the war shall have been ended to reestablish regular proceedings in courts, all the criminals in the seceded States will escape by the operation of the statutes of limitations. It is true, that if traitors flee from justice these limitations will not protect them; but this exception will apply to few individuals, and those who flee will not be likely to be caught. Unless these statutes are modified, those who have caused and maintained the rebellion will escape from punishment.

SLAVERY.

129

## CHAPTER VIII.

### INTERFERENCE OF GOVERNMENT WITH THE DOMESTIC AFFAIRS OF THE STATES.

#### PARTY PLATFORMS CANNOT ALTER THE CONSTITUTION.

POLITICAL parties, in times of peace, have often declared that they do not intend to interfere with slavery in the States. President Buchanan denied that government had any power to coerce the seceded States into submission to the laws of the country. When President Lincoln called into service the army and navy, he announced that it was not his purpose to interfere with the rights of loyal citizens, nor with their domestic affairs. Those who have involved this country in bloody war, all sympathizers in their treason, and others who oppose the present administration, unite in denying the right of the President or of Congress to interfere with slavery, even if such interference is the only means by which the Union can be saved from destruction. No constitutional power can be obliterated by any denial or abandonment thereof, by individuals, by political parties, or by Congress.

The war power of the President to emancipate enemy's slaves has been the subject of a preceding chapter. Congress has power to pass laws necessary and proper to provide for the defence of the country in time of war, by appropriating private property to public use, with just compensation therefor, as shown in Chapter I.; also laws enforcing emancipation, confiscation, and all other belligerent rights, as shown in Chapter II.; and it is the sole judge as to what legislation, to effect these objects, the public welfare and defence require;

17

130

it may enact laws abolishing slavery, whenever slavery, ceasing to be *merely* a private and domestic relation, becomes a matter of *national* concern, and the public welfare and defence cannot be provided for and secured without interfering with slaves. Laws passed for that purpose, in good faith, against belligerent subjects, not being within any express prohibition of the constitution, cannot lawfully be declared void by any department of government. Reasons and authority for these propositions have been stated in previous chapters.

DOMESTIC INSTITUTIONS,

Among the errors relating to slavery which have found their way into the public mind,— errors traceable directly to a class of politicians who are now in open rebellion,— the most important is, that *Congress has no right to interfere in any way with slavery*. Their assumption is, that the States in which slaves are held are alone competent to pass any law relating to an institution which belongs exclusively to the domestic affairs of the States, and in which Congress has no right to interfere in any way whatever.

From a preceding chapter, (see page 17,) it will be seen, that if slaves are *property*, property can be interfered with under the constitution; if slavery is a *domestic* institution, as *Mormonism* or *apprenticeship* is, each of them can lawfully be interfered with and annulled. But slavery has a double aspect. So long as it remains in truth “domestic,” that is to say, according to Webster's Dictionary, “*pertaining to house or home*,” so long government cannot be affected by it, and have no ground for interfering with it; when, on the contrary, it no longer pertains only to house and home, but enters into vital questions

SLAVERY.

131

of war, aid and comfort to public enemies, or any of
the national interests involved in a gigantic rebellion;
when slavery, rising above its comparative insignifi-
cance as a household affair, becomes a vast, an over-
whelming power which is used by traitors to overthrow
the government, and may be used by government to
overthrow traitors, it then ceases to be *merely* domestic;
it becomes a *belligerent power*, acting against the "public
welfare and common defence." No institution con-
tinues to be simply "domestic" after it has become the
effective means of aiding and supporting a public
enemy.

When an "institution" compels three millions of
subjects to become belligerent traitors, because they
are slaves of disloyal masters, slavery becomes an affair
which is of the utmost public and national concern. But
the constitution *not only empowers*, but, under certain
contingencies, *requires* slavery in the States to be inter-
fered with. No one who will refer to the sections of
that instrument here cited, will probably venture to
deny the power of Congress, in one mode or another,
to *interfere* for or against the institution of slavery.

CONGRESS MAY PASS LAWS INTERFERING FOR THE PRESERVATION
AND PROTECTION OF SLAVERY IN THE STATES.

Art. IV. Sect. 2, required that fugitive slaves should be
delivered up, and the fugitive slave laws were passed to
carry this clause into effect.

Art. I. Sect. 9, required that the foreign slave trade
should not be interfered with prior to 1808, but allowed
an importation tax to be levied on each slave, not ex-
ceeding ten dollars per head.

Art. V. provided that no amendment of the constitu-

["132", "CONSTITUTION OF THE UNITED STATES.", "tion should be made, prior to 1808, affecting the pre-\nceding clause.", "Art. I. Sect. 2 provides that three fifths of all slaves shall be included in representative numbers.", "CONGRESS MAY INTERFERE AGAINST SLAVERY IN THE STATES", "Art. I. Sect. 8. Congress has power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. Under this clause Congress can in effect prohibit the *inter-state slave trade*, and so pass laws diminishing or destroying the value of slaves in the border States, and practically *abolish slavery* in those States.", "CONGRESS MAY INTERFERE WITH SLAVERY BY CALLING UPON THE SLAVES, AS SUBJECTS, TO ENTER MILITARY SERVICE.", "Art. I. Sect. 8. Congress has the power to declare war and make rules for the government of land and naval forces, and under this power to decide who shall constitute the militia of the United States, and to enrol and compel into the service of the United States *all the slaves*, as well as their masters, and thus to interfere with slavery in the States.", "CONGRESS MAY INTERFERE WITH SLAVERY IN THE STATES BY CUT-\NTING OFF THE SUPPLY OF SLAVES TO SUCH STATES.", "The law now prohibiting the importation of slaves, and making slave trading piracy, is an interference with slavery, by preventing their introduction into the slave States. So also is the treaty with England to suppress the slave trade, and to keep an armed naval force on the coast of Africa.", "In case of servile insurrection against the laws and"]

SLAVERY.

133

authority of the United States, the government *are* bound to interfere with slavery, as much as in an insurrection of their masters, which may also require a similar interference. The President, with the advice and consent of the Senate, has the power to make treaties; and, under the treaty-making power, slavery can be and has been interfered with. In the last war with Great Britain, a treaty was made to evacuate all the forts and places in the United States without carrying away any of the slaves who had gone over to them in the States. Congress then interfered to sustain the institution of slavery, for it was only by sustaining slavery that this government could claim indemnity for slaves as *property*. The treaty-making power may abolish slavery in the whole country, as, by Art. VI., the constitution, the laws, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land. A clause in any treaty abolishing slavery would, *ipso facto*, become the supreme law of the land, and there is no power whatever that could interfere with or prevent its operation. By the treaty-making power, any part of the country burdened with slavery, and wrested from us by conquest, could be ceded to a foreign nation who do not tolerate slavery, and without claim of indemnity. The principle is well established that "the release of a territory from the dominion and sovereignty of the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer loss of property by the cession."*

* 1 Kent Com. 178.

134

The State of New York had granted to her own citizens many titles to real estate lying in that part of her territory now called Vermont. Vermont separated itself from New York, and declared itself an independent State. It maintained its claims to such an extent, that New York, by act of July 14, 1789, was enforced to empower commissioners to assent to its independence; but refused to compensate persons claiming lands under grant from New York, though they were deprived of them by Vermont. The ground taken by the legislature was, that the government was not required to assume the burden of losses produced by conquest or by the violent dismemberment of the State.

Supposing England and France should, by armed intervention, compel the dismemberment of the United States, and the cession of the slave States to them as conquered territory; and that the laws of the conquerors allowed no slaveholding. Could any of the citizens of slave States, who might reside in the free States, having remained loyal, but having lost their slaves, make just legal claim for indemnity upon the government? Certainly not.

Other instances may be cited in which Congress has the power and duty of interference in the local and domestic concerns of States, other than those relating to slavery.* Chief Justice Taney says, —

"Moreover, the constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department. Art. IV. Sect. 4 of the constitution of the United States provides that the United States shall guarantee to

* *Luther v. Borden*, 7 How. 42.

SLAVERY.

135

every State in the Union a republican form of government, and shall protect each of them against invasion, and, on the application of the legislature, or of the executive when the legislature cannot be convened, against *domestic violence*. Under this article of the constitution it rests with Congress to decide what government is the established one in a State. For, as the United States guarantees to each State a republican government, Congress must necessarily decide what government is established, before it can determine whether it is republican or not. And when senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority, and its decision is binding upon every other department of the government, and could not be questioned in a judicial tribunal. So, too, as relates to the clause in the above-mentioned article of the constitution, providing for cases of *domestic violence*. It rested with Congress, too, to determine the means proper to be adopted to fulfil this guaranty."

Suppose, then, that for the purpose of securing "domestic tranquillity" and to suppress *domestic violence*, Congress should determine that emancipation of the slaves was a necessary and proper means, it would be the duty of Congress to adopt those means, and thus to interfere with slavery.* If a civil war should arise in a single State between the citizens thereof, it is the duty of Congress to cause *immediate interference* in the domestic and local affairs of that State, and to put an end to the war; and this interference may be by force of arms and by force of laws; and the fact that the cause of quarrel is domestic and private, whether it be in relation to a proposed change in the form of government, as in Dorr's rebellion,* or a rebellion growing out of any other domestic matter, the constitution authorizes and requires interference by the general government. Hence it is obvious that if slaves be considered prop-

* See *Luther v. Borden*, 7 How.

136

erty, and if the regulation of slavery in the States be deemed in some aspects one of the domestic affairs of the States where it is tolerated, yet these facts constitute no reason why such property may not be interfered with, and slavery dealt with by government according to the emergencies of the time, whenever slavery assumes a new aspect, and rises from its private and domestic character to become a matter of national concern, and imperils the safety and preservation of the whole country. We are not to take our opinions as to the extent or limit of the powers contained in the constitution from partisans, or political parties, nor even from the dicta of political judges. We should examine that instrument in the light of history and of reason; but when the language is plain and clear, we need no historical researches to enable us to comprehend its meaning. When the interpretation depends upon technical law, then the contemporary law writers must be consulted. The question as to the meaning of the constitution depends upon what the people, the plain people who adopted it, intended and meant at the time of its adoption.

AUTHORITATIVE CONSTRUCTION OF THE MEANING OF THE CONSTITUTION.

The conclusive authority on its interpretation is the document itself. When questions have arisen under that instrument, upon which the Supreme Court have decided, and one which they had a right to decide, their opinion is, for the time being, the supreme authority, and remains so until their views are changed and new ones announced; and as often as the Supreme Court change their judgments, so often the authoritative

SLAVERY.

137

interpretation of the constitution changes. The Su-
preme Court have the right to alter their opinions every
time the same question is decided by them; and as
new judges must take the place of those whose offices
are vacated by death, resignation, or impeachment, it is
not unlikely that opinions of the majority of the court
may, upon constitutional as well as upon other questions,
be sometimes on one side and sometimes on the other.

Upon political discussions, such as were involved in
the Dred Scott case, the judges are usually at variance
with each other; and the view of the majority will
prevail until the majority is shifted. The judges are
not legally bound to adhere to their own opinions,
although litigants in their courts are. Whenever the
majority of the court has reason to overrule a former
decision, they not only have the right, but it is their
duty, to do so.

The opinions of the framers of the constitution are
not authority, but are resorted to for a more perfect
understanding of the meaning they intended to convey
by the words they used; but after all, the words should
speak for themselves; for it was the language in which
that instrument was worded that was before the people
for discussion and adoption. We must therefore go
back to that original source of our supreme law, and
regard as of no considerable authority the platforms
of political parties who have attempted to import into
the constitution powers not authorized by fair interpre-
tation of its meaning, or to deny the existence of
those powers which are essential to the perpetuity of
the government.

A political party may well waive a legal constitu-
tional right, as matter of equity, comity, or public pol-

18

138

icy; and this waiver may take the form of a denial of the existence of the power thus waived. In this manner Mr. Douglas not merely waived, but denied, the power of Congress to interfere with slavery in the territories; and in the same way members of the Republican party have disclaimed the right, in time of peace, to interfere with slavery in the States; but such disclaimers, made for reasons of state policy, are not to be regarded as enlarging or diminishing the rights or duties devolved on the departments of government, by a fair and liberal interpretation of all the provisions of the constitution.

Rising above the political platforms, the claims and disclaimers of Federalists, Democrats, Whigs, Republicans, and all other parties, and looking upon the constitution as designed to give the government made by the people, for the people, the powers necessary to its own preservation, and to the enforcement of its laws, it is not possible justly to deny the right of government to interfere with slavery, Mormonism, or any other institution, condition, or social status into which the subjects of the United States can enter, whenever such interference becomes essential as a means of "public welfare or common defence in time of war."*

* In several preceding chapters other branches of this subject have been discussed.

140

INDEX.

<table><tr><td>SLAVERY — may be interfered with (so far as taking away slaves may be said to interfere with it) under the power to appropriate private property to public use, as shown in Chap. I. p.</td><td>17</td></tr><tr><td>“ also by the exercise of the war powers of Congress, as shown in Chap. II. p.</td><td>34</td></tr><tr><td>“ also by the war power of the President, as shown in Chap. III. p.</td><td>66</td></tr><tr><td>“ also by the power to punish treason, as shown in Chap. V. p.</td><td>93</td></tr><tr><td>“ also by the power to punish rebels, as shown in Chap. VII. p.</td><td>115</td></tr></table>

## CHAPTER I.

<table><tr><td>The constitutional right of the government to appropriate private property to public use, either in time of peace or in time of war.</td><td>17</td></tr><tr><td>The right is founded in reason.</td><td>17</td></tr><tr><td>Indemnity is required.</td><td>18</td></tr><tr><td>“ Public use,” what it is.</td><td>19</td></tr><tr><td>All kinds of property, including slaves, may be so appropriated.</td><td>20</td></tr><tr><td>The United States may require all subjects to do military duty.</td><td>22</td></tr><tr><td>Will slaveholders be entitled to indemnity if their slaves are used for military purposes?</td><td>23</td></tr><tr><td>Indemnity to Mormons.</td><td>24</td></tr><tr><td>Effect of naturalization and militia laws on the question of indemnity to slave masters.</td><td>24</td></tr><tr><td>Does the war power of seizure supersede the civil power of Congress to appropriate private property to public use?</td><td>26</td></tr><tr><td>References to the constitution, showing the war powers of Congress.</td><td>27</td></tr><tr><td>Slave property subject to the same liability as other property to be appropriated for war purposes.</td><td>28</td></tr><tr><td>Importance and danger of this power.</td><td>29</td></tr><tr><td>Powers of the President not in conflict with those of Congress.</td><td>29</td></tr><tr><td>Congress has power under the constitution to abolish slavery.</td><td>30</td></tr></table>

## CHAPTER II.

<table><tr><td>War powers of Congress.</td><td>34</td></tr><tr><td>Rules of interpretation.</td><td>34</td></tr><tr><td>Are the United States at war?</td><td>38</td></tr><tr><td>Declaration of war not necessary on the part of the government to give it full belligerent powers.</td><td>38</td></tr></table>

INDEX.

141

<table><tr><td>Has government full war powers against rebel citizens?</td><td>40</td></tr><tr><td>Is "suppressing rebellion" by arms making war on the citizens of the United States, in the sense of the constitution?</td><td>42</td></tr><tr><td>Rebels may be treated as belligerents and subjects.</td><td>44</td></tr><tr><td>The law of nations is above the constitution.</td><td>46</td></tr><tr><td>International belligerent rights are determined by the law of nations.</td><td>47</td></tr><tr><td>Belligerent right of confiscation of personal estate.</td><td>48</td></tr><tr><td>Prize courts.</td><td>48</td></tr><tr><td>Title by capture.</td><td>48</td></tr><tr><td>Constitutional guarantees of civil rights to citizens in time of peace not applicable thereto in time of war.</td><td>49</td></tr><tr><td>True application of these constitutional guarantees.</td><td>50</td></tr><tr><td>Whether belligerents shall be allowed civil rights under the constitution depends upon the policy of the government.</td><td>51</td></tr><tr><td>The constitution allows confiscation.</td><td>52</td></tr><tr><td>Military government under martial law.</td><td>54</td></tr><tr><td>Civil rights changed by martial law.</td><td>56</td></tr><tr><td>A severe rule of belligerent law.</td><td>57</td></tr><tr><td>Civil rights of loyal citizens in loyal districts are modified by the existence of war.</td><td>59</td></tr><tr><td>Belligerent right to confiscate enemy's real estate.</td><td>61</td></tr></table>

CHAPTER III.

<table><tr><td>War power of the President to emancipate slaves.</td><td>66</td></tr><tr><td>Why the power exists.</td><td>66</td></tr><tr><td>The President the sole judge how and when to use it.</td><td>67</td></tr><tr><td>Powers of the President not inconsistent with powers of Congress to emancipate slaves.</td><td>68</td></tr><tr><td>Is liberation of enemy's slaves a belligerent right?</td><td>68</td></tr><tr><td>The law of nations sanctions emancipation of enemy's slaves.</td><td>69</td></tr><tr><td>Authority and usage confirm the right.</td><td>74</td></tr><tr><td>How far the government of the United States, under former administrations, have sanctioned the belligerent right of emancipating slaves of loyal and of disloyal citizens.</td><td>74</td></tr><tr><td>War powers of the President — in general.</td><td>82</td></tr></table>

CHAPTER IV.

<table><tr><td>BILLS OF ATTAINDER.</td><td>84</td></tr><tr><td>Bills of attainder in England.</td><td>84</td></tr></table>

142

INDEX.

<table><tr><td>Punishment by attainder</td><td>84</td></tr><tr><td>Attainders prohibited as inconsistent with constitutional liberty</td><td>85</td></tr><tr><td>Bills of attainder abolished</td><td>86</td></tr><tr><td>What is a bill of attainder</td><td>86</td></tr><tr><td>Bills of pains and penalties</td><td>87</td></tr><tr><td>Ex post facto laws prohibited — bills of pains and penalties as well as attainders, unconstitutional</td><td>88</td></tr><tr><td>Attainders in the colonies and States</td><td>89</td></tr><tr><td>Bills of attainder, how recognized</td><td>91</td></tr></table>

CHAPTER V.

<table><tr><td>TREASON</td><td>93</td></tr><tr><td>Right of Congress to declare by statute the punishment of treason, and its constitutional limitations</td><td>93</td></tr><tr><td>Ancient English doctrine of constructive treason</td><td>93</td></tr><tr><td>Power of Congress to define and punish treason limited</td><td>94</td></tr><tr><td>Attainder and ex post facto laws</td><td>95</td></tr><tr><td>Treason defined by statute</td><td>96</td></tr><tr><td>Congress have unlimited power to declare the punishment of treason</td><td>97</td></tr><tr><td>Consequences of attainder</td><td>98</td></tr><tr><td>Corruption of blood</td><td>99</td></tr><tr><td>Savage cruelty of English law</td><td>99</td></tr><tr><td>Forfeitures</td><td>100</td></tr><tr><td>Characteristics of attainders of treason</td><td>103</td></tr><tr><td>Technical language, how construed</td><td>104</td></tr><tr><td>True meaning of constitution, Art. III. Sect. 3, Cl. 2</td><td>106</td></tr><tr><td>If Congress can impose fines, why not forfeitures?</td><td>107</td></tr><tr><td>Forfeitures for treason not limited to life estates</td><td>108</td></tr></table>

CHAPTER VI.

<table><tr><td>Treason — statutes against it — how administered</td><td>110</td></tr><tr><td>Confiscation act of 1862 not a bill of attainder, not an ex post facto law</td><td>114</td></tr></table>

CHAPTER VII.

<table><tr><td>The right of Congress to declare the punishment of crimes against the United States other than treason</td><td>115</td></tr></table>

INDEX.

143

<table><tr><td>New crimes require new penal laws</td><td>115</td></tr><tr><td>Confiscation act of 1862</td><td>111</td></tr><tr><td>All attempts to overturn government should be punished</td><td>116</td></tr><tr><td>Act of 1862, Sect. 6, does not purport to punish treason</td><td>117</td></tr><tr><td>Legal construction of the act of 1862</td><td>118</td></tr><tr><td>The severity of different punishments declared</td><td>120</td></tr><tr><td>The sixth section of the confiscation act of 1862 is not within the prohibition of the constitution, Art. III. Sect. 1, Cl. 3</td><td>121</td></tr><tr><td>Treason and confiscation laws in 1862: their practical operation</td><td>124</td></tr><tr><td>Legal rights of persons accused of treason</td><td>124</td></tr><tr><td>Will secessionists indict and convict each other?</td><td>125</td></tr><tr><td>How the juries are selected, and their powers</td><td>125</td></tr><tr><td>State rights and secession doctrines in the jury room</td><td>126</td></tr><tr><td>Laws are most effective which require no rebel to administer them</td><td>127</td></tr><tr><td>Statutes of limitation will protect traitors</td><td>128</td></tr></table>

CHAPTER VIII.

<table><tr><td>Party platforms cannot alter the constitution</td><td>129</td></tr><tr><td>Domestic institutions</td><td>130</td></tr><tr><td>What they are, and when they cease to be so</td><td>130</td></tr><tr><td>SLAVERY — Congress may interfere to protect it</td><td>131</td></tr><tr><td>“ “ may interfere against it by militia laws</td><td>132</td></tr><tr><td>“ “ may interfere with slavery in the States by cutting off the supply of slaves to such States</td><td>132</td></tr><tr><td>“ “ may interfere by laws preventing commerce in slaves between the States</td><td>132</td></tr><tr><td>“ “ may interfere by treaty-making power</td><td>132</td></tr><tr><td>“ question as to indemnity</td><td>133</td></tr><tr><td>“ congress may interfere for suppression of rebellion</td><td>135</td></tr><tr><td>“ “ may interfere to secure domestic tranquillity</td><td>136</td></tr><tr><td>CONSTITUTION — authoritative construction of</td><td>136</td></tr><tr><td>“ opinions of the Supreme Court upon</td><td>137</td></tr><tr><td>“ “ of the framers of the constitution</td><td>137</td></tr><tr><td>“ gives all powers necessary to public welfare and common defence</td><td>138</td></tr></table>

From the New York Tribune.

The able argument of William Whiting upon the War Powers of Congress is producing an influence in quarters where it was not supposed that logic and truth could win support to the government.

The pamphlet is winning recognition as one of the positive instrumentalities for the suppression of the rebellion.

Mr. Whiting is an eminent lawyer of Boston, who has won great distinction before the Supreme Court of the United States by his success in important cases under the law in relation to patents. He has now brought all his legal acumen to bear upon an investigation of the subjects set forth in the title of his present work; and the conclusions at which he arrives, by links of argument in which it will be found difficult to detect a flaw, are confirmatory in the fullest degree of the constitutionality of all the powers assumed by Congress and by the President in dealing with this Rebellion.

From the Washington National Republican.

We find upon our table a book containing one hundred and forty-three pages, entitled "The War Powers of the President, and Legislative Powers of Congress, in Relation to Rebellion, Treason, and Slavery. By William Whiting." We recognize the author as one of New England's ablest lawyers. The book exhibits great research, and, it seems to us, is complete and unan- swerable in the special work to which it is devoted.

From the Journal, Roxbury, Mass.

Mr. Whiting has made a cogent, clear, and convincing presentation of his ideas. He has examined each point, which he treats with the insight of a man who has other ideas of statesmanship than those involved in caucus or con- gressional encounters. He has patiently consulted authorities with which to fortify the convictions of his own judgment, and carefully collected facts which bear upon his argument, and with these has builded a structure in which Law under the Constitution is the chief corner-stone, and Liberty the grand material of the entire edifice.

We have no room at present to follow him in the detail of his argument. It is our hope hereafter to make extracts from some of his more pungent por- tions, as they shall be applicable to events closely impending in the future. There is a refreshing atmosphere about the entire essay. Its author starts with the intention of strengthening, not impairing, the powers of the govern- ment. He labors in the cause of both Liberty and Loyalty. He has reached the opinion of most patriots of our day, that these have at last become con- vertible terms. We have been too little accustomed, previously, to find emi- nent lawyers taking this position. It is none the less grateful for its rarity. We honor Mr. Whiting as one of the pioneers in the movement. All honor to him as a man who can break away from those legal trammels which would make our sacred Constitution a shield for human slavery, the most mischievous form of wrong and intolerance the present generation has known.

JOHN L. SHOREY, PUBLISHER,

No. 13 Washington St., Boston.

Depot of Sargent's Standard Readers, Spellers, Speakers, &c. Sargent's Lithographed Charts, for Primary Schools. Sargent's Original Dialogues, &c.

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