I.

I begin, of course, with _Rights against Criminals_, founded on

sovereignty, with their limitations under the Constitution.

Rebellion is in itself the crime of treason, which is usually called

the greatest crime known to the law, containing all other crimes, as

the greater contains the less. But neither the magnitude of the crime

nor the detestation it inspires can properly move us from duty to the

Constitution. Howsoever important it may be to punish rebels, this must

not be done at the expense of the Constitution. On that point I agree

with the Senator from Pennsylvania [Mr. COWAN], and the Senator from

Vermont [Mr. COLLAMER]; nor will I yield to either in determination to

uphold the Constitution, which is the shield of the citizen. Show me

that any proposition is without support in the Constitution, or that it

offends against any constitutional safeguard, and it cannot receive my

vote. Sir, I shall not allow Senators to be more careful on this head

than myself. They shall not have a monopoly of this proper caution.

In proceedings against criminals there are provisions or principles of

the Constitution which cannot be disregarded. I will enumerate them,

and endeavor to explain their true character.

1. Congress, it is said, has no power under the Constitution over

Slavery in the States. This popular principle of Constitutional Law,

which is without foundation in the positive text of the Constitution,

is adduced against all propositions to free the slaves of Rebels. But

this is an obvious misapplication of the alleged principle, which

simply means that Congress has no direct power over Slavery in the

States, so as to abolish or limit it. For no careful person, whose

opinion is of any value, ever attributed to the pretended property

in slaves an immunity from forfeiture or confiscation not accorded

to other property; and this is a complete answer to the argument

on this head. Even in prohibiting Slavery, as in the Jeffersonian

ordinance, there is a declared exception of the penalty of crime; and

so in upholding Slavery in the States, there must be a tacit, but

unquestionable, exception of this penalty.

2. There must be no _ex post facto_ law; which means that there can be

no law against crime retrospective in its effect. This is clear.

3. There must be no bill of attainder; which means that there can be no

special legislation, where Congress, undertaking the double function of

legislature and judge, shall inflict the punishment of death without

conviction by due process of law. And there is authority for assuming

that this prohibition includes a bill of pains and penalties, which is

a milder form of legislative attainder, where the punishment inflicted

is less than death.[16] And surely no constitutional principle is more

worthy of recognition.

4. No person shall be deprived of life, liberty, or property, without

due process of law; which means, without presentment, or other judicial

proceeding. This provision, borrowed from Magna Charta, constitutes a

safeguard for all: nor can it be invoked by the criminal more than by

the slave; for in our Constitution it is applicable to every “person,”

without distinction of condition or color. But the criminal is entitled

to its protection.

5. In all criminal prosecutions the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and District

wherein the crime shall have been committed, which District shall

have been previously ascertained by law. This is the sixth amendment

to the Constitution, and is not to be lost sight of now. The accused,

whoever he may be, though his guilt be open as noonday, can be reached

_criminally_ only in the way described. When we consider the deep and

wide-spread prejudices which must exist throughout the whole Rebel

territory, it is difficult to suppose that any jury could be found

within the State and District where the treason was committed who

would unite in the necessary verdict of Guilty. For myself, I do not

expect it; and I renounce the idea of justice in this way. Jefferson

Davis himself, whose crime has culminated in Virginia, could not be

convicted by a jury of that State. But it is the duty of the statesman

to consider how justice, impossible in one way, may be made possible in

another way.

6. No attainder of treason shall work corruption of blood, or

forfeiture except during the life of the person attainted. Perhaps

no provision of the Constitution, supposed pertinent to the present

debate, has been more considered; nor is there any with regard to which

there is greater difference of opinion. Learned lawyers in this body

insist broadly that it forbids forfeiture of real estate, although

not of personal, as a penalty of treason; while others insist that

all the real as well as personal estate belonging to the offender may

be forfeited. The words of the Constitution are technical, so as to

require interpretation; and as they are derived from the Common Law,

we must look to this law for their meaning. By “attainder of treason”

is meant _judgment of death_ for treason,--that is, the judgment of

court on conviction of treason. “Upon judgment of death for treason or

felony,” says Blackstone, “a man shall be said to be attainted.”[17]

Such judgment, which is, of course, a criminal proceeding, cannot,

under our Constitution, work corruption of blood; which means that it

cannot create obstruction or incapacity in the blood to prevent an

innocent heir from tracing title through the criminal, as was cruelly

done by the Common Law.

Nor shall such attainder work “forfeiture except during the life of

the person attainted.” If there be any question, it arises under these

words, which, it will be observed, are peculiarly technical. As the

term “attainder” is confined to “judgment of death,” this prohibition

is limited precisely to where that judgment is awarded; so that, if the

person is not adjudged to death, there is nothing in the Constitution

to forbid absolute forfeiture. This conclusion is irresistible. If

accepted, it disposes of the objection in all cases where there is no

judgment of death.

Even where the traitor is adjudged to death, there is good reason

to doubt if his estate in fee-simple, which is absolutely his own,

and alienable at his mere pleasure, may not be forfeited. It is

admitted by Senators that the words of the Constitution do not forbid

the forfeiture of the personal estate, which in the present days of

commerce is usually much larger than the real estate, although to an

unprofessional mind these words are as applicable to one as to the

other; so that a person attainted of treason would forfeit all his

personal estate, of every name and nature, no matter what its amount,

even if he did not forfeit his real estate. But since an estate in

fee-simple belongs absolutely to the owner, and is in all respects

subject to his disposition, there seems no reason for its exemption

which is not equally applicable to personal property. The claim of

the family is as strong in one case as in the other. And if we take

counsel of analogy, we find ourselves led in the same direction. It

is difficult to say, that, in a case of treason, there can be any

limitation to the amount of fine imposed; so that in sweeping extent

it may take from the criminal all his estate, real and personal. And,

secondly, it is very clear that the prohibition in the Constitution,

whatever it be, is confined to “attainder of treason,” and not,

therefore, applicable to a judgment for felony, which at the Common

Law worked forfeiture of all estate, real and personal; so that under

the Constitution such forfeiture for felony can be now maintained.

But assuming the Constitution applicable to treason where there is

no judgment of death, it is only reasonable to suppose that this

prohibition is applicable _exclusively to that posthumous forfeiture

depending upon corruption of blood_; and here the rule is sustained by

intrinsic justice. But all present estate, real as well as personal,

actually belonging to the traitor, is forfeited.

Not doubting the intrinsic justice of this rule, I am sustained by

the authority of Mr. Hallam, who, in a note to his invaluable History

of Literature, after declaring, that, according to the principle of

Grotius, the English law of forfeiture in high treason is just, being

part of the direct punishment of the guilty, but that of attainder or

corruption of blood is unjust, being an infliction on the innocent

alone, stops to say:--

“I incline to concur in this distinction, and think it at

least plausible, though it was seldom or never taken in the

discussions concerning those two laws. Confiscation is no more

unjust towards the posterity of an offender than fine, from

which, of course, it only differs in degree.”[18]

An opinion from such an authority is entitled to much weight in

determining the proper signification of doubtful words.

This interpretation is helped by another suggestion, which supposes

the comma in the text of the Constitution misplaced, and that, instead

of being after “corruption of blood,” it should be after “forfeiture,”

separating it from the words “except during the life of the person

attainted,” and making them refer to the time when the attainder

takes place, rather than to the length of time for which the estate

is forfeited. Thus does this much debated clause simply operate to

forbid forfeiture when not pronounced “during the life of the person

attainted.” In other words, the forfeiture cannot be pronounced against

a dead man, or the children of a dead man, and this is all.

Amidst the confusion in which this clause is involved, you cannot

expect that it will be a strong restraint upon any exercise of power

under the Constitution which otherwise seems rational and just. But,

whatever its signification, it has no bearing on our rights against

enemies. Bear this in mind. Criminals only, and not enemies, can take

advantage of it.

* * * * *

Such, Mr. President, are the provisions or principles of Constitutional

Law controlling us in the exercise of rights against criminals. If any

bill or proposition, penal in character, having for its object simply

punishment, and ancillary to the administration of justice, violates

any of these safeguards, it is not constitutional. Therefore do I admit

that the bill of the Committee, and every other bill now before the

Senate, so far as they assume to exercise the Rights of Sovereignty

in contradistinction to the Rights of War, must be in conformity with

these provisions or principles.

* * * * *

But the Senator from Vermont [Mr. COLLAMER], in his ingenious speech,

to which we all listened with so much interest, was truly festive in

allusion to certain proceedings much discussed in this debate. The

Senator did not like proceedings _in rem_, although I do not know that

he positively objected to them as unconstitutional. It is difficult to

imagine any such objection. Assuming that criminals cannot be reached

to be punished _personally_, or that they have fled, the Senator from

Illinois [Mr. TRUMBULL], and also the Senator from New York [Mr.

HARRIS], propose to reach them through their property,--or, adopting

technical language, instead of proceedings _in personam_, which must

fail from want of jurisdiction, propose proceedings _in rem_. Such

proceedings may not be of familiar resort, since, happily, an occasion

like the present has never before occurred among us; but they are

strictly in conformity with established precedents, and also with the

principles by which these precedents are sustained.

Nobody can forget that smuggled goods are liable to confiscation by

proceedings _in rem_. This is a familiar instance. The calendar of our

District Courts is crowded with these cases, where the United States

are plaintiff, and some inanimate thing, an article of property, is

defendant. Such, also, are proceedings against a ship engaged in the

slave-trade. Of course, by principles of the Common Law, a conviction

is necessary to divest the offender’s title; but this rule is never

applied to forfeitures created by statute. It is clear that the same

sovereignty which creates the forfeiture may determine the proceedings

by which it shall be ascertained. If, therefore, it be constitutional

to direct the forfeiture of rebel property, it is constitutional to

authorize proceedings _in rem_ against it, according to established

practice. Such proceedings constitute “due process of law,” well known

in our courts, familiar to the English Exchequer, and having the

sanction of the ancient Roman jurisprudence. If any authority were

needed for this statement, it is found in the judgment of the Supreme

Court of the United States in the case of the _Palmyra_, where it is

said:--

“Many cases exist where there is both a forfeiture _in rem_ and

a personal penalty. But in neither class of cases has it ever

been decided that the prosecutions were dependent upon each

other; but the practice has been, and so this Court understand

the law to be, that the proceeding _in rem_ stands independent

of, and wholly unaffected by, any criminal proceeding _in

personam_.”[19]

The reason for proceedings _in rem_ is, doubtless, that _the thing_ is

in a certain sense an offender, or at least has coöperated with the

offender,--as a ship in the slave-trade. But the same reason prevails,

although perhaps to less extent, in proceedings against rebel property,

which, if not an offender, has at least coöperated with the offender

hardly less than the ship in the slave-trade. Through his property the

traitor is enabled to devote himself to treason, and to follow its

accursed trade, waging war against his country; so that his property

may be considered guilty also. But the condemnation of the property

cannot be a bar to proceedings against the traitor himself, should he

fall within our power. The two are distinct, although identical in

their primary object, which is punishment.

Pardon me, Sir, if, dwelling on these things, I feel humbled that

the course of the debate imposes such necessity. Standing, as we do,

face to face with enemies striking at the life of the Republic, it is

painful to find ourselves subjected to all the embarrassments of a

criminal proceeding, as if this war were an indictment, and the army

and navy of the United States, now mustered on land and sea, were only

a _posse comitatus_. It should not be so. The Rebels have gone outside

of the Constitution to make war upon their country. It is for us to

pursue them as enemies outside of the Constitution, where they wickedly

place themselves, and where the Constitution concurs in placing them

also. So doing, we simply obey the Constitution, and act in all

respects constitutionally.