The question of the rebel cruisers on the high seas is a question by itself. The anger excited among us by the injuries we have suffered from these vessels is not strange; nor is it strange that our anger should beget a disposition to quarrel with Great Britain and France for conceding the rights of lawful belligerents to the perpetrators of such atrocities. The rebels have no courts of admiralty, carry their prizes to no ports, submit them to no lawful adjudication—but capture, plunder, and burn private vessels in mid ocean. Such proceedings by the laws of nations are undoubtedly piratical in their nature. We have a right so to hold and declare. We may think that Great Britain and France are bound so to hold and declare. But what then? Should they have ordered their men of war to cruise against these rebel cruisers or to capture every one which they might chance to encounter, and to send them home for trial? We may think they were bound in vindication of public law to do so; but could we make their not doing so a matter of formal complaint and a cause of war? There are a number of things to be well considered before any one should permit himself to quarrel with our Government for not quarrelling with Great Britain and France on this matter.

BRITISH VIOLATION OF NEUTRAL OBLIGATIONS

But the conduct of the British Government in allowing her ports to be made the basis of these nefarious operations—in permitting vessels of whose character and purpose there could be no doubt to be built in her ports—not to be delivered in any Confederate port, but in effect armed and manned from her ports to go immediately to cruise against our commerce on the high seas—is an outrageous violation of the obligations of neutrals, for which that Government may justly be held responsible. It is a responsibility which no technical pleading about the insufficiency of British laws, either in matter of prohibition or rules of evidence, can avoid. Great Britain is bound to have laws and rules of evidence which will enable her effectually to discharge her neutral obligations; whether she has or not, does not alter her responsibility to us. Her conduct may rightfully be made a matter of official complaint, and of war too—if satisfaction and reparation be refused. It is a case in which our rights and dignity are concerned; and it is to be presumed that our Government will not fail to vindicate them.1

LEGISLATION—THE CONFISCATION LAW

The action of Congress has in everything been nobly patriotic in spirit, and in nearly everything it has wisely and adequately met the exigencies of the crisis.

But we are compelled to hold the Confiscation Act, in the form in which it was passed, as a mistake.2 If the clause of the Constitution prohibiting 'attainder of treason to work forfeiture except during the life of the person attainted,' be necessarily applicable to the Confiscation Act, it seems to us impossible to avoid the conclusion that the act is unconstitutional. So far as the language of the prohibition is decisive of anything, it must be taken to include all sorts of property, real as well as personal—the term forfeiture certainly having that extent of application in the old English law and practice, from which the framers of our Constitution took it, and there is nothing elsewhere in the Constitution or in its history to warrant any other construction. So the Congress of 1790 understood it in the act declaring the punishment of treason and some other high crimes. As to the perpetuity of forfeiture, it seems equally necessary to hold that it is prohibited by the clause of the Constitution in question. Such is undeniably the first and obvious meaning of the terms. It has been argued indeed that it was not the intention of the framers of the Constitution to prohibit perpetual forfeiture of property from being 'declared' by Congress, but only to prohibit 'attainder of treason' from 'working' of itself that effect by necessary consequence—as it did under the Common Law of England. It has also been argued that the constitutional restriction does not relate to perpetuity of forfeiture, but only requires that the forfeiture or act of alienation take place, have effect, and be accomplished 'during the life of the person attainted,' and not after his death.

But this reasoning is more subtile than satisfactory. A fair consideration of the subject leaves little room for doubt that the framers of the Constitution had in view and intended to prohibit everything which under the old English common law followed upon 'attainder of treason'—to prohibit forfeiture in perpetuity of property of every sort, no less than 'bills of attainder,' 'corruption of blood,' and barbarities of punishment, such as disembowelling, quartering, etc.

If therefore the constitutional restriction on forfeiture apply to the Confiscation Law, it makes the law unconstitutional, in so far as it enacts the perpetual forfeiture of the personal estate of rebels; and the discrimination made in regard to their real estate does not save the constitutionality of the act.

If, therefore, the Confiscation Law is to be held as constitutional, it can be so, as it seems to us, only on the ground that it does not fall within the scope of the constitutional prohibition in question. This ground may be maintained by asserting that the constitutional prohibition of perpetual forfeiture applies only to cases of 'attainder of treason,' that is, according to Blackstone, of 'judgment of death for treason,' and that cases under this act are not such; that the limitations applicable to ordinary judicial proceedings against traitors are not applicable here; that the Confiscation Act seizes the property of rebels not in their quality of criminals, but of public enemies; that it is not an act for the punishment of treason, but for weakening and subduing an armed rebellion, and securing indemnification for the costs and damages it has entailed—in short, not a penal statute, but a war measure; and that the Constitution which gives Congress the right to make war for the suppression of the rebellion, and to subject the lives of rebels to the laws of war, gives it the right to subject their property also to the same laws—putting both out of the protection of the ordinary laws; and finally that all the objects aimed at by the measure are legitimated by the principles of public law.

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