CONGRESS, DOTTED STATES. 



293 



nected with this proposed bureau shall be tried 

 for all sorts of alleged offences by military com- 

 missions. "Where do we get the power to pass 

 any such law ? The Constitution declares that 

 no person shall be held to answer for a capital 

 or otherwise infamous crime, unless on a pre- 

 sentment or indictment of a grand jury, except 

 in cases arising in the land or naval forces, or 

 in the militia when in actual service in time of 

 war or public danger ; that no person shall be 

 deprived of life, liberty, or property, -without due 

 process of law ; and that in all criminal prose- 

 cutions the accused shall enjoy the right of a trial 

 by an impartial jury. Does any one believe that 

 we can constitutionally subject a class of civilians 

 to the jurisdiction of these military tribunals by 

 declaring, as this twelfth section does, that they 

 shall be deemed to belong to the Army or Navy 

 of the United States, or engaged in its military 

 or naval service ? As well might we take the right 

 of trial by jury from any other class of citizens 

 as from the class subjected to trial and punish- 

 ment by military tribunals under this twelfth 

 section. They can in no sense be correctly said 

 to belong to the Army or Navy. They are civil- 

 ians, employed in purely civil affairs. If we 

 can do this, we can take away the right of any 

 class of civilians by saying that they shall be 

 deemed to be in the military service of the 

 United States, when we know that all their 

 duties are duties of civilians. 



" Sir, I submit that the experience of the last 

 few years must have made it apparent to every 

 gentleman here, that these military commissions 

 are characterized by a want of certainty as to the < 

 conviction of the guilty, and the certainty of 

 frequently convicting the innocent. Acts of 

 Congress have been passed declaring that certain 

 contractors and other parties, should be deemed 

 to be in the military service and subject to trial 

 by these commissions ; and you have had mil- 

 itary commissions sitting in this city and else- 

 where in the loyal States, trying men who never 

 were of the class mentioned in the acts of Con- 

 gress, and there seems to be no power to take 

 them from under the control of these military 

 tribunals, or to get any review of their decisions. 

 Now, I trust that we shall take no further steps 

 in the direction of subjecting civilians, I care not 

 of what class, to this unconstitutional mode of 

 trial. We should be warned by the history of 

 these courts, not only in this country, but in 

 other countries. The Court of High Commission 

 in England, under the influence of those who 

 desired that arbitrary power should prevail, 

 carried its oppressive proceedings to such an 

 extent as to bring on a collision, as such as- 

 sumptions of power must do in any country 

 where liberty is to be preserved. There is no 

 good reason why these men, for felony, or em- 

 bezzlement, or any other offence, shall not be 

 tried under the guarantees of the Constitution, 

 and in accordance with the forms, and by the 

 tribunals which it prescribes. "We should do 

 something to put a stop to and guard against 

 the wrongs which innocent men have suffered by 



being deprived of trial by jury and by being 

 subjected to military commissions. I refer gen- 

 tlemen to a statement made a few days ago in 

 the other end of the Capitol by a distinguished 

 Senator, that a military commission is sometimes 

 efficient for the conviction of those who have 

 become obnoxious to parties by exposing frauds 

 upon the Government. 



Again, the thirteenth section of this bill pro- 

 poses to do, what ? To repeal the joint resolution 

 made a part of the act of Congress as to confis- 

 cation, passed in July, 1862, by which confisca- 

 tion was limited to the life estate in land of the 

 traitor. This subject, the repeal of this joint res- 

 olution, has been fully discussed in this House. A 

 bill to effect this was passed at the last session, 

 and went to the Senate. The Judiciary Com- 

 mittee of that body reported, as I understand, 

 unanimously, that that bill ought not to pass. 

 That bill died. Yet now there is an attempt to 

 effect the same object bypassing this bill, which 

 comes from a conference committee of the two 

 Houses, and has never been subjected to the 

 scrutiny of any regular committee of either 

 House. I trust that we shall not pass a bill 

 repealing that joint resolution, until there has 

 at least been some discussion or scrutiny of the 

 matter. I ask the Clerk to read an extract from 

 the message of the President of the United 

 States, approving of the confiscation act, and 

 the joint resolution as a part of it, now proposed 

 to be repealed ; and I ask members on the other 

 side of the House whether they are prepared 

 to enact a law on the subject of confiscation, 

 which President Lincoln declared he could not 

 sign because it was in violation of the Consti- 

 tution, without discussion or examination by 

 any appropriate committee. This is the effect 

 of passing the bill now before us." 



The Clerk read, as follows : 



That to which I chiefly object, pervades most part 

 of the act, but more distinctly appears in the first, 

 second,' seventh, and eighth sections. It is the sum 

 of those provisions which results in the divesting of 

 title forever. 



For the causes of treason and ingredients of treason, 

 not amounting to the full crime, it declares forfeiture 

 extending beyond the lives of the guiltv parties; 

 whereas the Constitution of the United States de- 

 clares that " no attainder of treason shall work cor- 

 ruption of blood, or forfeiture, except during the life 

 of the person attainted." True, there is to be no 

 formal attainder in this case ; still, I think the greater 

 punishment cannot be constitutionally inflicted in a 

 different form for the same offence. 



With great respect, I am constrained to say I think 

 this feature of the act is unconstitutional. 



****** 



Again, this act, in rem, forfeits property for the in- 

 gredients of treason without a conviction of the sup- 

 posed criminal or a personal hearing given him in any 

 proceeding. That we may not touch property lying 

 within our reach because we cannot give personal 

 notice to an owner who is absent endeavoring to de- 

 stroy the Government, is certainly satisfactory. Still, 

 the owner may not be thus engaged and I'think a 

 reasonable time should be provided for such parties 

 to appear and have personal hearings. Similar pro- 

 visions are not uncommon in connection with pro- 

 ceedings in rem. 



