224 



CONFISCATION. 



can be deprived of life, liberty, reputation, or proper- 

 ty, without due process of law, or by the law of the 

 laud, for these terms are clearly convertible. We hold 

 that everything that belongs to us by the law of the 

 land, is secured to us by the law of the land, and can 

 only be taken away from us by the law of the land, by 

 due process, judgment, and execution. 



What is the due process of law? That is the point; 

 the whole case turns upon this single inquiry. In 

 criminal proceedings, the Constitution tells us the 

 prosecution can only be by presentment or indictment 

 of the Grand Jury, and the trial must be by the peers 

 of the party accused, collected in the vicinage where 

 the offence 'was committed, or in certain other locali- 

 ties where the crime has been on the high seas. The 

 Constitution itself has determined what is due process 

 of law in a criminal prosecution. [Art. 5 of amend- 

 ments to Constitution.] The constitution provides 

 that no one shall be deprived of life, liberty or proper- 

 ty, without due process of law, and defines due process 

 o'f law, in a preceding part of the same article, to be 

 presentation and indictment by a grand jury. When 

 we refer to the Constitution, as originally adopted, we 

 find that " all trials shall be by jury." 



Is this in reality a criminal proceeding? The an- 

 swer is found, in the first place, in this paper, which is 

 called a Libel of Information, and which has been pre- 

 sented to this honorable court as if it was sitting in 

 admiralty. Now, if it does declare such a case as can 

 be proceeded against by the law of nations in an ad- 

 miralty court, my objections are groundless. 



It is the facts discovered in the libel that call the 

 court into action to enforce the law, and for this reason 

 the state of facts in this libel impresses its character 

 on the proceedings, I care not by what name he or 

 anybody else may call it. The ground on which we 

 claim is, that they have endeavored to evade the Con- 

 stitution by giving a wrong name and directing a 

 wrong process to issue in the case. 



There is no offence against the law of nations set 

 forth in the case. 



The United States have passed a law for the punish- 

 ment of traitors and rebels who have been in arms 

 against the legitimate authorities of the best Govern- 

 ment that ever existed. They had a right to do it. 

 No one will question the right of a government to 

 make laws for indicting condign punishment on trai- 

 tors, but it does not follow that they have a right to 

 proceed against them with a libel of information. 

 Congress is subservient to the behests of the Constitu- 

 tion. It cannot do any act in violation of the Consti- 

 tution. Its powers haVe been restricted in order that 

 it may afford protection to life, liberty, and property, 

 just as the powers of the other departments of the 

 Government nave been restricted. You may prosecute 

 traitors before a grand jury and find an indictment. 

 It is not necessary that they should be before the 

 court. It is only necessary that the offence should 

 have been committed within the jurisdiction of the 

 court. 



My learned friend argues that the clause in the Con- 

 stitution providing that " no attainder shall work cor- 

 ruption of blood, was intended to prevent the result- 

 ing consequences under the common law, of the con- 

 viction of treason. By that law, the moment a person 

 was convicted of treason, he forfeited his estate and 

 his blood was corrupted, his children could no longer 

 inherit, and his property went to the crown. 



The United States goes to the common law for the 

 definition of technical terms and to determine the rules 

 of evidence in criminal cases. It is idle to say that 

 this is intended to guard against the consequences of 

 a conviction at common law, as my friend has attempt- 

 ed to show. It does not fortify 'the position he has 

 taken. It refers to an offence created by statutes under 

 the Constitution, not to an offence against the law of 

 nations. I do not invoke the law of nations to estab- 

 lish that this offence was against that law. I claim 

 that this offence which has been transcribed in this 

 libel is the very offence to which the Constitution re- 

 fers, and, therefore, that it is an offence against the 



laws of the United States, and not against the law of 

 nations. That law bad nothing to do with the law of 

 nations. It was enacted for the punishment of treason 

 and the suppression of rebellion. That is a subject of 

 general legislation ; a subject regulated by the Con- 

 stitution in express terms. 



The Confiscation Act is, in reality, an act for the 

 punishment of treason and rebellion, and every line 

 of the act shows it. Is it not clear that the act is puni- 

 tive and nothing else, and that is what is limited by 

 the clause in the Constitution providing that " no at- 

 tainder for treason shall work corruption of blood," 

 etc. 



He next proceeded to the argument that had been 

 adduced on the ground that this was a 



Proceeding in rem, and argued that a proceeding 

 in rem could only be instituted when a jus in re hud 

 been acquired by the act of the thing itself, which, by 

 the use that had been made of it, was forfeited, und 

 that unless it was forfeited by some use to which it 

 was put, it could only be forfeited by the act of the 

 owner, and the proof of that act vyas the record of hii 

 conviction. The Government might confiscate ene- 

 mies' property. The right existed, but had not been 

 exercised for 260 years. 



Belligerents had the abstract right and were respon- 

 sible to the civilized world for its exercise. It was 

 claimed by his opponents that, by virtue of this law, 

 the property in question was liable to confiscation. 

 But to be liable under the law of nations, as enemy's 

 property it must have been in the enemy's country at 

 the date of the enactment, or it must be the produce 

 of the enemy's country. 



But the act M'as passed on the 17th of July, 1862, 

 two months after the United States authority had been 

 reestablished here, therefore, it could not be held under 

 the law of nations, for it was not the produce of the 

 enemy's country, and at the time of the passage of the 

 act it was in New Orleans, which was a part of the 

 United States not under the jurisdiction of the enemy. 



The District Attorney, Kufus "\Vaples, in 

 his argument presented the following propo- 

 sitions : 



By the law of nations all the property of enemies is 

 confiscable, including lands in fee simple. 



Civil wars are governed by the same rules as inter- 

 national wars concerning confiscation of enemies' prop- 

 erty ; the sovereign-belligerent has the right to confis- 

 cate the property of the subject-belligerent. 



As the right to confiscate enemies' property found 

 on land had grown somewhat into disuse, it was neces- 

 sary for Congress to pass a law expressive of the will 

 of the sovereign to exercise the right, and to " make 

 rules concerning the capture " of this species of prop- 

 erty, in order to enable the courts to take judicial pro- 

 ceedings. 



Congress made such rules in the acts of August 6th, 

 1861, and July 17th, 1862, sections 5, 6, 7, 8 ; the former 

 act being against property which obtains its enemy 

 character by use ; the latter, against property which 

 obtains that character by ownership. 



Sections 5, 6, 7, and 8 of the act of July 17th, 1862 

 (bringing into exercise the right of the Government as 

 sovereign-belligerent against subjects-belligerent), are 

 clearly authorized by the Constitution. 



There is nothing in the Constitution which prohibits 

 the confiscation of enemies' property in the manner 

 and to the extent provided for in the 5th, 6th, 7th, and 

 8th sections of the act; that is, absolute forfeiture of 

 all the "right, title, and interest" of the enemy-owner 

 by proceedings in rem,. 



"l. The act does not deny trial by jury in any case 

 in which the Constitution secures it. The firSt four 

 sections relate to crime, and its punishment is to be by 

 indictment and jury trial, as a matter of course. Con., 

 Art. 3, section 2d and 7th. All forfeitures are to be 

 by "due process of law," but not all by jury trial. 



2. No attainder, there being no death or outlawry. 



8. No corruption of blood the capacity of the heirs 

 to inherit is not affected. 



