239

CONFISCATION OF REBEL PROPERTY.

SPEECH DELIVERED IN THE HOUSE OF REPRESENTATIVES, JAN. 19, 1864, UPON THE JOINT RESOLUTION TO AMEND A JOINT RESOLUTION, EXPLANATORY OF "AN ACT TO SUPPRESS INSURRECTION, TO PUNISH TREASON AND REBELLION, TO SEIZE AND CONFISCATE THE PROPERTY OF REBELS, AND FOR OTHER PURPOSES," APPROVED JULY 17, 1862.

THE

HE subject before the House, uninteresting as a matter of, debate, is already a good deal hackneyed. Having assented in the committee to this report, it may not be amiss for me to state, with such clearness and brevity as I can command, the grounds on which my assent was given.

It was suggested by the gentleman from New York [Mr. Kernan], who spoke early in this debate, that, while he doubted the constitutional authority of Congress to confiscate the real estate of traitors absolutely, even if he were convinced of that authority, he should doubt the wisdom of such a public policy. I submit to that gentleman, and to those who sympathize with him upon this point, that, if it be clearly shown that such a power exists, then it was granted by the framers of the Constitution for some purpose, anticipating or apprehending an exigency in the fortunes of the country when it might be expedient and proper to put that power in full force.

If the power is found in the Constitution, I ask the gentleman from New York whether he is of opinion that the men who framed the Constitution could have anticipated any condition of public affairs in which the exigency would be more urgent than that which exists at the present time? It is well enough for nations to be merciful, but justice is a higher attribute than mercy. If the power exists, I submit that the exigency for its extreme exercise exists also. It is a very different thing to men engaged in this treason, whether they hold their lands by authority of law, or whether they hold them at the pleasure and by the favor of the government against which they have rebelled. In this condition of things, I maintain that it is the duty of the country and government to seek for a true interpretation of the Constitution, to ascertain as exactly as possible the limits of Congressional authority, and march boldly in the organization of a system of justice and penalties to the very limits of that authority, wherever they may be found; and, then, let the amnesty come, so that we can distinguish between great offenders, who, of their own motion in violation of the Constitution,-in violation of the rights, not only of their country, but of all mankind, not only of this age, but of all coming ages, rebelled against the government, and those who have been duped, misled, seduced from their public duty. On these we will have compassion; and gentlemen on the other side will come to understand, that the majority here and in the country will execute justice, and remember mercy also.

I am not sure, sir, that there is any material dif

ference between the report of the committee, and the amendment proposed by the chairman of the Committee of Ways and Means, in the effect to be produced on such rebels as may be made amenable to the statute of July 17, 1862. I understand the joint resolution now before the House to be of such a character, that, if adopted, it will be the duty of the courts of the country to administer the penalties prescribed in the law, to the full limits of constitutional authority. If by repealing the joint resolution of July 17, 1862, and putting into operation the law unrestricted, or if by enacting another and more stringent statute, we transcend the Constitution, it will be the duty of the courts to limit the statute within constitutional authority. Therefore, practically, I do not see that there is a difference between the joint resolution, and the amendment proposed by the gentleman from Pennsylvania [Mr. Stevens].

Mr. STEVENS.-The resolution of the committee restricts all the forfeitures under the Confiscation Act to what they are already in the case of attainder for treason in the Constitution. Now, the act itself has no reference to the section of the Constitution referred to; but there are confiscations outside of that entirely, not for treason, but as the property of alien enemies. Therefore the resolution of the committee confines the operation of the act of 1862 much more than the original resolution did. If the gentleman will modify the resolution so as to make it read that the act of 1862 shall produce no forfeiture beyond the limits of the Constitution, I am content.

Mr. BOUTWELL. I understand that to be the object of the joint resolution. But I will say, by way of answer to the first suggestion of the gentleman from Pennsylvania, that when we find in the Constitution, as in that part relating to treason, distinct and definite authority given to the government in the way of punishment, we cannot look to any other provision of the Constitution, or to any general principle, for the purpose of getting authority to inflict other and different penalties. The authority is to be found in that provision of the Constitution, or it is not to be found anywhere.

Something has been said in the course of this debate in regard to the act of July, 1862, and something is found in the President's message touching the authority of the government to proceed in rem, as it is called, under the fifth section of this act,the allegation being that such proceedings are not by due process of law, as required by the Constitution. An analogy has been drawn in some quarters from the authority of the Government in prize courts. It does not follow, necessarily, that, because the Government may proceed in rem against enemies' property found on the ocean, it may therefore proceed against other property found in other and different positions. The principle, as I understand, of the law on which proceedings in rem are justified in prize cases is this: enemies' property being found in transitu on the ocean, a presumption at once arises, that either that property or the proceeds of it, in one way or another, are to inure to the benefit of the public enemy, and no inquiry can be instituted in court as to whether the individ

ual owner is an enemy or a friend. It is sufficient that he is de facto under the jurisdiction of the belligerent, that he is an inhabitant of the territory against the people of which we are waging war.

Property on land is not subject to seizure or confiscation, because there is no presumption existing generally that it is to be used for the benefit of the enemy. It may be taken for the necessities of the army; but it cannot be proceeded against in rem, as property taken upon the sea may be.

It is necessary, when we propose a new measure, to find authority in one of two conditions of things, either in a principle not heretofore established, or else in a principle heretofore recognized, but not extended in its application so as to sustain the proposed measure.

I submit to the House, as justifying the seizures provided for in the fifth section of the act of July 17, 1862, that while the condition of property belonging to rebels does not create the presumption, in and of itself, that it is to be used in support of the rebellion, still the law itself requires proof, equivalent to the evidence on which presumption is to be based in the case of enemies' property taken on the ocean. By the fifth and sixth sections of the act, the government is to show that the owner of this rebel property is an officer of the army or navy, or in the civil service of rebels in arms against the Government of the United States.

And, when we have established that fact, is it not equal to the presumption that arises when enemies' property is taken in transitu on the water? Upon such proof, it is a fair presumption that the property