Page:The Continental Monthly, Volume 5.djvu/15

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Retrospective.

5

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 con-

↑ Since the above was written, the speech of Earl Russell, in Scotland, indicates a disposition on the part of the British Government to do us justice, at least in the future; and it is to be hoped that a that a satisfactory adjustment of all differences on the whole matter may be peacefully made.
↑ In the 'Letters to Professor Morse,' in the November number of The Continental, a sentence on page 521, relating to the Confiscation Law, was left incomplete. The whole sentence should have been as follows: 'As to the Confiscation Acts—it is enough to say that the Constitution gives Congress power 'to declare the punishment of treason';—or if the constitutionality of the Confiscation law cannot be concluded from the terms of that grant — about which there may be a doubt—it is undoubtedly contained in the war powers vested in Congress.'
I have here put in italics the clause omitted in that article, and hope my readers will insert it in the proper place. The sentence, as thus completed, contains all I cared then to say on the point—my object being mainly to vindicate the justice and conformity to public law of the policy of confiscation. In the present article I have gone more at length into the question of the constitutionality of the law of Congress, and have come to the conclusions herein expressed.

[1] Since the above was written, the speech of Earl Russell, in Scotland, indicates a disposition on the part of the British Government to do us justice, at least in the future; and it is to be hoped that a that a satisfactory adjustment of all differences on the whole matter may be peacefully made.

[2] In the 'Letters to Professor Morse,' in the November number of The Continental, a sentence on page 521, relating to the Confiscation Law, was left incomplete. The whole sentence should have been as follows: 'As to the Confiscation Acts—it is enough to say that the Constitution gives Congress power 'to declare the punishment of treason';—or if the constitutionality of the Confiscation law cannot be concluded from the terms of that grant — about which there may be a doubt—it is undoubtedly contained in the war powers vested in Congress.'
I have here put in italics the clause omitted in that article, and hope my readers will insert it in the proper place. The sentence, as thus completed, contains all I cared then to say on the point—my object being mainly to vindicate the justice and conformity to public law of the policy of confiscation. In the present article I have gone more at length into the question of the constitutionality of the law of Congress, and have come to the conclusions herein expressed.

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