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out of Congress, it would seem that they supposed that what we lacked in troops we could make up by declarations or proclamations of emancipation, and with much greater effect. The fierce cry of “On to Richmond!” has been exceeded only by the fiercer cry for a proclamation of emancipation ; and it has been urged with an earnestness which ought to be indicative of the conviction, that without such proclamation we could accomplish nothing, and with it could attain everything. Indeed, such has been substantially their declaration.
The formula of the argument by which this class of persons carry on the war at present is substantially this :- Slavery is the cause of the rebellion. In order to a successful prosecution of the war, we must destroy the cause. Nothing else can be effectual. We must strike at the root of the insurrection. And the axe which is to be laid at the root is - a proclamation. It has been contended that the President, under the war power, could issue a proclamation; and when the inquiry has been made, what authority the President has to proclaim emancipation, the answer has been, If he cannot do it as President, he may take the field, and do it as commander-in-chief. In fact the “ WE” of Mr. Horace Greeley do not need the aid of the war power to reach the conclusion that the President might declare emancipation. In his letter addressed to the President, entitled “ The Prayer of Twenty Millions," it is said :
“ Had you, Sir, in your Inaugural Address, unmistakably given notice that, in case the rebellion already commenced were persisted in, and your efforts to preserve the Union and enforce the laws should be resisted by armed force, you would recognize no loyal person as rightfully held in slavery by a traitor, we believe the rebellion would therein have received a staggering, if not fatal blow. .....
“ Had you then proclaimed that rebellion would strike the shackles from the slaves of every traitor, the wealthy and the cautious would have been supplied with a powerful inducement to remain loyal. As
it was, every coward in the South soon became a traitor from fear; for loyalty was perilous, while treason seemed comparatively safe. Hence the boasted unanimity of the South, – a unanimity based on rebel terrorism, and the fact that immunity and safety were found on that side, danger and probable death on ours. The rebels from the first have been eager to confiscate, imprison, scourge, and kill; we have fought wolves with the devices of sheep.”
We thus perceive what might have been done by a declaration or proclamation. Siege guns, shells, solid shot, telescopic rifles, and Minié bullets are as nothing when compared with a proclamation.
We shall not detain our readers by an argument to show that the President, with or without a cocked-hat, has no power to emancipate the slaves, even of rebels. We have no certain assurance that he might not, if he should act in accordance with the requirements of the “we” of Mr. Horace Greeley, become himself, officially, felo de se. But we trust that he will carefully abstain from any kind of suicide, and his answer to the requirements gives us great encouragement.
The war power under the Constitution acting by proclamation seems not, upon consideration, to have been regarded as entirely satisfactory by Congress, and thereupon that body undertook, in the shape of “An Act to suppress Insurrection, to punish Treason and Rebellion, to seize and confiscate the Property of Rebels, and for other Purposes,” passed July 17, 1862, to provide for emancipation, in the shape of confiscation. Although the provisions of the act appear in a form somewhat different from those of a bill upon which the eloquent Senator from California made the speech, in March last, to which we refer our readers for a learned discussion respecting bills of attainder and confiscation, still the great purpose of emancipation is made manifest throughout. Emancipation as a punishment seems to be uniform, whatever may be the difference of punishment in other respects. That the emancipation was designed to take effect immediately after the expiration of sixty days from the President’s proclamation to the rebels to lay down their arms, seems clear from the act itself. And the sixth section contains a provision, that “all slaves of such persons [persons engaged in rebellion] found or being within any place occupied by rebel forces, and afterwards occupied by the forces of the United States, shall be deemed captives of war, and shall be forever free of their servitude, and not again held as slaves.” Each of the seceding States is a “place occupied by rebel forces.” And we trust that every such place will yet be “occupied by the forces of the United States.” Is the provision designed to make all the slaves in such “places” free, as captives of war, without trial or judgment? We ask for information. We are admonished by our limits that we cannot discuss the construction of this act at large. There are two or three propositions which we place before our readers for their consideration. 1. Slavery is not the cause of the rebellion * in the sense in which the emancipationists use that phraseology. Slavery is the pretext on which the leaders of the rebellion rely “to fire the Southern heart,” and through which the greatest degree of unanimity can be produced. It is a subject upon which the slaveholders, and many at the South who are not so, are exceedingly sensitive. Mr. Calhoun, after finding that the South could not be brought into sufficient unanimity by a clamor about the tariff, selected slavery as the better subject for agitation. And the ultra abolitionists have not failed to supply sufficient fuel to keep the matter at a white heat. All these projects for immediate emancipation at the present time are direct aids to the rebellion. It is the inordinate political ambition of the Southern poli
telpate clamatiz n the
ticians which is the cause of the rebellion,- slavery being only a remote agency, as it fosters and develops that ambition, and furnishes it with a subject for agitation; just as the personal ambition of some of the most prominent antislavery men of the North is the cause of their zeal for abolition, their love for the negro and for human freedom being assumed as the best subject on which to agitate themselves into public office. If the nullification of 1832 had become an active rebellion, the tariff would not have been the cause of the war, but only the pretext for it.
2. There can be no confiscation for treason, consistently with the Constitution, without a trial and conviction.*
* The writer in the Boston Courier who assailed the North American Review in general, and the article on Habeas Corpus and Martial Law in our number for October, 1861, in particular, and whom, in a note to the article on Constitutional Law in onr number for April last, we charged with gross misrepresentations of our positions, proving our charge by extracts, has not, so far as we are aware, made any response to that charge, either by way of denial or admission ; but “G. T. C.," who for aught we know may be the same personage, and to whom we paid our respects in a note on Confiscation, appended to the same article, was stirred up to a reply. As we have the sabject of Confiscation again under consideration, we will bestow a brief notice upon it. We are particularly induced to do so by this paragraph contained in it:
" In the view of the North American, the Constitution has provided that you cannot forfeit more than a life estate in lands by a verdict and judgment, but you may forfeit all personalty by a verdict alone, which may be set aside by the court the next day as unwarranted by the law and the evidence. The defendant is then tried again, and acquitted. He is innocent; - but his personal property is forfeited, and gone. He is punished before he is ascertained to be guilty; and when the investigation is completed in accordance with the rules of law, he is found to be innocent when the punishment was inflicted.” — Boston Courier, April 12, 1862.
Now the North American has suggested no such view, nor enunciated any proposition which in the most remote degree countenances such a conclusion. Did it not occur to G. T. C., when he penned that paragraph, that at the common law there was no practice by which a verdict could be set aside and a new trial granted in cases of treason and felony, and that there was, therefore, at the common law, no opportunity for the preposterous consequence which he suggests as the view of the North American, to wit, that there might be a verdict of guilty, and thereupon a for
3. A provision that slaves who have taken no part in the war shall be deemed captives of war, and free upon the occu
feiture of the personal property, and then the verdict be set aside and an acquittal be had upon a new trial, but the forfeiture remain complete and effective ?
“ In case of felony or treason, it seems to be completely settled, that no new trial can, in any case, be granted; but if the conviction appear to the judge to be improper, he may respite the execution to enable the defendant to apply for a pardon."
- 1 Chitty's Criminal Law, 654. See 6 Durn. & East, 625, 638 ; 13 East, 416, note b, and other authorities.
It is true, that it was early settled that a new trial may be granted in an indict. ment for treason, in the United States. 3 Dallas, 515, United States vs. Fries. But under the practice here, of setting aside verdicts in capital cases and granting new trials, no such consequence as that stated by G. T. C. could follow, because when the verdict is set aside the case stands as if it had never been rendered.
“A new trial is a rehearing of the cause, before another jury; but with as little prejudice to either party as if it had never been heard before.” -- 3 Black. 391.
And this is equally true of criminal as of civil cases. Was G. T. C. ignorant of all this, or is the paragraph which we have cited above only another instance of his way of putting things ? The verdict is set aside because there has been no rightful trial, and so no rightful conviction, and the necessary result is, that there could be no rightful forfeiture arising from such verdict. All the incidents attached to it have gone with it. But there may afterwards be another verdict and conviction, which might operate as a forfeiture if the old common law rules were in force; or there may be an acquittal, which will leave the matter as if there had been an acquittal in the first instance. The foregoing extract, however, is a pretty fair specimen of G. T. C.'s mode of argument.
We pass now to the main question, to wit, whether the Constitution limits the power of Congress in relation to the forfeiture of personal estate, as a punishment for treason, so that the title to his personal estate cannot be taken away for any longer period than during the life of the traitor, leaving a remainder or reversion in such personal estate to fall to his exccutors, or administrators, - which was the doctrine originally maintained by G. T. C., and applied by him particularly to a forfeiture of slaves, who, he admits, are personal, and not real property. We conceded that the Constitution limited the forfeiture of real property to an estate for life, and pointed out the distinction between the forfeiture of goods and chattels — which by the common law occurred upon the conviction of the offender, and related to the time of the conviction, respecting which the Constitution is silent - and that of real estate, the forfeiture of which by the common law arose from the judgment and attainder relating back to the commission of the offence, and which the Constitution refers to and limits, so that Congress cannot constitutionally punish treason by a forfeiture of real estate for any longer term than the life of the traitor, be that term greater or less.