The Continental Monthly, Volume V. Issue I | Page 5

no ports, submit
them to no lawful 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 construction. So the
Congress of 1790 understood it in the act declaring the punishment of
treason and some other high crimes. As to the perpetuity of forfeiture, it
seems equally necessary to hold that it is prohibited by the clause of the
Constitution in question. Such is undeniably the first and obvious
meaning of the terms. It has been argued indeed that it was not the
intention of the framers of the Constitution to prohibit perpetual
forfeiture of property from being 'declared' by Congress, but only to
prohibit 'attainder of treason' from 'working' of itself that effect by
necessary consequence--as it did under the Common Law of England.
It has also been argued that the constitutional restriction does not relate
to perpetuity of forfeiture, but only requires that the forfeiture or act of
alienation take place, have effect, and be accomplished 'during the life
of the person attainted,' and not after his death.
But this reasoning is more subtile than satisfactory. A fair consideration
of the subject leaves little room for doubt that the framers of the
Constitution had in view and intended to prohibit everything which
under the old English common law followed upon 'attainder of
treason'--to prohibit forfeiture in perpetuity of property of every sort,
no less than 'bills of attainder,' 'corruption of blood,' and barbarities of

punishment, such as disembowelling, quartering, etc.
If therefore the constitutional restriction on forfeiture apply to the
Confiscation Law, it makes the law unconstitutional, in so far as it
enacts the perpetual forfeiture of the personal estate of rebels; and the
discrimination made in regard to their real estate does not save the
constitutionality of the act.
If, therefore, the Confiscation Law is to be held as constitutional, it can
be so, as it seems to us, only on