The Continental Monthly, Volume V. Issue I | Page 6

the ground that it does not fall within
the scope of the constitutional prohibition in question. This ground may
be maintained by asserting that the constitutional prohibition of
perpetual forfeiture applies only to cases of 'attainder of treason,' that is,
according to Blackstone, of 'judgment of death for treason,' and that
cases under this act are not such; that the limitations applicable to
ordinary judicial proceedings against traitors are not applicable here;
that the Confiscation Act seizes the property of rebels not in their
quality of criminals, but of public enemies; that it is not an act for the
punishment of treason, but for weakening and subduing an armed
rebellion, and securing indemnification for the costs and damages it has
entailed--in short, not a penal statute, but a war measure; and that the
Constitution which gives Congress the right to make war for the
suppression of the rebellion, and to subject the lives of rebels to the
laws of war, gives it the right to subject their property also to the same
laws--putting both out of the protection of the ordinary laws; and
finally that all the objects aimed at by the measure are legitimated by
the principles of public law.
If these views can be sustained, it follows that Congress was justified
not only in enacting the perpetual confiscation of the personal property
of rebels, but need not, and should not, have passed the explanatory
clause prohibiting 'forfeiture of real estate beyond the natural life' of
the rebel. So far as weakening the rebellion, indemnifying the nation
for costs and damages, or the rights and interests of the heirs of rebels,
are concerned, there is no reason in justice or in policy for the
discrimination made between personal and real estate; if it is right and
wise to take the one in perpetuity, it is equally so to take the other. In

our judgment, it is right and wise to do both.
MILITARY ADMINISTRATION--NO ARMY OF RESERVE.
In looking over the war, we can all now see a very great error in the
military administration--the neglect, namely, to provide and keep up a
proper reserved force. It is the grand mistake of the war. Two years and
a half of war, and no army of reserve! Eighteen months ago, a force of
reserve of at least two hundred thousand men should have been formed.
It could probably then have been formed of volunteers. From it,
vacancies made in the armies in the field by battle, disease, or
expiration of time of service, could have been filled with drilled and
disciplined soldiers, and reinforcements drawn to meet any special
exigency. The victory of Gettysburgh might have resulted in the total
destruction of Lee's army before he could recross the Potomac; and
Rosecrans might have been strengthened without weakening the Army
of the Potomac or any other. Whether the cost of forming and keeping
up such a force of reserve would have greatly exceeded the cost of the
recent draft, we do not pretend to know. We are inclined to think it
would not. But that is a question of little moment. Money wisely spent
is well spent: money unwisely saved is ill saved. With such a force, the
recent draft might not have been necessary--at all events there would
have been no necessity for suspending active military operations in
Virginia, and awaiting the slow completion of the draft, at a moment
when, large additions to the forces in the field were precisely the one
thing needful. The army of reserve would at once have supplied
disciplined soldiers, and their places in the camps of instruction and
reserve could have been filled with the new conscripts as fast as they
were collected.
CONSOLATION--ENFORCEMENT OF THE DRAFT IN NEW
YORK.
But grave as the error is which we have signalized, there is something
that might well console us for greater misfortunes than it has entailed,
and which gives us another illustration of the truth that God and Time
often work for us better than we for ourselves, and out of our errors
bring good that we could not forecast.

It would not be wise to assert that the not having such a reserved force
necessitated the recent draft, and thereby occasioned the horrible
outbreak in New York. But if it may even be safely suggested as
possibly true, the successful enforcement of the draft becomes all the
more a matter for boundless joy and congratulation. Important as its
enforcement throughout the country was as a means of filling up the
ranks of our armies, the outbreak in New York made it a thousand
times more important as the only adequate assertion of the supremacy
of national law.
There can be no doubt as to the nature, origin, and purpose of that
outbreak. It was