not have a forfeiture inflicted upon him until he has been duly convicted, according to the constitution of the United States, of the offense which causes the forfeiture.

I proceed, next, to the inquiry whether this legislation is within the prohibitions contained in the different amendments of the constitution, on the assumption made by the government that the proceedings of confiscation it authorizes may be had without any previous conviction of the offense alleged in the libel, and on this part of the argument I shall find it necessary to say but few words. That this offense of giving aid and comfort to the rebellion is punished by this law by a fine of five thousand dollars, imprisonment for five years, inability or disqualification to hold any office of honor or trust under the United States, and forfeiture of all property, that this is an "infamous" offense, within the meaning of the constitution, I suppose will hardly be denied. That this is a criminal prosecution, within the meaning of the constitution, if it be not legislation exclusively directed against enemy's property, within the scope of the war power of the government, as I have endeavored to explain it, I suppose, also, cannot be denied. Here is a charge of crime, and here is a forfeiture of all property by reason of his guilt of that crime, to be enforced by this proceeding. I suppose it to be equally clear that this is not "due process of law," within the meaning of the constitution. I am quite aware that property may be proceeded against for offenses against the revenue laws of the country, and for some other offenses, where the property proceeded against is the offending thing, without the owner having been convicted of any offense, and in many cases without its being necessary that he should even be alleged to have been guilty of any offense personally; but those cases are clearly distinguishable, as I have said, from this case. There the offense inheres in the thing, and the thing is forfeited by reason of the unlawful use that has been made of the property, or the unlawful condition into which it has been put; but here is a proceeding against, so to speak, innocent property, that has broken no law, has been used as an instrument for breaking no law, and it is a proceeding against it because of the guilt of its

owner.

Now, when the constitution uses the words "process of law" without defining what they mean, it has been said by this court that they must be held to mean such process as was customary under the common law of England, shown by its use in this country, after the emigration of our ancestors, to be suited to our condition. But is there any instance under the common law of Eng

land, since Magna Charta, in which the property of a subject was forfeited by a proceeding like this? Is there any instance in which a subject could lose his property by a direct proceeding against the property itself, because he had committed an offense, without allowing an opportunity for a trial by a jury of his personal guilt? I venture to say there is no such instance known to the common law of England, or which was known to our ancestors as having been brought by them from England.

I am quite aware that, in the heat of the Revolutionary war, acts of confiscation were passed, ex post facto laws were passed, bills of attainder were passed, all kinds of violent proceedings were resorted to against those who were deemed to be the enemies of their country. But, may it please your honors, it was these very excesses into which our ancestors had run during that heated time which caused the framers of the constitution of the United States to insert restrictions in it that no ex post facto law should be passed; that no bill of attainder should be passed; that no man should be deprived of his property save by due process of law. The citation of the enormities which were committed in those times of revolution, which caused these restrictions to be inserted in the constitution, certainly cannot afford any reason why the restrictions themselves should not be observed.

WENDELL PHILLIPS.

[Wendell Phillips was born in Boston, 1811. His father was a judge of the court of common pleas, and the first mayor of Boston. He was educated at Harvard College, where he was graduated in 1831. He studied law at the Harvard Law School, and was admitted to the bar in 1834. He opened an office in Boston, but soon threw himself heart and soul into the anti-slavery agitation. At a meeting of Abolitionists in Faneuil Hall, in 1837, to denounce the murder of Lovejoy, Phillips made his first speech, and thereafter he was indefatigable with voice and pen in his efforts for the freedom of the slaves. In 1840 he was a delegate to the World's Anti-Slavery Convention in London. After the close of the Civil War he advocated woman's suffrage, labor reforms, and temperance. In 1870 he was the nominee of the Labor and Prohibition parties for governor of Massachusetts. As a lyceum lecturer and commemorative orator, he won great distinction. Among his most celebrated efforts may be mentioned "The Lost Arts," "Toussaint l'Ouverture," "Daniel O'Connell,” “William Lloyd Garrison," "Idols," and "The Scholar in a Republic." He died at his home in Boston, February 2, 1884. His speeches, lectures, and letters have been published in two volumes by Lee & Shepard, Boston, from which, by permission, the following argument is taken.]

Mr. Justice Story once remarked that he would like to live long enough to see what distinction three of his pupils in the Harvard Law School would attain. These three pupils were Benjamin R. Curtis, Wendell Phillips, and Charles Sumner. Although all three lived up to the expectations which had been formed by their distinguished instructor, their courses were widely divergent. Phillips, like Sumner, seems to have had no real liking for the law, and his circumstances were such that he was not compelled to abide by his choice. The year following his admission to the bar, in comparing progress with a classmate, he said: "I will wait six months more, and then, if clients do not come, I will not wait for them longer, but will throw myself heart and soul into some good cause, and devote my life to it, if necessary." The cause was near at hand. Within a few months the mobbing of Garrison in the streets of Boston directed his mind to the slavery question. Two years later the briefless lawyer of twenty-six launched himself on

his real career with his spirited speech on the murder of Lovejoy. Time showed what the profession lost in him, for, whatever difference of opinion may exist with respect to his subsequent public conduct as an agitator, no one ever denied that he possessed in a most remarkable degree the power of persuasive speech. Constantly before the public for nearly half a century as a social agitator, or at the head of a little band of lyceum lecturers, he set a new style of public speaking, which still colors the best oratory of our time. "In the measured cadence of his quiet voice," as George William Curtis said, "there was intense feeling, but no declamation, no passionate appeal, no superficial and feigned emotion. It was simple colloquy,-a gentleman conversing." Only once did he display these high powers in a legal argument; but this "outrageously able speech," as Rufus Choate termed it, gives Wendell Phillips an honorable place in forensic annals. For simplicity and force of style, combined with all the elements of rhetorical power, the following argument is indeed a masterpiece of persuasive speech.

ARGUMENT IN SUPPORT OF A PETITION FOR THE REMOVAL OF EDWARD G. LORING FROM THE OFFICE OF JUDGE OF PROBATE, BEFORE A

COMMITTEE OF THE MASSACHU

SETTS LEGISLATURE, 1855.

STATEMENT.

This controversy arose out of the attempt to enforce the fugitive slave act of 1850 in the city of Boston. The negro Shadrach, the first person arrested under the act, was forcibly rescued in the early part of 1851. In April of that year, Simms was sent back to slavery. In May, 1854, Anthony Burns, the last slave seized in Boston, was brought before the co.amissioner under the act,-Edward G. Loring,-who was also a probate judge of Boston. By this time the anti-slavery sentiment had reached a high point; Webster was dead, and Sumner represented Massachusetts in the United States senate. Burns was remanded by Commissioner Loring, but it required the assistance of the state militia to place him on board a south-bound vessel in Boston harbor. An agitation at once arose for the removal of Judge Loring from the office of probate judge in consequence of his having acted as a slave commissioner. In the following year, numerous petitions were presented to the legislature asking for his removal by joint address. At the hearing the following argument was delivered by Wendell Phillips on behalf of the petitioners. Richard Henry Dana, who had defended Burns, but who disapproved of the proposed action, appeared in behalf of certain remonstrants. The address finally passed the legislature, but Gov. Gardner declined to accede to it. When, in 1857, Nathaniel P. Banks became governor, the agitation was renewed, and Judge Loring was removed from office. He was immediately appointed by President Buchanan a judge of the United States court of claims.

Mr. Chairman and Gentlemen: The petitions offered you on any one topic are usually all in the same words. On the present occasion I observe on your table twelve or fourteen different forms. This is very significant. It shows they do not proceed from a central committee, which has been organized to rouse the commonwealth. They speak the instinctive, irrepressible wish of all parts of the state. It is the action of persons of different parties, sects, and sections, moving independently of each other, but seeking the same object. Some persons have sneered at these petitions because women are found among the signers. Neither you, gentlemen, nor the legislature, will maintain that womenthat is, just one-half of the commonwealth-have no right to petition. A civil right, which no one denies even to foreigners, will not certainly be denied to the women of Massachusetts; and is there any one thoughtless enough to affirm that this is not a proper occasion for women to exercise their rights? These petitions ask the removal of a judge of probate. Probate judges are