forts and prisons; to stop the press from aiding and comforting the enemy by betraying our military plans; to arrest within our lines, or wherever they can be seized, persons against whom there is reasonable evidence of their having aided or abetted the rebels, or of intending so to do, -the pretension that in so doing he is violating the constitution is not only erroneous, but it is a plea in behalf of treason. To set up the rules of civil administration as overriding and controlling the laws of war, is to aid and abet the enemy. It falsifies the clear meaning of the constitution, which not only gives the power, but makes it the plain duty of the President, to go to war with the enemy of his country. And the restraints to which he is subject when in war, are not to be found in the municipal regulations, which can be administered only in peace, but in the laws and usages of nations regulating the conduct of war.

BELLIGERENT RIGHT TO CONFISCATE ENEMY'S REAL ESTATE.

The belligerent right of the government to confiscate enemy's real estate, situated in this country, can hardly admit of a question. The title to no inconsiderable part of the real estate in each of the original States of the Union, rests upon the validity of confiscation acts, passed by our ancestors against loyal adherents to the crown. Probably none of these States failed to pass and apply these laws. English and American acts of confiscation were recognized by the laws of both countries, and their operation modified by treaties; their validity never was denied. The only authority which either of the States or colonies ever had for passing such laws was derived from the fact that they were bel ügerents.

It will be observed that the question as to the belligerent right to confiscate enemy's real estate situated in the United States, is somewhat different from the question whether in conquering a foreign country it will be lawful to confiscate the private real estate of the enemy.

It is unusual, in case of conquest of a foreign country, for the conqueror to do more than to displace its sovereign, and assume dominion over the country. On a mere change of sovereignty of the country, it would be harsh and severe to confiscate the private property and annul the private rights of citizens generally. And mere conquest of a country does not of itself operate as confiscation of enemy's property; nor does the cession of a country by one nation to another destroy private rights of property, or operate as confiscation of personal or real estate. So it was held by the Supreme Court in the case of the transfer by treaty of Florida to the United States; but it was specially provided in that treaty that private property should not be interfered with. The forbearance of a conqueror from confiscating the entire property of a conquered people is usually founded in good policy, as well as in humanity. The object of foreign conquest is to acquire a permanent addition to the power and territory of the conqueror. This object would be defeated by stripping his subjects of every thing. The case is very different where confiscation will only break up a nest of traitors, and drive them away from a country they have betrayed.

Suppose that certain Englishmen owned large tracts

• United States v. Juan Richmond, 7 Peters, 51.

of real estate in either of the United States or territo ries thereof, and war should break out; would any one doubt the right of Congress to pass a law confiscating such estate?

The laws of nations allow either belligerent to seize and appropriate whatever property of the enemy it can. gain possession of; and, of all descriptions of property which government could safely permit to be owned or occupied by an alien enemy, real estate within its own dominion would be the last.

No distinction can be properly or legally made between the different kinds of enemy property, whether real, personal, or mixed, so far as regards their liability to confiscation by the war power. Lands, money, slaves, debts, may and have been subject to this liability. The methods of appropriating and holding them are different the result is the same. And, considering the foundation of the right, the object for which it is to be exercised, and the effects resulting from it, there is nothing in law, or in reason, which would indicate why one can and the other cannot be taken away from the enemy.

In Brown v. United States, 8 Cranch, p. 123, the Supreme Court of the United States say,

"Respecting the power of government, no doubt is entertained. That war gives to the sovereign the full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself— that remains undiminished; and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will."

"It may be considered," they say, "as the opinion of all who have written on the jus belli, that war gives the right to confiscate," &c.

Chancellor Kent says,

"When war is duly declared, it is not merely a war between tais and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the government of two nations is a war between all the individuals of the one and all the individuals of which the other nation is composed. Government is the representative of the will of the people, and acts for the whole society. This is the theory of all governments, and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other."

"Very important consequences concerning the obligations of subjects are deducible from this principle. When hostilities have commenced, the first objects that present themselves for detention and capture are the persons and property of the enemy found within the territory on the breaking out of war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property and detain the persons as prisoners of war."*

We thus see, that by the law of nations, by the practice of our own States, by the decisions of courts, by the highest authority of legal writers, and by the deductions of reason, there can be no question of the constitutional right of confiscation of enemy real estate of which we may gain possession. And the legal presumption that real estate situated in rebellious districts is enemy property, would seem to be as well founded as it is in case of personal property.

It is for the government to decide how it shall use its belligerent right of confiscation. The number of slaveholders in the rebellious States, who

* 1 Kent's Com., p. 55. See also Grotius, B. III. ch. 3, sect. 9; ch. 4, sect. 8. Burlamaqui, Part IV. ch. 4, sect. 20. Vattel, B. III. ch. 5, sect. 70. † See page 57.

are the principal land owners in that region, and who are the chief authors and supporters of this rebellion, constitute, all told, less than one in one hundred and twenty eight of the people of the United States, and less than one fiftieth part of the inhabitants of their own districts, being far less in proportion to the whole population of the country than the old tories in the time of the revolution were to the colonists.*

In confirmation of these views of the War Powers of Congress, see the chapter on the War Powers of the President, and NOTES thereon. 9