The Continental Monthly, Vol. 5, No. 1, January, 1864. Various
as a whole have ever supplied, and to possess other advantages which make them incomparably a better currency than that of local banks.
The high price to which gold has been carried by gambling speculators, is not to be taken as indicating a proportionate want of confidence in the success of the national cause and in the intrinsic value of the national securities. It indicates nothing of the sort—at any rate, whatever it may be taken to indicate, it is none the less true that United States six per cent. bonds were from the first eagerly sought for and taken as investments at the rate of a million a day—faster indeed than the Government could at first supply them; with a constantly augmenting demand, until in the last week of October thirty-six millions were disposed of—leaving only one hundred and fifty millions unsold, which will doubtless all be taken before this paper is published. Comment on this is entirely needless.
OUR FOREIGN RELATIONS
In the conduct of our foreign relations, certain official declarations in the early part of the war on the policy and purpose of Government in carrying it on, are to be regretted as gratuitous and unfortunate. It is to be regretted also that the capture of the Trent and the seizure of Mason and Slidell was not at once disavowed as being contrary to our doctrine on neutral rights, and the rebel emissaries surrendered without waiting for reclamation on the part of the British Government; or, if it was thought best to await that reclamation as containing a virtual concession of our doctrine, it would have been better—more dignified and effective—if the reply had been limited to a simple statement that the surrender was necessitated by the principles always maintained by our Government, and not by a reclamation which the British Government, by its own construction of public law and by its own practice, was not entitled to make, but which being made, might now, it was to be hoped, be taken as an abandonment in the future of the ground heretofore maintained by that Government.
CONCESSION OF BELLIGERENT RIGHTS TO THE REBELS
There has been some dissatisfaction with the conduct of our official communications with Great Britain and France respecting the question on belligerent rights and neutral obligations which the rebellion has raised. But there are points of no inconsiderable difficulty and delicacy involved in these questions, which a great many people, in their natural displeasure against the English and French, have failed to consider. Our Government deserves the credit of having consulted the interests without compromising the dignity of the nation. Admitting the conduct of the British and French Governments in recognizing the rebels as belligerents to be as unfriendly and as unrequired by the obligations of public law as it is generally held to be among us, that would not make it right or wise for our Government to depart from the tone of moderation. We can no more make it a matter for official complaint and demand against these Governments, than we could the unfriendly tone of many of their newspapers and Parliamentary orators. We might say to them: We take it as unkindly in you to do as you have done; but if they will continue to do so, we have nothing for it but to submit. Even if we could have afforded it, we could not rightly have gone to war with them for doing what we ourselves—through the necessity of our circumstances—have been compelled in effect to do, and what they, though not forced by any such necessity, had yet a right—and in their own opinion were obliged—by public law to do. We could not have made it a cause of war, and therefore it would have been worse than idle to indulge in a style of official representation which means war if it means anything.
THE REBEL CRUISERS
The question of the rebel cruisers on the high seas is a question by itself. The anger excited among us by the injuries we have suffered from these vessels is not strange; nor is it strange that our anger should beget a disposition to quarrel with Great Britain and France for conceding the rights of lawful belligerents to the perpetrators of such atrocities. The rebels have no courts of admiralty, carry their prizes to 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 the ground
Since the above was written, the speech of Earl Russell, in Scotland, indicates a disposition on the part of the British Government to do us justice, at least in the future; and it is to be hoped that a satisfactory adjustment of all differences on the whole matter may be peacefully made.
In the 'Letters to Professor Morse,' in the November number of The Continental, a sentence on page 521, relating to the Confiscation Law, was left incomplete. The whole sentence should have been as follows: 'As to the
I have here put in italics the clause omitted in that article, and hope my readers will insert it in the proper place. The sentence, as thus completed, contains all I cared then to say on the point—my object being mainly to vindicate the justice and conformity to public law of the policy of confiscation. In the present article I have gone more at length into the question of the constitutionality of the law of Congress, and have come to the conclusions herein expressed.