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government could suit the rule to the occasion, and adopt whichever course might appear most suitable in a given situation. The theory of traitor status was, in the opinion of many, a convenient justification for certain severe measures which were more or less directly contemplated and which could rest on no other accepted principle, as for instance the condemnation after the war of the principal Confederate leaders under domestic criminal law. It became apparent at once, however, that this severe principle could not be adhered to rigidly. In the ordinary conduct of the war it was the jus belli, not the lex talionis which must govern the armies. In the declaration of blockade and in the treatment of privateers as public enemies instead of pirates, the administration followed the only rational and humane course possible, but in these particulars the insurgents were undoubtedly recognized as belligerents.

So far the way seemed clearly marked out by the plain dictates of reason and humanity, and there was no serious difference of opinion. When the question of confiscation was reached, however, there was no generally conceded principle around which all could unite, and it was in this connection that the difficulty regarding rebel status reached its most acute stage. The subject was beclouded rather than clarified by the debates. On the one hand the rebels were referred to as red-handed, black-hearted pirates, and traitors,34 unworthy of claiming a single belligerent right. On the other hand they were represented as a regularly constituted governmental power with an organized administration in control, an authorized army in the field, and with all the attributes of a belligerent in a public war.3 It remained for the Supreme Court, in a few clear-cut decisions, to present what seems the only practical solution of the problem, by adopting the convenient and flexible principle of the double status of the rebels. In the Amy Warwick case Justice Sprague thus expressed the views of the majority of the court: "I am satisfied that the United States as a nation have full and complete belligerent rights, which are in no degree impaired by the fact that their enemies owe allegiance and have superadded the guilt of treason to that


See speeches of Elliot of Massachusetts in the House of Representatives (Cong. Globe, 37 Cong., 2 sess., p. 2234), Howard of Michigan (ibid., p. 1717), and Davis of Kentucky (ibid., p. 1759).

The words of Blair of Pennsylvania, who favored confiscation, present a good statement of the principle of belligerent status: "What are our relations to these rebellious people? They are at war with us, having an organized government in the cabinet, and an organized army in the field, and I hold that in the conduct and management of the war on our part we are compelled to act towards them as if they were a foreign Government of a thousand years' existence, between whom and us hostilities have broken out." Cong. Globe, 37 Cong., 2 sess., p. 2299.

of unjust war."36 A similar expression is that of Justice Grier in the Prize Cases: "The law of nations. . . contains no such anomalous doctrine as that which this court are now for the first time desired to pronounce, to wit: That insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an 'insurrection'."3 "37 Again, in Miller v. United States: "Whatever may be true in regard to a rebellion that does not rise to the magnitude of a war, it must be that when it has become a recognized war those who are engaged in it are to be regarded as enemies."as

With this statement of the broad theoretical problem in mind we may now turn to a detailed phase of the question of rebel status in which its practical application and its bearing upon individual rights stand out clearly. One of the common difficulties confronting the courts in the enforcement of the confiscation acts was to decide whether, in the seizure of property of persons adhering to the rebellion, opportunity should be given to the supposed "rebel" to appear in court and plead his case. On the one hand stood the principle that an enemy has no standing in court, while on the other hand the very nature of the proceeding under the confiscation acts was such that judgment must rest upon a determination of the fact as to whether or not the party was actually engaged in the rebellion—a point on which the owner could claim a right to be heard. Moreover it was ably contended that a quasi-criminal character3 pertained to confiscation proceedings, requiring the same strict construction of the law in the interest of the accused as belongs to actions brought under a criminal indictment. Such construction 36 2 Sprague 123.

87 2 Black 670. See also pp. 672 and 673. As to the necessity of some concession of belligerent rights in the case of a formidable rebellion, see Williams v. Bruffy, 96 U. S. 187. There the Supreme Court declared that such concessions depend upon "the considerations of justice, humanity, and policy controlling the government".

11 Wallace 309.

The Supreme Court is authority for the statement that actions in confiscation were "in no sense criminal proceedings ", and were 66 not governed by the rules that prevail in respect to indictments or criminal informations". The only subject of inquiry in such cases, in the opinion of the court, was the liability of the property to confiscation, and persons were referred to only to identify the property. (The Confiscation Cases, 20 Wallace 104-105. In this case there were three dissenting judges.) For a vigorous statement of the view that the confiscations partook largely of the nature of criminal statutes, see Field's dissenting opinion in Tyler v. Defrees, 11 Wallace 331, and Lincoln's proposed veto message, Senate Journal, 37 Cong., 2 sess., July 17, 1862, p. 873.

would certainly not deny to the suspected “rebel" all opportunity whatever of conducting a defense in court.


The practice during the war on this point was uncertain and frequently detrimental to the interests of the accused. In the district court for the eastern district of Virginia a general rule was prescribed which disallowed a hearing in the case of persons adhering to the rebellion.40 In a case tried before Judge Betts of the southern district of New York in July, 1863, the defendant, a resident of Alabama," duly filed an answer to the allegations set forth in the libel of information against his property, but the judge ordered this answer to be stricken from the files on the ground that the defendant was an "alien enemy", and hence had no persona standi in a court of the United States. An able criticism of Judge Betts's position is to be found in the Annual Cyclopedia for 1863. The writer points out that if Betts's doctrine was correct "the mere fact of Mr. Wiley's [the defendant's] residence in a southern insurrectionary state precludes him from appearing and contesting the allegations of the libel that he has rendered active aid to the rebellion. . . . Under such a practice every dollar of property owned by Southern citizens in the North, no matter how loyal, need only be seized under an allegation of disloyal practices, and as the accused cannot be heard to deny that allegation, (and if he remains silent no proof of it is required), the whole matter is very summarily disposed of to the great comfort and advantage of the informer, and to the increment of his personal possessions."

This question whether a rebel should have a hearing in a federal court on the issue of the condemnation of his property waited till after the war for its settlement by the Supreme Court. The case was that of McVeigh v. U. S.-one of the prominent confiscation cases.43 In its facts the case resembled that in which Judge Betts had given his radical decision. A libel of information had been filed in the eastern Virginia district to reach certain real and personal property of McVeigh who was charged with having engaged in armed rebellion. McVeigh appeared by counsel, interposed a claim to the property, and filed an answer to the information. By motion of the district attorney, however, the appearance, answer, and claim were stricken from the files for the reason that the respondent was a "resident of the city of Richmond, within the Confederate lines, and a rebel". The property was condemned and ordered to be sold. When the case reached the Supreme Court the 40 Semple v. U. S., 21 Fed. Cas. 1072.

41 Annual Cycl., 1863, p. 220.


2 Jecker v. Montgomery, 18 Howard 112, and cases cited.
43 11 Wallace 259; see also Windsor v. McVeigh, 93 U.S. 274.

judgment was reversed, and the action of the district attorney unanimously condemned. The court held that McVeigh's alleged criminality lay at the foundation of the proceeding, and that the questions of his guilt and ownership were therefore fundamental in the case. The order to strike the claim and answer from the files on the ground that McVeigh was a "rebel" amounted to a prejudgment of the very point in question without a hearing. The court below in issuing this order had acted on the theory that no enemy of the United States could have standing in its courts, but the higher tribunal refused to allow such an application of this principle. On this fundamental question, therefore, the Supreme Court was committed to the proposition that a "rebel" should not be denied the right to a hearing in connection with the seizure of his property by a federal court. Had this conclusion been pronounced early enough to produce uniformity of practice during the war, and had the Supreme Court itself maintained this principle consistently, the advantage of the McVeigh decision would have been far greater than was actually the case.

A problem more fundamental perhaps than any of the above was that which concerned the constitutionality of the confiscation acts. It was not surprising that this legislation which had been enacted against the judgment of many of the ablest thinkers in Congress, which had barely escaped the presidential veto, and which had occasioned the greatest uncertainty in its judicial enforcement, should have to meet sooner or later that peculiar ordeal to which all American laws are liable-the test of constitutionality. The wonder is that the test was deferred so long, for it was not until 1871 that the matter of constitutionality was made a direct issue before the Supreme Court. The case was that of Miller v. United States a proceeding under both of the confiscation acts to forfeit certain shares of railroad stock in two Michigan corporations." The information filed against this stock alleged it to be the property of Samuel Miller, a Virginia "rebel". An essential feature of the case was the fact that Miller had disregarded the notice and the district court in Michigan, without a hearing of the case, had entered a decree of condemnation by default. Miller's attorney complained that the acts of Congress on which the seizure and the condemnation by default had been based were unconstitutional, involving a violation of the fifth and sixth amendments, which have to do with the guarantees of due process of law and of property rights.

The court met the defendant's objections by a liberal reliance on 11 Wallace 304 ff.

the "war power" and by reference to earlier decisions in which related problems had been settled. The primary question of the nature of the Civil War had been fully treated in the Prize Cases,45 where the court had defined the conflict as one of sufficient magnitude to give the United States all the rights and powers appropriate to a foreign or national war. The belligerent rights of the United States, then, were not diminished by the fact that the conflict was a civil war. In the same decisions the relation of the Union government to the insurrectionary districts was dealt with, and the rights both of a sovereign and a belligerent were held to belong to the government of the United States. The court proceeded on the basis of these previous decisions to analyze the confiscation acts and defend their constitutionality. The most important problems before the court under the head of constitutionality were: first, to decide under what category to place confiscation, i. e., whether to regard it as the exercise of war power or as a municipal regulation; and second, to deal with the objection that the act violated the fifth and sixth amendments relating to rights of property and of impartial trial. As to the first of these problems the court laid down the doctrine that the confiscation acts were not passed as a municipal regulation but as a war measure. With a tone of certainty which, as we have seen, the precedents hardly warranted, the court declared. that "this is and always has been an undoubted belligerent right". Congress had "full power to provide for the seizure and confiscation of any property which the enemy or adherents of the enemy could use for the purpose of maintaining the war against the government". The act of 1861, and the fifth, sixth, and seventh sections of the act of 1862, were therefore construed as an enforcement of the belligerent rights which Congress amply possessed during the Civil War.

Having thus placed the confiscation acts within the category of war measures, the court found little difficulty in meeting the objection that the acts involved a violation of the fifth and sixth amendments. The relevant provisions in these amendments are that no person shall be deprived of his property without due process of law, and that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. The acts, as we have above noted, permitted judgment on default without a jury trial, without a personal hearing, and without a determination of the facts as to the guilt of the owner. It was admitted by the court that if the purpose of the acts had been to punish

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