't... ^-t.YkJt TUK SEQUESTRATION CASES BEFORH THB HON. A. G. MAGRATH. REPORT # V CASES UNDER Tn% / >cqiifstration 3lrt of' the dJonfiCderiitc ^tate;;, HEARD (N THE DISTRICT COURT FOR THE j'^ATE OF SOUTH CARpLINA, IN THI> CITY OF CHARLESTON-4.0CTOBER TERM, 1861 \ ARGUMENTS OF WM. WHALEY, NELSON MITCHELL, C. RI(HAR1)>» >:n .uH.K> J. L. PETIGRIT, I. W. HAYNE, J. W. Wl .KINSON, akd ED. McCRADYrS^s,! TO WHICH IS ADDED The Opinion of Judge Magrath, in the ;^everal Cases, and the Sequestration i a Act of the Confederate States: also, the Confiscation Act of the United^. »ates. • t 11 REPORTED BY J. WOODRUFF, PHOXOGRAPIllC REPORTER. V' : -^r *^- >- i A ' i i. THE SEQUESTRATION CASES, BEFORE THE HON. A. G. MAGRATH. REPORT jOF CA.SES UNDER THE ^ti\\mintm\ ^ct Df tk Olonfi^ikrHtc States, HEAR^ IN THE DISTRICT COURT FOR THESSTATE OF SOUTH CAROLINA, T\V THE CITY OF CHARLESTON— OCTOBER TERM, 1861. xSOX MITCHELL. C. RICHARDSON MILES ^ ARGUMENTS OF WM. AVHALEY. NELSON MITCHELL, C. RICHARDSON MILES J. L. PETIGRU. 1. W. HAYNE, J. W.. WILKINSON, axd ED. McCRADY. I^sqs r TO WHICH IS ADDED The Opinion of Judge Magrath, in the several Cases, and the Sequestra Act of the Confederate States: also, the Confiscation '. | Act of the United States, REPORTED BY J. WOODRFFF, PHONOGRAPHIC REPORTER. FtTBUISKCBID B'^ R.EG4XJEST. I Iw ■'^ th TABLE OF COXTE>-TS. — "i — PAG) Preface, i %..',o '.} Cluirgo to the Grand Jury x »■..:>'... ! Argunu'nt of \Vm. Wlialey, Esq. ■...;.. 9 Aro-ument of Nelson Mitchell, Esq , 13 Argument of C. R. Miles, Esq., Aciing District Attor.'iev 10 Argument of Hon. J. L. Peiigvu 2-Z Argument of Hon. I. W. Fhi^nc. -.0 Reply of Nelson Mitchell, Esq 3- Argument of J. \V. Wilkinson, Esq., :}4 Reply of C. R.Mil.'S, Esq , 37 Argument of Edward McCrady, Esq 38 Reply of C. R, Mifea. Esq , 43 Reply of Edward McCrady, Esq AG Opinion of .Tudfre Magrath — The Constitutionality of the Sequestration Act, ") ,- Considered and Affirmed, -. .".s.. ) Opinion of Judge Magrath — 'I'iie Modes of Proceeding under the 8tli Sec- 1 p^ lion of the Sequestration Act, Considered and Sustained, j Opinion of Judge Magrath — Privilege of Attorneys Discussed and Allowed, ...63 Presentment of Grand Jury in the Confederate Court, for South Carolina, ") „„ October Term, 18(51 ( ''^ The Sequestration Act of the Confederate States, 04 Confiscation Act of the United States, 67 Explanatory Letter from the Serrptnw ni iIir 'I'reasury of the United Slates, ..(!S Entered ACcoKptxo to' the Act of Conohess or thk Confederate Sr,vTi:s, IN TUE District Coukt of South Cauolixa. November, 18G1. PREFACE. The arguments of several of the Advocates of the Charleston Bar, in opposition to Writs of Garnishment served upon them under the Sequestration Act, heard in the District Court, before the Hon. A. Gr. Magrath, having created a deep and wide-spread interest, are, together with the arguments of Acting District At- torney C. R, Miles. Esq., and Attorney General Hayne, also, the opinions of Judge Magrath, now offered to the Public in the present form, with a view to facilitate the use of the reports, and render them more accej^table to the general reader. Each argument has had the revision of its author. The pres- ent edition has necessarily been hurried forward at the urQ:ent request of Advocates in other Districts o^ this and the adjoin- ing States. The more immediate object of the publication is to preserve an interesting and valuable record of* the opinions of distinguished Jurists upon an Act affecting nearly every citizen in the Confederate States. J. WOODRUFF, Reporter. t / O H _A. R GE DELIVERED TO THE GKAND JUEY, Hon. a. a. MAaRATH Genllemen of the Grand Jury : — I congratulate! you, that upon this, the first occasion, in which a| Grand Jury in the State of South Carolina, has been assembled under the Constitution and Laws of the' Confederate t tates of America : it is your peculiar; fortune to rejoice in ihe conviction, that your soil is freed from the presence of that despotic power, which in other States, now exercises its ruthles~ and tyrannical control. Dreary would be the spec- tacle, presented to the lover of Constitutional Lib erty, if forced to consider the States wiih which we were formerly connected; the places where that liberty was to be preserved; or the Govern-: ment, they acknowleds;e ; the guardian by which it was to he defended. If it was supposed that the seven Stales, which first seceded, and established this new Coufederation, were too impatient of the ills to which they offered resistance; or too hasty in the adoption of measures, they suppo-ed necessary for their saft-ty : the events which have transpired in Virginia, Maryland, Kentucky and Missouri: would dissipate the censure which that doubt involves. Nor indeed is it easy, dven in the States, where a profound conviction moved the people to decisive action, under a sente otl utter insecurity ; to realize even now, that ihei Government of the United Stales as exhibited^ in Its practice, is that, which the framers of the Constiiutiun, suppos^ed they had so completely controlled with safeguards, for the maintenance of public liberty and private rights; that it could never attain the form of an irresponsible despotism. Yet, as if to teach us in the organizaj tion of our government, how little reliance there can be in the security which mere paper guaran ties can aflx)rd; the remarkable iliu.-tration has been afforded of a country, professing the mainte- nance of Constitutional Liberty; not only delib-' eraiely, but with a seeming exultation ; destroy- ing every sa'egiiard with which that liberty had been guarded ; and devoting itself with a willing subjection to the most perfect despot- ism, that at this day, the civilized world can present. A written Constitution, to support [which, all are sworn ; is openly, palpably, defi- {antly violated. Laws solemnly promulgated ; 'are deliberately, wantonly, forcibly trampled under foot. Franchises, purchased with the blood of the best and purest men of their time ; are ruthlessly, recklessly, brutally, divested. Oaths, which have been taken in the presence of the God, whose anger was invoked in their violation; have been mockingly, carelessly, cruelly broken and disregar- ded. The right of private opinion, the freedom ot the press, the orivilege of debate, have been indis- criminately questioned, threatened and denied. — The obligations of public duty : the requirements of private lile, have been unheeded and contemned. And in the course of these, and accompanying the aitempt to reduce to subjection, those who have refused to acknowledge this reign of misrule and misery; have been developed scenes at which humanity, virtue and religion are set at naught. At an age when civilization reached iis highest point: when war, by general consent, was stripped of many of the horrors which in ofher days sickened the gaze of him; who after the lapse of years, revived the misery it produced in the narrative which he perused: when the improving influences to which our race was exposed, led to the conviction; that no time nor circumstance could reproduce the horrors which in other days had been developed : we have lived to see the vanity of the hope; the unreal character of the improvement which was supposed to have been reached. There have been scene* enacted, and practices adopted, in the progress of this ^var; by the army which acknowledges its obedience to the President of the United States : that exceed in atrocity and horror, any which have been recorded in any age or with any people. No fancy could have suggested sni-h pictures, as have been displayed in the terrible reality of these times. They indicate a depth of moral depraviiy and so- cial wickedness, beyond conception. Had the un- happy victims of these excesses been men, who in anv manner might by their conduct have excited; though it could not have justified or ex- CHARGE TO THE GRAND JURY— MAGRATH, JUDGE. uused such cruelties: it would have made a narrative, which elsewhere it would be diffic-ult to believe. But it has been with women; and with those who could not resist; that the most wanton and cruel outrages have been practised. You haye heard of them : have read of them : perhaps have listened to the testimony of those, who were witnesses of the truth of such occur rences. It is for you ; for all who live in these States, now united in the bonds of a new Confed- eration, lo profit by the picture ; dark, cruel and revoliing as it may h -. The line of separation be tween the Conlederate Slates of America and the United States; is now widened, deepened, ami made firever ineffaceable. To li^e ever again under the authority of a common government with those who have ihus sinned, would be to be- come worse than inferior \o ihose, who have! invoked the sternest indignation, which can be visited upon any, who neglect every duty, violate every obligation, scorn every sanction ; which the laws of God or man, provide for the welfare and happiness of our race. From the coatamiuHtion which must ensue from connection with those, who practise such excuses, you are happily free. You have been f)rinnate enough to have broken the thrull which so cruelly con fines others; with little of .suH'ering lo yourselves; save that which is produced by your sympathy with those, who sutler in the attempt to follow, in the course you have pursued. But lo have thrown down a Government which oppressed you is not the only means by which you can secure thHt happiness, for the promoiion oi which all Government is instituted. That nevercan be secured but by the operation of a good Govern ment. Between the evil of a vicious Government, and the misery ol no Governpient. is a choice to which ihe people should submit. The blessing ol a good Government may ever be secured by those who prepare themselves to undergo the suffering, which is soiiietinies involved in the eflort to obtain it. Acting upon this conviction, the State of South Carolina very soon afier its separation from the United Slates, in council with other Slates, adopt- ed a Provisional, and then a Permanent form o( Government: in which the errors of the past were invoked to provide against their recurrence lU the luture; and every salesiiard was adopted, which the experience of ihe past suggested, as necessary for the welfare of those M-ho were to be subject to its operations. It is in connection wiih one of these departments of Government, that you are now assembled. And in the capacity of a Grand Jury, you have at this time duties lo pertbrm, which consiiiute in them selves no inconsiderable addition to those res;'on sibilities, which always are involved in the functions properly pertaining lo the office for which you have been st lected. To these in the first place I shall now direct your atleulion. The subjects which will engage your atlenlion are such as afiect the public welfare: and that wel- fare is sought through the laws which are en acted by the Legislative department of the Gov- ernment. That department is at this time admin- istered by the Congress of these Confederate Slates. Yo^ are bound to consider with care and respect whatever has been done by this Congress. It has been engaged in ihe discharge of an arduous and responsible service. Its work was intended for the welfare of the people whom it represented Forced to grapple with circumstances of rare and jiuiposing magnitude; the necessities which con- [trolled its deliberations in secret, deprived it to some extent of that aid which is experienced iu the progress of legislat'on, by the lesiimony ot those who are particularly .afTected by the legisla- tion which may be in pr>'gress. Ii has now to a certain extent been made public; and if you have aught of suggestion to make, concerning any part of It which you think needs amendment, it is a part of your privilege so lodo. The first matter concerning which I desire to direct your attention is that which relates to alien enemies. In this Act are but two elements: one which determines the expulsion of the alen enemy: the other which provides tor his admission within the territories of the Confederate States: and his becoming entitled to ihe protection which is vouchsafed to citizens of the Confederate States. Every nation or Siale, when engajied in war, has the undoubted right to require the citizen, denizen or subject ol' the hostile power, to depart (rom its limits. It lias appeaietl necessary to the Congress of the Conlederate Slates that it should exercise this right: and it has done so. In pursuance ol its act, the President of ihe Confederate Stales has issued his proclaniaiion requiring ihose who are citizens of ihe United States, and acknowledge ils government; to depart from the Conf. derate Stales after the expiration ol foriy days from the date thereof The act provides iIihI it shall be the duty o( the several Courts of the Confederate Slates, and of each State, having criminal jurisdiction; upon complaint of such alien euemv, being resi- dent or remaining within the Conlederate States, contrary to the act and the proclamation ol the President of Confederate Slates; to cause such alien to be apprehended: and niter examination thereof, to order him removed from the territory ol the Conlederate Slates : or to lie otherwise dealt with or restrained; and lo imiirfson or secure him until the order for his removal shall be prepared. The same act provides that duiing the existing war, citizens of ihe United States, who shall duly give notice of their intention 'o become citizens ol the Confederate States, and acknowledge ihe gov- ernment thereof; shall not be liable to he dealt with, as is provided for alien enemies The Act is of a public characier, relates lo a subject of much importance, and deserves 10 be considered by >ou. The period during which citizens of the United States were allowed to remain within the Confederate Stages, has expired. All males of 14 vears of age and upwards, who are citizens of ihe United States, and adhere lo its government, must now depart, under pain of being treated as alien enemies. This, however, does not apply lo those citizens of the United Slates residing within the Confederate States, who intend to become citizens thereof, and shall make, in due form, a declaration of such intention, and acknowledge the Govern- ment of the ConCederste States. The proclamation of the President declares it the duty ol the officers of the Confederal'* Stales to make complaint against any alien who may be su'ject to the pro- [visions of this Act: and this, though not declared, is also a part of the duty of every citizen. The |next Act to which I am specially jdirected to bring to your notice is the Act of Sequestration and Indemnity. It is the right of a Stale or nation, at the commencement of hostilities, to determine the conduct it will observe towards the persona and property belonging to the State or Nation with which it is engaged in war. So far as persons are concerned, the Act concerningalien enemies which THE SEaUESTRATIOX ACT. has been already brought to your notice, makes in such cases the provision which has been loiisid ereil neci^s»Hry. So I'ar as the pro|ieriy of alien eneniifs is concerned, ihe Seqnestraiioii Aci is in- teuiled lo regulate the di-pos.tioa of \l. in the Seqiiesirdiion Ac , the esiutes, |)ro|>eity and elTecl* ot' alien enemies. coHijirise all the subject^ of pro- perly, wliicii .in alien n»Hy orean have. Under ordi a\ry circumsiances, if a tfeqiie>traiion Act were considered proper, exception would probal)ly have been made lo ilie enunierauoii found in ihe Act, and declared lo I e seqiie*traied. And prolialily.had an excepiion been mnde, deht.-* due frmn indi- viduals who are citizens of the Ccnf. derate Slates, to ihose who are ciiizens of the United Slate.", would have been excluded, li lia-^ un-i questionaiilv been hitherto considered mi ag-i gravalion of the evils of war, to trench ujiou the privaie contracts of iiuli viduals ; and it ha.>' been denied ihat the coullscaiion of delvts due to! private individuals, wns consistenl with the usiigey of nations or the principles of public law. Bull whatever may have bten thought of the policy ut^. distinguishing this species ol property fioin any other; it .-eems never lo iiavc been doubled in the United Stales, that the same rules were ap I plicalile to debts as to otlier kind of properly; and that whenever it should .-ceiii to a Stale or Nation ne eessary or pro;)er tocontiseate or sequesiraie iheni,! that iheexefcise oflhat power woulJ iiotbe alfrciedj l)y the nature of the propefty upon wliich it wa^! intended lu oiierute. In lhi> case the GoverninentI ul the Conlederaie Slates has declared ihe cau-e> which have impelled it to this legislation Thej Congress ot the Coiifedera'e Siates has declued ii| 10 be the only protection from the wrongs which' have been consummaied by tlie Government of the United Stale,-; in its dejiaiture from liie usages ot civilized warlare, by conhscatiiig and destioyins the property of the people of the Confederate Slates of all kind-i, whether used I'or nuliiary pur poses or not. Ii stands, itiereture, upon the basis of a siern necessity : avowed as a necessary and unavoidable measure of retaliation. Its end is not to enrich the Tieasury of the Confederate States; but to protect the people of the Confederate Stales, by giving to them such indemnity for their losses a.s may resulUroni its operation : and in .hus bring- ing liome to tho-e who live in the United States, tiie conviction ol the suffering which the Govern- nienl is bringing upon themselves; restrain the wanton excesses which have been so generally committed. That this purpose of the Confederate Congress lo retaliate was necessary: and that it was the only hope fir protection against what ha- been justly termed the wanton excesses, which have marked the departure of the Government ot the Confederate States from the usaaes of civilized warlare; needs not to be deinonsiraled to those who have kept pace with the progress of events. It has proceeded from one instance to another. until it has culminated in that unparalleled exhibi- tion of wrong, when a military commander would not only attempt to extinguish the right of proper ty ; but at the same time, in the person of the! emanoipated slave, ."eek a new instrument of ven geance, with which still to whet the appetite for misery and desolation. Bui sweeping as may have been the general provisions of this Act, ihe Congres* of the Conled- eraie States has preserved the public faith of ihe country it represented. And a special proviso ex- empts from the operation ot the Act, the stocks and other public securities of the Confederate States, or of any State ol' the Confederacy, held or owned 'i>V an alien eiiemv ; or any debt, obligation or loan, due from the Confeder.ile Government or any of the States, lo such alien enemy. To none ol liiese do the provi-ions of the Act apply. All and every the lands, lenemeiils and heredita- ineiits, (ioods and chatiels, rights anti credits, with- in the Contederaie States, and every right and in- terest therein, held, owned, pos-essed or enjoyed, iiy or for an alien enemy since the 21st May, 1861, je.xeept such debts due to an alien enemy as have brei jiaid into the Treasury ol the Contederaie iStaies. prior lo ilie passage of the Act, are by the ,ieriiis of the Act stquesiraied. I Under the provisions of the 4ih section of this |Act, it becomes the duty of the several Judges ol Colli deracy to give this Act specially in charae to their Grand Junes of these Conlederate Staies : land It is made the duty of the Grand Jury, at each jsitting, well and truly to enquire and report, all lands, tenements, heredilimenis, goods and chai- tels, rights and credits, and every interest therein, |Wiihin the jurisdiciion of such Grand Jury, held by' [or (or an alien enemy. j Under the authority for that purpose given, Re- jCeivers have been appointed throughout the State. |And they have been diligently employed in the discharge ot the onerous and responsible duty they have ihiis assumed. They will be directed to attend you whenever you desire, and to explain to you the modes ol' proceeding under which they administer the law: and will receive from you such information or suggestions as you may consi- der necessary to give it will be a part of your duty to consider not only the modes in which the law is admini-tered ; but the provisions aigo ol the several seclions of the Act. It maybe tr/Ml the practical operation of ihe Act will suggest some mailers which may be aptly introduced to modity or change the provisions now of lorce. li is your du'y, to regard the Act as a measure of legislation; intended lor the purpose of reiHliation; and prepared according lo the best and safest guides which could be procured by the Congress of the Confederaie States. Bui I'or it there was probably little which could be referred to as precedent. And if in the endeavor to make effectual the plan of retaliation, there should have been adopted any matter, which bears heavily upon the citizen of the Conlederate Slates, it should be not the subject matter of complaint or censure; but the occasion lor a frank suggestion of the dilficulty; and wiih it also, the suggestion ot the manner in which the difficulty couldbe avoided. In this Act, that which may be the chief source ol apprehension in relation loits operation, is not only, of course, subject to amendment and moditicaiion by future legislauon: but is moreover controlled and restrained by such legislation as ench Slate may think proper to ordain. Whatever may be the construction which slr.ill be given to this por- tion of the Act, whenever a case shall arise, in which that construction shall be involved: and until ihen, construction without the aid which ar- gument affords, would l)e imprudent and unneces- aiy: it is ([uie certain ih u the Congress ol iho Confederate Stales plainly determined, to give lo each SlHle the power to relieve its citizens fronn any oppressive operation of this Act; by recoasiz- ing as essential portions, such laws as the several States have passed, or may pass, in aid of such citizens as may be debtors. It would be expecting too much of any deliberative body that circutn- tnnced as has been the Congress of the Confcder- CH/VRGE TO THE GRAND JURY— MAGRATH, JUDGE. ate Stales, it could provide (or every contingency, amicipate every ditficulty, and avoid every error. ll is entitled to the aid ot every good (Mtizeii in the effort to perfect what it may atlempt. It cannot be, with justice, presumed to have any purpose distinct from the good of the people it represents: and it IS eminently entiiled to the aid of that people in the labors which occupy its attentions. Among the many considerations which in after times, will give to this body a dignity not inferior tothai which any political body has ever posses>^ed; wi.lbethe voluntary sacrifice it has made of individual pro-; minence or excellence in ail of its deliberations. When it closed the door of the hall in which it counselled, the most gifted consented to obscure the brilliant display of his talent: the most labori- ous covered up the evident^e of his indiviiliial energy. Each made his sacrifice of the public exhibition of his peculiar excellence; and consented that what he said or what he did should only be known and felt, in the common result of the com nion labor. Other positions in lile may tor the time cast around their occupants a more brilliant light But in alter times, when we come to consider thel events of this change of government, no teiUure! will be more prominent, than this signal and per-i haps unequalled exhibition of the .••acrifice of indi-i vidual hopes, wishes and a>piratioiis : and the ab- solute exiinguishnient of selfish aspirations and suggestions: which have marked the conduct ot tho?e, who composed this, the first Congress of the Confederate States. The next matter to which I shall direct you'" attention, is the law of the Confederate States concerning the privateering system. Upon another occasion I have said all that wa.s necessary lor me to say upon the lawfulness of this in.*trumen- tality in limes of war. Since the passage of the law of the Confederate Stales, concerning i)riva leering, the Congress of the Confederate States has declared the principles by which the Confeder- ate States of America will be governed in its in- tercourse with the rest of mankind. And in thai declaration has affirmed certain declarations of the conference at Paris, between the represenla ; lives of Great Britain, Austria, France, Prus.Nia.i Russia, Sardinia and Turkey, on the 16lh A|iril i 1856. In this declaration the right of privateering isj maintained, as long established by the practice.; and recognized by the Law of Nations. And con- jiistently therewiin three of ihe pioposiiions of the Conference at I'aris are affirmed. 1. That a neu Iral flag covers enemy's goods, with the excep- tion of contraband of war. 2. That neutral goods, | With the exception of contraband, are not liable to capture, under the enemy's flag. 3. That block- ades, to be binding, must be eflectual: that is maintained by a force suflicient really to prevenij access to the coast of the enemy. The two propositions which declare the immuni- ty of enemy's property in neutral vessels, and the immunity of neutral property in enemy's ves- sel, are the widest and broadest recognition of neutral rights ever professed It is the peculiar fortune o(' these Confederate Slates, the latest independent Power which has claimed its place Bmong the fiimily of nations; not only to have professed, and that loo during the progress of a War; ftie principles which European Nations had declared essential to the welfare of nations : but ^ moreover, amid circumstances, which made the • maintenance of these principles, in direct cooflu^i with present inierests, steadily to have main. i tained in practice, what they had professed in the- ory to be correct. And in Ihis, the Confederate SiHies, have a source o/ legitimate pride Other Nations or Slates at the close of exhausting war, or in the enjoyment of peace, have professed the adoption of rules of conduct which tht-y would observe. But it has loo oti^n happened, thai wiien ^•ircumsiances called for the application cf the rules so professed, they have yieldrd to a present pressure, and ignored what they had approved. I '-'o have come up to the promulgation of these principles, and to have adhered to ihein, is the evidence Ola degreeof public faith, and national in- tegrity, of which I have reason to speak; and you, reason to exult And this satisfaction is not without other considerations at this lime of more than ordinary interest. The declaration of the principles now referred to, maintained as it has been in practice, by lhe»e Confederate States, entitles them to regard with interest, Ihe manner in which European Powers, will on their part observe that porli-on of the declaration at Pfiris, which deteriiiiufs their righis as to themselves, 'and iheir duties as to other, in the case of a block- ade, which violates the cssentiai conditions •hey hive de "lared, necessary for its validiiy. Tiieir (aiili is- pledged to the enforcement of the consequences, which result fiom a violation ot what they have declared is their sense of the International Law of the civilized world upon ihis subject. And if they have received lioiu the Coniederate Stales, a recogniiion of cer- tain principles, which they had previously been pledged to maintain ; it would not be easy to iin(lers.tand how the reciprocal obligation could be avoided by them ; by which having ac- cepted, from these Stales certain stipulations which were sought by them; they became bound by every principle of moral law and public laith, to enforce the principle, which circumstances had devolved upon them to maintain. A proposilirjn so clear, as that the Confederate States are eniiiled to receive from European Powers, which have had an understanding with these States, of certain riili-s of public conduct; their performance of so imuch of the obligations as rested upon them; is too ()lain : loo coiisisient wiih truth, reason and jusiico jto need demonstration further than is couiained iii Jits simple statement. Of these, the three leading measures of public legislation, to which I would direct your attention. It will well become you lo consider them in iheir practical operations, and from this stand-point suggest such amendments, as will seem to you necessary. The true end of such legislation, and indeed of any legislation, is seldom reached, until by the lest of its praciice, experience guides those who are charged with the duty of framing our laws. And when the result of such experience can bo derived frtun sources, which are freed from any other influences than such as arise from a sense ot public duty; it affords to those who are to be guided by if, invaluable aid. The Judiciary Act ofthe Confederate Congress, section 37, provides, that until otherwise provided by law of Congress, the laws of the Untied States, in regard to crimes and oftences, and to the mode of procedure, praciice and trial in all criminal cases, shall be in force, and form the rule of prac- tice and decision in the Confederate Courts; and where there is no such law governing the practice, then the rule and course, shall conform as nearly as practicable, to the jractice established by law of the Slate Court of highest original juri»dictiODi 8 THE SEaUESTRATION ACT. in wliith the District Court s.iis. And this provis- ion shall extend to the rules of evidence and mode of examining witnesses in such cases. Among the cnnies and offences whici) it will be your duty to inquire into; and upon such evidence as may be presented to you; determine whether thay shall undergo investigation ; the first to which I shall invite your aitenlion is the crime ol treason. The enormity of this crime ; and the abuses which in former times were practiced under color of this cl arge ; 'led to its incorporation into the Constitution, and the description (herein of iis ele ments. I'y the Constituiioii it is declared to con- sist in levying war against this Confederacy, or in adhering to its enemies, giving them aid and com- fort. And It is in the same Constitution provided that no one shall be convicted of treason, unless upon the testimony of two witnesses to the same overt act; or on confession in open Court. It will be observed, that treason may not only be committed by levying war, but by giving aid and comfort to the enemies of the Confederate States. And that aid or comfort which will consti tute treason, may consist of any act done which tends to support, sustain or encourage the public enemy. The supply of provisions, the extension of private information, the communication of such matter as will be of use to the enemy, may become treason. It is not necessary for me at this time to enter with you into a muuite examination of the circum- stances which distinguish that levying of war which constitutes treason; from that forcible at- tempt to prevent the execution of a law, which is punished as a lesser offence. It will be sufficient at this time lo say that to constitute this species of treason, there must be the actual levying of war. Simply to enlist men, who are not assembled, although the purpose ol enlistment be to attempt the subversion of the government, is not treason. The war must be actually levied: the mere intent, however well calculated to subject to li.e scorn of bis fellow men, and the lesser punishment which the law provides, hiin who brands with undying ii,faniy his name, as associated with those wiu) war upon their country, is yet not treason, as defined by the Constituiioii and Lav/s of the Confederate Stales The second species of treason, which consists in giving aid and comfort to the enemy, may, however, at this time be somewhat more lully explained. And, perhaps, that explanation could not be better given than by illustrations of whai have been considered as giving aid and comfort. To deliver up a prisoner or deserter: to supply the enemy with provisions: to communicate such intelligence as will be of use to the enemy, may be cases of treason But in this species of treason, different from that which consists in levying war, the intent accompanying, under certain circum stances, the unexecuied attempt lo give aid and comfort, may become treason. To carry provi>ions towards the enemy with intent to supply them, will be treason, although that intention was de- feated. 1 have, for the sake of illustration, placed the forcible resistance to a law, in contra distinction to treason. But it would not be proper, because of the inference which might be deduced from it, to pass it over without explanation. If the con spiracy is for the purpose of making a general and public resistance to a law of the Conlederaie States: or to subvert its Constitution ; and be ac- companied with force, it would be treason. The object of the conspiracy must be to eflect something |of a public nature If tie end for which such ^conspiracy has been formed be the removal of seme private grievance, the parlies implicated in it may be felons, but not traitors. The constitutional provision, that there must be 'two witnesses to the overt act, does not apply to the investigation of the case before a Grand Jury. Upon this subject there has been a difference expressed, l)ut the weight of authority support* the proposition as now stated to you. Among the other matters which will be brought to your notice, are (certain charges against some ot the ollicers and crew of a vessel of the Confeder- ate States. The witnesses who will be examined by you, will, by their testimony, satisfy you how tar the offence charged against the prisoners, is jsusiained. I do not consider it necessary lo say to iyou more than that if any seaman or other person upon the high seas, shall confederate, or attempt, jor endeavor to corrupt any commander, master, officer, or mariner, to yield up or run away with a ship or vessel of the Confederate States; or shaiP lendeavor to make a revolt in any ship or vessel: or to create a mutiny: or combine, conspire, or ^confederate with any person or persons to make a jrevolt or mutiny : he or they shall in so doing, vio- jlate the law of the Confederate States ; and upon conviction will incur the penalties provided for such violation. There are other matters, which, during the term it will be proper for me to bring to your notice : but at this time, I will not detain you longer than to make to you a few observations upon your general duties. You are clothed with power, necessarily great; because were that power limited your pri- vilege, and therefore your usefulness, would be. diminished. To the end that your action should be free, your deliberations are not controlled. But ihe fact that you sit in secret, and without a cen- sor, should be and will be to you, significant of the high responsibility you assume. You reflect nei- I her the malice of individuals, nor the favor ofgov- ernment. The one you should never admit; the other can never intrude; upon your deliberations. What you determine as proper, you so announce: but the oath you have taken imposes upon you the obligation of secrecy, as to all matters of opinion, expressed in your deliberations. When you investigate charges of a violation of law, you should bear in mind, that you are not se- lected to determine the fir.al question ol guilt or innocence: but to consider whether, upon the evi-'^' dence submiued lo you, the case is sufficiently proved lo cause you to recommend a more per- fect investigation of it. But in so doing, you are still carefully to consider the evidence which is submitted to you. It must be the evidence of facts: witnesses must speak of that which they know. The institution of a Grand Jury, the great bulwark which first opposes itself to the attempt of government to oppress the citizen; would be stripped of iiiuch of its value; if it served only to reflect the conclusion deduced from irregu- lar and incompetent testimony. And that Grand Jury which will carelessly make its presentment f a ^case being proper for tri.\l, unless the evi- dence legally offered, shall so establish the con- clusion, is as untrue to its duly, as if, with suffi- cient evidence to justify a further examinafton, it sball institute a different rule for its conduct; and become a screen for the guilty, instead of asserting its high position, as the embodied representative of public justice. ARGUMENT OF MK. WM. YVHALEY. Mr. Will. "Whaley opened the argurnt- nt lo the mny difler (rom me in my opinion; but I have been Court by sa;, ing ihu i'. wns with (eeiiiigs o( pro forced to thHt conclusion and am coiiipellelaiive As-embly under iliis i>eqiie-iri.tion Act an inqiii'tion ol the from wliK-li the l,iw has emanated, re-i)etal)lish- no coinmoa emotion so (ar as lie himself was can- < d by coiinnon law, ihat no human power ha- t.'io ceriii d. r -ht t> (iitbrce its provisions upon me or any oilier * He stoo'l bef)re the Court as one who hud been cliren oitfoiith Carolina. served with H process which he believed belbrr Are ^he provisioris ol ihis Act inqui^iiorial ? God to lie wrong, according: to the du t ite.s of hi> S^ciiim two and three of the Act are as lolliws: own coii»cience and according to the laws of the -'Sec. '2. And be tt fitrtlirreinici&d, Thnt it is, and land. When he said l.iws of ihe land, he mean' shall be liie duty ofeachanl ev-ry ctizeii o' these laws of Ihe I ind in coiiir;id.siiaciion to this Ac' oi Udiife'i- r.ite Slates speedily lo give inlormatioii to the Conijie-s of the Confederiie tftites. mid \vt en the odicers charged with ihe exee.iiiion ol' ti i- law any i ne i> forci d lo assume a i osnioii of ihut kind of any and every lands, teiieiii' nis and heied ta- amidst I he r lar of caUMon and ihe cla-h of arms, cnents eo ds and chatels, nahs and credits wt'iin V Ik n our citizens are now upon ihe banks oi the hi- Confederacy, and of" every rigiit and ini«rest Poo.i^ac. leady to seal w It'i tlieir blood the re'oln- I'lerein held, owned, po»sesstd or enjoyed by or tton which we have in-uiguia ed, and which, f om lor any alien en -iny as aforisaid. 1804 to the present moineni, he h>is diligen ly liied 'Sec 3. /jV. it furihcr eiiacietf, Th'ii it shall be ih-j to ai-co iipliffh — with al lhe«e ciicum-t uce- Inty t>f every attorney, agent, former par mr, trii>- uronnd him. Hud in the p.)siiion which he had al- tree or other person holdmgor cniroling anv such ■ways occupied, boih p iliiu-ally and as a iiieml><-r lands, tenements or liereditHinents, go'ds or ih a- ol the bar, lie trussed the words ihsi would How tcU, ri^ht-^ or credits, or any iiitere-'t therein, ol or iVom his lips Would he received as coming I'roni a fur anv suiii alien enemy, speedily to inibrmiLe sincere i-n I honest desire to act according to the Receiver, hereii, alter provided t> be «ppo nt'd, ol ber-t ol his judgment and conviciious of right aiiJ the same, and to render an account thereof, and, duty. ' so far as is practicable, to place the same in the Wiih theon pr.-'ceedeil with his argument, and laid down the'iluill be fullv acquitted of all responsibility for pro- coiir-e he would pursue. perty and effect* sO reported and turned over." * * Firsi 'J"he oiscussion of the nature and cliaraf ' We w^ill here perceive that it is made the duty ler of the Act. cf every citizen, including all classes that stand in Second The elTect of the Act aid Wrii upon a tiduciary relation lo each oiher — relntions that ihose callr;d upon to give inforuiaiion to the Re- have been respecied and held sacred by precedent, ceiver. : iiy the cnnuno.i law of the i.uid, and by all the Third. The eflect ol the Act upon tho-e called usages of civilized society, (rom. I mny say, tiiire upon to pay over and surrender all the debt* inniemorial, at'ainst which the memory of man monies and goods in their pos.session to the Re runneth not, but I can wellsay I'lom the time ot the I ceiver. Christian era. to obey. This writ, which commands Fourth. He would (rontend that the Writ of Gar- them to come befire ttiis Gourmand, under the nishmeiit is contrary lo the Writ of Sequestration s.mctity of an oath, inform the Receiver what pro- Fifth. Thai the whole proceed'ng is contrary to perty, of all and every kind whatsoever, they may the laws ol' the iund and void under the laws ol liavt in their pos^ession of an alien enemy; what naiions. |i hey may owe to an alien enemy, and whaiever I will now proceed with ihe lirst branch of thellheymay know ol in the pos.-esl .-cever th»t will denude his iriist; neither h's (rHud, upon, a> Aiornie-, to v o iiie ihe confidtiiiiHl lollv. nor ignorance, can lawfully de-troy his trus^t, relations of Aiiorney ai d Client — as Trii>iei-s, icaiui ihat he is arcountable tor ihe raithiiil discharue beiray our t^u^ts — as Agents, lo ignoie ihe right- of his duty. Whf n I stand here as a Trusiee. Iiav- ofour ,irincipils, — all of which, in g' od tniih and; \i g had the confidence of ihe dead, wiih the confi- good conscience, vveie contiiled to our i hiirge. I ilenceof the living — standing, as it were, a link be- am aware it wi 1 be >aid ihai war pins an t-iid toall tween the living and the dead, with a solemn dec- such rel 'tions; but siirh is not ihe ca-e. war only' iaration upon my part thai I would adniini>ter that ' susi'eiids them — and 1 will liereaficr tive mu horii\ : trii»t according to the deed under the laws cij Jor wtiai 1 now say. So then, if war cannot de-troyiihe land — is it law, thai I can be called iipcn by ati the-e relations, I c'aini niy IVgal right lo make uo'j^rx., tx post facto, passed a'ter I had a.-snmed that an>wer lo the Writ, as an Attorney, I ecau-e it obliuation and enit red into thai contract, to p- r- vio^a'es the contiden'ial relation betv»een Atloinry |t'orin an act without the purview of its legality? It and Client — a privilege whidi law ha> graned t'.' is error to suppose that the Sequestration Act comnionjnslice, and rendered sacred !>y ihe Aitor- alTords any proiCLtiou (or .'•uch violation of duiy. nay's oaih. When I took my commission Iroin iheiiHetribution will be «uie to follow. Stale of South Carolina, to practice a-* an Attorney, | I took the Aitoriiey's oath — hs a Tru>tee, becausej it violates my duly as Trustee, and calls upon niej lodtnudemy tiust,— and as Af.ent, to betray myl principal a> debtor to evade my crediior. While on this point I will cite ove g'orious case, and it is directly in question. T alUule to the con- duct of tlie Spanish factors to their French corres- pondents. In 16S4, when France and Spain were iit war, the Spani-h Government passed an Act The law as to the privil-ged communications i»JLsimiIar to this. The hi-^lory of that war bears the found in Greenleal Us Evidence, Vol.1, p. 328 i proud record, which stands as a jierietUHl nionu- Sec 237: i ment to Castdian honor and Spanish fiuth— not a "And in the^r.'t place, in regard to ;^ro/j!.VA'«o?7a/ isingle Spanish factor beirnyed his French corrc> conimuvicatiotis, the reason oi public policy, which excludes them, applies ^olely, as we shall present \\' show, to tho>e between a client and his legal Ipoiideni; and we should here remember that th lived under a nionarchic.d government, and wert surrounded by all the habiliments of arbiirary adviser; and the rule is clear and well settled, that!!power. Castilian honor whs enough to preserve the covfidentiul counsellor, soUcitor, or aitonify, of, Spanish faith. Let Carolina honor preserve Caro the party, cannot be comiielled to disclo-e pnpers llina faiih. We will now take up the third point, delivered, or communications made to him, or let-! Tne effect of the Act upon parties who are callet ters or entries made by him, in ihat capacity. 'Tliisj upon, under this Act, to pay over monies due tu protection,' said Lord Ch. Brougham, is not quali- I'others surrenderi.g goods and other property to tied by any reference to proceedings pending, or in iiliH Receivers. What is the eflect upon all such contemplation. If, touching mailers that ccme'parlies ? It will be here seen, by the third section within the ordinary siope of piofe>sional employ |iot the Act before cited, that the Conledtrate Con- inent, they receive a communication in their pro-j'gre^s has guaranteed lo every party, who shall pay fessional capacitv, either from a client, or on hisjover any money or deliver pioperiy to ils Receiv- account and for his benefit, in the transaciion of his' ers, that they shall be forever discharged from all business, or, which amounts to the same thing, it' responsibility or accountahiliiy on icconnt of such ihev commit to paper in the course of their empioy-jlmoney or jiroperty. When the Confederate Con- ment on his behalf, matters whch they know only' gress undertook to enact that ihe parties so paying throughtheir professional relation to the client, they! shall be forever di>charged from every legal re- are not only ju.-tirted in withholding such matters, sponsibiliiy, ihey undertook to enact that which but bound to withhold them, and will not be com-j ihey had not the power to enact. Such an Act is pelled to disclose the information, or produce ihel in violation of the laws of nations. Any one who papers, in any Court of Law or Equity, either as! has observed ihe inroads which civilization and party or as witness.' j commerce have made in ihe rigorous precepts of '■'■'■The foundation of this rule,' he adds, 'is not onjinational law on this subject, will at once see that account of any particular importance which the||ihe question is now settled, and that the laws of law attributes to the business of legal professors,! naiions do not recognize the principle and will not or any particular disposiiion to alTord them proiec ':allow the right to confiseale debts. So in the very tion. But it is out ot regard to the interests of ju.s- beginning of ihe proceedings, the parties accounting tice, which cannot be upholden, and to the adminis . with the Receivers do not obtain that freedom from tration of justice, which cannot go on, without the' that re>pon>ibiliiy w^hich, as debtor paying their aid of men skilled in jurisprudence, in the praciice; money, they are entitled to have. Af'ier illustrating of the Courts, and in those nnilers affecting rights![by an example I will give authority 'or my position and obligations, which form the subject of all judi-j:A party purcha-es ten lholl^and dollars woith of cial proceedings.' It such commumcaiions were] goods in New York. The Upual mode of business not protected, no man, as the same learned Judge is to make his noies payable lo his own order and remarked in anotrer case, would dare to consult deliver ihein to the merchant from whom he has a proTessional adviser, with a view lo his defence, jlpurchased. That paper is usually sold upon the or to the enforcement of his rights; and no man strcfts. An English. French or Southern house could safely come into a Court, either to obtain may become the purchaser, and the owner doe^ redress, or to defend himself." !not Inow anything more about it until it matures. That is the common law — that is the law in How can such a one return that he owes that South Carolina, and the law upon which I nowj money to an alien enemy ? He does not know such claim to stand. The law as to Trustees and all to be the case ; all he knows is that he originally^ kindred relations, is as well defined — and if there! contracted the debt with an alien, is one principle more than another over which the Such is one of the many embarrassments which Court of Equity has thrown its broad aegis, andj|musiensue,butihereareotherandgraver cbjec'iona covered it over with its protection, it i.« the prinliThemerchant owe.s hisdebi of $10,000. Admit he i|( ARGUMENT OF MK. WM. WHALEY. 11 ready to pay it over to the Receiver. Upon paying his money lie is en'illfd to have his paper deli vereil up to him by the party receiviiijr his money, or to have some efTeciual guarantee thai he will be for- ever protected from ail accountability. Now, the Receiver cannot deliver him hi*s paper, and the Government has not the power, as one of ilie family of nations, to issue such pro:ection from liabiliiy as would be acknowledged all over the world; and that and nothing short of that, is what the partu's paying are, in good faith, entitled to receive. It is true he may be-comea (lovernment claimant for his money. Such a positiou, ho^-ever, should always be one of choice, and not compulsion. These par- ties, then, cannot be relieved from their respon>i- biliiy. The Confederate Stales have not the power to grant such reiiel. The law of unions will not recognize such a principle nor sustain such an act and everywhere out of oc of Wolfl vs. Oxh>lni, 6 Miule & Selwyn, p. 92 This case grew out of the S^qnesiraiion Act passed by Denmark In the war ot 1^07 between Ucnmurk and Eng'and, the Danish G-Jverninf-ni undertook ti> seque-ter ihe debts due to !r.n'i|ish subjeds The case above cUed wms tried in the King's l5enoh, and it was held by Lord Elltnl)orouBh thai the Act wa> vo d under the law o( nation*. The authority of tliis cise cannot be que^t oned, and we may say thai such i» now the cstab i>hed law of nation* upon ihix question. It i- noi likely that civ'iliz«t on will recede. It would not surprise me. il th 'se who sluMiLl live lo see the en;l of this war, when the whirld«ind of piission his passed away and thinas hfive settled down in peaceful quiet, should ^eethf plea of the Si quesiration Act lo a hona fui*. deb due an alien enemy, held lo be a bad plea in South Ca.iil'na But there is another point — the very stringent terms of the A t, wliica I will endeavono illnst Mf A return is m.ide thai a citizen owes $10,000 to an .iheii enemy, that too. for goi-ds which he ha>sold up n lime; he has noic* of his customers, but no money. The Receiver calls upo i him lo pay ov •; he cnnot do >o, and cannot give sectni y ; he is no ilied 'o i-ay up on a ten day rule, and if he d e not comply. Iiis<-ase i-* put upon ihe docke. At ih- ni xt linn of the Court jii'lgment is o'lt.iin d and exeeui ioii issue I, and heisso'd out by the Mar-hal Again, It' he i> able lo give securiiy at any lime that exigen'.-ie> of the country require i', lie m ly he subjected to similar process. The whole Ac ; pre-ents but one lenient feature, and that is, where Stites have pasue wriis of gariii?hments, di- rected to one or more persons, commanding them to appear at the then sitting, or at any luiiire, term ol' Uie Court, and lo answer under oath what pro- perly or eflects of any alien enemy he had at the service ol the process, or since has had under his possession or control belonging to or held fur an alien eiiemy, or in what sum, it any, he is or was at the lime of service of the garni>hment, or since has been indebted to any alien enemy, and the (yourt sh ill have power to condemn the property or eil'ects, or debts, according to the answer, and to iiKike such rules and orders for the bringing in of iliird persons claiming or di-closed by the answer to have an interest in the litigation as to it shall Iseem I'roper." * * # * * « * If I undersand this Act, bo h in letter and spirit. It seems to me that this Writ is in variance — vari- ince in substance It' I am right, the Act contetn- |ilatc- that the Judge -hould submit the Ait to the lirand Jnrv, for ihiir con^id< r ition. The Grand Jury should repoit upon the Act, up>n which report peiiiions .-hoiil I be tiled, and the piity then called into Court. This Writ is not i-sued upon any pro- leeediiigs had bef)re a Grs nd Jury, but i-sm-s upon jlh,' motion of the Receiver, in accordance with the i>>th S'ction of this Act, a* it i* said, and is in {violation o' the Acl. The Writ and qiie-t'Oti under the Slh sec-tion dilfer entirely from "h ise L-oiitemp'alf (I under the 4th section, aid ihi- Writ is such an amal.;amaiion of both as lofireveni the true jintent Hiirl meaning oi ihe law. When serv^d with ^this prore-s. 1 at (irst whs under the im|iressiou thai the Acl had b en submiued to a Gniiid Jury, > ho ; ad rep irted the property of alien . nemies in ny hands, t'lat a petition had b- en fil. d setliiijf I'orth a d-scnp'i -n of fie prip-uv, tthar i g thit it :vva»ihe proprriyol ulien enemie , »nd iiia' I was •omnia' de i by this Writ to atMcar ^mn jmis .« er the peiiioii a- answers are made to Bills in Equoy iiiii exaiiiina i ui pr ived thai - opposition mbe eri-i r When the Writ und ni-nog torie~ end r-' d ih re- lon was rxamintd i wa* t und not t i i e in conlbr i y wi'h the Act, Hu I upo i » U'lnoy i' proved to be I hat the Act h^d not as yet b^-en sui'intiteil to the Grand Jury; ih.U no report had been made th» reon jthat no (len'tion had been (iltd. Th n ihis'Wra was not a subpoena lo answer a proceeding pending, but a gentral 'Writ to answer geneia'ly. Such a proceeding was in violation of every principle sjover.iing legal procedures, and without autho.iiy of law. The process authorized l)y the Act to issue upon ithe motion of the Receiver, is one that requires jyou to answer from the lime of its service. The one which we have been actually served with re- quires you lo answer from ihe 2lst of May, 1S6L — Any one can see how very different these two pro- cedures are, and I ask the judgment of the Court upon the point. This brings me to my last point made under the arrangement for this argument, viz : That the whole proceeding is contrary to ihe common law of the land, and void under Ihe law of natiims. I regret my inability to do justice to this impor- tant subject. In saying that this Act is contrary to common right, it may be necessary that I .>.hould again review some of its prominent provisions. — That even if the Confederacy, ttriotisstmi jtiriii. 12 THE SEQUESTRA! [OX ACT. has the power to pass such a law; that in its of Christinnilv and civilization, and no example practical applicalion; we ^hnuld look well to every is more proiDinent than ihe progress ol" this very feature, especially in the Courts which stand as law. In early times ihe Cii|itor had ihe right la watchmen to the outer portals ofthe templeot'our 'lake the life ol his enemy laUen in war; a more liberties. The iudiciary stand between the legisla- advanced stage gave him the right to his services, ture and the people, with the Constitution as the The law subsequently liecame modified as to proper- chart for both, and we can he only sure of justice' ty, and by a gradual course it has flowed down the when its portals are llung widely open to all who' current with civilization, until Lord Ellenborouah may seek its light. No people are free but those had the honor to pronounce the judgment in WoltT who can at ell limes and upon all occasions havei;«.hoiild he ("oiind in an Now is the power to eonli>cile and sequestrate attitude of apparent re>-i^iance to its coinmanssary laiul what is usual, but all that miiy by any exti nd- icd chiin of cau-e and eflVct aid in the conduct of this. But to reach this it niusi ahsorli all i o«sible (lolitical power, ad superst de e\ erything- lilve lim- •tatmn or distribution of powei beiween ihe States ^nd the Coiilt-df rale authority. This would carry with it pow er over the i>uMic pre>s, over the State Leaisla'ures. and eveiy f>irm ot corporate and local word of such allowed as pardonable, but acceiited a" the part olijihe war, either p'siti»ely by diiecily iiicreasing duty that the attemlanls in i he Temple ol Ju^tie-t- he power ol the helligeieni, or negatively bv re- should be the rtr.'-t to give warning ol' the danger jiuovina- obstacles, then, ol cour^e. it mii-t include It is in this aspect and with this meaning that the ■'"■' "■■* '" -"•-•'• •'>■" ■• "'■■-• "i^-^-i- «ii . - . ;i.i-- prei-ent proceedings present themselves to lue. 1 see here, it is true, ihe outward sian-* of ihe lnw, the seal and signature "vliich are intended to furnish proof of the auiheni icity of the mandate, bin. according to my coiviclions, thev mean nothing., uv.;^.!-. a u.c-. onu i::v^. ^ >,.■ m v.j v.i^i)e that power is not within the scope of the constitutional authority of Congress. It is ffort to limit the extent of power which it draws jRiter it. and to conclude that this power is to be !niea.»ured only by its requisitions. But was this the [view taken by \hf Coii;res at MontiLOmery, and uo we find it embodied in the Coll^tilulion. It would seem that the instrument it>eir answers us in the neaative; an answer not contradicted but confirmed l>y every other consideration which may be regarded as having any weight or bearing on the enquiry. In undertaking to criticise and expound any grant of political power, we assume a most impor- tant and ditficult task. Anything like minute ver- .... ...w..^...j «. (>,■--- 1 [bal criucism IS entirely out of place. Language is however, denied that the process which it is now| after all such a relotivi-- thing that we cannot be designed to enforce is in pursuance of the Act, and;]ioo careful in seeing under what conditions it is nilirii^i^.l ilitit it 14 f*l*'5irlv in violnfinn cti' cmiiiTion {pmnlnvev^Aor.— nllinned that it is clearly in violation of common right. On one or all of these grounds, it is, therefore, asserted that this mandate is null. Fir.-t. As to the power of sequestration or confis- cation. The Act proposes to embrace within its opera- tion not only all tangilile properly, real and perjoiial, generally recognized as such belonsing to alien employed when we would learn its aciunl mean- ing; hence the instrument which you would con- strue is always, as ("ar as it goes, its own best com- mentator. Does the Constitution itself inform us as to whether the war power is intended to be granted in its vast undefined extent. Most unmistakably and clearly that it is not. It it had simply invested Congress with the power "to declare war," with- CllCiaiiy I cv-.-*^ il.^tw <»-, 5>inii ij^iwitniti^ ty-i .i.i\.ii, v^vju^icoT. v>iiu lijt jp<'»ci l'.» uiruiilic Will, wjin- nemies, but all rights, credits and interests of out more, then it might have been reasonably con- every sort. jllended that this with the general addition of If the only question were, whether this be wiihinjiauthority to make all laws "necessary and proper" the power of the Sovereign, the discussion wouldi to carry into eflei't the general powers, wou!d in- be very much abridged — but it is a much inorej elude whatever might be reaarded as conducive to complicated and more ditficult one. The Congressj the success of the war. But this is just what is which passed this Act not only does not claim, butjjnot done. Investing Con pa< .... J — would reject anything like the attribution e other powers specific»lly enumerated? No war is con ducted without the exen-ise ot'soine of iliese oih^r powers; few without all or most of them. But as to the power to confiscate' debis it has not been re- sorted to more than two or three times within as many centuries — since the occasion on which the "tirin fftiili" of" the Spanish nicrch uits defeased an edbrt of the kind. To say ihen ihat it was neces- sary to enumerate the otheis, hut not this, seems alm')st a palpible inconsistency. But it mny he said that though not p issihly wiihin the w r power generally, il is directly within the specifii- power '•to make rules concerning captures on land and water." And it is contended ihat a law sequestra- ting or coiili-caiing that which is and always h.\> been Within our power, and th refore never ha- been the subject of capture at all, is the e.^ercise of n power to make rules concerning 'crtpiures on land und on WHier." I-. it con«isient wiih any de- cent regard for the pr. >prieties of language so to iwi-t it iromiis naiural imp iri? j We require no leaal If-arinngto inform us vvh'it a "capture"' is, and no schol i*tic ingenu ly is need-' ed to convince us thu we canno' ''cajiuire" that which ha< always been wiihin our po\vcr. The general aiithoriiy to which I have advened will not endble the advocates of this law lo coii»triie it iiilo ihe Con-titiition; i\ r ih-tt cann it be said to be- n»'C>-ssary and proper lb the conduct of war, which is never reso.te i to at least so rate y as not to im- pair practii-ally the ibrce of the general assertion Such, then, is the conrliisioii to Vv^hich the C"n-| siitunon its' If would le^id ns, and i-^ tins contradic-i ted or confiriiie<) by |)re iimi>t on and ara Uiiieiiis' fruui other sources? What do we learn from pub- lici»is and writers on Int^ rnaltoiial Law? They doj no!, of coiir:-e, address the precise qtit-stion thai we are con-idtring, because it can only ari-e uniler^ our own peculiar system, where the different aitri butes of national so\ erf ign power are vested in] dirtereiit quaiters. Their views, however, havel application, though not d recily. The qiiesiioni with them is, whether the confi-cation of debts at! all. be Wrtrranted by the law of n-)tioii.s, not wheth- er it is a pan of ihe war power, or by what aii'hor-! iiy It should be exercised. It 'S not too much to say thai it has been questioned; whether this i> warranted by interna ioiial Law; and even whenj that is conceded, it is condemned as inexpedient! and not as consistent with the improved civilization of modern times. In the Court of King's Bench in England, in which that precise point was beforr! the Court, ihe decision was against the power, and the unfortunate debtor was mtde to pay a second time a dtbt that he had already paid under such a law bv the Danish Government. (Oxholm vs. Wolff>6 Maule & Selwyn, 9-2) In no case before our own tribunals, State or Federal, can it be said that ihe precise point has been adjudicated, although in Brown vs. U. S., 8 Cranoli, and perhaps others, some of our most distinguished Judges have expressed themselves as adhering lo the opinion that the confiscation of debts was wiihin the sovereign power of a iiaiion As Chancellor Kent says, the "Judicial language in this country is decidedly in support of the right." (1 Com , 64 ) But though conceded as apower, its exercise is reprobated; "it may, therefore, well be considered as a naked and impolitic right, con- demned by the enlightened conscience and judg- ment of nodern times " (1 Kent Com., 05 ) Thus, though steadily dnf ing out of view, we can concede that it is still wiihin the outskirts of the sovereign power of nations. But this is quite enough to show thai it most clearly is not regarded as necessary and proper to the power of declaring and conducting war. The international view of the Grovernment of the United States confirms this, and the history of our own S ale is conclusive as to how the matter has been regarded and treated by us. In many of our treaties with foreign countries, it is stipulated again-t any exercise ol'such piwer; in ihat with Great Bntiin (HO-^ ) it was besides declared "unlawful and iinpoliiic," that debts should be impaired by national differences. Il IS surely unnecessary to insist now and here that the Ariides of Confederation and our present Provisional Constitution difler only in the extent of power grrinted lo the central auilioriiy or agency. In nei'her i^ ih^re any latent soveieigniy or reser- voir of n tional power, out of which lo feed any occasional uses or exercise o( convenient authority by Congiess. Upon consult ing the Articles of Cou- Irderation, It will b" seen that there is no sub-tan- tiril or even perceptible difference, a* to the extent "f the aiiti'Oriy ve>ted in the central L-gislaiure, in this pa tirular, Heiween the Article^ of Cinfede- ratii'H and our pi-e-eiit Constitutixm. (6. Siatutes, p. 15:.) And vet the (act is befire ns. ihat the !Coi>gres>i oi that di-y not only confined itself lo the natural im ort nf tlie words of the grant, in < nly jmaking rule- concerni g cap'ures, which were cap- tures, bui deeinina: it expedient thai a fur her power should b^- exeri-iseil on enemy's proper y, held itsf II o'>l ged lo re-ort to 'h^ St'tes, recom- mending such an ext-r ise oi Sovereign y bv them (4 ."^trttii es, Slij ) Oui' own State u as ih< n luMy alive to I he construction and iiis ribuii^n oi these powers, for in ihe Pieamble of tne Act pnssed to Icarry ou the reconimendaiion of fo 'gress it is recited iIihI 'hr^ ('ong^e^s of the Uni ed S a es lia"ins. al'ter due and innture consi'ltr ai in, aiithor- jizedihe coniJeinna' ion of all property of triiish isubjects found on sea, "and rec>>inmen led lo the several States in whicn such su'ij>'ct> had property, ; o confi-cae the same for the public use, &c., it i» enacted," &c., taking care thnt il should appear !that-Coiigress admi.ted the rights of the States. |(4 Statutes, 516.) i Our Act of Confiscation vtas confined to property; jbiit the State not only exercised her power over this pan of the subject matter embraced within it he present Act, by confiscating it, bu{ asseited her jurisdiction mtost emphatically over the other part, ihat is, debts due alien enemies, not by confiscating tliem.biH the reverse, by enacting that under cer- tain conditions alien enemies should have a rij^ht jlo sue and recover in her Courts. (4 Statutes, 642.) j We see, therefore, that the conclusion which we would draw Irom the natural import of the lan- guage employed by the Con«titiMion, namely, that an unlimited power of confiscation is not within jihe power to declare war, or the power to make irules concerning captures, not contradicted by writers on International Law, is confirmed by the diplomatic history of the United States, and de- manded by the legislative action of our own Stale. In accordance with all this, therefore, the Act in question must be regarded as an excessonthe part of the Congress and of consequence void. The next point in as to the procass which has ARGUMENT OF MR. NELSON MITCHELL. 15 been issued under ihis Aft. Is this extraordinary; mandate which we art* called upon to obey wiihin the auihority of the Act ? It is to be inferred that it hi» b. en frame i by lie Aitorney Geneial, notifrj the HUthoriiy <-onferred upon him, to pre-ciibej uniform rule-, ifer., ami no doubi the eighth section; will be referred lO hs tlial under whirh lliis paper! is is>ned. Thai section directs ihe Clerk upon ihe' app 'Ciiion of any Rrceiver, to issue Wiils of Gnr-; nishment, dirc'ted to one or more persons, com-' nianding them to appear anels tliey hud oi any alien cue i my. 'T in whit suni, it any, 'b. y nre in^lehted. ifc'J Wh n such a body a* the Conaie-* ol iht Coa- federaie S a e«. not on'y having among themselve- much legal intelliKen' e and lenrning, but having the aid, when necesary, of the liesi ptofe^iunnl experience, niake> use of legil t< rm-. it is lairiy I i be inferred that they are used accoiding to thtii, usual technical acceptation ; l> ast of ail is it! to be iinpl eil or lightly presumed, th^tany inin- strons (tcp. inure iroin the anal ii.ie- and principlr>| of the law is desiifned. Does ii not n iiu:re a >oiiie | whai dangerous d. gree of pro e-son.d intiepdiiyi to c'aiin thai wcai seem- to be snncly HUtii r.iy' lor an oidina'y wrii of at achirir-iii . a process whicn then, after long execr,iiion, wa>! ab dished ..nd t.aiUided upon as only the lilim^j instrument oi tyranny. j Is 11 lemeriiy then to say that this process is noi| auihoriyed by the Act, and is, iherelore, void. | If, however, we are wiong in as>eriiiig ihnt ihi^l precept is not a legitimate olT>hoot Ir >m the Act itself, and if it indeed be, that it is anlhori^ed li\ the provi.-ions in question, t section, ilie >econd reqnire.- every body to become an informer, and the third contains a severe penal enactment against a large class 01 persons sliotild ihey be remiss and not in form speedily. In all this there i^ certainly very much of novelty, and hence the defenders of the proceed ings may have some countenance lor contemling that it is quiie appropriate to have it earned out by a still more novel writ. It is to be observed that there is no exception here as to any of the relations of liie, or as to ihe mode in which the knowledge called for ha.s been obtained The one may be the closest and teiidere>t which can exi.«l, the other the most solemn known to liuman intercourse — and the objeit of all this delation may withal be the most helpless and forlorn that can address themselves to human compassion : the widow — the lunatic — the orphan — before this Inv there is no dilVerence; every bosom must be emptied of i:s knowledge so ihat none may escape. What ^oclety which we would venture to pre.-ent as authority has ever demanded sacridces likethi.-? It will, no doubt, be said that all the delicate con- siderations which we have adverted to, are made |to eive way belbre the obligations of the wit- jness stand or in cases of discovery to a Bill in E(|niiy. The oblig.ition to do a cenaia thing under cer- tain conditions and with ceria'O exceptions, and the oblig.ilioii to do the same thing discharged of those con lition> and without the e.xceptions, i^ jn t tbedifi. rence beiween ju>tice and de-p ilimi. To say ihdt culling upon a witness, or a deiendant in lequiiy, or a garnishee in ailachment, to tesiil'y as 10 a certain fdCl, or make a return as to a paiticu- lar person, is the same as auihm iz'ng a Receiver to sumiiions the coinmiini'y by -ouiid of trumpt I lo jinforin seneiaily hs t i a class of person-, i- to say iWhat no society has ever said or can ever enf >rce, if it should undertake to say. Ihe instincts ot [modern t'iv.l zatiin requiieiio b arning Irnnthe |book- for in-triioion as to the d ll'erfnce between an informer and a w'iness. Ingenuity may attempt ito con ound the two but the sen-ibiliiies ol the lhuni:ui bosom will a>sert their rights, and place Jtheone on the ri^hi and the other on tiie lefi. Shall we be tol Ijhat there is no specirii- provi-hin in the Cons iiut ion a^nin-t all il.i-, and that common right IS too vaK"e aih'na to be appealed to before a tiibu- mal ofju-iice? Where is there any provision apainst jihf boot or the thnmbscrew as a means of eliciting jinforma ion ? Il the zeal of an over eager bgij-la- tor mav go bick to the discarded machinery of a Ibyegone despotism, and rummage up this wril ifrom the preiedents of St ir Chnmber praclice for jrardern use. why not also other parts of a like ma- chinery, — ibe boot and the ihiiinbscrew? We begin with the question, a term of oniinou* import, and [[what next? Now, if all this be necessary and prop- er lor carrying out the law of C^ongress, it may be equally so for every othi r, and where can we say thill such iremf-ndous power has been conti- ded to the limited legislative agency established under our Prf)visional Consiitntion. Society has very large claims upon its members, but they are not without limit; even a sovereign, jihongh wiihout bounds, if a wi-e one, knows this ; any claim beyond this limit is worse than useless, lit IS misch'evoiis. Eveiy society has a right to the llives and fortunes of its members, but ought not to expect certain sacrifices and services which hu- man exficrience teaches us cannoi be enlbrced. (t may terminate the former relations of liie It can scarcelv hope to extinguish the sentiments which they have beiiOtten. We all acknowledge 'he obligation to tell the truth and the whole truth on the witness stand. It may be that sone have yet to learn whe'her they can become informers. A. General may order hi- mjn on a lorlorn hope, however certain the destruction ; (or spies he must resort to voluntary service. ARGUMENT OF MR. MILES, ACTING DISTRICT ATTORNEY. Mr. Miles began by saying that he thought the qiieslioa made |ir<'ininure .micI unneces-ary, and that ihe discussion iui;;hl hnve b^t-n preven ed liy simply ai'cepiing the reiurii to ihe Writ iiiad^^ orf] Cfiii/s, as hi^ %VMs not awaie tHai tlie Act iiuide it: incuuibcni on hi(n lo ak the Court i.o comp-l an| aii>wer oil oa' h, to evt- ry Writ of Girnishrnent which is>ued ; but ih-ii to have ado(>tecl litis course,' wou d lave been to allow the iuipuiaiious cast up- on the law to go unanswered. Therefore, the i-*- 8ue of the const tution ility of the liw itselt", whi' h was tendrred, wa- acceptf d FurihesHUie rcasur.>, no point i» made as to he mode in which the qne^ tiou is raised, allhoiiiih it Is subiuilte'l tiiat a De- iiiurrrr is not the proper mole, ihat l>eing a tech' i- cal moile of t^ s'ing- n technical ([Ur'^tion, and ordy lies where the objeetioii taken appears i.i the pleadi ings thcm-clves. it never wis heird ofthiit !o a Writ of Assuni^il for debt, the defend mi conl I de'uur, either becr.u-'e he WHS not hound to p ly the debt, or bfcaune the pla'nlilfwas un^ler a le^al disaii iiy 'Ociciim ii,rind lea^t o( Jill, because the delendiiii! lU'egcd that it was mean and d shonorable in the plaintilf to sue ;or the debi. But waiving a 1 tethni al ani Ibrmrtl oh- j-ciions, he proceeded to discuss the ca-e on its meiiis. And here he ihou<5^hl he iifaht be pHrdoiv ed far making; a few reinaiks in relation to his own pL)>iiion and connection wi h the case. Wi.i e. ou I he one haud.ii was certainly a matter of regret that the Confederate Slates should not be rcpiesenied on this iinporiant occasion by the ot-: ficer o' its own ap()i>intment, who would have been! ^o much more eiinal to the la^k, on the other hand.! he iiiighi e teem it his g lod foitune, that while thati Irieiid, to whose partiality he owed his appoini-[ mcnt to his present po.sitijn, was in discharge ol duties to his country, in which he had already won, and would continue to win, laurels fiir him-^ sell, hy his gdmiry and daring, he had allowedj him the opportuniiy of servinsf that same coumry,! in a post, -he peiform-mce of the duties of which. although less brilliant anl d szzling, were not, lie hoped, less necessary and useful. And that al- thou'^h he felt opiires>ed with the re-ponsibility ol'i h s position in liting cal-ed upon to defend the ac-l tion of our Government in so impoitant a matter and against such power and inlluence as were ar- rayed agiiiii-t h'ln, he yet gained confidence iVoin the cause, and would endeavor to carry i'lto ihe conte>t in th>s arena, ihe same spirit which his gallint friend did into the field ofba'tle; and that even if he should be overwhelmed iiy the odds against him, he would be sustained by the fu-t ihat thc-e feariul odds were encountered in the path of duty, in the cause of his country, and the defence of its Government. He proposed to argue the paints involved, ac- cording to his own method and arrangement, with- out interrupii^n bv any attempt to reply to the ar gumeiits which had been adduced by the respon dents. This he should leave to be done by his coHeasue, the Attorney General. He proposed to |diseu-s the questions on the following ground-: I First The right to seciiie^ter or confiscate all Ipropcity and debis of alien enemies as a sovertifftt \rigki. j S^co/ifl. Thti ri.s'ht and power of the Congress lof the Confederate States to exercise that sove- !reigii right. I Thiid The mnd'' prescribed by Congress for jcarrs iii^ the right and poior.r inio ttfect. i Fui'ith. The proprieiy and policy of exercising iihe right during the i xi>ting w nr. : The (ir-t pi iiiciple conten led fr is — that a Sia'e has a right lo confiscate uU properly of the enemy found within iis Itniory, on ihe l)reak'ng out of jwar. That this right i.- an inherenl sovereign right, 'and the Stale 'S iespon>ible fjr the exerc se of it, loiily ill its pul'ttral capicity, 'o the country upon j who.-e c tiz ns ilie exeici^e of the right opentes. JTh- rigor of ihi» rule may be relaxed by the sove- Ireign will, and in practice it is very general/ irelaxed — either as to t e persons ujion whom ii is jio operiite, as is ilone in the ease ot express treaty stipulations between nations not to exercise the right as to each other's citizens ; or, as to the sub- \ject matter, upon wh ch it is to operate; as for example, the limitation that the dei>is due by the Siaie itself, even to the enemy Siate, or its cilizensi, ■hail not be coiificated. There have been miny mitigations of this rule which the wise and humane policy ofmodern times, through the civilizing Hud humanizing effects ot commerce have intiodiiced into practice, but how- ever much these may elleci ths exerci.fe of the right, ihey cannot impair {he right itself This IS the principle as laid down by every writer on international Law, and by every Court of every coiuiiry which has been called uiton to adjudicate sueh questions. The only modiiicHtion of the rule which has ever been contended lor is, that the ;., lib l.ch 2-7. Vaitel hi). 3, ch. 4. Also to the case of Brown f;j. United States, S Cranch, 120. Even by tho.-e who maintain the most liberal views as lothe relaxation of iherigh tof confiscition, ii has always been adinitted that the right is pro peily e.xerl■i^ed in reialiaiion. The rule of reci- procity has been always recognized, not only by the ileclaraiion* ol nations, as lu Magna Ckarta, but praciicallv by every nation engaged in war. (The Santa Cruz, 1 Rob,, 64 ) That you bhall mete out to your enemy the same measure which he mea- sures 10 you. The right of the Stale over the properly of an enemy in its possession is the same in extent a.* the right over h s person. And although the law.« of Chrisiitniiy, civilization and of nations, all con- cu in requiring that the persons of the enemy shall be treated with humaniiy.and even kindness, yet has the right of retaUatwn, as a measure of stern nei-essity, never been questioned. Bui it has been contended that there is this limi- tation to the right lo coniiscate enemy's property — that private debts due to the citizens of the enemy's conniry shall not be conrt>cated. Thf right to contiscate debts contracted by indi- viduals in time of peace, and which remain due to the subjects of the er.einy ai the declaration of war, tests upon the same principles as that con- cerning enemy's tangible property, found in the country at the opening of the war, and indeed there is, and can be no distinction in reasoi,. The tangible property is just as. much acquired under the sanction of the law, and without anticipation of war as the debts were contracted, and very little reflection will show the injustice of making any dictinciion. Shall the real estate of an alien enemy within our limits, occupied by a citizen, be seized and confiscated, while ihe debt, which it may be is due to the same alien enemy, by the same citizen, for the rent, is not confiscated; and the debt due by another citizen for the purchase money of other real estate from the same alien enemy belore the war, be exempt? Jt would be unreasonable and unjust. But it is upon the expediency of exercising ihe right of confiscation as to dibts that most has been said. He submitted that the rule is not only in reason the same as lo debts, as in relation to tangible property, but thiit it is based upon the authority and practice of the Law of Nations. (Cited 1 Kent, 01; Wheaton's Inter. Law, 367; Story in Brown vs U. S., 8 Cr., 140,) It not only is sanctioned by Ihe ancients and by the Civil Law, but is asserted i)v Gro'ius, PnflVi)- jrigmS', Bynkershii'ik and Vattel, with the qualih -a- nSn before alluded to, that debts due by the .State ^li.'ill not be i-otiliscnted. Alihoimh some of these \vr lers, piiriicuiarlv Vat'el, while they do not deny tiie right, still >-oiitead that there ha* been a relax- 3 aiion of the rule in the practice of modern times; yet they admit at* the same time the right by way of reprisal or retaliation, and by the exception which they make as to public debts coutirra the general rule. Vattel says, (quoted in 3 Ball , 226,) "What I have said of things in action being rtghtfnlly con- fiscated, holds thus; If the Prince exacts from his subjects what they owed lo the enemy, it is right- fully paid; if he shall not' have exacted it, peace being made, the former right of the creditor re- vives; accordingly it is for the most part agreed among nations, that things in action be;'ng confis- cated in war, the peace l>eing made, those which were paid are deemed to have perished and remain f.rtivct, but those not paid revive and are restored lo the true creditors." (Vatt. Lib. 4, 522 — he wrote in 17tl7) The same principle has been recognized by the common law of England. Lord Hnle (1 Hale's P. C , 95) lays it dow^n that '■ debts and goods found m the realm belonginf< to alien enemies, belong to the King, and may be seized by him." And the right has been atfirmed in the following cases in England, which may be <-ited in response lothe challenge of counsel lo produce any dtcision of any tribunal, declaring the right to confiscate debts, according to the provisions of International Law. In the Attorney-General vs. Weeden &; Shales, Sir Thomas Parker's Rep. 267. it was held that ckoses /?t flf^joM belonging to an alien enemy are forfeita- ble to the Crown on inquisition (ijund. In Wright vs. Null, H. Black's Rep. 149, Lord Thurlow declaied^hat an Act o( the State ot Geor- gia passed in I7"52, for the confiscation of the real and personal estate of Sir James Wright and also his dfbts. was the law of an independent country, and the law o( every country must be regarded in Courts of Justice, whether the law was barbarous or civilized, wise or toolish. In Follioit vs. Ogden, H. Black Rep. 135, lord Loughborough declared an Act o/ the Slate o( New York, confierve such a law in regard to any! nation recognising its inJep<:>ndence, and wtio ob-l served it on her own part, (lor undoubtedly a' breach on one side would jusiify a non-observance' on the other) it did not necessarily follow that the people of this couniry were hound to observe it lOj ■A nation, which not only did not recognize, but' sought 10 destroy their very existence as an inde- pendent people, considering them in no other light than as traitors whose lives and fortunes were forfeited lo the law. "The people of this country literally fought jiro arts et Jocio, and therefore means of defence whirh, when inferior objects were in view, might not be sirictly justifiable, miglil in such an e.xtreniity become so, on the great prin- ciple on which all laws of war are founded, self- ■preservation.''' The laier English writers on International Law, follow the rule as laid down by the American Judges and commentators. (See Manning's Law of Nations, 127.) The praetiee of nations may al>o be referred to as evidencing the recogniiion of the right even where there has been a tbrbearance to exercise it In the English answer lo the memorial of thej King of Prussia, in relation to the Silesian loan, in! 1752, the right to confiscate even public debts due by the State was not denied, although the expedi- ency and morality of such confi>caiioii was denied. In the war between Great Britain and France, in 1793, the former jjower sequestrated the debts and the property belonging to subjects of her enemy, which decree was retaliated by a countervailing measure on the part of Great Britain. (Wheaion's Inter. Law, 3S0 ; 1 Phillimore's Inter. Law, 71.) By the Treaty of Paris, in 1S14, the sequestratiins were removed on lioili sides and indemnity given But as Mr. Wheaion remark's, " the engajjement thus extorted from France may be considered as a ^eve^e application of the rigiits of conquest to a fallen enemy, rather than a measure of eien hand ed justiee, since it does not appear ihat French property seized in the ports of Great Britain, in anticipation of ho.-iililies and subsequently con- demned as droits ol Admiralty, was re^tored under the Treaty." In 1807, the Danish ships and other property which had been seized in British ports and on the high seas, before the actual declaration of hostili- ties, were condemned by the retrospective opera- tion of the declaration. The Danish Government, in retaliation, issued an Ordinance sequestering the dtbts due from Danish to British subjects, and caused them to be paid into the Royal Treasury, The Engli.^h Court of King's Bench held that this Ordinance was not a legal defence to a suit in Eng- land (or such a debt, not being conformable to the iisaae of nations. (Wolff vs. Oxholm, 6 Maule i5c Selwyn, 92.) This, however, is the only case that can be found lo this effect, and it is submitted is in the teeh ofall authorities and principle, and only evinces how England was swerved by her selfish inierest, fir the property in Danish vessels condemned in Eng- land amounted to ,£1,205,000, while the debts .-e- questered in retaliation amounted to only £200,000 The Danish Government offered to deduct this from the value of the ships condemned. This was decUitfd, and Parliament indemnifiedits merchants. jThis was a political rather than a judicial decision. (See Wheaton's, Inter. L Ssl, note.) I Srcond. Thti right ol a State to confiscate o/Z pro- perty of aliea enemies witliin it> territorial limits, according to its own view's of justice and policy, ibeing esiablished, the next point is to consider by jwhom that right is to be exercised. It is submiited that the right to declare the 'sovereign will in this regard is, in the Confederate .States, vested in Congress, First, by the grant jof an express substantive, power to that eflect in the Cons-litiitioH. (Art. 1, Sec, 6, clause 11.) Congress shall have power "lo declare war, grant letters of maniiie and reprisals, and make rules concerning captures ov- lavd and loater!'^ The latter clause exiends to rules respeciin°r enemy's property found within the territory, ^nd is an express grant to Congress of the power in question, as an inde- dendent substantive power not included in that of making war. For which position he cited the authority of C. J. Marshall, in Brown vs. U, S. (S Cranch, 120 ) But if not properly referred to this, as an inde- pendent power, it is, nevertheless, plainly and ne- cessarily included in the war-making power, which power is expressly given to Congress and expressly forbidden to the States. From the very nature of tiie case, all powers incidental to the carryin"g on of the war must be exercised by the 'coinuion agent ofall the Slates engaged in the Iwar, to insure uniformity. But Congress is vested iwiih the power to "make all laws nece^sary for ■carrying into execution the poweis expressly deU- gdted by the Cons'ituiiou tothe Provisional Govern- jment," (clause 17.) The reasoning in the cases before cited shows that the question of whether the right of confiscation shall be exercised, being Inot an immutable rule of law, but a question of ex- pediency, it is proper for the consideration of the legislative department. The power over the pro, \perty oi alien enemies is co-extensive with lliatcver itlie 7;f«o/(A' of alien enemie*, and must be clashed 'with it. This power must, therefore, be an inci' jdent of the war-making power, for it is the very [State of war which renders this property in the limits of the State confiscable, the overt act of the Government by the expression of the legislative will, and some judicial Act done under it, is only necessarv to divest the title. (Story in Brown vs. U. S , 8 Cr. 143 ) It will not do to say that is not a necessary inci- dent of the war-making power, because wars »re carried on without exercising this power. So are wars wa".'ed without the necessity of resortii g to retaliation as to prisoneirs, and yet ■will it be pre- tended that this is not a necessary incident ol the war-makii.g power? It is an incident of the exer- cise of the sovereign right to make war, and can and must be exercised by the same agency which exercises that power. It the States, who are the only sovereigns under our system, delegate to their agent, the General Government, in any of its de- partments, the power to exercise the right ol sove- reignly over any subject mailer, e. g., war and peace, that agent can exercise that sovereign right in as ample and unrestricted a manner as the Sovereign himself Hence absolute power being given to Conoress to declare M'ar, and being forbidden tothe Slates, the power of Congress in this particular is as full and unrestrained as that of the Emperor of France or the Czar of Russia. The constiiutional restriction is as to the subject matter., the jurisdiction over which is given to Congress. ARGUMENT OF MR. MILES. 19 To the argument urged with 80 much ibrce, that innd right iii the modes of procedure to perfect this the Congress under the old Articles of Conledera- 'claim and to divest his litle.^ tion did not claim the right Jo confiscate, but Next, the Congress has power given it by the recommended to the several States to pass such States to operate l-tv its laws directly upon the ciii- laws, it is submitted that the answer is, thai zens of the Slates (or the purpose ot' efieetualing a under the Ariicles of Confederation Congress had| constitutional purpose. And having the jiower it no power to operate directly upon the citizens or can declare the duly of the cilizeu in this behalf. — the property in the several States: and that as the If (he citizen holds properly of an alien enemy, he several States furnished their quotas of men and /lo/ds property to the possessioti of which the Govern- money to carry on the war, the States were lo /.'lent is e>/tit/ed, nnd il can comptl him by all the confiscate the property of alien enemies within means known to its laws to give up the properly their limits, "and to apply the same towards alle and also to disclose fully what he does control. — viaiing and lessening the burdens and expenses of The only limitation which can be placed upon the the war, which must otherwise fall very heavy oni|[)Ower, seems to be that such means shall be used the distressed inhabitants ot the Stale," as it is as are already known to the law in cases of a like expressed in the preamble to the Confiscation Aci nature. of South Carolina, 1782,4 S. L., 517. The chief objection which is urged in this con- It was this very deficiency, among others, in the!|ueciion (o the constitutionality ot the law of Con- power of the Confederacy which the Constitution ifress, is that the »«0(f(! which it prescribes for as- vas intended to supply; to substitute a Goirr// cerlaining what property and etfects of alien ene- ment in lieu of a league. Under the Constitution o( mies are held by its citizens, is unknown to the the United States and of the Coniederate Slates! common law, and is against common right. That Congress delrays the expenses o( ilie war, ami isjiis, it must be intended against the common right «mpowered to levy it upon the citizens of the jol the citizen, lor the alien whose property it wa* has States respectively, and hence the proceeds of the no longer any rights. The citizen's right can only confiscation go into the general treasury. (See note be in relation to the thing itself, or as to the uwde of at (he end ) procedure again>t him. in relation to the thing. The Act of Virginia discussed in Ware ii.s :Now, the righis of all citizen-* in the thing itself, Hylton it must be borne in mind, was passed Congress has not only not attempted to disturb, but 6e/or« the adoption of the Articles ol Confederation, has expressly proiected and guarded in the most Third. Having shown that the [)ower of coiifis- ample manner. — to the extent of granting greater cation isasovereignriaht, and that the Act declaring tacililies in obtaining their rights than they would it, is within the constitutional power of Congress have had, but for the possession which the Gov- to pass, the only question which remains is whether ernment takes of that upon which the lien attaches, the mode and manner prescribed by Congress in In some ca^es it anticipates the payment of debts carrying out its constitutional power in this re- due to citizen*. Ol wiiat, then, does he comphiin ? spect, is ;« conflict with any provision c^i the Con- . ■ ~ stituiion? It may be asked, in the language of Judge Chace, in Ware vs. Hylton, 3 Uall., 224. '-Suppose a tedure, prescribed in the eighth section of the Acl. general right to confiscate enemy's property is ""known to the law ? Is this mode of procedure admitied to be in Congress, and Congress had con ^ssentially ditierent from a cause in the Exchequer fispated ail enemy's property within the Confederate Chamber in Enghind in a suit insutnted upon the States, including private debts, would it be per- fiction thatthe defendant is indebted to the Crown? milted to conieid in any Court of the Confederate, ifJo£,* '' dillcrin principle from a Bill ol Discovery Why, that the Government calls upon hiin to de- clare what he has in his possession. Does this dis- closure work him any harm ? Is the mode of pro- ijtates that Congress had no power to confiscate such debts by the wo<^("??i law of nations ? If the right is conceded to be in Congress, it necessarily follows, that Congress is the judge of the right as to the extent, mode ahee any citizen and compel him to answer on oath, whether he is indebted to the defendant. Is the proceeding under this Act more unjusH. or more again?t common right, than is the pTae-j tice in the Prize Court of compelling the cap tured crev , whether citizens or aliens, enemies or neutrals, to answer upon oath the standing inter rogatories, ingenuonsly framed to elicit the truth as to any interest of an alien enemy, direct or indirect, in vessel or cargo? And that, although the witness may be the confidential and trusted agent of the alien enemies. But it is said that all these are cases of a suit by one citizen against another and are fo.» a particu- lar subject matter. Is the case less strong where the Governmentclaims the property, and defendant is one worse than ontlijwed — an enemy, with no standing in Court, — and where the subject mat- ter of the proceeding is property, essential to be taken from an enemy, and which is to be given to our own citizens as indemnity for wrongs done to their property, and which property is already de clafc'd sequotered by the Act ? If you sirip the argument of all which refers to the right of the alien enemy, you divest it of all its force. The position once realized that the alien enemy has MO rt^/t^* which can be enforced — that the Government has been substituted to these rights, and that in reality it is a proceeding by the Government to obtain the possession of property which it is entitled to receive and sue (or as bailee lor a special purpose, and all the seeming hardships disappear. The Government calls upon its citi- zens to deliver to it certain property which it has become entitled to by act of law. There has been an escheat of alien's property tothe State, andeacti citizen is required to give up all thai he controls, and enable the State to oblain all ibat it can. The generality o{ \.\\& proceeding, as operating upon any and all property of alien enemies, has been much enlarged upon, but this objection is only specious. If the Government is entitled to any and all property which formerly belonged to alien enemies, it is not strange that it makes the demand for any and a// such property from each of Its citizens. The proceeding is in rem, and moni- tion issues 10 bring in all parties controlling such property sought to be condemned. The Government is empowered to collect the excise or the duty on a// articles upon' which such duty is leviable by law, though its agents and ihe generality of the power, co-extensive with the sub- ject matter, is no objection. Where then is the force or the justice of the illustrations drawn- from the proceedings of the Inquisition or the Star Chamber ? Plere is no elTort to jiunish, either for heresy or crime. This is not a ^ewo/ proceed in any sense. The hateful tyranny of the Star Chamber consisted not only in its being without warrant o( law, and against express law^, but in the process to compel one to give evidence against himself or some fellow-citizen on a charge of some political offence. Here we have only n proceeding for obtainiitg possession of property, taken from the enemy, by d. law made in pursuance of an express power under the Con>tiiulion, and vested in the State for a sirecial and a sacred purpose, Fuiirih. The question of the expediene-y of the law which it was proposed to araue, is not properly addressed to the Court, although most of the argu- ments adduced really go to the expediency and policy of enacting such a law, and to the inconve- niencies which may arise in administering it. These are all proj)erly addressed to Congress to induce them to modify or repeal the law, and not to the Court to set aside the law. Many of the arguments in favor of the passage oi such a law have been already anticipated ; as, for instance, the princijjle of retaliation and reci- procity, and of reprisal, or the right of a nation to do itself justice, and to indemnify its citizens frota the enemy's properly in her power. In addition to these, passing allusion may be made to thecircunj- siance that this final measure of retaliation was not adopted until after our Government had aflord- ed its citizens an opportunity of protecting those to whom they were indebted in the United States by ipaying the debts into the Treasury, to be redeem- jable at the end of the war, and thus placing them beyond the reach ol the Government itself. (Act of 21st May, 1S61.) ' As to the inconveniences to our citizens which may arise in carrying the law into execution, so far las these nconveniences are not suggested either by too great a sympathy with the alien enemy, or by disappointment at finding that tlje war has not discharged them from the obligation of their debts, they are to be met, and if pos ibie overcome, by * fair and liberal construction of the law by ihe' Courts — and where such construction cannot meea the difficulty, by a calm and earnest appeal to the power which made the law, aetuated as it is by the highest desire for the public welfare. Mistake* and errors have doubtless been made in every de- partment of the Government, but they are not best remedied by attacks and invective^ on the Govern-' mem either in its executive or legi^lative depart' ment-; either for the conduct of the war or the making of the laws. Note — The followir>g extracts from the resolu-' tions adopted by the Congress of the United Slates on the 6ih of March, 1779, in relation to the power of Congress to establish a tribunal fortherevision of the decisions of the Courts of the States in prize causes, not known at the time of the argument, ar^ here inserted without comment, as interesting in* connection with this question : "That Congress is, by these United States, in- vested with the supreme sovereign power of war and peace. '•That the power of executing the law of nations is essential to the sovereign supreme power of war and peace. "That the legality of all captures on the high seas mu>tbe determined by the law of nations. •That the authority ultimately and finally to- de- cide on all matters and questions touching the law of nations, does reside and is ves'ed in tire sove- reign supreme power of war and peace. "Thai a control by appeal is necessary, ra order to compel a just and uniform execution of the law of nations. That the said control must extend as well over the decision of juries, as Judges in Courts for de- termining the legality ofcaptures on the sea; other- wise juries would be possessed of the ultimate su- ARGUMENT OF MR. MILES. 21 preme power of executing the lawof nationsinall nations complaininfi: of a violation of neutralities, cases of captures, and might, at any time,exeroi>ethe ot'treaiies or other breaches of the law of nations, same in such manner, as to preveiita possibility ofbe and would enable a jury in anyone Slate, to in- ing conirolled; a construction which involves many volve the Uniied States in hostilities; a construe- inconveniences and absurdities, destroys an essen lion which, for these and many other reasons, is tial part of the power of war and peace entrtisied itiadmissil>le." to Congress, and would disable the Congress of the Quoted in the case of Penhallow r*. Doane's, United Slates, from giving satisfaction to foreign Administrator, 3 Dall. R., S3. 4 ARGUMENT OF MR. PETIGRU. Mr. Petigru opened his argument by stating that the demurer would be sustained by him upon two grounds: First. The Writ of Garnishment, as it is called, is illegal and unwarranted. Secondly, That the pur- pose of the Writ, which is the conliscation of enemies debts, is not within the competency of the Confederate Government. No man has the right to put a freeman upon his oath, — to purge bis conscience, by compelling t solemn appeal to Heaven but according to law and the law gives that authority only in a judicia proceeding to testily as a witness ; to answ^er to mat- ters charged against him; to obey the call of the Sov- ereign by taking the oath of allegiance, or the oath of office. The oath of office, the oath o( allegiance, the obligation of testifying to the truth in a Court of Justice between parties litigant are acknowledged. We were never ianious lor opposition to au- thority. No person was more ready to render to Caesar all that Caa.-ar had a decent pretext toj demand. But obedience to this Writ which requires a general discovery of alien ene-| mies, and all the information in the power of the party summoned for the purpose of discovering! what property of alien enemies may be come at, I deny and refuse to answer. And the reason of this refusal is simple, although it seems to surprise some, but as St. Paul says, I was born free and will not forfeit that freedom which I inherit from my free mother. I will not submit to be command- ■ed where there is no right to command. The Clerk of the District Court of the Confede- rate States has issued a Writ commanding the person to whom it is addressed to apjiear in Court and answer all such questions as shall be put to him respecting alien enemies. He that does not uherish the rights of a freenian is unworthy of his birthright. It is not a circular calling on the party to come forward with money and information, nor an ad- vertisement ottering a reward for di>covery, but it is a command, an order from a superior bidding the subject to do what is mentioned. It pre-supposes or takes for granted tliat the superior from whom it emanates has authority to compel the parly to disclose all the information in his power, at least, on a given subject. That subject is the conliscation of enemies goods. To conliscate the property of •enemies may be a rightiul branch of sovereign power. While upon this point the question is not whether the law of Nations allows or favors conlis- cation. Nations have set the example of the prac- tice, and rulers that have been willing to adopt it, have never wanted delators and traitors, spies and informers, to turn the grindstone for sharpening the axe of power. In discussing this point we leave undisturbed the complacency of them who look with favoT upon the scenes of confiscation which have grieved and disgus^ted the wisest and best of men. Let them enjoy their opinion. But the subject declines obedience to this order. He acknowledges that it comes from a high power, and the only reason why he disobeys is that he is a free man, and has the same right to withstand an inquisitorial examination that the poor man has to close the door of his humble shed against the foot of power. In the first place it will hardly be denied that the Government of the Confederacy is a Government of special and limited powers. Under the United States Sovereignty was the root of bitterness. Federalsits, (and any one who thinks it will help his argument may say that I was one) contended ■ that the Federal and State Governments were Ico-ordinate authorities, and that they were both [sovereign in their respective spheres. Perhaps jthey were wrong; perhaps there is an incom^ ipatibility in nature as there seems to be in guage, between ideas of sovereignty and disability — that the idea of a partial sovereignty is a solecism. But that difficulty, so far as we are concerned, is set at rest by the Constitution of the Confederate States, which positively, plainly and without equivocation excludes any encroachment on the full and entire sovereignty of the several Stales. Therefore, what was once doubtful is now clear. Dr. Cooper's argument has triumphed: his vis-sions are realized. We have a Constitution which is free from ambiguity, and a government which is a mere agency ; and shame must be the portion of him that would deny that the Confeder- ate Government is confined to the powers express- ly delegated, and that beyond those limits its acts (ire unwarranted. (See Cooper's Exposition of Nullification. 1 Stat, of South Carolina, 218, 221.) Now, if this was a question between man and man — if a neighbor came to ask such a question on the part and behalf of another person, one would naturally expect that he had express directions to interrogate on the subject, or some subject leading to it. We would expect here, if the Confederate States send such a demand, to find that their principals — (hose for whom they assumeto act — had authorized them to examine all men upon every subject on which they needed information, or at least on thai particular sul>ject. How would it answer for the party to produce instead of a warrant to purge the conscience of the party, a warrant to seize enemies goods ? * Let us forego the rigor of logic; let us concede that the grant of the power to seize enemies goods will authorize all that is incident to that power. There is no more connection between the power of proceeding against enemies goods, and purging the conscience, than between this inquisitorial Act, and the power of collecting revenue, of levy- ing imposts or punishing counterfeiting. In United States vs. Brown, 8 Cr. 110, Ch. J. Marshall rules that the power over captures by land or water is not incident to the war power, but is a separate substantive power. Yet surely the power to make rules for captures by land or water, is more like an incident to the war power, than an inquisition into the state of any man's conscience or knowledge lo ARGUMENT OF HON. JAMES L. PETIGRU. 23 the power of making rules concerning captures in lime of war. As to what is incident to a grant, the rule is well ^lntler^tood in the law — ciiicumgue ahquis quid coii- cedtt concedere videtur et id sinequo ipsa cuncessio es.se von jiotuit. Whoevergrants a thing issupposed ab- solutely to gram that without which the grant itself would be of no effect. (Brown's Maxims, 426.) So the power to make bye-laws is incident to a corpo- ration. But under this rule are comprehended only things directly necessary. Legists of the highest reputation distinguish be-i tween things which are of the essence of a grant: those which are of its nature, and those which are accidental. Those which are of the essence of a contract are such as without which the contract cannot exist. Those which are of its nature nre' as if not expressly excluded, follow the grant as a matter of course. Such is the power of a corpora- tion to m.ike bye-laws. Those which areacciden» tal are .-iich ns are not included in the grant unless exprtjssly named. (Evans' Pothier, 6-7. Debts are not usually confiscated except in war; but so far is the power from being the natural con-' sequence of war, that it is most rarely reported to; among European nations. And in the East, where it finds a congenial soil, it is practised equally in peace and war. But, disregarding all pedantry or grammatical strictness, I will go to the very furthest brink of conces>ion, and notwiih-tanding Dr. Cooper admits that the Confederacy may exercise as much con- structive power as the United States could or ever did. i Such a concession will not authorize them to exercise in a civil suit, a procedure unknown to common law, and in derogation of the rights of the subjeci. Even if the people had given to the Con- federacy the power expressly to seize the property of enemies that come here under the safe guard of peai-e and to sequester all debts due to our credi- tors, the agent would be bound in exercising that power to proceed by the law that the principal is hound by. The Confederate Government may ar-' rest olTenders against the Acts of Congress: l)ut| can they issue a general warrant? Can thirty alter the law of evidence, or change the procedure of the Courts? Nothing can be more incon>istent with the relation of principal and agent, than that the agent should dircard the law of the principal and roort to means in the execution of his autho- rity which are, by the law of the principal, unlaw- ful. Let him sequester debts, out lor God's sake let him kce|) his hand from (reneral Warrant and the machinery of ihe Star Chamber. ' All Courts must follow the established course of jirocedure. If it be a common Law Court, the procedure of the common law; it it be the EccleM- tical Court, the Canon law; if a Prize Conn, the course of the civil law incorporated wiMi the practice of those Courts. (Bacon's Ab. BuUer, N. P., 219.) Now ii this a common law proceeding or a proceeding in the Prize Court? Is it civil or criminal proceeding? Is it an ini-ident, a thing without which the judicial vigor of common law,! criminal law or prize law will be impaired? ' The most inveteraie dispute on the subject of consiruciive pnwers was the incorporation of the Bank of the Uniied States. It was defended on •^ the ground that all civilized people of the present. " age have a Government to aid in the collection, disbursement and sale keeping of the revenue. It was argued that it was incidental to the power of raising and disbursing rev«Miue, because it was usual, and without it the thing could not be done as well. That the creation ot a corporaiion was an ordinary exercise of legislative power in aid of some public purpose. That it was not a substan- tive but an adjective branch of legislation, and was therefore capable of fairly coming within the de- finition of a law necessary and proper to the due discharge of the duty and power of the Gov- ernment. What shall be said of the monstrous fallacy of making this a precedent for establishing a Court of Star Chamber as incident to captures on land. But I deny that this is a jud.cial proceeding at all. A Writ of (jrarnishment is a term unknown to our law, and the thing before us is not a Writ. What IS a Writ? It is the first step in a suit. And what is a suit? It is a proceeding between plaintifl' and defendant, (3 Bl., 272.) If a Writ is litigated between parties in a Court of Justice the proceeding by which the decision is sought is a suit, pr. IVlarshall. Weston vs. The City Council^ 2 Peters, 461 i Here there is no plaintiff and no defendant; it is no more a judicial proceeding than if the Governor or General should call up every man in the com- munity and purge his conscience as to alien enemies. A man is bound to testily when required as a witness, but he cannot fill the character of a wit- ness unless there is a suit. And the Slate may require its citizens to lake the oath of allegiance, Which certainly the Confederate Government can- not. And there are oaths of office, but there never was an oati» like this since the days of the Star Chamber. And this brings the case within the Law of General Warrants. (Wilkes' case, 1 LofIt, 1; Money I's. Leach, 3 Burr, 1762, 1 H. H., 580.) Shall it be said that a general commission to compel every man to give information is not a general warrant. It is not only like a general warrant but is the same thing in substance, and there is just the difference ibetween this Writ of Garnishment, a.s it is called, jand the Writ of Foreign Attachment, that there is between a general warrant and a warrant to arrest aa individual. I Alter this, if any man defends this proceeding let him give up all claim to State Rights, all pre- tentions to be a Constitutional Lawyer, or a friend of Popular Rights. So far [ have confined myself to the considera- tion of the inquisitorial power a>-sumed by the Se- questration Act, and endeavored to show, I hope not unsuccessfully, that if ihe Confederate Govern- ment confines iiself bonajide to the Sfjency com- mitted to it bv the instrument under which it acts, and under whii-h alone it can pretend to any juris- (Hciion of the matter, according to the true inient and meaning of that instruftient it can have no right to order a private citizen to come fiTward, and act as an informer, even if the information sought was conducive to an object within its legi- timate sphere of action. ' But I will proceed now in furtherance oT the j'arguments of my friends yesterday addressed to Ijihe Court, to show th.U the object in view is not a legitimate object — that is, that the object in view is not included in the powers delegated to the Con- federacy by ihe Sovereign States The object of jihe inquiries is to enable the Confederacy to con- tiscaie enemies property found in the Sinte at the Jbeginning of the war, and brought here under the 24 THE SEQUESTRATION ACT. sanctions of peace. I deny tnat the inslrumenti under which the Conlederacy derive all their pow- er authorized them to confiscae ^uch properiv- j The holder of enemies properly has the right of| po.sioii; and is entitled to hold till a betiertitle is shown. This is no more than the common birth-right of a freeman. To the minister who as- sumes to intermeddle with his possession on be- half of the Confederate Government, he has a right to demand not merely his authority, but the au thi)rny of his master, that mas'er being as we have again and again repeated only an agent. To thi--i demand the answer given is that the Gov-j ernraeiit ha-; the power to dei-lare war ! That the pjwer lo declare war does not include the right of contis'ation is not only plain from re isoii, but so fully prt^ved by the authority ot Brown's case a-* to be scarce y in isted on. But a seems to be >np- p.)Sed that the power to conti-cate may be found in the other part of the same clause, lo wit : "Con- gre.-s shall have power to make ru'es concerning cap- tures on land and water." The who'e is lakenl from the CoMSii'u ion of the United St-Ues, and thel very >aine thing is lound in the i riicles of Conf de ration ofilie year 177S, Art.: IX "The Unit.d Siaies.. in Coiigres* a-seinl)le(l, shall have the whole and exclusive right of deterra ning on peace or war.' (the txception being immaterial lo the present question) '-o e>tabli^hillg rnles lor deciding in all ca^^es w'lat captures on I uid or waier >hall be legal and in what manner prizes taken by land or naval tiirce- in the service of the Uiiiitd States, shiU be divided or appropriated " It would be mere qnib- bill g to say that ihese two pas-age-; are not idrn- tical in sen>e ; and indeed the Aiticle-i of Confede ration Seem to be rather more t'ull and explicit on this head of the grant of power than the Coiistiiu- tion. But neither tne one nor the other comes u|) lo the puint of confiscation. A distinction here must be made between tangi ble property, such as lands, goods or movable.*, and things in action merely as debts. Enemies good> found in the ceuntry at the breaking out of war, when the possession is assumed by an enemy, may without any great stretch of language be said to be captured, and it might be argued with plausibility that the clause relating to captures includes such cases. Yet captures more properly apply to what is taken by an armed hand in ihe exercise of open war — not merely an acquisition but a conque.<-t; and the words o( the clause will be fully satisfied if confined lo this meaning. And such was the con temporary construction. The Confederation took cognizance of whaiwas gained i)y conquest by men in arms, but I hey interfered not with the rich estates ot" the Phillipses, the Robinsons, or other loyalists, over which the right of confiscation was exercised by the States. This construction has the presuinp lion ot law in its I'avor ExpoxUio contemporauea eat fortissima in kge. One might ju>tly be suspect- ed of inunding a bitter mockery, if he afl'ected to set the auiliority of people now in power over thai of the historical men of the Revolution. | The Confederacy did not exercise this power and the States did. And how did they exercise il?l Not with blind and headlong rage, that pavs no regard to dignity to age or iiinocencp, and blends in indiscriminate ruin men and women and chil- dren; but with a calm and temperate di^ciminalion. I speak at least of Sotnh Carolina Her people, even in the heigiit ot civil rage, cmild not forfjet what was due to their own honor; and I rejoice t(> think ihat en the Jacksonborougli Roll the nanif' of BO innocent man, no woman, no child, is found. Why need we fear, then, to leave this "two-handed engine" in the keeping of the State? Why this hasie to commit this dreaded power lo strange and untried hands.' But whatever may be said on the right of the Cont'ederate States to confiscate tangible property if alien enemies found in the State at the breaking out of war, goes very little way towards establish- ing the authority of confiscating debts. Of tangible property the possessioQ may be divested out of the owner by the conqueror. It is within his grasp, and his right grows out of his power over it. But debts have no locality. By the common consent of mankind debts follow the person of the creditor. Drbita xequtnitur jje-rsonani C(ri^;Yor/.?, is acknowledged asa maximevery where. Thus a person's a.ssignment. whether made in the onntry where the debtor resides, or on the other -ide o( the world, carries the property against all subsequent liens The civil powrrhas jurisdic- tion over all persons and property within its territorial limits. But in a debi the property be- ongs to the creditor not the debtor. On the part of the debtor it is an obligation, a moral and legal tie, binding him lo door pay something in particu- lar, noi to this person or to thai, but to the creditor himself or to his agent. Now, in the first place, this relation between the creditor and the debtor cannot be ''captured" in any reasonable sense. To apture a moral relati'in, to levy upon an idea, is simply to .-peak absurdly. The framers of the Con?titntioiis, both new and old, and the grave and eminent men that framed the Articles of Conlederation, had perfectly the u-e of language. Had they meant to invest the power with the right contended for, it would have been ea>y to add to the clause concerning captures, the^-e words, "and to confiscate the debts of alien enem'es." But It was argued yesterday that the property of all alien enemies belongs to the State, and the Slate takesonly what is its own when it compels the debtor to pay. For this proposi'ion the authori- ty of Lord Hale is invoked. A venerable name indeed, on many accounts entitled to respect; but his errors are no better than thorje of another man. His work IS said to have been printed from a foul draiighi, incomplete and lac-king ihe last hand of the author. But howeverthai may be, the Bury Assizes will ever remain a v/arning against pinning one's faith to the sleeve of Lord Hale, who had more authority for burning the poor women for witches, than fur asserting thai enemies goods belong lo the King r is argued that an alien enemy has no riahts, and no iiijurv is done to the debtor because he is discharged from all duty to his creditor. Can one believe this, and bt- lieve in God ? Are moral rela- tions nothing ? Is gratitude a delusion ? Can war do away wiili a moral relation '? There is a moral tie even when there is no legal sanction, and gratiiude cannot be suppress'-d by any third party, either in peace or war. In debt there is a moral as well as a legal obligation, and he that has re- ceived a deposit or contracted a debt for money en- trusted to him owes a recompense to his creditor, because he is a human being, and this is a pan of the law of his nature, which he can no more put of! ihan he can change h's natural constitution. How idle then to talk of the innocency of confisca- tion as a thing harrnle.-s to t he unhappy man that IS served wi:h a Writ of Garnishment, as if he had no right to complain when he is compelled by the arm of power to pay and still continues in Gon'cience to owe the debt: not only bo, but as ARGUMENT OF HON JAMES L. PETIGRU, 25 my friends have yesterday abundantly shown, is still liable to be sued in the Courts of every coun- try except those of the spoliator. But do I contend that the Siate cannot confiscate debts? By no means. Unhappily for mankind it is too true; and too ofien has it been done to doubt the existence of the power. But why can the State confiscate? Because the State is sovereign. The State may substitute expediency or policy for jus- tice, "for who shall put a hook in the nose of Le- viathan." The people, in laying the foundation of Government, may put private rights under the guardianship of the Judiciary, by conNtitutional provisions. The people have hitherto not thought it necessary to restrain the sovereignty of the Sinte by any constitutional inhibition against confiscation; and therefore the Slate may even confiscate aebts. But has the State of South Carolina parted with this attribute of sovereignty? If so, produce the[ passage, and remember that the language, to effect a con^equence so tremendous, must be clear andj explicit. The war power can make out anything by presumption and analogy. Fortunately for us, lin ihis instance— fortunately for humanity — analogy jand presump'ion are. by ihe very terms of the in- strument which ihe power produces, excluded. The Confederate Congres* can only claim to make laws to carry in'o effect powers exprestly granted. That the power in this case is not expressly granted is a palpable fact. Shall construction and implica- lion be resorted to in defiance of the charter? — iKorbid it, Heaven! for if it is, mankind have been ideluded by a vain hope, and paper Constitutions are no more than a cheat practiced on the credulity of poor suffering human nature. j Nothing but a sense of the extreme importance of the principles at stake could have compelled ;me, now that the visions of hope have fled, and the fire of youth is extinct, to venture into this arena. I would that it had fallen into hands more able to discharge this duty; but such as it is, I lay this offering of age on the altar of justice, and am done. ARGUMENT OF HON. ISAAC W. HAYNE. I should be one of the last to question the right! of the heart should prompt to charity. We should, of any man to make an issue upon the constitu- in the language of the poet, tionalitv of a law pas^sed by a Government of dele- | " Be to her faults a little blind ; gated powers. Not only is it the right of any man j Be to her virtues very kind." to make such a question, but with a lawyer, actingl And if there be faults, we cannot help seeing — if in behalf of a client, if he honestly believes that there be that which exhibits weakness — if there be the law under which his client's rights are thought s'lmething of exposure to the derision of the world, to be affected is uneonstitutiona;, it is bis duty to jwhich I do not admit, it do-is appear to me that a- rnake the i.-isue. I do regret, however, that, innGovernment thus circtini^tanct d should be ap- maklng an i^sue of this sort, gentlemen have not Iproaclied rather in the spirit in which Noah's sons regarded more than, to me it seems ihey haveljweni backwards to cover, with a garment, their done, the very peculiar condition of affairs prevail jiFather's nakedness, [n my judsO'eni, this is not a ing at the present time. jtime to indulse in denunciation, invective and This Government, whose acts are thus brought in'oqiiestion,is new- — has just sprung into exif-tt-nce sneers ; Tliis question must, however, be decided by the It is as yet 'Provisional" merely. Ii is unacknowl-jSCourt, and your Honor will decide upon the argu- edged by the powers of the world. Thos<- with imeiit a- to the ConituaLionality of the Law. li is ■whom we were lately connected, and from whom we have separated forever, denounce us as rebels, and traitors, and in consequence ol the attempt th-ft uiaed that the law is uncon^iitiilioiial: First. Becau.-e it relates to a subject-matter over which the Confederate Government has no con- weare making to manage our ownaffiiirs and exer-, trol. cise what hitherto hasbeen unquestioned, at leastinlj Second. Because the mode of procedure in re- America— the right of-elf-aovernment— h ivewagedjgard to this subject-matter is such, as that Govern- war against us " Battles have been (ought, and iheilmeiit had no authority to prescribe war is still in progress. We are in the midsi, olj I admit what has been said by the learned Coun- war on the most gigantic scale. The enemy have:'sel who last addressed us, and what lias been said the prestige of the old Government, with the pos- by all who 4iave addressed us upon the subject, ses.-ion of the navy. They out number us. Theirjiihat it is necessary to show that a grant of this great leader, Mr. Seward, tells his followers thatilpower is contained in the Provisional Constitu- they are twenty millions, and we but eight, and how,; lion. he asks, are vve to escape in such a contest ?|| The grant of powers to the present Provisional There is no doubt but that the odds are fearful 'Congress are (or the most pf>rt adopted from the We are willing to encounter them A Government|lold Constitution ofihe United Siates. thus circumstanced mighi claim ■•oine ot that sym-ji The particular grant referred to upon this occa- pnihy which the learned counsel ihinksso eminent ijsion is in the identical words of the old Constilu- lydueto the weak as agaiiisl the strong. Yet.ition. Now, when the Congress at Montgomery instead of sympathy, we hear only of''usurpation,":;adopted that Constitution, which has since been "tyranny," "oppression," "injus'ire," ''the Starj|ralilied liy the people of the several States compos- Chamber," "the Inquisition," '■^Torquemada'' andijing the Confederate States, it is fair to infer that "the rack." lin adopting the language of an instrument which To this Government it is that we must all lookijhad for a long time been the Charter of the Govern- for protection, whether it came into being by ournmeiit which up to that time had been our own Gov- will or otherwise. It is this Government alone ernmeiit, the words of that instrument (where they by which anything that is valuable can be secured were unchanged) were intended to be understood to those liviiig in ihe Confederate Slates. ijas they alway* had been heretofore. Where there As tothe learned Counsel himself, his own liberty! had l)een controversy — where party hail been ar- and prosperity, perhaps his very existence, depend upon the power and the strength, and the wisdom ■with which this Government conducts itself. That power and strength must in a great degree depend upon the confidence of the people, who are the sup porters of the Government, and without which .-support, no Government, under institutions like ours, and, perhaps, in this age of the world, no Governmet>t anywhere, can be strong. I regret then, that in approaching the question of the constitutionality of the law, it has not been done in that forbearing spirit which, as I conceive, ■was appropriate to the occasion. I had hoped rather to see manifested a disposi- tion to hold up the hands of the Government, as the Israelites did their Prophet, when praying for their deliverance. Instinct and the natural leelings rayed against party, in reference to the construc- tion of particular grants of powers, — (or the most part some change of expression was introduced into the Constitution adopted at Montgomery, by which the interpretation intended by the framers of the nevi' Constitution was made plain, It may be that some cl.\uses of the Constitution remain iinchanjied, about which there had been a dilFereiice of opinion, and in regard to the-«e we iire still left soiuewhat in doubt as to what should be the construction. But in reference to the particular grant of power here relerred to, there had never been dispute, there never had been controversy. The grant had niidt rgone investigntion, and a construction had been given by the higiiest judicial tribunal of the old Government, a Couri which was than our ARC4UxMENT OF HON. I. W. HAYNE, ATT'Y GEN'L, S. C. 27 Courl; and (he law thus laid down in the highest tribunal had not, at the tiiue, or at any time since, been qtie^lioned. With this inierpreiaiion g.ven by the Courts oi the country, reraniuiufj undi.-piit- ed and uncomroveried, in a leading ca^e, ceriainly wiilnn the knowledge of ihe meniliers ol Congre^s ai Mouijroinf-ry, who put (orth thai Provi-ioniil Consiiiut'on, I ask whetiicr that grant should not be con.-idered as containing all that it had been supposed to contain when tne law was thus ex- pounded? I do not mean lo say thai the ojiinion ol ihe Court, as smh, i< binding, bui it cert. .inly aid> u.H in arriving' at a just eoiielusion as to the iiilen- tion ol the (rainers of the new insirument. So lar, ihen. a-* the su' ject-maiier is concerned — >o far as the objecii'Mi to the I'onstiiuli >iiaiiiy ol this law is bus- d upon the subjeci nia tor over which tl'C Provi-ional Congress ai Richmond has taken con irol, if this view is wjrn ct. the question is setiled for that Mil jeci-niaiVer the Supreme Court of ihe United Siiites had devlaiedio be within the j)owe( of Congress. Ill the case which has been so often referred lo — t became of tiie "United Slates against Brown" — so Car as that iiriiter was concerned, ihe Court wa« undivided. They were unanimous in the opinion liiat, umler this very grant of power now rel'crred to, the Congress of the United Slates had power over this very suf'jeel-niatier; s-nd with thi< thing in the knowledge of those who gave Us the new Constitution — wiih the knowledge that there had been sufh an expo ition if the law given from such a quarter — with the knowledge that it had never been disputed or questioned, bui tliougl. M'ell known had been universally acijuiesced in up to the adoption of that Constiluiion, — can any man come to any other conclusion than thai the Con- gre.is intended, when they gave that grant ol power, that ii should be a grant as comprehensive as it had been declared by the Court. | It has been said by the learned Counsel that new^ rules o( iiiierpretaiion inusi now arise, in refer- ence to the Constitution adopted undf*r circuin , Biaiicfs attending the formation of the Provi-ional Government. And much ihat raishi have been considered as aiding lo consirue the Con-litution of the United Siaies, when the coiisiriu-iioii was f iriiierly given, is, by the adoption ol slricl Slates Richts views, to be excluded at this time; and that, on that account, ihe construction given by the Couri at that lime, diflers from the construction which should be given at this time. Bui if Congress did not mean lo give this power, with ihe knowledge that there had been such a consirjction given, and always acquiesced in, — il Congress, I say, intended lO limit or enlarge the power, or change it in any respect, — il surely would have liecn their duty to make some change in the expression of the grant, which would make clear liie purpDscs which iht-y intended. Jealousy as 10 Slates Rights would have dictated such a coiirse. Two at least of the Judges who sat in the case of ihe Uniied States i-.v. Brown are authority in thems»*lves, which will hardly be questioned bv the learned Conn-tl. I mean, of course. Chief Justice Mar. hull and Judge Siory. Th'- |io A er conicnded for is notoulv considered as eiven by hoih ofihise li arned jurist*, but Chief Jus- lice Marshall p ac-s ihnt power, not upon any con- strue; ion; not up n a'ly implication whatsoever, but he conceives ihat ihne was an ^•.r/ir^.v.v and spfC'ff graiiioftheidr.titicnljiowerlothc- Cuiigressufthe Uiii tid States. He pUces it upon what was commented upon by the learned Counsel, the right "to make ru'es in relert-nce to ciptures by land and water." The learned Counsel says that tapiures apply only lo those things outsi'Je the territory. Why ? Chi' f Justice Marshall says the contraiy He sees nothing in tiie term w hicli would give it a Iimiied M.nilication, and ihiiik-ii may and does apply to tilings wiihin ihe territory as well as ihings be\ond. The very Counsel himself, in his subscquen'. re- marks, admitted th'it, under some circumstances, this might be Ihe cuse. I presume thai with an invading arm> in our land, whatever of a tangible a.iiurewas laloeed to do in pcoceedings in this case. Debts tHSiy he captured, as well asa«afAe(/,and areas much 28 THE SEQUESTRATION ACT. subject of capture as of attachment. Capture, in my afiprehir-nsion, emliraces that branch of the war power direi'ted aa-ain^t propert,, whether in the terrilory or out of it, whe'her tangible or intangible. When ihe people of ihe States conferred upon the Congress of the P^ovi^^ional Government, the pow- er "'to declare war, to issue letters of marque and reprisal, and lo make rules in regard to captures' upon land and water," although the grant was con- lerred upon an agent, as ihe Government is properly termed, it is nevertheless a sovereign power. The Provisional Government, it is true, is not a sove-, reign, yet in regatd to speciiie grants of soVereignj power, which have been con erred upon that Gov- ernment, it is vested with all the incidents, attri-i butes and riijhts of sovereignty, so far as thej exercise of that power is concerned. Can this be' questioned? [ 1? there in this matter a diflerence between the States Rights School, and the school to which the learned Counsel belongs? All ihal i-< asked by the slriit coiisiruclionists is that you ^hould shoiv the, grant. I am a>suming that we show the express grant in ihe Constitution, to the Government of the Confederate States, to le^jislaie over this subject matter. I assume that it is ^hown that this sove- reign power has been delegated to t his Government 1)1 refe.ieiice then to that patver, tt is sovereign, and has all the rights that appertain to a Sovereign. Where the power is clearly delegated to the Government of the United Slates, in reference to! that particu'ar power, unless from the exaniiiiaiion of the Constitution, generally, (for I would not havej any grant of power examined merely in reference lo the particular clause which contains it,) it should be found that the power is limited elsewhere ; the power, unless thus limited, it is absolute, as abso- lute on that subject a.s the power of the Czar oi K-ussia. Having then, on this sul>ject. Sovereignty, with all its attributes, the provisional Governmeni stands on the same fooling with France, Russia, or Great Britain, m reference to the exercue of the power granted. if ihis be true, what has the Law of Nations lo do with this matier ? I hold that the law of the Confederate Congress operating upon a subject-matter over which it ha^ absolute control, overrides the liiw of Nations so far at least as the tribunals of this country are concerned. The Ihw, as given by the Legislature, is the law for the Judge who sits, whether in violation of the Law of Nations or not. As was said bv Judge Chace, that is a matier lo be settled between the different nationalities ; that is a matter (or which a nation is responsible, belbre the tribunal of pulilic; opinion among the nations of tne earth ; but her will is absolute in her own Courts. Every Judge mu*t obey the written law, provi ded, the Legislative power has the authority to act over the sul)jecl. The Counsel who addressed you yesterday, dwelt very much upon the case in Munle & Sel wyn. Lord Ellenborough has been introduced as authority, declaring that debts are not liable to con- fiscation under the Law of Nations. Lord Ellen borough does say so, and Lord Ellenborough furth er decides that, as an English Judge he had the right to disregard a law of Denmark, opposed to the Law of Nations. But does Lord Ellenborough intimate that if the same law had been passed by the British Parliament, he could have disregarded that law? In the same opinion, Lord Ellenborough refers to a decision in France, sus.aining the va- lidity of a law confiscating delH*, but he urges that this French case is not auihority elsewhere, be- caurt ihe law being a French law, a Court tw France could not do otherwise than sustain it. The law making power acting within constitu- tional limits, is above the law-expounding power. A Legislature within the limit of its powers must control its own judiciary. If Congress has power to legislate on ihe sub- ject matter, there isno such constructive limiiation as that her legislation should conform to the Law of [Nations. Lord Ellenborough, in my opinion, had no right to disregard the Danish dei-ision, made in ac- Icordance with a Dani-h law, because thai law, in [his Lordship's 0()inion, was in conflict with the Law [of Nations; liutthe very case cited shows that Lord Ellenborough would never have dreamed of ques- tioning a law of Parliament on ^e same ground. Whether the confiscation of debts is in conflict with the Law of Nations, isinthis view immaterial, md the subjein having been so fully considered by the District Attorney, 1 shall waive its discussion, on my part, and rely on his argument and the au- thorities he has cited. For myself I insist that if the Provisional Con- gress had the right to legislaie at all on the subject- matter, whether wise or foolish, humane or bar- barous, the law, so far as its object is concerned, is binding upon your Honor. The next question I will proceed lo con ider, is the mode prescribed for carrying into efi'ecl this aw, which otherwise would be constitutional. Is there anything in the mode prescribed which ren- ders the Act unconstitutional? In starting out upon this inquiry, we have supposed that the right to confiscate on the part of the Provisional Gov- ernment is established. The exercise of that right upon the part of the Provisional Government proves that in the opinion of ihe Legislalure, it is for the public good that this confiscalion should be consummated. Now, in a legal point of view, ihe right lo confiscate being established, and it being further established that confiscation is nevessary tor the public good — that is, that the public well'are and safely requires that it should be consummaied, surely it is not "unusual" or "unheard of" to re- quire that good citizens .should give their aid in the executio7i of that lawl I would say, furlher, that in prin i|>le, it is no! "unusual or unheard ot" ihdt citizens or subjects should be bound to give infor- mation to the public authorities of any atlemjit lo evade that law. When the learned Counsel de- nounces with such strong invective, this law which first prescribes a duly, that the property of alien enemies within the Confederate Statesshould be disclosed, and next imposes a penalty upon those who, under some circumstances, neglect to make this disclosure — when he denounces this as unheard of," does he Ibrget the common law oWencs o( miiiprison of trecihon. iK\\\i:h has existed in England time out of mind; which has never been questioned as a law binding upon ihe Judges. It has never been attempted in a Court of Jusiit'^e to set aside this law upon ihe ground that it con- ' fiicled with the consciences of men, or with 'common right." What is "misprison of treason ?'' It is detii'ed lobe "weo'^ect"— neglect is the very word used. It is "neglect lo disclose any and all i acts of treason within one's knowledge." When treason has been committed, every one .■« bound to make known lo the public authorities all that he has learned, Itl it affect whom it may, or • ARGUMENT OF HON. I. W. HAYNE, ATT'Y GEN'L, S. C. 29 hRve been derived irorn never so confidential a' liffand B the defendanl, as to answer thequestions source, or he becomes himself a criminal. ! now objected lo. Testimony in ordinary judicial This is not simply in reference to treason, hul it ca?es, may be the me. ns of laking: life — the means is the law in relerence lo felony. It is the duty oi oftakinsr a friend's property; may be the means of the citizen or subject to disclose every felony. i committing the greatest possible injury. Yet anv every murder, robbery, or larceny, und veglect ^o man is subject to be called upon to testify, when disclose is a crime. All this has beenlaw from lime the country demands. immemorial — it is the boa.stf.d '■'■Commoii Law." This proceeding then, is not unusual or unheard In point of principle where do the two cases of, in so far as it operntes in compelling an indi- difler? The gentleman thinks thai contiscaiion i- viduai to disclose knowledge communicated to him, not /or the public good. But Conuress, to whom however confidential, and whatever may have our interests have been committed, thinks that it is. been the relaiionM of the parties. But suppose the They think thai it is essential lo the public — thni procedure altogether new. Has not the lawmak- it is a mailer ol great and vital impor'ancc, and ing power the right to change the mode of pi-oced- claini, in the execution of that law, that the Gov ,ire in its Conns.' Novelty alone does not consti- ernment should have the aid of all its citiztn- iiile unconstitiiiionality. This process has been It is made a penal oHence on ihe pan of those wlio likened to a general warrant, and this is urged 'Vi,e^/frf"' lo give that aid. and the Act presi-ribf- when we are considering the coiistitutiovality o( whai shall be the punishment for such -'negle.-i." (he law. We are told what Lord Camden said It is s^id that things like each oihcr are iioi upon this subject in England. I imagine if there always the same. But we mu:i'. reason from anal had been an Act of Parliament produced to Lord ogy, and from varying circumstances endeavor lo Camden, by which the British Parliament had extract the princip/e, and if the principle be alike expressly authorized such warrant'*, Lord Camden in the mattrr ni which tot are. comparuig twothmg-. could not have questioned their legality. What- thrn the argument is a fair and jii-t one. Now. in ever might have been said in reference to the ordi- pmiciple, 1)1 the yoint of view in which we flri' nary procedure of the Court, the reply would have considering this thi"g, howdothe two cases dirt"er?i been, "here is a law enacted by competent nnthori- It is simply a requirement on the part of the Gov-|jrmer,:be put to inconvenience, without cause shown bv before pro.-ecution or suit is brought. But qne^ 'ijjose who call him. tioHS thus propounded, it is said, are ''uniieard ol.'" ~. , ',. , ,, Cases of a Bill of Ui>coverv in Chancerv, Wriis ,. J^a; this proceeding ..hould in some respeds, of Garnishment under Atiacl.meiils,and Te.^timonv l^'*^^"" "■*"" "" o'-'^'-'^y proceeding ot the Court, is inCoun, have been referred lo as aflording an j""^ '"o^' ""l""' /hing in thewo.ld. Modes of illust.alion in reference to this matter, and ihe.s;, it Procedure must always be adapted to ihe ends to is argued, have no application. The points of view ''V'"''''"''' " seneral, the procedure ha. in which these analogies were introduced wee reference to a panicular su-jeci. Ordinary cases these: It was most eioq.ienily contended by the '" ,^°."/t^"'^^ ^"^1"'^ *"•«: made up of i.^s.ies between Coun.^el who addressed the Court yesierc^iy [Mr. '"'''^"'"«' citizens, and in the isMicsihua ma.!e up Mitchell] that a breach of confidence was required at 1"^*'.''"°"^ '^ ^"■''" '" "'^'^^ '"''"'^e '" ^''''^ maUers. the hands of him to whom the>e quesiions were! But war is, necessarily, ol a general nuiire. War addre-sed; that one misrhl thus be required loj deals in ihe general, and it applies to an individual injure his nearest and dearest friend; that ho inghl ''n'y as he constinites a pan oTlhe general. When be thus called upon to violate, not only friend>liip-, l^e individual .-ohiier is shot down in battle, the but the sacred relations ot confidence.' When that *hot is not direcicd speciaMy at him. but it is in- objeclion IS made, is it not an answer lo say Ihat the every day course ol jiistire is such iliai a: iriend may be called upon to tesiify against a friend— to answer a Bill of Discovery or a Writ of Garnl^halelll against « friend— thai men may tended to destroy the army of which he happens lo be a part. In this matitT ol confiscation, under conside- raiion, it is directed not to the appropriation o( the properly of A, B or C ; the individual s property is •ailed upon lo testify in any of ihtse ways, iinderj sought only because it diminishes the strengih of circumslani'cs invnlmng quite as much of violatioii of confidence, and of relations of friendship, as in cases arisintj under this Act. It is surtly just as much a violation ofconfidence to testily in a particular ca-se where A is the plain- the enemy. It is to destroy a part of what contrib- utes to the sinews of war, on the part of the enemy; and a procedure in reference to this must necessa- rily bf general in its nature. The object is to get at any and all properly belonging to alien enemies, 30 THE SEQUESTRATION ACT. upon which hands can lie laid, with a view to'jiaw recently g'ven by Mr. Secretary Chase, is to Weaken the power of ihe enemy. jjbi' acted upon liy the North ii introduces a very While Hppiyiiig the proce* ding lo a fuhject mat- Idiflereiit .-tate ot ihinas f'lOni that hilh.'irio existing ter ot'tNis Uin.'l wah an eml like ihi- in vir w,'!ihere. The confisiMticn law w h ch has, lor some whrre IS that gros» departure contended f 'r by jtime, lieeii in operation ai the North, in retaliation the p-irtics i'D th«^ ot'ier s de, iii calling upon nil to iii-r which this Aci ol' Sequestration was passed, answt r ? You have ihf- piainlifl", the Confedera eicert^iinly was adniini-tered in the beginnins, so as St.ites; and a'/ the pr >peity o alien ent-niit-s, with- to atiect all descripiions of piopeity supposed to in ti'C limit- of the Confeilrrnte S ates, is the .v^jVciilbe ihe piO|ieriy of alien enemies. We have seen of UtK suit. The nrocf lading may be consiili-red a>jlli-t> ol vesstls in which Souihern men had oiilv a 171 rem, and the Co'i edi rair- ^-tate-, the plainiifT. — sm:ill share, some actually in the server of the All tho-e p'-rso'.is who a e snppoed to have any in [Federal Governm- ni, ihe shares in whu'h were f.^rmaiion in lelt-reiice t'l theiiii^gin suii are lall-li.-eized — the snialle-t interest of a Sonihrrn man ed up )n a- wimes-e^ to lesiil'y. 1 ins St I hen tuat this gre a g e viance comi'lainedl ol is imaginary. Thr-ie was an a gumeni very elo | quently uigfti, whic'i 1 have l>ei re aliudfd lo ml r< f re iii-.e to tne violation ol li ieiid>h'p ihavet-ii-l deavored to show that the law very liequeii ly re-l quiri s this at ' he hau'ls o( a citizen, ad ihai thi> .•an be n) valid objection. The pu' lie ii.tere>t mu>t tie held paramonnt. The individual's con-| vtn eiice, iip'tert-si and ftel ng must yield to ihej public good. Bui in relerrnce o id- nt of New York, bei.ig seized and made the >ul'jt ci of ci'ntiscaiion. We have heard of dividend* and de|io its hemg -eized. We have seen Frement's proi-lamalion that the nej^r 'S oTall in arms against the Govern- toient should be emancipated This whs th-:? man- ner in which ihis Act had besiin to be executed. It IS only .since the passage vf this retaliatory Act, thai an titiemin has been made to put upon the such thing as /ri. ndship. However abhorrent to jFederal Act a (tillerent con-tructi"n. Ifthatcon- ihe sentimenis of i he g' n lemen wlio hive address- struci ion i> in g';od f«iiih carried out, it is perfectly ed us, ye. such i- the 1 iw ixsl^ul down everywhere, competent tor Congre-s lo make such modifications There is iioi a liook biougin into ihe Cour. Iloust- iin our Act asiiiay>uii the chaiiae ol circumstances. ui'On this subject, m which could not be lound the' j I will conclude my i eniark*, by saying th it even princi|)le that m conteinpl ition ofla^v. war malce«;!though ihi« law weVn pronounced lo be iincoastitu- eveiy raa-i, w.>nian and child in the one couniry, jtional, which I think it cenamly never can be, the the eneitiy of every man, woman and child in i iie|]impuiai ion which is attempted to be thrown upon o.her. Ttiis is the language of all the books. Thi IS an incident of war — a terrible and barbarous incident, it i> true, but war itsell is barbarous. If the gentlemen could bring aLoui ihr; milleni- um — rould get rid id' war altogt ther, certainly the our Governii.eni in iis enactment is most unjust. The law is a law oi retaliation It is a law that was passed with reluctance. It is a law which is only intended lo meet acts that were done by the enemy, and the very preamble asserts that it is world would be under gre-a ob ig^tion lo them. i |abhorreni to ihe feelings of the Govrrnmrnt to do But while war dues exist its incidenis must comeij-o Ii wa> an at-t of retaliali-in inlenned to enable with It, and this is one. Becau e such a requisition| it to make good their losses to ihose who suHered as is here made may cause, an inierference with jfrom the enemy, and to check the continuance of private feelmg, because yoii may be called on toijexactioiis on the p^rt of the enemy. This appear.* violate old tie-, can thai tie looked upon as a mifihtyijto be the motive of the law, and a motive like this grievance, when ii must be ailmitied thai the veryl^demands a charitalile construciion, even ii there be power which call- upon you to answer thesei lerror in the Act its> If. Has it not already had its (jiiestions, may oideryoii into battle, may order: you lo aid and abei, nay to use your own utmost etiorts in destroying the lives of those friend-, to aid and abet in making your friends' wives widows and in making tntir children orphans; when the Slate has a right lo command all this at your hand effect ortthe enemy ? The main object of retaliaiory mea-ures is to put a slop to the injurious proces dure ol the enemy. So far from this young Government having proved itself usurping, tyrannical and regardless of ihe rights and feelinijs of those committed to its and you cannot bin ' bey, can the Stale be consid icharge, 1 would challenge the Counsel to produce ered as not posse-sed ot' the minor right of asking jfrom the history of the world a single instance of a thai yo" should give tesiimony in regard lo the iGowernment, under the same circumstances, where subjei't-m-ntler, whii-li Ihe authorities ot tlie Siatenihere had been a violent disrup ion, followed by so have decided t© be of great public iuiporiance lleariul a war, which has evinced such foibe irance, To these authorities ihe conirol of this subject ha been commi'ted and lliey believe that this measure is essential. Why there is a command — "Thou shalt not kill." It is ceitainly imperative It is the law of God and addresses itself lo every man's conscience. Yet this very Government whose authority is now questioned, can command you "to kill." The general law of Christianity is, "do good to all," "avoid inflicting on y.>ur lellow-nian misery and regularity, and perfect freedom from injustice, ex- tortion, and tyranny in every shape, as has been exhibited by our young Confederacy. I for one am iiroud ol it. [The Reporter has received from Mr. Haynk a request that the following synopsis of the argu- ment which he intended to mai^e upon a single point, accidenlly omitted, should be appended lo ihe report of his speech.] Mr. Miichell, in his able and admirable arguiuenl, pain" Yet in war the State commands you to do;;which was in all re-pects the model of a fine, all that you can to injure and (le-troy. And shall ^forensic effort on such an occasion, ingeniously, it be said that it I as no right to ask questions vvhich'jand with much force, urged that, inasmuch as the incommode and annoy. I 'war power was granted under the Anicles of But mcral rwihx is not here the question Is the Confederaiion, almost in the sameierms with those aw uncoiistitntionMl? 'jiised in the Constitution of ihe United Stales, and It is very apparent that if the exposition of the li^dopted into the Constitution ot the Provisional ARGUMENT OF HON I. W. HAYNE, ATT'Y GEN'L, S. C. 31 Government of the Confederate Slates, and the' Congress of the Confederation, it is conceded, fore- bore to exercise the power of coiifis -ation, and recommended the exercise of that power to the Slate Governments, neiiher the Governmentof tht- United Slates, or of the Confederate Slates, could rightfully exercise such power. The reply is this. Every specific grant of power is to be construed not merely by the words con tained in such grant but is limited, il not enlarged. by referring to the scope and beiiring of the insiru ment in which the grant is contained. A power granted cannot be r ghlfnily exerci-ed in regard le •■ suhjert-matltir, the conirol of which, il is manil«>t from the scope of the whole insiru ment, has been intentionally wiihheld. Congress, tinder ihe Articles of Confederation, could not diricily act ot« the inafter of confiscation, because the power lo act directly r>n individudls. or property, iti a State, hnd been wiiliheld. It could acl only ihrough the Siale Governments, and by iheir co operation. Even ihe power of taxatioii had been withheld Ii had no machinery by whicli its piir|ioses in regard lo conliscation could be curried into efl'ecl. The war-making power was confided to this Congress but the war-conducting pov^er was diviced, and rested in part with the Congress, and in part in the Slates. M"ney, the sinews of war. was lurnohed by the Slates; commissions for ves- sels of war; and letters of marque and reprisa', were granted by the States, after war was de- clared. The forces on (and were rai-ed by the Slates and in ihe > ondcct of ihe war ihe Govern mem of the ContVdeiatinn acted only upon and through the StHtes. Ati Act of Coiifiscation would have been brutnm f'ulmen. The oraamsin wa> such that Congre»» could not act directly. It re- conoinended lo the Slates, by whom alone, according to the then exis'i.ig organization, n could be exer- cisf-d, that such a course should be adopted. Under the Consiitut'Oii of the Utiited Slates, and of th« Confederate Slates, the whole of ihe war- conducting as Well as the war-making- power is committed to the common Government. • It raises the troops, furnishes the means, and is charged with everything, the States being prohibited Ironi the exercise of powers, which, under the Articles of Coniederaticn, were absolutely necessary lo efficient action. There is then no inconsistency in claiming the erani of the power ol C'-ntiscaiion under the Con- -tituiion ot the present Government while it is denied 10 have been coiifened by the Articles of I onl-deraiioii. The hi-tory of that period shows, at least, ihat it wa- deemed an ailril>ute of Government, lodged somewhere, and that its exercise, in time of war, as a retaliatory measure, was emtnentlv proper. Have we parted with the power by the adoption of ihe Consiiiiition? If not. where in the new divi- sion of power under the Consiitiition did il fill? I answer, ihat it is vested in that Government wh ch has the power to "decLire war, grant letters of mark and reprisal, and make rules concerning captures on land and waier." which has the power 'to raise and support armies," "to provide and mainiain a navy," to make rules fur the 'orces, to organize the militia, wh'ch i* charj;ed with all our lbr>-ign relaiions. and which is fully compfleni in its organization to carry a Confiscation Act into effect. When asked for the specific grant, I refer 10 the power "lo make rules coniermng captures on land and water," as aj-pentnent to the war ;«»M'^r, as interpreted by a reie ence to the whole scope of the instrument ia which it is contained. ARGUMENT OF MR. NELSON MITCHELL (IN REPLY). Having presented my views very fully al first, lino exception to the application of this humane had not supposed that it would be necessary to say| consideration, and hence it is that we should not anything further in reply; but the strain of remark| be inmh surprised if under pre-sure of this sort which has been indulged in by the learned counsel; he goes somewhat out of the line of argument, as in defence of these proceedings, leaves me no, properly addressed to the <;ase, to make appeals alternaiive. Before adverting, however, to what which are calculated to divert the attention from has rendered this reply necessary, it may be as' what may not eiulflre too close a scrutiny. IT it be well to say a word on some of the positions taken supposed by the counsel that in aGovernment like on the other side. It is insisted that the Court can, ours an argument adaressed to a Court of Justice listen to nothing here in behalf of the rights or ;on the consiitutionaliiy of a legislative act, still interests of alien enemies. Nothing can be clearer, more on the validity of a novel process like the than this, nor have we ever pretended to urge anyj one before us, is to be regarded as an act of ag- considerations but in behalf of ourselves and ouri Agression, calculated to impair the consideration of own primary unalienable rights. We are called the Government, then I can only say that my upon to do certain things — we simply propose to! opinion differs most widely from the gentleman say why it is that we are not by law bound to do| |who defend these proceedings, both as lo profes- those things, and allege our own rights in our ownj sional and civil duty, and ax to the bearing and defence. Teflecl of such discharge of duty upon a constitu- What effect this may or may not have upon the tional Government like ours, interests of aliens — rfghls they have none in this | When the Congress met to make temporary pro- jurisdiction — is totally beside the question. It can vision for the Government of the Confederate scarcely be that the rights of a citizen are to be| States, it may have been competent for them to sacriticed or abridged in consequence of any possi-| postpone for the present, at least, the checks and ble influence which their assertion may be regard 'restrictions upon the central authority which were ed likely to exert just at the moment on the iiiter-| judged judicious for our permanent condition — ests of our enemies. Strange, indeed, would it be, providing for the moment only what was necessary if a question of constitutional right or constitutional' for the elibrts required lor common defence. They power were to be influenced by foreign and tein- determined, however, to pursue a different course, porary considerations of this nature. Again, it is and to propose immediately the organic law by said that this Act may be defended on grounds of^ which the Confederation was to be governed until retaliation a resort to which is a necessary mea- a more permanent Constitution should be adopted, sure of war. [providing as necessary to this, tribunals whose That a belligerent, in possession of sovereign! solemn duty it should be to arrest any excess or power, can during war exert this in any way that departure on the part of the legislative or execu- is demanded by proper retaliation, may be con- live branches of the Government, ceded- but that the right of retaliation will change This was ratified and accepted by the State of the distribution of political power, and remove which we are citizens, and became, as was gene- constitutional restrictions in a Government likej rally supposed, the law of our political existence, ours cannot find so ready an assent. If it were mII not intended as a reality, with all its A Constitution would indeed be a very plastic mportant consequences, then, certainly, a great and shifting sort of a being if this were the case, mistake has been made by some of us. We have If the central agency in such a Constitutional Gov- not regarded the constitutional guarantees and ernment could acquire powers not previously restrictions provided for during our provisional possessed through the excesses or usurpations of condition as a mere appearance, something which their enemies then the halls of legis^lation would was to be looked at with a decorous respect, but furnish them the means of an attack as fatal as it which could not be invoked, and was not designed would be secure. to aflbrd solid support when rested upon, which it And now to the considerations of an extra judi-; was not, therefore, proper to expose by such cial complexion which have been presented on the retort. other side. The argumenissubmitted and grounds If this be the patriotic view of the subject, I must taken in opposition to the mandate issued under admit that it has not been mine, for then it has been this law, have been characterized as somewhatjjiny error to suppose that the Provisional Constitu- partaking of the nature of an attack on the Gov-, tion, with its promises of safeguard and protection, ernment -that Government which isjust strugding was a work of reality and truth, and that it was into existence, and encountering, as it is said, very not only a civil right, but a professionaj duty so to hateful efforts to crush it, is entitled to all our regard and treat it. Thinking that the present pro- sympathie«, and which we should rather strengthen ceedings presented a clear instance of usurpation by every eflort in our power than weaken by ;ig- and excess most oppressive in its character and of gression of any sort. | most mischievous consequences, it seemed to us Respect is due to every over-weighty burthen,; to be little less than a civil duty forthose entertain- and distress is always entitled to indulgence. The ing these convictions to oppose any such exercise straits to which an advocate is reduced by the dif of extra constitutional power, that we could not, ficulties or deficiencies of his cause should form consistently with honor, willingly or weakly sur- ARGUMENT OF MR. NELSON MITCHELL (IN REPLY). 33 render tboce iminunities which touched all our social relations. Nor did we suppose that it would disparage or weaken the Governm'ent that an attempt like this should be called to the Bar, and the (uiidnmentiil law be appealed to against the validity of the pro- ceedings. Who exhibit more solid respect and true reliance noon the Government in any just or comprehensive sense; those who think that it is loo weak to en- dure safely any attempt to arraign proceedings like the present — or those, who having faith in its substantial structure, believe that an Act of Con gress, or the opinion of the Attorney-General, may bv questioned without impairing its strength or iis efficit-'ncy, would apparently be a question about which the learned counsel and ourselves might differ. I cannot depart from the opinion that a decorous and open appeal to the laws and tRe fiindnniental act of the Government against what I believe lo be the perver.^ion of one branch of its poM'er — mischievous and oppressive now, and productive of infinitely more mischief and oppression in the future — is an act of the truest support and the highest respect. Of course questions like these make diflerent impressions Irom diflerent points of view, nor should any be judged except according to his own convictions. 1 certainly would not undertake to deny that the general warrants of the last century, or the Star Chamber practice of the previous cen- tury, might not have been honestly defended in the opinion that this was consistent with pairioiism Hiid public duty. That they were defended with loud profession of ihese sentiments who can doubt? Siill less would I have a right to quesiion these sentiments as to any that can see in this precept only a legal process which does not infringe the rights of the citizen or abridge his liberty. Only it we are to go to the country, I cannoi, whatever may be the consequences, admit that I share such aa opinion. It is, however, my satisfaction to think that there IS in that country .'O much of intelligence and justice that they cannot be persuaded to see in an appeal to ri-jhtsguaranteed to us by the Constitution, either an attack or a reflection upon that Constitution. It is perhaps the tendency of its profession tobring us very much und'-r its influence of precedent, not only as to legal principles, but its precedent and exam- ple of character. It may thus be that the spirit and conduct of the brave Maynard and others of his stamp have had too much influence upon those who have come alter them. It was hislntto have to meet in the path of what he believed to be duty the ^^v It /t us 171. it an lis tyranfit.'' — and he did not shrink — may we not swerve if in the same path we have to encounter (which 1 trust will not be) the ' civium nrdor pravajubentium." AllGUMENT OF MR. J. W. WILKINSON. Mr. Wilkinson said, lie iiad no objeoiions lo^ make on constiiuiional grounds, eiiher to the Act itself, or the proceedings inuler it. That war gives the right to the Sovereign lo seize and confiscate the property of the enemy, wherever found, and of whatever nature, wheilier tangible or intangible, is so universally conceded by all authority uponl the subject, ihat it v^'ould be idle to controvert it. That the sovereign States had, by express grant ini their Articles o/ Confederation, transferred this right to the Central Government, he thought, was as little to be disputed. The clause which confers upon Congress the power " lo declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water," was so explicit as to leave no room for interpre- tation. The unlimited power to capture includes conti^cation, and both must sub.si?t us express powers of the Government, until the mutations o( langui^ge shall annihilate the Constitution alto- gether. So thought and declared the Supreme Court of the United Stales, a half a century ago, under the old Constitution, and there is nothing in the principles of the new that disclaims ihe de- cision. The new Government was intended to possess all ihe vigor of the old, in the management of its external relations, and the powers which relate to this class of its duties, never have been and are not now the objects of jealousy. They cannot he leliered by narrow construction, without rendering the Government powerless in its own defence, iind endangering the common safety- The Act in question was clearly v.'ithin the legit imaie exercise of this power. The proi)erty ol alien enemies had been thereby, in fact and in law, sequestered, and the title thereto transferred In the C-'iifederate Government. Possessing the righ', it would be illusory and absurd, w-ithout all necessary remedies lo enforce it. He saw ii( reasonahle objection, in princi))le, to the proceed ings directed by the Act and instituted by tlie_ Court fjr that purpose. In some of the details of form, it mi^ht, perhaps, be improved. It is cer tainly true that it is not a process precisely in any ofthe forms in ordinary use. No such would have answered the purpose, for the simple reasoi that the ca^e is an exigency, and not within the routine of ordinary business. Sequestration and the necessity of proceeding for the discovery and seizure of enemies pro|)erty, he was happy lo say were not of every day occurrence. When they do occur, iheretbre it was not surprising, but una voidable, that the process employed should, in some measure, depart from the features which are familiar to us. But he was not alarmed at such new appearances if the alterations are warranted by legal authority and trenched upon no funda mental principle. Under the Judiciary Act of 17S9, made of force by the Confederate Congress, this Court does pos sess the authority to alter the forms of its process in such manner as, in its discretion, it shall deem expedietit, to meet the demands of its jurisdictioD. As to any novelty, therefore, in the form of the process in this case, he must look beyond and see whether there lies concealed beneath the change any treachery or enormity in disguise, any usurpation upon common right, or assumption of unconstitutional jurisdiction, before he ran out into the highway and sounded the alarm that Hannibal was at the gates. The role of Joha Hampden could not be well played without the presence of Ship Money. King Charles' halter, also, or some equal hazard, was essential, to eivelo ihe performancethe vitality of the original. The true in- quiry was, "Does the precept, in its na'ure, or the extent oiits requisitions transcend llic limits which mark theboundixry between public and private right, between the powersol Government and thereserved liberties ofthe citizen V He did not conceive that any such aggression could seriously be attributed to it. He could dis- cover in it nothing beyond or beside ihe exercise of a t'nnction, familiar in the every day administra- tion of judicial justice. The Writ of ^^S/tbjja:/ia ail testificandum,^^ and Bill in Equity for discovery, are perfectly understood in the practice of the Courts. The foundation of both is a right in the supreme power to sift the conscience ofthe sub- ject. Neither of these have ever been supposed lo transcend the constitutional authority of the Gov- rnmcp.t, or encroach upon common right. Uni- versal consent lias conceded to all Governments, that pretend lo uphold a system of laws, this power, Without the possession of which judicial evideiii-e becomes a thing of the fancy, and the attempt to administer justice would be turned into a farce. In the common cas« the State compels the witnc-s to testily against himselfor his fellow-citizen. Sure- ly tliere can be no principle of the Constitution whuh restrains the right to compel testiinony - again>l tlie public enemy. He nad not intendetl to argue these questions. His purpose was simply to slate, in a general way, his reasons for not resist- ing the requisition ofthe process, on oiher grounds than those he had set forth in his plea. The plea tiled brought up a narrower issue. Admiiting the validity of the lav/ and the regu- Iwriiyof the proceedings under it, the inquiry re- solved i self into one purely of construction. In obedience to the mandate of the Court he was be- fore it- In reply to the interrogatories ot' the Writ he answered tliat he had no knowledge of the matters and things inquired into, besides what he had derived from contidential communicaiioti be- tween atiorney and client, and for these he claims the benefit of his privilege, exempting them from (tisclomre. He did not doubt that Congress had the power to repeal lh«t privilege, if it had so de- signed. But the question was, had it done so? The Act was its own best expositor. Was there anything in its language, or in the scheme of Us provisions, which expressly or by implication, re- ARGUMENT OF MR. J. W. WILKINSON. 95 pealed this rule of the common law, founded in policy, and long held sacred as e-seiuial to the interests of justice? Il is true that attorneys are speciiically enumerated jamong those subjected to examination under its provi^ions. It does no! distinguish between attorneys in lacland attorneys at law; and if the necessity of the argument re quired resort to a discrimination of this nature, it might with reason be appealed to. It is not denied, however, that the Act includes all attorneys. The decisive question is, to what extent, and under what limiialions, if any, does the Act inteiio that the attorney shall be compelled to give the in- formation inquired to? Is he to be stripped ol his privilege, and forced to discover wiihoiu reservation; or is he still lo be entitled to the same protection as at conunoii law? It is a general rule that siaintes shall be construed in reference lo the principles of the common Uvv, l'o5_ it is noi to be presumed lluit the Legislalur^inleiuled to niiike any iniiovation upon the common law, further ili^n the case absolutely required. The law rather in fers that the Act did not intend to make any alter- ation, other than what is specified, and besides what has been plainly pronomu-ed. For if the Legislature had that design, it is natural to suppose that they would have expressed it. These are caoons of interpretation so tamijiur as to require no chapter and verse lo authenticate them. '-For all words," says Lord Bacon, " whether ihey bo m deeds, or statiiies, or otherwise, il'ihey be general and not express or precise, shall be restrained unto the fitness of the matter or person." Bacon's Maxims, 52. "The best inierpretaiion of a statute is to construe il as near lo the rule and reason of the common law as may be, and by the course whicfi that observes in other cases.'' 2 Inst. 143 201. "General words do not lake away a particu lar benefit or privilege; as the iStatute, West, 2 c ' 13, which gives an elegit, does not lake away the privilege an inf'ant has, that he shall not be sued during his nonage." 2 Inst. 375. Now what was the rule of the common law in relation to privileged communications, as it stood k at the passing of this Act ? "As between a client J and his legal adviser the rule is clear and well set *lled, that the confidential counsellor, solicitor or #8ttorney of the parly cannot be compelled to dis- , close papers delivered or communications made to him, er letters or entries made by him in that ca- pacity.' 1 Greanleaf Ev. chap. 1.3, sec. 2.37. "This protection,"' says Lord Brougham, "is not qualified by any reference to proceedings pending or in conieinpiation. If touching matters Thai come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client or on his account, and lor his benefii, in the trans action of his 'uusiness, they are not only justified in withholdinsr such niaiters. but bound to withhold them, and will not be compelled to disclose the in- formation or produce the papers in any Court ot Law or Equity, either as'partyor witness" Green j ouch vs. Ga>kell. 1 My. and R. 102, 103 The foundation of the rule he adils is, "regard to the interests of jus'ice, which cannot be iipholden. and to the administration of justice which cannotj ^^ go on if such coiiimunications are \\r\ protected. No| man otherwise would dare to consult a professional adviser with a view to his defence or lo the enforcement of his rights ; and no man could safely come into a Court either to obtain redress or lo; defend himself.' Such being the rule of the ccmmon law, is there! anything in the Act which expres^ly or by implica- tion repeals it ? Otherwise the rule of interpre- tation above referred to will not permit it to he disturbed. There is nothing unless it be found in the clause enumerating attorneys among those subjected to process of examinaiion. But in thi« the Act has left him just where it Ibund him. Al- ways amenable to judicial examination at the common law, he is made so under the Act, nothing ii;ore. Not a word, express or by impl cation, whith extends the rielil of examinaiion beyond, or lestrictsthe privilege of the attorney wiihin the limits allowed at common law. Il would be a vio- lent departure from principles to adopt any other loustruclion than that the examinaiion is lo be conducted under the Act with strict reference to •,iie law relaiing to privileged com-nunications. The Iramers of tiiis siatiile understood well the nature and extent of this privilege and the lenacity with which ihe prolession adheie to il, and if they had intended to remove the impediment, would surely have signified the intention by unequivocal expressions. Lawycs tliemstlves, many of ihera, ibey appreciated loo thoroughly the extent to which ihe p^ofe^sional honor of the country is en- gaged to jj.hold this privilege, and its delicacy as a matter touching the public f-iith, lo think of tam- pering with it, under any notion of an obligation extinguished by a state ol war. Obligations of this -on are not in their nature destruciible like civil rights by a change in political relations. The faith- lul observance of them is due not to the enemy, buttonurown national honor. The nation that, under the pretext of war, should rifle the pro- fessional bosom of the conlidenc-es reposed there, in a tiii:e ol peace, under a pledge of inviolability, held out by its own laws, would commit a perfidy not differing in moral estimation from that of an individual who should seek to destroy an enemy, once a friend, by breaking the seal of former con- fidence. The legal profession is, in some sense, a pan of the Magistracy. Il bears oflicial relations to the Governmeni in that branch of its functions which relates to the administration of ju-'^tice. Its duties are in their iiaiure 'lublic as well as private. Il is engaged lo fidelity in the performance of these by the solemnily of an oaih. Professional character and privileges are dealt with by jU'licial authority as things which relate to its officers. When, therefore, the public authority has once held out this class of its citizens, as an excepted class — as persons exempted from the general obligations of law to disclose comrnuiiicalions made to them in confidence — it has in efTect invited the world to repose confidence in itself, under a pledge that il shall forever be inviolable. It is as much a pledge of the public faith, and infinitely more sacred in ils character, than that which supplies the reason of the exceptions made in the Act in favor of the Bonds and Siocks of the Government held by the enemy. It is difficult to conceive that the Con- Ures? did not inlend the exception to include all cases alike wiihin its principle. The duly lo lorleit nothing, which reposes for security upon tlie public I'aith. as distinguished 'from civil rtmedy, is recognized in the law of na- tions, ami classed among those internal obligations, which cannot f'C alfected by changes in ihe exler- jnal relations of a State. And, whether the subject- 'matter be a Governmeni bond, or a professional communication, the obligation is the same. How |wonld ihe Court proceed under this Act, to examine 'a wife, whose husband was an alien enemy, or 36 THE SEQUESTRATION ACT. vice versa/ Is it to be presumed that Congress intended to prostrate the saored defences of thai relation ? Can there be a necessity so pressinar, as to justify intrusion into relations which the law cannot permit to be invaded, without creating a distrust, that must repel mankind from tlie society oteach other, and drive him to solitude lor safety? There is no principle that will limit the construe tion in the one case, and not in the other. The privilege of neither of those relations are iniende't by the statute to be impaired. Both are subject to examination, respecting the property of alien ene-, inies, under the same limitations and restrictions as at common law. j It had been intimated, and to some extent argued, [ that the plea of privilege communication ilid not extend to property in the shape of notes and other evidences of title or debt in the possession or control of an attorney. But this distinction cannot be maintained upon the authorities. Such docu menls, whether they are to be viewed as property or otherwise, are expressly within the language of the decisions relating to contidential communi cations, and could not be excluded without aban- doning the principle of the rule. In conclusion, he would say a few words upon the general character of the Act. Its object had been legitimate enough — to sequestrate the ene mies property lor the double purpose of weakening him and indemnifying the losses of our own citi- zens. Some of lis provisions, however, looked very much as if its practical operation might re- verse this policy, weaken and despoil the citizens of the Confederacy and proleci the enemy even- tually against all loss and injury. Sequestration has, by no means, the finality of confiscation. As jyet the Government has interposed only in the jcharacler ot s.eward. It as^Ulnes the possession land control of enemy's property, possibly to be- come chargeable at a future day to the alien enemy lor every dollar paid in;o iis treasury. In such event it is manil'est that the entire proceeding is eminently^ for the bent fit of the enemy. His del)t iand all other civil rights were already su>pn;nded. In the progress of the war they were liable to spoil and waste, and it is a reasonable calculitiou that the Act of Sequestration now being put in execution affords him the best security, undrr all the coniingencies, for the ultimate restoration of its rights. But the Courts must see to it that this Jagencv for the benefit of the alien enemy shall not ibe permitted without a judicial necessity, to work irreparable injury to the citizens of the Confederate States. Construction must be called in aid to give effect to the words of the Act in strict reference jand subordination to the great objects which cou- 'stitutethe policy of the enactment, rejecting every intendment which shall, in its practical elite , im- pair our own strength instead of that of the enemy. In his judgment, every feature of the Act which seemed objectionable, and had made indis criminate o|)position to the authority which passed it, quite the popular humor of the hour, not only admitted, but upon, sound principles of judicial criticism, required such a con?truction, as disarm- d it of all power of injury. Fortunately, in the careless penning of the Act, those provisions which threatened most inconvenience, are counteracted by others of a conflicting intendment, and the alternative is open to the Court to adopt such con- struction as shall effectuate the objects of the Legislature, without inflicting disaster upon the citizens of the Confederate States. REMAEKS or MR. MILES, DISTRICT ATTOR]VEY, IN KEPLY TO MR, J. W. WILKI>'.SOX, ON THE PLEA TO THE WRIT OF GARNISHMENT. Mr. Miles caid ihat he cordiallyacqiiiesced in all Ihai bad been .'o fbrcibly said by ih« Counsel, both as to the Aul of Sequesiralion itselT, and also as lo the point that the Act was not intended to trench upon the iniporiani rule of-law m regard to "|)ri vilea:ed c.ntnintinicaiions." It was only necessary for him, therefore, tocall the ntieiitionof the Court to some distinctions which had ^ot beeh drawn by by ilie (/ounsel. The rule in discussion is part ol the law of evi- deuce and stated in ireatiesou ihe.-uhjeci underthe head ofi he admissibility of testimony as an imponam exception to the general ruje as lu testimony, and declares that no Attorney at Law is not a compeient witness as lo informaiion rontided to him in his pro- fessionalcapaciiy by his client This isa privilege of the client which he can waive, but which the Attor ney will not be allowed to infringe. (1 Greenleat Evi ', The rule is therefore to be conliiied in it applica- tion to comimmi cation X made to the Attorney pro fessionally, and to such as were intended to be confidetitial. (1 Greenleaf Evi ) And, (to confine the discussion lo the cases arising under the Seques- tration Act) it can in no just sense be ajiplied to pro^>^/Vy in the hands o( an Attorney belonging to alien enemies, because, confiding property to an Attorney is in no sense a "privileged communica- tion." There is more force in the argument as ap- plied to dociime.7itary evidcvce.i oj property eniTUfled to the Aitorney in his professional capacity by, a client who has since become an alien enemy. The Court will doubtless in all cases distinguish between ^^ihe property and ffftctx of alien enemies, in the pos.ses8ion, custody and control'" ot an At- torney; and the ivformation in regard to property .ind effects of alien enemies confidentially confied lo him TUe 2Troperl.y he .nust return, the informa- tion he will not be allowed to divulge. The Aitorney upon whom the Writ of Gariii^h- nieni is served must therefore responil fully as to the properly under his contol — but the information he niii>t drcliiie to give. It is not suMicient lor him !o an.-wer that "he knows nothing in relation to alien enemies property except what has been conhded lo him confidentially," but he must in ail- dition, state whether he I, olds or controls any properly. An Attorney at Law may be an Execu- tor or Agent, and in that capacity hold, exercise supervision over, and control property, real and personal, of alien enemies, and he cannot be exempt from making return of it to the Receiver because at the same time he is the legal adviser of the es- tate or owner; or becaus-e the property may have been enirusted to him because of his relations to the owner as legal adviser. A judgment in favor of an alien enemy, or a note in suit lor him, "controlled" by an Attorney at Law, are properly, and not "communications" eith- er "confidential" or "privileged."' Hence the exceptions to this return, that it does not answer the writ, inasmuch as it does not disclose wheth- er the respondent has any properly of alien ene- mies in his possession, which properly would not be within the rule. The return is suliicient as to "information" which he may po.<e. First, Thai Congress under the Consli- tution of ihe Provisional Government has no power to pass the Act. Second, That the Writ is not authorized hv the Act il it be lOiistiiutional. Third, That Congiess has no power to authorize such a Writ, even if they had the i)Ower to seque.-trate. First, as to the ccn-tiluiionality ofthe Act. If an npology be necessary (or a vigorous oppo?ilion on this ground, I appeal to our history under the Con Ftitution of the United States. An Act was passed very early in our na- tional existence, as the United States, under i he power to impose duties, which contained a clause which at that time seemed as nothing. It alfirined the propriety of taking- care of man'ifactures. To what coiist-quences did that grow? To the disrup | lion of the Unio.i, the formation of the Governmi'nt[ which we have now formed; to this bloody war;: all tiave proceeded in a great measure through or! Irom that inadvertence. ! There are no times so liable to error as when aj people are rush'ng forth to a great work. You arej ready to confide and glad to co-operate, almost! rejoicing to praise, and the laull finder is viewedj wiih an evil eye. But he may be the wisest man,| the most prudent man, and the man to whom, posterity may owe the mosi. When at the veryoutsetl iierceivea wrong incli | nation given to the Government, 1 can meet it then as a patriot, with as full a love of country as can! exist in the breast of any one who chooses to defend what I conceive to be the error. I sup- posed we had all agreed upon the theory of our Government, and that our view was that inherent; intrinsic sovereignty belonged only to the Slates, that there was no inherent sovereignty in the Gov- ernment which we had formed; but when it was necessary only we have granted to it sovereign rights which, like sovereisns having rights, wt- could grant, and which we could take away;, that when we granted those rights we parted with| none of that essential uliimate sovereignty which enables us to control abuses or reclaim what wel have given. We have asserted this in all our Or- dinances of Secession. This is an idea as familiar, to the English mind as to the American mind— as III the instance ofthe East India Company. They are subjects ol the Crown, yet commandinga greater extent of territory than that at home, infinitely greater, yet they are sulijects exercising sovereign powers, even of peace and war. So with regard to the Provinces in America. Did they not all enjoy sovereign rights 'i Were not subjects. Lord Pro prietors, clothed with sovereign rights .' Did they not have their Courts of Justice, their Legisla live houses, their right to "make v.'ar and pur>ue their eiiemies as well by sea or by land, to vanquish and take them, and being taken to put them to death by the law ol' war or to save thtmi at their pleasure." These were all sovett ign rights ad- ministered by subjects. This is no thought mert'ly of this occasion, but il has been expressed before [Mr. McCreadv here read from a pamphlet] Nowhere is precisely this doctrine. It is not new and thence grows our argument. The Gov- ernment ol the Confederate Stales has sovereign rights and power^ which are granted by sovereigns. It has no intrinsic or inhereni soveregniy, and here I think my /rietids have erred in sup|)Osing that with the grant of sovereign power or sovereign rights, sovereignty itself was conceded. 1 admit that when a sovereign power is granted, il may be exercised without any other limit than ihai which the ConSlituiion imposes, as freely as any sovereign can exercise it. But it behooves ihe supporters of this Act to show that power which necessarily carries with it the right o( con- fiscation. My friends meet me here fairly, and Ipoint me to a clause in the Consiituiion. The first 'Article, sixth Section, eleventh clause, isas follows: •'To declare war, grant letters of marque and re- prisal, and make rules for captures on land and water;" and also to clause 17ih, same Article and Section, 'to make laws to carry these powers into execution " In what part of this clause is this grant to be found. It is not found in the power to grant letters of marque and reprisal. But it is said to be found in both or one of the other two members of this clause. The power to declare war is said to contain the power to confiscate. Is there any antecedent pro- Ihabiliiy thai we would be disposed to give that Ipower expressly to the Govsrnment at this time in this stage ofthe world? Is there any antecedent probability that we would grant to the Government the rigiit to confiscate goods within our Territory, i which have been there in the confidence of the alien enemy when at peace, held and enjoyed under our laws by our permission 1 That has, of late, been considered by almost every writer, as that which should not be done. You may find even those who deny that there is right anywhere to confiscate such properly as to debts. It is said by a writer, who, I think, comes nearer the truth than any other on this subject. (Levy on inercaniile law; section on the lights ol bellisferents, Chapter 5, [No. 101, p. S5,) I Says (6 Series Law Library) some interna- jtionHl writers have laid down the doctrine that debts due the enemy might be confiscated, but such a right cannot be maintained, and the books do not furnish a single insiance of the seizure ot idebts or a decided case in support of the legality ot Isuch a measure. 1 "A sovereign may force a debtor to pay him the debts due to an eueiny, nut that could never dis- [charge the claim agaiiut ihe consent of the credi- tor." I Whene'-er the case came up by some means or jother, that point has not been necessary to its Idecision. We look in vain for such a case. L( ithere has been a case in our books, it has been so ifar back in antiquity thai now we cannoi find it. ' Judge Story says that in the ease in Dallas, it ARGUMENT OF MR. EDWARD McCRADY. ao r^. was not denied by any of the Judges that debis could be conliscattd. Wil.son, Justice, denied it. and we are told by Chief Justice Chas-e in that case, ihat Chancellor Wythe, of Virginia, denied. it. Wilfon, J., says: "When the United Stales declared their independencs, they were bound lo receive the law of nations in its modern slate oi purity and rehnemeni, and the conti^eation of debts ha.s ion};: been considered disreputable." This efl'eot of the seniimenl of the age upon the construction of ilie Constitution, does not stand alone upon Justice Wilson's opinion. CUiel Ju;*- tice Marshall does not think it lieneath him lo apply this s-anie sentiment of the world to the inter- pretation of the Conslitnlion. In Brown vs. United States: "The Constitution ol the United Suue> was framed at a time when this rule (against con- fiscation) was received throughout the civilizedl world. In ex[)0unding ilie Constitiuion, a con- struction ought not lightly lo be adniilted which would give to a declaration of war an eilect in this country which it does not po.isess elsewhere." Now I say that this condition ol the worla at its adoption, does and ought to reflect light upon the construction of our Constitution. I will proceed then upon its construction. Does, thr power to declare war convey with it necessarily the power to confiscate? I say no, upon precedent and upon authority And (irsi we start with the fat't thai the United Stales had identically the same power to declare war. The power is repeatedly exercised, but where is the Act of Conliscation on her books prior lo the time when the Union was dissolved None can be (bund. In a period of seventy years of the existence of the United Stales under this Constitution, though pressed by enemies, contend- ing manfully against them, making conquests, and yet no Act of Conliscation was passed. Then we have in her history the fact that a netion may exisi sevenly years, and carry on war without an Act (I Confiscation, and thus we may infer that our Gov- erniiient need not have the power for seventy years to come. My friends who have preceded me in this argu- ment, have pill this matter very clearly. The 9ih of the Articles of Confederation, declare thai Con grcfs sliall have the sole and exclusive right and power ol determining on peace or war, except in certain cases of threatened invasion, which are also excepted in this Con.stilution. The sole and f-xclusive power and right of determining, yet llml I 'ongress had no power lo confiscate, appears by Ilie Preamble to the Act ot Confiscation passed by this Siale, 17S2. It is said by the District Attorney there is a reason lor this, and that the reason is this: that Congress, under the Confederation, had no power over the property of the citizen or over properly in the Slates. Is that an answer to the argumeiu ? That is a confirmation of the argument. It noi only shows the fact as it was, but I insist 'haiii shows thai this|)ower could not exist in the United Slrtes under these Articles, and that these two powers were severed. By the whole system ol Conlederaiion it was impossible that Congre-s should have the power, and thai is a fact which i- R*serted, and when you gel at the reason the fact is siill the same. [The Judge. Is it asserted that the United; States, under the CoBfederaiion, could not confis-l cate ? j j It IS asserted in the Act of Assembly. I think, where it ii said they recommended to the Slates tt^ confiscate. I hnvenoi lound the resolution referred lo in that Act. I have presumed that there never could have been such a recital by ihe men of that day unless there had been such a rei-ommendation. But if you doubt the fact, I would appeal to the a prion argument. They had no power as a Govern- ment at all upon the properly in ihe respective Stales. The history of the whole proves that there was no power to act upon the properly in the Slates in the old Confederacy. And here you have these i wo jiowers severed. Then, 1 say, the power to declare war is shown, by matter ot fact and precedent, not necessarily to involve the power lo confiscate. Even under the Constitution of ihe United States u was so decided. If there was any point decided in Brown against the United States, thai point was decided. It was iheonly point which was decided. Judge Story claimed that the declaration of war jiave to ihe President, as the Executive, ihe right to coniiscate. Judge Marshall and the majority of ihe Court said no. But what said Judge Marshall of that power. Does he consider it to carry the right to confiscate. At the time when seizure was made in the case of Brown vs. United Slates war had been declared, letter.s of marque and repri,-al issued, war actually going on. At such a ti-ne Judge Marshall says, I consider thai this lumler wa> on land, not on tlie seas, and it is tinder the protection ol the Government on land. The decla- ration ol war does not coniiscate it, nor give to any agent of the Government the right to seize and confiscate it. The question is, first, may enemy's property found on land at the commencement of hostilities be seized and coiulcnined as a necessary conse- quence of the declaration ot war? That is the question. His response is, and the judgment ot the Court is, no, it is not. But the argument of Judge ]\Iarshall is not only negative that it is nol in the power to declare war, but it is positive that It IS elsewhere. Judge Marshall sustains, him'^clf by relerence lo the hmguage of this clause. [Hen- Mr. MeCrady rrad from Judge Marshall.] The Constitution gives to Congress power to declare war and has enumerated the instrumenialilies — armies and navies, letters of marque and reprisal on enemy's properly and the power lo call out the mi- litia. The enumeration of ceitain powers is gene- rally con-trued as the exclusion i>l others. The decision ol Judge Marshall and the mojoriiy of the Court goes upon the ground tliat the power to declare 'svar was one sovereign |)Ower, and the power 10 confiscate altogether another, and then the declaration of war was only one act of sove- reignty, and confiscation another act o( sovereign will. Then, ol course, they are distinct and diller- eiit powers. Jiidae Marshall, it ir< true, makes an unloriunale assumption, as we shall hereafter see, which enabled Judge Story to deliver a dissenting opinion, shoving his blunder. If it is not in the power to dtclare war, and so it is decided in the case of Brown vs. United Stales, upon the identical words in our C-on- stitution. If it be not there is it in the other clause, the power to make rules concerning cap- tures? Is there any necessary connection between the power to make rules concerning captures on land and Water and confiscations? Cannot ihe?-e powers exist apart? If Ihey can exist apart then there is no necessary connection between them. I appeal to history and precedent. Pre- cedent first: the same Articles ol Conlederaiion. In that same Article Congress was invested wi;h the sole and exclusive right and power to establish 40 THE SEQIIESTRATIOX ACT. rules for deciding in all cases what captures on land or water sliall l)e lawful; what prizes taken >l)all be divided or appropriated Tlu- Slate had the same |>cwer to grant letters ol' mar<|ue in time of war. (6ih Article.) We have shown that Congress did not have the power to con(i:-cate under these articles, alihough they had the power to make rules to determine what captures on land or water should be legal throughout the United States. Then I say it is conclusive, that thi power to make rules did not necessarily involve the power of confiscation, for it IS not nt-cessnrily connected willi it. There cannot be a hij^her or stronger argument than this. It does not say concerning captures on land and wa^er simply, but it says "for establishing rulr-s for deciding in all cases what captures shall be legal." It IS (lut in our Consiiiuiion as I'ormerly in juxta- position to granting leiiers of marque and rei)ri- sal. Jacolis in his definition of the word capture, says ii is particularly applicable to privateers. In Brown rx. United States, I admit that Judge Marshall did say that it was this power to make rules, iJcc , which would entitle Coiigres.s to legis late upon the subject. That was his position. Judge iVlarshall says, "respecting the power of Government, no doubt is entert. lined, much is as sumed." But it is plain from the context that he meant by Government sovereignly, and never eon sidered the question where that sovereignty was He assumed that it was somewhere in the Govern ment ol the United States, and selected the Con- g.-ess as the depository. I5ut where is the sove- reignty ? That is the question. It is assumed that captures and confiscations are the same. They never were. It is a mistake. They are confounded by Judge iVTarshall and it is his greatest blunder, and when thus Judge Story has overthrown him. There is a distinction so wide that we need go no further than to ask whether the two rights or power to capture and confiscate are considered and adjudged in the same jurisdiction ? A prize ques- tion must be made in a prize court. But where is the question of confiscation to be made? In llie Court of common law. Confiscations required inqui. sition, common law processes. Here, then, you have a markeddistinction thatthe capture waslo be decided in one Cou>-t and confiscation in another. Are my friends, the Receivers, privateers and their commissions letters of marque? Are they making their captures and bringing their prizes into Court? Such a proceeding they would consider monstrous. WhHtthey seize is not capture. It is a totally and entirely different thing. What they have to lake is already in our hands, and they only have to confis- cate, and the two things are different — are difTerenl in the |)roces»es. It was affirmed to be the prerog- nlive of the King to have the enemy's property put to his use during the war, which, however, Alvan- ly says never was exercised. (3 Bos & Pall, 191, 201.) This assertion bears out Levy on mercantile law,| in saying that there has never been a case where confiscation ol a debt has actually been decided. | This was sought to be done by process of common law under the King's prerogative at home — not a belligerent act, although flowing from the war, but not itself an act of war. ; But arc we to go back to the idea that the[ Receivers are acting under letters of marque and reprisal, to go rut and capture. Have you noj rules made by Congress for deciding upon captures?! If there are none, then we may say that the power! has not been exercised. If such rules have been! made, why not apply them here, if capture and con- fiscation be the same? The ideas of capture and confiscation are dis- tinct. Wfien Judire Marshall saw it could not be the war-making power which authorized confisca- tion — yet unwilling to suppose this sovereign power was not in the Government, he looked somewhere else, and thought he found it in the power to make rules concerning captures. But the true ground of our objection lies deeper than all this It is this— that all property and con- tracts within the States are absolutely and entirely under the power, dominion and protection of the several Stales, and in no wise subject to the power and dominion of the Confederate States. Congress has no power to ^determine upon what is property and what is not, and who shall have it or who shall nofliave it. It is the great point of our contest. Heretofore we have maintained it. — We have contended that Congress cannot meddle with our existence or with our properly. The tenure is determiiicd liy us. If we say a man may hold he has a rfg'ht lo hold it. Congress cannot say to us aliens shall not hold this or that. Ii has no power to meddle with or control, but must in II8 Courts respect those rule's and rights which the Slates give as to title and the validity of contract. If this power is assumed then have you put anoth- er entering wedge to drive us asunder at no dis- tant day. What has been the contest all this time but ihai identical question? We thought we had achieved what we hoped for. Bat now when the minds ol our people are excited, their passions roused, and they are willing to go with those who cry confiscation, in this stage of feeling they may quietly submit because they look upon the opponents of the law as siding wiih the enemy. Yet, here, I say, is the innovation which must lead us to consolidation again. Who can tell how often wars may arise. You cannot give to this Government the right to say who shall hold properly within the States. The Confederate Stales are not responsible for State contracts. The States are responsible as sovereigns. They have undertaken to observe them. Why should not the Congress confiscate these also. II is true the States have delegated to the Confederate States the right to take, in their Courts, c,ognizan(;e of cases between the alien and the citizen, but when the alien comes into Ihis tribunal he has to make his case under tte laws of some Slate. It is, therefore, not captious or verbal criticism, but a deep and thorough view, founded upon the nature of our Government, which makes us say that Congress has no power to con- fisoate. We now come to the second point made. Thai the Writ is not authorized by the Act. The eighth section of the Act enacts '-That the Clerk of the Court shall, at the request of the Re- ceiver, troin time to time, issue Writs of Garnish- ment, directed to one or more persons, commanding ihem to appear at said Court and lo answer, under oath, what juoperty or effects of any alien enemy he had at the service of ihe process or since has had, under his possession or control, belonging 10, or held for, an alien enemy," &c. The Writ to be issued is not a Writ new to the aw, hut is a Writ supposed to be already known which it was enough lo name. It is a Writ of Gar-* nishment — no other can be issued. What is a Writ of Garnishment ? There are perhaps some varieties ofsuch a Writ, but all have come to us from the custom of London. That custom is as follows: That if a plaint be affirmed in London before ARGUMENf OF xVlR. EDWARD McCRADY. 41 said Court against any person, and it be retnrned nihil; it the plaintitT will surmise that another person ^viihin the citv is a debtor to the defendani in any sum, he shall have garnishment against him to warn him to come in and answer whether he bei indebted in the manner alleged by the other.'" (Locke on Attachment, &e., 6ih Series, Law Li brary.) Our own law of Attachment pursues this custom and on the Writ there is a notice endorsed directed to the garnishee directing him a* to his duty, which is a Garnishment. But in several of the States ol the Confederacy there is a Writ distinctly known as a Writ of Garnishment. As far as I am ac- quainted with the laws of these States, such Writs are issued only after judsineiit. But in all of them there is a certain plaintitl' and a certain defendant, and the garnishee is summoned only to answer a> to what effects he has of the principal debtor. In the Writs to which I am objecting there is a certain plaintifl" but there is no defendant named. The party served is required to answer what effects he has of any alien enemy, without nairtlngauy one iiil particular as an alien enemy. Can this be called a Wrii of Garnishment when it wants themostj essential feaiuie of such a Writ, that is, the naming, of the person vi'hose efl'ects are inquired at'ter ? Again, every Writ of Garnishment is intended tOj be the foundation of some judgment, and therefore must contain some athrination, upon the truth of which judgment may proceed. Bui here is a Writ with no affirmation except that of the passage of the Act of Sequestration. How can there be judgment upon such a Writ? Can it then be said in any sense to be a Writ of Garnishment? If the alle gation of alien enemy should be considered a> equivalent to the allegation of indebtedness, still ' some particular alien enemy should be named, and it should not be left to the knowledge, or the ignor- ance, or the malice of the garnishee to divine or designate any one or more as being such. But it seems to be supposed that the generality of the language of the section authorizes such a proceed-' ing. By what canon ol interpretation can this be maintained ? The language is used in reference to a particular Writ well known, and mu^t be con-l strued accordingly. The generality of the language 18 clearly only to cover every case, so that the Writ may issue in auy case, but certainly not tp make each Writ cover every case, or any number of cases. By every analogy each Writ should name some particular alien enemy whose properly is sought after, and there is nothing inconsistent with tliis in the words of the Act. But there is yet another more specific objection to this Writ. It commands an answer to each oi several questions endorsed upon the Writ, and one of these is to say whether you have been in- debted to any alien enemy since the 21st May last when the Act requires you only to say whether you had any property of the alien enemy at the time of the service of the Writ or since. Nay, i' demands more even than this — requiring the party to say how and when he has paid any debt he may have owed to any alien enemy, even before the service. Surely this alone should quash the Writ Our third point is: That Congress has no power I- 40 authorize such a Writ as this, even if they have ' the power to sequestrate. Here we object to the generality of this Writ in other aspects. First, as to the power of the Receiver to call for it; next, as to vagueness and generality of its terms. i First, as to the power of the Receiver. He is authorized todemand a Writ agaiust every member of the community, without sh cau or reason, or making any affirmation concerning him, to bring bim into Court and to put hi n upon his oath. Now, 1 insist that it is the right ot every citizen to be free from process and not to be brought into a Court of Justice to answer except upon some allegation of debt or duty to be render- ed or discharged. This was one ot' the cherished prerogatives of the Star Chamber to put any man upon his oath to answer concerning his own or others' affairs, without any allegation against him or any other. The Court was utterly abolished in England, chiefly on account of that odious preroga- tive. The prerogative was claimed as necessary to the safety ot the Commonwealth to ferret out conspiracies and treachery. (Col. Jur. Hudson's Star Chamber, part Sec.) Here, not for the safety of the State, but for the mere purpose of raising a fund for the indemnifi- caiionof some of our citizens whose property has been seized by the I'nited Stntes, we aim seve- ral of our fellow-citizens with such a tremendous power. To summon a whole community into a Court of Justice without the slightest allegation or afhrmaiion against or ccnceriiing any one of them. Is it nothing to be hauled into Court ? To be forced upon oath to expurgate ones self, before even suspicioa of any kind has been raised against him ? Are solemn oaths mere pastimes, and at- tendance on Courts pleasant occupation 1 Is it not in truih a most onerous burthen, unreasonably imposed upon our people to assemble them all in the Court House ? Next, as to the vagueness and generality ol the Writ. Is not this generality and vague- ness the very objection urged against Writs of assistance which empowered the officers of the customs to search for uncustomed goods in any house without specially describing the particular hoose ? Our revolutionary forefathers held this to be one of the highest acts of tyranny. (Free- nian's Letter. See Doc. History of the Revolu- tion. Gibbes' vol. pp. 15, IS and 21. This is nothing 'more nor less than a general Writ to search for the property of alien enemies everywhere. Was not this, also, the same objection which was made to those warrants issued by the Secre- tary of State in accordance with the very ancient usage, the abolition of which was the result of those ever memorable trials reported in 2 Wilson, p. 205 j Burrows, p 1742, and Ist Blackstone, p. 5-55. Let us not forget the noble language of Lord Camden, when he so resolutely vindicated the rights of Englishmen. On the trial alnisipriua 111 the case of Huckle vs. Mooney, he said '"if the o'her Judges and the highest authority in the Kingdom, the House of Peers, should pronounce my opinion erroneous, I submit as will become me and kiss the rod — but I must say I shall always consider it as a rod of iron lor the chastisement ot ilie people of Great Britain." And again, on the motion lor a new trial, he said "to enter a man's house by virtue of a va/neless warrant, (lor although the ofleuce and objects of search were particularly described in the warrant, the offender was not named,) in order to procure evidevce, is vvorse than the Spanish Inquisition — a law under which no Englishman could wish to live an hour. It IS a daring public attempt upon the liberty of the subject in violation of Magi:a Ckarta. (2 Wils. 20') ) Upon the Writ of Error Lord Mansfield said "usage has great weight, but will not hold against clear and solid principles of law." Wil- 42 THE SEQUESTRATION ACf. n,ot, J. ''I have not the least doubt, nor ever had,j'clau8e of the Constitution can we refer for the au- that'these warrants are illegal and void." Yates— .{thority to make a Writ so utterly condemned by "go totally bad that an ucate;!over a particular territory. (3 Phill., 140.) property of enemies as lounded on the princi|)le as the right to seize liis person. Phillimore is the latest English Treati.^e on InternationnI Law, the third volume being published in 1S.57. He recognizes the principle as laid down by Kent, Story and Wheaton,viz: that "When hostilities have begun, the person of the enemy is, strictly speaking, liable to seizure, and his property to confiscation," 3 Phill., IIG; and that "the right of confiscating r^A<* of the enemy is a corollary to the right of confiscating his property lb., 132. He vindicates fully the exi-tence ol the Tiglil, although he shows that the modern practice of nations has been to forbear its exercise, and he elaborately reviews the decision of Lord EUenbo rough in Wolff vs. Oxholm, 6 Maul & Selwyn, 100, inipungning the right. He shows that the autho rities cited by Lord Ellenborough do not warrant his conclu.-ion, and that the sounder conclusions oJ the American, Dutch, and German Courts were not cited in the argument or the opinion. "That the question for Iniernaiional Jurists who review this judgment, is whether the practice o( nations was so rooted and confirmed in opposition to the stnct right ns to have superseded it. Whether this was one of those cases in which a usage, which had its origin in the precarious conces!^ion of comity, had become trans/erred, through uninterrupted exer eise and the lapse of time, into the certain domain of right. It was the decision of a single Court not much accustomed to deal with questions of Inters national Law, and perhaps if the occasion should present itself, the decision of Lord Ellenborough might be reversed in England." lb., p. 721. The cases which arose out of the payments made to Napoleon by the debtors of the Prince o( Hesse-Cnssel, cited in the Sih chapter of Philli- more, p. 70S, will further illustrate this question There the question was as to the validity ot the discharge given by Napoleon after the conquest o( the country, to the debtors of the Prince who paid to him, pleaded to suits by the Prince after his resioration. The question went through the vari- ous Universities of Germany, which it seems pos- sess judicial powers in questions which comern the interests of two or more German States. The final decision was that all the debts, whether the whule sum had been paid or not, for which dis- charges in full had been given by Napoleon, were validly and efll'ctually paid. If the payment to a conqueror is a valid dis- chaige to a dtthior, a fortiuri, the compulsory pay- ment by citizens to their own sovereign, of debts due to alien enemies m'ist be held a valid discharge in all Courts recognizing the authority ofthe Law of Nations. These authorities were, with those previously cited, he thought a sufficient answer to his friend's arguments on this head. Un the second point, as to the constitutional power of Congress to exercise the right of confis eating an enemy's property, he pro|)i)Se(l to do Hilled more than reply to sornea of the most promiiieiiij arguments adduced on the oiher side So it has been held in South Carolina that the Slate can delegate its sovereign right of eminent domain to a Rail Road Corporation, which is cer- tainly carrying the doctrine to the extremest verge. Under our system of sovereign States, united in a Confederation with a General Government which operates directly upon the persons and property of the citizens ofthe States, (which is the essential feature of a Government as distinguished (roin a league,) upon all such matters as are intrusted to the common agent, the idea of delegating to an agent the exercise of certain sovereign rights is peculiarly familiar. Under the Constitunoa the exercise of many sovereign rights is given to the general agent, and lorbidden to the States. With- out enumerating them it is sufficient to say that the exercise of all the attributes ©'"sovereignty, so far as a foreign nation is concerned, is entrusted to the common agent of all the States. The several States are only known to foreign nations through this agency. The most important of all these attributes of sovereignty is the power of making war and peace ; and in close connection, indeed a necessary part of it, is the power of making treaties. The power to make war certainly involves the power to call into service the citizens of the States, and when received into service the power of life and death is not even controlled by the constitu- tional guarantees as to the modes of trial. Any citizen in the service ofthe Confederate States in time of war is liable to be shot at any lime by sentence ( fa court martial. The property of the citizens of the States may, in like manner, be subject to forfeiture or execu- tion under the laws o( Congress — the common agent of all. If, then, this absoluie power overthe life, liberty and properly of the citizens of the Stales may, in certain cases, be exercised by the General Government of all, which is likewise the Goberiiment ofeach, is it surprising that we should find a power delegated tothe same agency overthe the persons and property of the common enemies of all found within the territorial limits of any one State? Would we not naturally look for this power over the |)ersons and property of enemies, to be vested in the same agency intrusted with ihe power to declare war, when sucli power is never exercised except alter and in consequence of war? When it is said that the power to con- fiscate enemies property is a necessary incident ol the war-making power, it is meant hat the power when it is exercised, is exercised in conjunction with, and in subordination to, the war-making power. Not that it is a necessary and universal concomitant of war. The power to put to death innocent prisoners in retaliation for similar act* ol the enemy, is certainly an incident of war, which can only arise during a war, and yet wars may be, and have been, waged without having to resort to it. But there is no such thing as the loss of a sovereign right by novi-tcser. The Congress ofthe Confederate Slates have passed an Act giving to In the first place it is, as has just been stated, a Kthe President the right to execute this power if it familiar idea that the right to «.r«rc(.!.e « .wvere/^^lshould l)ecome necessary. Can this power be dis- ■power may be di-legated, even to a subject. Tiie, jtingui^bed Irom the power to confi.scate the case o( the East India Company afl.rds a remai k-l'eneiny's properly? able illustration of sovereign [lOwers entrusled to ^ " ""' '"^ "■" Sevt-ral Treeties of the United States have been ARGUMENT OF MR. MILES, IN REPLY TO MR. MrCRADY. 45 cited, and particularly the treaty with Great Britain, Brown vs. United Stales.) And this exposition in which it is expressly stipulated that in the event of the distribuiion of powers under the Consiitii- of a war between the two countries the property lion has been always accepted, not only in this and dtbts of each other's citizens s-hall notbeconfis country, but abroad. (See 1 Phill. 15-29; 3 Phill , Gated. That sucii stipulations have been made in 23.) treaties shows two things. First, it is an admission In conclusion, on this point, he said, that the that ihe right to confiscate exists, since it is an legitimate conclusion to which the Jirgnnient on express agreement not to exercise the right; and,: the other side leads is, that the Consiiiutioii limits next, it is an admission of the right of the General Congress to ihe right to declare war, and denies it Government to control the action of the Slates in power to carry on the war, except by the employ- this particular. How can Con?ress, (or still less, ment of such agencies as are exp'es»ly speciiied in the President and Senate) have the power to make the Constitution A very little rellection and still a treaty which shall override the inconsistent laws Jess experience, will show that there are agencies of the States, unless by virtue of their auihoriiylnecessarily employed every day and hour in the over the subject-matter? Congress could not [prosecution of the war which could not be aniici make a stipulation in a treaty that slavery shall not exist, and thereby override the State laws estab- lishing slavery, because this \\'ould be contrary to the Constitution Irom which they derive their ex- istence. If it is admitted that it is competent (or Congress to make a treaty stipulation that confis- cation of enemies property shall not take place, it must be conceded that they also have the power to exercise the right which they slipulate to forbear. The argument that I he powers of Congress under the Articles of Confederation over this matter were tl^e same as our Congress, and that as tkei/ did not possess the power t/iis Congress does not, admits of several answers. First, it is not conceded that llie Congress under the Articles of Confederation did not possess the power simply, because they did not exercise it. They did not exercise many powers which they clearly possessed, because they did not possess the necessary machinery. There were no Courts establisht-d under the Articles of Confed- eration. Congress did, under the Articles of Con- federation, expressly claim "to be invested with the supreme sovereign power of war and peace; that the power of executing the Law of Nations i> essential to the sovereign supreme power of war nnd peace; that the legality of all captures on the highstas must be determined by the Law of Na tions, and that the authority ullimaiely and finally to decide on all matters and questions touching the Law of Nations docs reside and is vested in the sovereign supreme power of war and peace.' (Resolutions of Congress, March 6, 1779 ) And in pursuance of this power did direct captures of ene- mies property on the high seas to be made. And yet they recomm-efided to the several States to es- tablish tribunals for the trial of prize causes, re- serving to themselves a right of control by appeal from these tribunals. And the Supreme Court ofi the United Stales sustained the right so claimed (See Penhallow vs. Uoane's Amors, 3 Dallas R., S3 ) So the Congress recommended to the States to pas> laws^o punish infractions of the Laws of Nations, and to confiscate the property of alien enemies within their territorial limits, and the States, in express pursuance of this recommendation, did confiscate the property to alleviate and lessen the burdens and expensesof the war which were borne by the States. But if the Congress of the States did not, und pated and provided for by Congress, anit still less by the Constitution. They are necessary inherents of the war iiselt. And a construction that would thus paralyze our energies cannot be the true one. j He had occupied so much longer time on these points than he had intended, and the usual hour of adjournment having arrived, he could not follow in detail the arguments urged against the modes of procedure under the Act. He could only reply generally, that as the Act declHPes the property of all alien enemies to be, al- ready .seq/teslrated, the citizen who holds such pro- perly, holds that to the possession of which the Gov- ■rnmeiit is entitled. The procedure is co-extensive with the right. The Government is entitled to all such property, and calU \ipon each and every citizen to give up any und all of it in his posses- sion. It seems to be conceded that a Writ of Garnish- ment might legally issue calling upon a citizen to give up the property of a particular alien enemy specified ; (as lias been done in several cases') then why not call upon him for a// alien enemies' property? The right of the Government is the same in one case as the other. He could not see the justice of the constant allusions to the Siar Chamber and general war- rants. There is no offence charged by this proceed- ing against any citizen. It is not declared a crime nor is it made penal to owe a debt to an alien enemy, or to hold his property. It simply calls on him to give up that which is not his, accompanied by the express declaration that all his rights in the thing shall be fully guarded. The only penalty (iroclaimed, is against one who wilfully withholds property, and thus to be inflicted only upon indict- ment and conviction as in any other misdemeanor. The oath is propounded not by the Receiver but by the Court, as in any other case. Every citizen is required by the law of this State to swear to the truth of his tax return. All judicial proceedings are based unlimately upon the sanction of an oath. Note — It was inadvertently omitted in the ar- gument to point out the fact that ihe Congress, under the Provisional Government, have power jby a vote of two thirds, lo alter the Constitution, (Art. 5, ) and, therefore, might, if this Se- ques'ration Act was declared to l)e unccnstitu- the Articles of Confederation, possess this power, tional, amend the Constitution by the insertion of they certainly did under the Constitution, as shown by the antecedent arguments derived from the reason of the thing, as well as by the authority of the two cases decided by the Supreme Court of the United Slates. (Ware vs. Hyllon aiul an express power to Congress to confiscate pro- perty and debts of alien enemies, and then re-enact the law. The power of the Congress under the Provision; 1 Constitution is certainly not less than under the Permanent Constilution. ARGUMENT OF MR. EDWARD M^CRADY, IX REPLY TO MR. C. R. MILES. The District Attorney deduces an argument from, the power to make treaties. He says, under this power the United States .-surrendered the right oi' conlisc-ation on several occasions, and thence infers the right to conlJscale must liave been granted in the Constitution of the United States, or the United Statescould not have surrendered it. Ifthe treaty- making power is the grant of this right to confis- cate, then it could only be exercised in the man- ner in which that power was to be exercised, that is, by the President and two thirds of the Senate. But this was not the manner in which the power to declare war and make rules concerning cap» lures was to be exercised. In the Senate the States were equally represented and it required two-thirds to make a treaty. War might be de clared and rules for captures made by a bare majority of Congress. As to the inconsistency, there is none. The States have granted to a certain agency the power to make treaties. It was an agency distinct from the law-making power, an agency in which each State had equal power. They constituted the President and two-thirds of the Senate their pleni- potentiaries, who, as such, might grant much that the States had reserved, and not granted to the United States. It is difficult to set any limit to the treaty-making power. As to the inconvenience Is convenience to be the rule by which the Consti- tution is to be construed f But the inconvenience is inherent in the matter. Wherever the right of confiscation resides, when exercised, the treaty making power may have to undo it. Even granting it to Congress, the two powers are in difl'erent bodies, which may differ especially after the ellliix of a time, in consequence of the events of a war bo much for the treaty making power. Next: The District Attorney contends that the subject ofwar or subject-matter of war is granted to Congress, and, therefore, all incidents accom- pany it. This is consolidation in its old form pre- cisely. So Judge Story reasoned and concluded that the power of confiscation belonged to the President. It was precisely by this process ot reasoning that the power to lay and collect duties, &c., for revenue, was converted into a power to foster manufactures and various other interests. It is the process by which all Con^titntions may and must be undermined and subverted, from the very nature of things. The enumeration of so many diflerent powers, (generally included in the war power,) show.< conclu.sively that such reason- ing never could have been intended to be applica- ble to that. Then, again, the District Attorney maintains that the power over the propert/ in the States is involved in the grant of judicial power to the Confederate States. The judicial power is only that of the exposition of the laws which the Slates impose upon property and contracts. The power to sell, under judicial sentence, is subject to the law of property in the States, and not above it. The last position of the District Attorney which [ shall notice, is this. That the Act of Sequestra- lion transfers the property of alien enemies to the Confederate States, and this trans'er authorizes this general Writ. Here is a prerogative never before claimed by any prince, potentate or State, repugnant to all sense of common right or natu- ral liberty. That the Confederate States, because it owns property somewhere in a State or C ty, but does not know where to find it, may put the whole community on oath to say where it is. If a bundle of its Bonds ha|)pens to be lost in a Stale or City, every citizen in it may be required to deny on oaih any knowledge respecting them. I deny so monstrous a proposition. But it shows precisely what is the purpose and object of this general Writ, and therefore condemns it. THE CONSTITUTIONALITY OF THE SEQUESTRATION ACT CONSIDERED AND AFFIRMED. IN THE CONFEDERATE COURT. SOUTH CAROLINA DISTRICT. The Confederate Slatet vs James L Petigrii — Writ of Garnishment under the Seqnestratton Act. The Same vs. Nelson Mttchell—Writ of Garnishment undtr the Sequestration Act. The Same vs. WiUtam Whaley — Writ of Garni.ihment under the SequestraUon AcU MAGRATH— J. The queslions raised in ihese jcases have been tliscussetl with much ability; and in the decision which I am now to render, I have been assisted by the labor and impresstxl by the zea(, exhibited ■in the argiuiie elementary writers on international law; but in the writings of Grotius, Pulfendorll, Wheaton, and others, is expressed in terms equally stron And to another body of laws, we may now turn, in which the same principle will be found strongly and plainly laid down as part of the common law oi England. In Corny n's Digest (Tit. Alien, c. 2) it is said "it an alien enemy take a bond, the king shall have it." In the Aitoruey-General vs. Wreden, (Parker's R 267,) is the case of Peter la Store, a Frenchman, who in England made h's will during the war with France, in which he gave legacies to certain per- sons in France. Per curiam. 1. Choses in action vested in an alien enemy are forfeited to the crown. i 2. This ought to be found by inquisition to make a title to the king. 3. A peace concluded before ihei inquisition discharges the forfeiture In the King V.I. Williamson (Freeman's R. 39,) an action of trover was brought for goods that the delendant had of an alien enemy. The goods belonged to Depluvier, a Dutch merchant. May nard pro lieffe said : if an obligee alien becomes an enemy, the king shall have the obligation. If a subject seize the goods of an alien enemy he may defend himsell against the alien, bu* not against the king. He, relers to a case in 24 Ed. 3, where an information was brought lor the money and goods of Don de Luna, an alien enemy, and held lo be well brought. Another case in 24 Ed. 1, where process was made against the Sheriff lorcerlain debtsowinglo an alien enemy: and a like proceeding in 22 Ed. 2; Bona mercatorum Francise foris faciunter Domino Reai. And in the case in Freeman, it was not denied that the goods of the alien were forfeit: but that until inquisition lound for the king, the holding by the defendant was legahs capita. This right also is asserted in Mat^na Charta. As early as A. D. 1215, it is provided that merchants shall have free ingress and egress to enier, stay and departi)v land or waier, to sell or to buy, ex- cept in lime of war. And if they shall be in Eng- land after war declared by the country to which they belong, they shall be detained wiihoui hurl to them or ibeir goods, until it is ascertained in what manner English mercliants are treated, who may be in the country with which England is at war; and il Englisfi merchants are saved they may be safe in Engl»i*tl. (Bac. Law Tracts, 2 vol., p. 25.) This has been termed an "ominous qualification." And under this section Chief Justice Lee held that there was pow>;r in the Court of Chancery to issue a writ for seizing and detaining until satisfaction should be made. (Key r*. Hubbard, cited in Doug- lass' R., 600) Let ns come now to other sources from which we may learn what are the principles applicable this interesting and important inquiry. And among the-e, the first which may be con-iidered are the judgments of the Prize Courts of Great Britain : — Courts in which the principles of inter- national law (ind their widest application, and often iheirbesliilu.-tralion. In the BoedesLust,5, C. Rob., 234,Sir William Scottdiscussesihe right of the seiz- ure of the vessel of another nation, during a state of hostilities, and before a declaration ol war. And denying the exemption claimed, he says: "This propertv was seized provisionnlly, an aci hostile enough in the mere execution, but equivocal as to the effect; and liable lo be varied by subsequent events and by the conduct of the Government of Holland. If that conduct had been such as to re- establish the relatioiisof peac»e, then the seizure, al- though made with the character of a hostileseiznre, would have proved in that event a mere embar- go, or temporary sequestration." But "if the trans- actions end in hostility, the retroactive effect is directly the other way. It impresses the direct hostile character upon the original seizure." And this he says "is the necessary course, if no particu- lar compact intervenes for the restitution of such property taken before a final declaration ot hostili- ties." Without doing more than referring to the Santa Cruz, decided by the same Judge and alRrming the same principle, we may now come to the writings of American Jurists; and of Judges who in their con- sideration of cases, have given us the benefit ol ihrfir opinions upon this subject: concurring in the fullest manner in ihe correctness of the prin'.:iples of public law, already declared. These are not to be regarded in all cases as judgments of a Court : but Ihey are the conclusions of those whose reputa- tion gives weight to their opinion. It is not necessa- ry, however, to cite more than two extract*, and these relate to one question in this case much discuss- ed. Judge Story has said "it seems to be the estab- lished rule of the common law that all choses in action belonging to the enemy are forfeitable to the Crown: and that the Crown is at liberty any time during the war, to institute process, and thereby appropriate them to itself" (8 Cranch, R., 113). And this he adds is the doctrine of the Year Books and stands confirmed by the solemn judgment of the Exchequers. Judge Iredell says : "The prin- ciples of the common law do undoubtedly recog- nize a forfeiture of a chose in action due to an alien enemy. At the utmost it only requires that an inquisition should be completed during the war, so'as by ascertaining the fact, fully to establish the title lo the Crown" (3 Dallas, p. 265). And to thes e, it will be proper to add what Lord Mansfield THE SEQUESTKATION ACT— MAGRATH, J. 49 said in Lindo vs. Rodney : "Upon the declaration o( questions their concurrence, while others as posi- war or ho.-tilitles, .ill the ships of the enemy are lively assert it. It is not necessary at this time to detained in our pons lo be {Confiscated as the pro- multiply the que-iiions which are to be decided by periy of the enemy, if no rieciprocal agreement is tdding to them that which involves the opinions ot made" (Doug. R, 613.) ihese writers. It they were lo be considered as This review ofihe law as found in these elemen- 'sustaining the opinion of Lord Ellenboroujeh, they tary writer.-; in adjudged cases; and opinions of cJu'd "ol prevail against tho-e whose opinion's eminent Juri-consuks, appear.s to ine, in a very con '> ^^e heen expressed in the plainest and strongest elusive manner, to establish the principles, appli- language. Bui all which Lord Ellenborough can cable to questions, in which they may hi involved, '•lami (rom them, is not that they deny the right; But it has been said that debts due to private persons are excepted Irom these principles, and arc not confiscable : and the cas^ of Wolllr* Oxholni, but that ihey do not atfirm it. They cannot be re- ferred lo, as supporting the negative; even if they cannot be cued as alftrmin^ the right. And m 6 Maule & Selwyn, 92, i.s referred to .n support of ^^^ irt^Hlse of Mr. Manning to which reference the objeciion. The stress laid upon its authority ''"* ''''"•''"'y ^T made, wi.l be (ound this plain requires an examination of the doctrine it pro- f -^^we" «' l'i« ^"'^ o( law applicable lo debts: pro- held reqi fesses to establish. In that case it was that the Danish Ordinance of Confiscation pro- ,. u v;. . ■. , ■ ■ , mulgaied ihe 15ih Augu>t, 1807; under which '?? '^'^ *"'"'; y'"*^^'' '""'!''■. '"■'^.""«^«'' '"^^ ?"«'"'>"'«« "Debts due Irom individuals to subjects of the enemv are not in the same position as d.'bts due the delendent, paid the debt claimed, into the public treasury of that Kingdom; did not furnish a de'ence lo the action brought against him in Ihe Courts of Great Britain. In the judt:ment ot Lord Ellenborough, he rests the denial of ihe suffi- ciency of ihe |>lea, upon the allegation: that the right of confiscaiing debts is not as he says recoj of the national honor. Debts due from individuals to the enemy may be confiscated by the rigorous application of th» rights of war, being the property f the enemy, and therelbre liable to conti-cation : but the exercise of the right has been disionttnued |in modern warfare" (p. 130;. And the various .trealics which have been made upon this subject nized by Groiius; is que.-tioned by Puflend.trir and l;!'"^' "* ''*", ".^y-"' ^^^ P''"°' '''^^ ""^ practice of con- others; thai it was not general at any period qi ''-*^*''"^ debts was a usage that a was necessary time; and that no instance of it except the Ordi- '° ^"Y^ \8«'"^t fp- lol). It cannot then be .-aid, it nance in question is to be found for more than .^ '^i^rii is had for the authorry of those who have century. And lor these reasons and because j, "«''" referred to, that the question is doubtlul. It was supposed a judument in favor of the plea '""T ^*' considered as a matter, concerning would be '-pregnant of mischief to future times,'' ^'If'^-h con .oversy can be sa-d to exist, the defence was overruled. i^"' ^'"''^ ^''"^ Ellenborough denies the ri^ht ot ■\ Btaie or nation to confiscate debts, he approves To this opinion ol Lord Ellenborough, as J jthe 34 Geo., 3 c. 79 : by which statute ihe money 1. believe unsupported by any other case, or the jdue to the enemies of the Staie was, as he says ' opinion ol any writer on public law, it might be culled in and secured for them until the return ot sufficient to oppose the authoriiy ot .Iutl;ie Story peace. And ihis policy ne declares to have been who was willing to take upon him lo say that 'no not less generous than lawful. But how did the jurist of reputation ca« be Ibund who has denied Government acquire the right to compel the pay- the right of confiscation of enemy's debts." (S menl of a debt due an alien enemy into its treasu« Cranch, p. 140 ) In the judgment of the Supreme jry for a day, if under the same rifiht it could Court ot the United States, in the ca>e of Brown Hot have confisciied that debt ? If t'iie right ot r.f. the United States (S Cranch 110), Chief Justice war admitlt d by all to be suspensive in its elfects Marshall, while conceding the universal practice upon debis, be lurlher extended to r-han^e the of forbearing to seize and confiscate debts and cooiracl; and iubstituie for the debtor the Govern- credils, explicitly recognizes the right lo do inent: what does this involve but a right of that so. "Between debts contracted under the frtith ot Government to control that contract accordin'^ to laws, and property acquired in the course ol trade, its opinions of policy and prudence ? What were f on the faith ol the same laws, (he said) reason the relationswhich that Act created upon the pay- draws no distinction." It is true the decision inent of the sum due by the debtor ? Was not oiiliis pariicnlar question was not involved in the the debtor discharged ? Was not the Govern- c i>e before the Court. It is, however, the opinion inent substituted for him.? Had not that Gov- oi a Jurist, the correctness of which would not he ernment the riiiht, if it so pleased, to confiscate hastily impeached. To the weight which is ju-tly what it had sequestrated ? And for what other . to be attached to the opinions of these Judges, purpose was this control secured, except thai may be added the authority which properly attaches of enabling the Government by its pos- to the opinionsof Chancellor Kent; who concurring session ol the credits belonging to alien enemies in the opinion that it is a naked and impolitic riu'hi lo control the terms upon which peace should be condemned by the enlightened conscierce and judg- restored? If we are called upon to determine ■ menl ol mankind, declares it to be a principle ol the weight of that auihoriiy which this judo-nu-nt public law, the exercise of which rests in the dis- of Lord Ellenborough should command, it nuis't be oration of the Legislature. (1 Kent's Com., p. 64 } remembered, that its eflect would be to exclnd«i In the treatise by Lee on Captures, the tight irom the operation of the principles of international to confiscate debts is not only recognized, but law, a species ot property which the interests ot the Justified, because rights and credits are not less in British Government required it to protect in every ► our power than other goods, (pp. 114, 119.) The manner. That for this distinction between debts name recoijnition of the right is made by Mr. and other kinds of property, much has been said Wheaton in his elements of international law; bj upon the grounds of policy but nothing by way ol Bynkershoeck, by Vattel, by Phillimore ami others exception to the right, if a nation chose to exercise of niodern times. In the older works of Pufien- it. And that, however positive may be tire state- dorlTand Grolius, the same principle, to me seems ment of this proposition; others which have been plainly expressed. Lord Ellenborough, however, stated with more confidence and supported by 7 50 THE SEUUESTRATION ACT J much more of authority have bt-en regarded bvi other nations, as equivalent to acts of pir.icy. I li is not necessary here to consider iiow faj the^ confiscation of dehts is just or polit'c. In Ci.Hirls oil ju.-tlce and in questions like this, the proper! enquiry is,,whot i.s the rule of law-? All otherj considerations than ihis, can be only calculaiedj to mijlead one in the judgment which it is his diuyl to pronounce. Ami. liowever l(!ation ot: debts J however muliiplied the treaties which have] been made to prevenf us exercise; liowever strikinjr may be the opinions of tho-ie who have' written in opposition to it ; I have been bionghi after the most careful considerations of the .'ources, Irom which we can derive a knowledge ol the right of a naiion in ihis respect, to the conclusion, ihai it js a' right, indi>put«l.)le. And it is worthy of remark that siliiiongh in the trciiiy bet ween Great Britain and the United Siaies, its exercise had been Je- dared impolitic and unjust: Ch. J. Marshall, with a knowledge of the declaraiitm, expressed the opin- ion that tbe right nevertheless exists. It was liis iluty, as it is mine, '"to pursue only the law as it i>i wriiten." . j Much stress has been laid upon the usage oil nations in this respect. Universal usage may growl into a general law. Indeed it has the effect of a! general law while it prevail*. But usage, iiotuni^' versal, nor immemorial, is a law (or the naiion in which it may be found; annh!e(l Usage, so far as regards the question of disposing nf the i)roperiy of the enemy vi'hen warbreaks out, is rather one of policy than of law. This policy is not understood in a coniracted sense: but as Uie exponent ot the political and social welfare of ihe naiion by which it is adopied And that modilica- lion of the general right, v\ hich it suggests, and which in its praciical adoption is but usage; is in some cases universal; in o;her cases only geiieral;| and in others confined to some particular nation. 1 The law admits the exercise of the power, co | extensive with the requirements of self-preserva-! tion. To whatever point this may be carried, it isi because of sel'- preservation jusiilied. No in-| stance can be cited more illustrative of the dis- tinction between powtr and policy, riglits and Usage, than is lurnished in the political hi-tory ol the United Slates: its right to confiscate debts has been slwavs aifirmed; its power to do so, under the sanction oi Congress, has been declared. Hut its policy, has controlled the exercise of the power; and its 'right has been restrained by its usage In the history of the United States, this usage! might be referred to as affecting the question of iis; right. But in almost all of its treaties, we find! ijits policy exhibited in its forbearance from the exercise of thai power and its control of the asser i tion of that right. Each stipulation in eachireaty is the source of the usage; and at the same timel the evidence of the right. The usage fesuliedl from a compact; and^e compact was the evidence ofthe admisiigji «;tJi* r'^li'- The mutual siipula- lions, thereliir^, ..v^VSi V*j such, cases, nations assume aoif' iMifu;)V'Vr j)TOve*'{neVkduiission of that right whuh rti.-v *t\^J^ Vrocess lagainsi the (iciendnnt :V' enlbrce the payment ot jfhis pariicunff"' deljt ; noil\jn^ analogous to ihe iseizure or condemnation of corporeal things taken ■in time of war; occurred on this occasion: to which he adds the fact, that tfie dtyendant, not until the |expiration of five year.*, paiailition; that the individtial deblor would bt held proteeied bv the coiniiiand of his Govenimenl in what he had done; and the particulrti- wrong, if anv, which resulted from such paymeni,; would be a matter for adjustment betweeaGovern-j ments. j In Great Britain, the authority ofthe Parlianienil coiilrols a contract exfcuted. la Failando vs Rogers (3. Bos. and Pal. R., 197,) the rule is laid down by Lord Alvanley in these pUinlernis: 'It !.•< admitied ih^t if a man contract to do a thing wlucli is afterwards prohibited by Act of Parlianieut he ij not bound by his contract." The same ru!-- i.- found in Brewster vs. Kitchell (I. Salk. R., 19S ) This express declaration ol the oblisjation iin-j postal upou a subject by an Act of Parliament.! re.'-ulls from the controlling authority ofthe source! by which the Act is made: and the iiece.-sity, IVdiii! every consideration, social snd |)o'itical, ol iiphokl iiig III every State or nation, the duties ol obedience: to the laws. But this It-ads directly to the second proposition which has just been scaled; that this obedience to ihe auihority ol law operating direcily upon the citizen or suliject, is l)y the coiiiiiKuij content of civilized nations, reco!»iii/.eU as ueces-i sary: and the wrong or injury therebv resiiliing. become* a matter concerning which the Govern-[ menis of Stales or nations negoiinie or contend Nor can we coti.'iider of any proposition morecalcu laied to disturb the foundations upon which politi cat society resis, than lur a lureisn tribunal lo umleriake the responsibility of deciding that the obedifuce of a ciiizen or sulject is not due to ilu law o( his own Government; becau>e of its opinion that siu-h a Government had no rightful authoriiy to iriake such a law. Such a right of supervij-ioni :ind control is involved in the jndfjment of L >rd i'^llenborouah in this case: if the Danish Ordinance was conipuL-ory upon its subjects, as is the Se-i tpieslriitiou Act ofthe Confetlerate States upon the citizens who owe obedience to the Government ol thrt.-e States. Ii the Dani-h Ordinance was not compiiUoiy: il it was not more so than the Act ol the Couizress of the Confederate States, (No. 176,] the judgment of Lord Elleiiborongh need not be •quet'tiout-dj although the grounds upon v.hich that jiidgmeut i^ re.-ted, are as e<|ually to .>-iu-h a case inapi)lii'able, as in theni-elves they are ex.i ceptiunable. But if the Danish Ordinance was compulsory; and by it the subject of Denmark was forced to pay into the Treasury otthat King- dom the debt he owed to British subject.-; the right as-erted in the King's Bench, to control the odedience ot the Dani-h subject to the laws ol his own Kinydoin; may well be .-aid to be without the authority of law: ami in the language ofthe learned Judge, '-pregnant with mischiel to Uiture limes."' It is against he nii>chicf of sui-h a prin- ciple, if il be the | rinciple intended by Lord Ellen borough to he as-erted. that by the consent of all nation, \he decrees of a Court of competent juris diciion III cases of prize, is held todeteruMne, even 80 lar a* neutrals are coiiceriud, the (jucstion o' property in the subject-matter of dispute; so thai while the deci-ion ma/ become itsell the cause of war; iisefTfct upon the thing is admitted. That such i- the rule which Governments admit as to tlu-msf Ives and enforce upon others, may he seen in ihe case of McLeod. When a Britisii subj' ct was charged with participation in a trespass, and a crime, committed within the territorial limits of the United States, and for which he was held to answer ill the Courts of the State of New York; by tiia authority of the British Government he was emafeled and his discharge claimed because what he faai done was in pnr-uance of the authority ot his town country: in consequence ol which I, is act a public duty, lor which according to the ind ii>ages of ii::tion8 he was not per>onaily Lvidiially liable: but the Government to whom d obedience became responsible lor his act ly its order. And the Government of the States conceded that to be the rule. It be dillicult by reason or authority to sh the conclusion, that this proposition ex^ ciudds debts paid by the direct order of the Gov- ► rnnnent 'O which the dt-bior owes obedience; but iiiiliries murder and other crimes committed under i;s aithonty. No such conclusion can be derived Iroirtany source. The confiscations and retalia- tioua between Great Britain and France were arranged between the Crovernmcnts. The same ■.iiijusiint-nt of delits confiscated was made between (t ,.;it Im Mill and the United States. i lie .-(• o( Folhott f.v. 0;;den. 1 Hy. Bl. R 123, .~:>. G. 3 T. U. 7'2G, 1 do not consider a contradiction ol wiat liiis been said; lliat the judgment of Lord lille|borouj;h is not supporied by any other case. Forflie c ise of Follioti vs. Os;den seems lo have iieeif decided according to the judgment ol Lord Kenjon utiun the ground that the Coiiliscaiion Act of N«w York Wiis ihe act of a rebellious Colony, not of an independent State. To such a proposi- iK>n,|by winch the act of a Government de facto is (|iiestioiied. It i- only necessary to apply a lamiliar i:iiici|>'e (I public law, very plainly staled by Vat- uid u ■ where more stronsriy illustrated in prae- le. th.Mi in the history of England: and to the ions derived from it, it is only necessary to by the numerous cases in which such have been recognized, as done in pursu- of a lawful power and therelbre of perfect lion. But before leaving this case ol Oaden ilioit t wo circiini-tances are worthy of notice, '"enyon does not deny that the true principle I if the property of a subject is vested in the ign authority of* nation by an Act of Coii> on;eveiy other country mu.st take notice coiiH-c atioii. Nor does be iniimate a doubt a-e arisina: from the subject oi the coiifis- being a |>riviiioii ol so mueh importance: one that not only involves a question of the power ol the Government of the Gonlederate State*, in regard to a subject upon which thiit Government had lesjisiated; assuming in thut act ol legi!«lation a lawful authority in Congress Id do what it hncl done: could not but commsHd my ciirelul atteniion; as it must excite with all citizens of these tjiaie.- deep interest. And my atieniion to it, and careful con- sideration of all which has been said concerning it is enhanced by the con viction, thai tiie power ilseil is of ihe greatest imporiance; and of esseniial value to the welfare of these Siaie?: while ai ihe .-ame time no matter how great that importance, or how essential that value; the delegation of it to the Congress of the Conlederate Slates must be found ill the express, terms of the Constitution; or its exercise cannot I e justified by Congress. Anions ihe powers delegated to the Congress ol the Confederaie Slates under the Constituiion lor the Provisional i Tovernmeiit, are these : "To de- clare war, grant letters of marque and reprisal. and make rules concerning captures on land and water. To rai>e and support armies ; but no ap propriation of money to that use, shall be for a longer term than two years." Other sections relate^ to the navy and matters not necessary here to be referred to. The»e e-xprc-s grants ot power may thus be stated: to declare war: raise and sup- portarmies: grant letters of marque and reprisal, and make rules concerning capture.^ on land and water. By ca|)tures in this connection we mti-t un- derstand, whatever, in time of war is by the authority of law, permitted or directed to be t^iken Irom the enemy ; if property with intent to divest the title of the former owner; if per>oiis with the intent to hold them, subject to the exercise of such rights of war as are or may be made applicable to them. Captures on land generally are made by the army ; captures on water, if under letters of reprisal, belong to those who receive such letters, under! such regulations as are made by the Governmeni for those who receive them. If it be asked why if Congress had the power to declare war, it .should be also in express terms charged with the power to make rules concerning capture* ; the answer is readily given If the rules concerning captures were noi made the subject of an express grant, and delegated to a certain department of Government, the right to make such rules would be the subject of dispute; and either claimed as incident to the power to declare war: or sought to be exenised underthe military authority of ttie President. The exercise of this power by some branch of iheGov ernmentwas therefore necessary; and it wastiven to Congress. The exercise was neces.-ary beiause in all wars the rules which regulate captures on land or water must be made; or no rules will be of force, save those which in the earlier time were recognized, and in a more ad vanced age have been mitigated and relieved of their excess and cruelty, by beins prohibiied or exercised in subjection to some authority. Two purposes were, therefore, accompished: the su!>ject by becoming embod ied i n an ex press grani.pu tin end to its exercise by any other power ihan tkat to which it was delegated; and upon the body which had thus received it as delegated, was imposed the obligati'n to execute the power, in a mannei con- sistent with its responsibilities. Thus besidis the advantage derived by placing this power wif the Legislative department, securing thereby li that Idepariment the exclusive control of the subject; it 'gave 10 the Lesislative department of the Govern- nieiit the entire discretion concerning the disposi- tion o( the property ol the enemy. To the depart- ment of Government which could make war and pe«ce was appropriately committed the regula- tion of those matters, which, in all cases, are admitted ta address tliemselvex to considera- tions ol' policy and the suggestions of prudence. Captures thus embrace all things taken in war, and rules concerning captures embrace rules concern- ing everything wlueh may become the subject of capture: whether persons who are prisoners: booty, which is that taken by land forces : or [)rize, which IS that taken by naval forces; all are com- prehended under cai)ture as a general term. It is not limited to intra or extra territorial operations. (8 Crach R., 120.) In the yrant of the power to make. such rules, there is no other limitation of it than that the rules should apply to a case of cap- ture. And such has been the received con- struction since the adoi^ion of the Constitution of ihe United States, as conveyed to us in the language ol its Courts and the Actsof its Congress. The war now waging, is at present carried on within the limits of as many Slates as compose the Confederate Slates. What shall be the rule in a case of capture, made within the limits of any lone of these States, it not that which Congress has or may adopt? in the case of a capture made by the army of the Confederaie States, what shall be the rule to govern ii except ihat which theConfed- leraie States have prescribed or may prescribe? Take the case of the capture of a person, who is a pris- oner of war : what rule shall regulate his treatment or disposition ? Though taken by an olficer of the Confederate States and wiih troops of the Confed- [erate States, was it intended that the Stale in which jhe was taken should prescribe how he should be Itreatod or dealt with ? The caseol a prisoner of war !is not an extreme case: it is comprehended in the term capture. But if the case of a prisoner ot war, as the subject of capture, seems so clearly to be a proper matter for a general rule which Con- gress is thus authorized to adopt, what is there la 'the terms of the grant, which distinguish the captive from the booty or the prize ? They are all cases ol jcaplure : and being so, must all be governed by ithose rules, which Congress by an express grant is :authorized to make. But in another view, this jWill be equally apparent. The rules which govern 'captures must, at least to a certain extent, be uni- form. This uniformity is not only a matter of con- sequence to those whose duty it may be to enforce such rules : but the knowledge of such rules, to a certain extent will influence, il' it does not control the conduct of the other belligerent. It would be difficult to suppose, if each Stale had the regulation of captures, that the same rules would be made in each. If the same rules were not operative, uni- formiiy of regulation, a matter iiselfof intrinsic consequence, would be lost. Bui more than this, consequences of greater moment, would or might lesult. A loose system in one, might compare with a rigid rule in another: severe treatment might be held proper in one Stale, a contrary course be approved in another. An army would change its rule of capture with the Stale in which it was operating. Not only would the uniformity of treat- ment towaids the jiersons or things captured be lost: but the ireatment which would be rereived, if the chances of battle threw success into the scales of the enemy, would be so uncertain : that it would be in all its practical tendencies, little I CONSIDERED AJSD AFFIRMED.— MAGRATH, J. 53 removed from the mischiefs of having no rule what- ever upon tlie sulijfCi. If a nci e-sity is to be found lor rules which must regulaie capture* on land, a ereaier necessiiy exi>t» for captures on water. But captures may lie made on waier wiihin the lerriiorial limit* of a State as well hs outside ol such limits. It would not be contended that differ ent rules should govern such capture*: they mu. to be found in the law of nations : ai d the jurisdiction which that Court is to exerci.-e in such cases, is exclusive And if It be so, and the conclusii)n to be thu> derived is posiiive; that the rules for the govern- ment ol captures on water if exclusively in Con-| gress; how can the autboriiy lor making the rules! applicable to captuies on land, be relerred to any' other power: connected as il is wiih the rules concerning captures on water, in the same section: Ml ihe same senienie; and in th;it section and sen- tence relerred to the same source. '■ But it is said, if this be so, it does not include debts, because they caiinot be ever said lo be cap- lured : ihai of them, teizure lecbnical'y i- iuipossi ble. If by this is meant, ihat nothing can be cap-j tured or confiscate*! ihan ihat of which there inayl be aclual manucaption, it may be contradicted by many ituihorities; the respectabiliiy of which can- not l)e questioiieo in the case of the Nuesira Senora do lo> Dolores, (Edw. Ad R , p. 60.) v as| raised the quesiion wlieiher a decree (or cosis and damages, which had not been executed during the war with Spain, could be afier pe ue, revived in favor ol the Spanish subject. It was objected that ine decree enured to ihe benerii of the sovereign : and the reply was ihai tne Crown might have had' it; but as no proceeding.-* were taken to contiscate it, it remained suspended durins the war: and was' revived with the close of the war. Sir Williaui' Scott said: "Here there was no bodily possession; nor indeed could there be: but still some judicial' act might have been done, declaratory ol the for- feiture to the Crown of those rights which vested in the claimant under the decree." The same princi|ile is laid down with more directness in the case of the State of Georgia t'« Brailslord (2 Dabas R. 402.) by Ch. J. Jay, who said : •'The great ques tioii turns on the property of a cenain bt)nd : whether it belongs lo Brailslord or to Georgia? Ii is put in suit by brailslord : but il Georgia by virtue Ol the Contiscation Act is really entitled to the debt, she is entitled to the money, ihouiih the evidence of the debt happened to be in the possession ol BraiNford ; and thouah Brailslord has by that means obtained a judgment for thai amount." ! Here are cases of debts: case- in which in the' one case the evidence was belore the Court, but in the other it was not The thing soughi was the debt : the bond or note, or oiher writien acknowl edgment of obligation, was but the evidence of thai debt. The loss of it did not cancel the debt: ihe transfer of 11. might not be sufficient lo divest a li lie lo the debt. To proceed therelore against the thing that was due; the money which was owiiija; would be lo proceed against that which oouhl be made tangible and real. If you could only sequester or cuntiscate the debt when ihe evidence of it would 'le also forihcoming, there would be an ellectual repeal ol the riyht ol a Sta'e or n 'lion so to con- tiscate or sequester: lor the withdrawal of thf- evidence ol a debt, would then withdraw the debt itself. But were that risht ol a Stale or nation ques- ionable, it could not be impeached on this ground. |Tne di-tinction which the law draws, between the thiog due, and the evidence of it : the various cases in which a party may recover without the production of the evidence, but on proolof its loss: jare sufficient to show that it is the thing, the debt litself which the law resards. Such was the con- 'clusion of Ch. J. Marshall in ihe United-Siates vs. Brown, (S Cranch, R 110 ) Inihai case h's opinion was that debts were conli-cable : and that like any oiher»peoies ol propeity, the dispo-iiion ol them [must be made under such law as the Congress ol the United Slates might enact, in piir,«uance of its power to make rules concerning cap'ures. But il IS still farther urged, that if the power does lexist lo confiscate thi» species oi properly, that jrifiht, and the right also lo confiscate any other |pro|>ertv of alien enemies within the limns ol the ^taie, 1 elong- to ihe Slates and not lo the Govern- ment of the Confederate States And this pro- jposition is supported by what is deemed contem- Iporaiieous exposition, exhibited in the (act, that in tihe American Revolution of 1776, such Conli-cation 'Alls as wer>^ adopied, were adopted I'y the several iSiaies; each in its sovereign capacity; and not by Ithe Clovernmeni of those Stales in its political Icapaeiiy under the Articles of Confederation In the first place, in the consideration of this ohjec- lion, il is material to bear in mind, that the legisla- tion which took p'ace in the several Si ales upon Ith's sabject, was at the siiggeslion and at the re IqueslOl the then Concress of tne States, engaged 'in the war w-ith Greai Britain. In the preamble to tlie Confiscation Act passed by the State of South Carolina, it is set (brih I hit "Congress alter due and mature consideration, authorized ihe seizing jaiid vcndeinnaiion of all properly Ibiind on ihe sea ibelouging to the subjects of Great Britain ; and re- coirmend to the several Siaies in wiiii-h such sub- jects have properly, to confiscate ihe same for the pnbliC.use." (4 Slat, at Larae, So. Ca , p. 516.) lAnd il was in pursuance of this, that the Act was passed. But how lar such legislaiion by the Siate» was considered independent of the power even at tha: day confided to Congress, may be a-certained from the faci, that in the treaty of peace, its provisions were held to tontrol all unexecuted proceedings, under the laws ol ihe several States To Congress, by the Articles of Con- ledeitition. was commiited the sole and exclusive pow* of determining (>n pe-ice and war. But the charges and all other expenses incurred lor the comdion defence orgeneral we fire, were delrayed Irdinp common treasiiiy suptdied by the several :siat«!i. A general law of Congress, operating alike upon all, and in each, might be mischievous operation. Each State, therefore, was re- qtiesled to lake mea-ures in regard to confiscation : and he adoption of those measures in all heir iletai 5, was referred lo the State that each might acta it should deem best suited lo its condition. The ower iri Congress under the Articles of Con- ledej Llion lo have passed a Confiscation .Act, was deri\ 'd from its power to establish rules for decid- ing i a'l cases what cap^iir** should be law- ful, t is not necessary to discuss the quesiion, whet er if the Constitution had not expressly delej ted lo Ccmgress the power to make r.jles cone 'ning captures on land or waier, the same pow« would have been regarded as incident to its lower to declare war. In the Con-tiiiiiion oi the I iied States, and of the Conlederaie Slates, it is ch iged from the character of an incidental THE SEaUESTRATION law: and ^hollld alway^s be so. 1 lish rules (or deciding in all Crt.^es, wh;tt captures 13iu under the Articles of Gonfrderation, there on land and -water shall be legal. The lerm> were no Court>; that is none organized (or ihe seem to have been intended to exclude doubt by general |)iir|)Ose of ut all lo the hi w ol' the land. Such organizations were, captures. And that Congress sliould have the power !ouly lo lie I'ound in the States : and in all matters to dtcide in all cases what captures on hiiid and; where the action of Courts was or might be T ., ... ._.-....■. required, it was necessary to reler them to the Slates, where such Courts were in opera- lion. A striking illustration of this, is in the 17al, which recoin- erect tribunals in each waler >hall be legal. Is there an exception loihis comprt- hensive control of all captures ? Is there aught that serves to support the opinion, that there ^,^„. .. ..^...^...^ . weie s-oiiie capture.s which a State might iiiake.Siresohition of Congress not embraced in thi.-' grant of power? Do noi these[lmend<'d to llie Stales, to that exercise sanitioneJ t)y lawiui authority, l^ iiateci to ilies; not the proof that they did not regard, what they had so plainly expressed. This power then which that -treaty of peace, that treaty acted upon the legislation of the several Acts of the several State-, in the same manner as if these Acts had been directly passed by the Congress, assembled under the Articles of Confederation. Another circumstance which rendered neiessary this exercise by the State of a power delegited lo the Congress, must not be overlooked. H'vvever clear maybe the perceptionof the right whiciexists the United Slates uiidir ihe Articles of Confedera- tion. The consideration of that Act is not at tni-i time impor ant, except as it may be considered (he illustraiioii of the proposition that the rules which regulate the d;spo.--ition of enemy's prop- erty within the Siaie, belongs to the State. — But when this conclusion is claimed as properly to he deduced from the Aci, it must be remembered |ihat since that lime, this State has twice united itself in 1 he bonds ot a new political Union. Once by iis ratilication aiid ad()|)tion of' the C(>iistitution oi the United States : aiul si ill more recently by its raiification and adoption ofihe Constitution of the Confederate States. And in both of these Con- stitutions, the Stale gave in express terms to Congress, power lo declare war, and to make rules concerning captures on land and waler. Is the power then so granted by the State, inconsistent with the power now in argument claimed to be still reserved, because of the terms of the Act re'% ferred to ? If it is, then clearly it is a power which has l>een delegated ; and if so, that delegation of it, would be ihe repeal of the law: and it could noi he enforced by the State : (or it will be observed, that the power to make rules concerning captures, whit^h misjlit have been sustained as an in- cident to the power to declare war; in being con- verted into a substantive grant delegated in ex- press lerais lo the Congress of the Confederate States; is conclusive as to the power of Congress 10 make rules in all cases, which are cases ot (capture. And not only as has been seen does the opinion of Ch. J. Marshall already referred to, indi- cate the conclusion which he had adopted ; but n the United Stales therehave been,duringihe con- I m Government in cases of wan o coufiscateprivate liinuance of that Govern men i, instances in which th proiierty, it is ever justified by necessity AndjlCoiipress of the United States, dealt with or pro- the ptoof of the facts upon which the coni cation vided for the cases of persons who mi<;hl become depends, that is that the person is an alien nemy, alien enemies; and property which belonged to and that the property in question belongs ij him; lalien enemies; oases of capture lechnically; in a CONSIDERED AND AFFIRMED.— MAGRATH, J. 65 maoner which very plainly shows, that it mur>i have been receivfd as unquestionetl. ihat no sui:h power as is now claimed for the Stale v,':;s III this Stale or in any Stale ; l)ui that it wtent with humanity and nation-il hospitality The Congie>s of the Contederate States has passo.l an Ai-t nearly similar. These Acts therefore weie intended to operate on the persons and property ol alien enemies : the persons according to its pro virions being obliged to depart ; the property to recovered and removed, subject to certain qualili- cations ol' this privilege. I am not, however, to be understood now as deciding whether this Ordinance ol' the Slate ol South Carolina, is ol Coree or not. I have only suggested such considerations, as seemed cal- culated to afl'ect the strength of ihe argument deduced from it. But if of I'oroe, it would not even then prove tlie proposition as slated. Jt is conlined to a single class of cases ; debts or loans secured by mortgages ot leasehold or freehold estate^. And a creditor claiming the protection of the Act, would have to show that he became such on the )>ublic laith of ihe Stale; and sliouhl be pro- tected, although he might bei^ome an alien enemy Such an obligation so secured, would not raise an; issue of right between the State and the Confeds, erate Slates : for it would be comprehended in the exceptions siaifd in the tirsi section of the Act. The argument which is urged, to lake from the Congress of the Confederate States the power to determine a qne-tion ol tonh-cation; aided all the ooiisiderations of prudence and policy which the' ' I rminalion of It in volves : considerations which' 'er the Government of the Coniederate Slates (iii.-et many independent Slates; the interest ol each of which in its seperate capacity, as of all in iheir uniied capacity must be consuhed: and to transfer that power to each State lor its regnla. tion ; is not recommended to me by any reason which has yet been urged. It is a power always recognized as of essential consequence. The •power to regiil.ite the dispr>sition m hirh should be made ofthepropenyofenemies within the leiritorial limits o( a belligerent nation, is one so full ot importance that it is often made the subject of special stipiilaiions in Treaties or Conventions. And when it is argued that the power to conlis- cate ; the extreme exercise sometimes adopted, of tlie power to regulate the disposition of the property oi the enemy ; shall be denied t) the troverninenl o( the Confederaie Stales ; and considered as the right of each Stale, acting in i's ioverei^ii, independent, and exelusiv*; capic iiy: it involves as not the least of the consie- quenccs, the consideration ol the question, whether under the Governnieut of the Confederate State?, it v7ould not necessarily lead virtuallv to the denial of the power itself. It gives no strength lo the argumeiil, to refer lo such measures as were adopted by^ the United Colonies, afterwards the United States, under their Articles of Confede- ration. It would be a matter of questionaole pro- priety to^seek a guide for the action of a regular Governqieni; with its powers understood; its checks J|djusted; and all tliai was essential lor its harmonious action well understood; in the measures adopied>by a revolutionary Government; seeking support against a powerful enemy, in any ex- pediL-nt which might serve to obviate the disad- vantages preSMng upon it. There are belter sources ot inlurmation (or us than can be found in the operations of a Government, which was created by a necessity, supported by a neces- sity, aad yielded lo a necessity. The Constitution of the Confederaie Stales, in its provisions, has attempted to protect itself against the ivedkness which was exhibited under the Arti- cles ol Confeil. ration; and the aggressions which were developed under the t onsiitution of the Un.ted^States. There was as great a desire to be iiroiecled against a recurrence of weakness in the one case: as against the aggressions of the lother. Hence we find that the provisions in the jConstilution ot ihc United States by which the weakne-ss of the Government which existed under jlhe Articles of Confederation was removed, are also fftained in the Constitution ot the Con- jfederaie States; and that such as in them- [.selves essential to a perfect Government were perverted, have been protected by such new limitations; as have been deemed suflicieni to se- cure ll|e good they were iniended to accomplish; [while they prevent the evils which they were for- merly piade to produce. I liuithe argument which denies this power lo the Cangress of the ConlederateStates, is ob- inoxioi* to every objection which can be urged ai»ains| it, not only as a question of construc- tion, b^t as a measure ol Government. It is lonly n|cessary to suppose it transferred as con- jtendedfor, from the Congress of the Coniederate Slates^othe States, each in its separate capacity; and sofiransferred, to consider its practical opera- [iion; ill connection with or conir.)lled by the exer- (•ise ofother powers unquestionably delegated to iCongriss; to be perfectly satisrted that such a transfi^ does not ))roduce more violence in the constriction of the Conslitution itself; than to Ihe great « nds of Government, whii'.h that Constitution was in ended to develope. The ntercourse with foreign nations is regulated by the e Contederate States in their conledrrate cap.ui jr. They all speak, through the same mediiiii. The Government vvhicn they have lorgani ed determines ihe condu.-i which shall De jobserv id in each Stale, in regard lo all mailers in [which oreign nations are concerned. That Gov- jernme t has the power lo make treaties: and these treatie when made, are the supreme law of the land. Ifby tl 5 terms of a treaty it should be stipulated that jin the vent of war, debts due by the citizensof these jConfe< ;rate SiHtes, should not be confiscated orse- queste Ld: coii'd any State in violation of the terms [ollhat e.itycontisca'e or seque>tersiK:hdebis ? If by anc her stipulation in a treaty it was provided, tnat in he event of war, citizens or subjects of ihat St te or nation, should be allowed to depart Iwithin certain time alter ihe declaration of war ; :and h:i e also the privilege of removing their pro- perty ; :ou!d a Stale, under the Conslitution of the 56 THE SEQUESTRATION ACT Confederate States, violate, that slipulatim of a ireaiy ? If not, would it not be, l)ecau>e inliindins itself to obey the terms ot'that treaty, it had parted with Its right to do -uch thin?*, in reiaiioii toaill mailers lawfully enibracettin the treaty; as without such agreement it niighf have done. '• When, therefore, It i^'cTaimed, that the power tO| conti-cate the property „of ent-iiiies, is noi in the Cengress of the Confederate States, but is in the State ; or in each ol ih*j, States ; and that it is in each State, in its stivereign capacity ; and in such State when exercised ,l»y it, is exercised a* an altribiile ot its sovereignty ; we find it at Opce controlled ; and its exercise perchance proliibidbd ; liy the power wliic-h that Slate has delegated tothe Government of the Confederate Slates to nfcke treaties: whioh when lUrtde shall bind thai Stlte. But it may be said that- the restraint upim Ihe' exercise of the power does no', prove that it does not exi^t in -the Slate: true : but it also proves thai in such a case it is not the will of ihe Stale which determine-^ its exercise: and that the will if It did at tempt to determine that exercise may be controlled and prohibited. This, however, is utterly at variat^e with our theory of.Government, which makes tte right of the Stale as perfect, in the pow»rs| which belong to it ; as is right of the Gi ernmenl in the powers delegated to Ui Besides this, in relatipn^to a power of so m importance, of such •abs'Slute necessiiy, no could contend that it was to bein abeyance: orco not be exerei>ed ai all. The argument on the cfl|n- irary was pressed, to the point; that il was a vital power inGovernment:but that theexercise ofit was properly only in the State. The treaty power shows that it cannot be exercised by the State as a sove- reign power: that its exercise may be altogether prevented by the terms of a treaty providiiia t|al it shall not be exercised. Can that be called a power reserved to the State, which the State cannot exerci>e without the consent of Congress ? And this power over those things, which may be the subjects of confiscation by a State, if it bad that power : and whii-h are thus controlled, if that power was attempted by the State, by the supe- rior authority of the power in Congress to make treaties ; not only thus negatively disproves the power so claimed for the Slate; but in another view, as positively leads to the same conclusion.; When the Cong'ress of the United States by its treaty with Great Britain stipulated that debis by the citizens of the United Slates due to the sub- jects ot Great Britain should not be confl^^^■ated ; what became of the power of a State, if to ii such power ever righ'.fully belonged, to confiscait such debts? Could it be exercised? Certainly not. W as the exercise of that power then prevented bv any other cause than that its exercise by the State would be in conflict withthe exerciseofother pow- ers which by the State had been delegated to the Government ot those States? Il may be as- sumed thai such would be the admission. To what then would that admission lead ? To this proposi- tion, that this important power i.s re-erved n each Slate : but that Congress may prevent its esercise by the terms of a treaty made before a war: or control its exercise by the terms of a treatj made after the war. Thai such are the conditions upon whih this power, if claimed for the Slate, can only li- exer- ccised ; that such is the control to wlich it would be necessarily subject, seems too c.-ar for dispute. But when it is thus subject tocoijitions and clogged in its exercise by such contro. it has lost every attribute of that right which belongs to sovereign power. It has ceased to be a sub- sianiiv<- right: is nu an independent power: and It it I an be culled a right, is such onlv by the j sufleriinci- of that Government which can prevent ' orsus|><-nd its exercise. To contend that a power was incident to a sovereignly, which that sovereignty could not ex> . erci^e; would be unintelligable, if by such claim » it was intended to assert a right of that sove- " !reign. In this case, and under such circumstance*, It would be in its etlect equivalent to the proposi*. lion, that a power to confiscate was not intended to be exercised at all; or exercised bv a State jin obedience to the requirements of Congress and subordinate to its will. That would be equivalent to a denial ot its exercise by the Government ot the Confederaie States, and asserting it for the States: but at the same time conceding to th«, (Irovernment of the Confederate Stales, the dele» gaiii>n of tho-c other powers by which its exercise by the Slate wa-* controlled or prevented. It has been stiid that il the power to confiscate is in Con-' gre«, it would also be controlled by the treaty- making power; and thus the same conflict arise. > But the di>tinciion in the two cases is obviou*. It the power is in the Slate as a sovereign, its exer- cise cannot be controlled bv any power in Con- gress : if the control is in Congress, the power is not in the State. But in Congress both rights may be vested, and no conflict can ari-e; becau'^e the exercise of the power which controls, suspends the exercise of that which is subordinate. But not one of the re-erved powers of a Siate is subordinate to any power delegated to the Confederate States : and if a power claimed to be so reserved, in its ex- ercise, is in conflict with, the Givernmenl ot the Confederate States, in its exerci-eot a power dele-' g.ited to it; a case necessarily arises in which either the Stale or the Government of the Confed- erate States, has attempted the, exercise of a power to which it has no claim. But there are other considerations connected wiih the practical exercise of this power by the Stales each in its separate capacity, which may not lie wholly disregarded. If each State has it, it must be that the State has it as a sovereign. — Be It so. Each then acis wi.hoiil regard to other motives, purposes or interests than such as relate to itself. But in this action of each by itself or lor itself, are consequences involved which af- fect all theothers. The peace which follows war is not esialilished with one, but with all. The acts ot each enter therefore into the consideration of those who adjii't the terms upon which peace is estab- lished. If each has the right to exercise the power to confiscate without regard to any other question than such as may efiisct itseli: the others have a corresponding righi not to be affected by that con- duct, which has been adopted without regard to them. And thus, supposing the exercise of the power practicable in each State, a treaty of peace must embrace as many different cases, as States, which are to b« affected by it; while the Gov- ernment would b>^ forced to adopt the acts of each State, and bind all the States for ihe acts of each, to secure a peace: it to that arrangement indeed all would ever accede It brings with it no recommendation to me, to «ay that this was the state of things in the war of the American Revolution. It is one thing to admire the fortitude wiih which the difficulties of that period were overcome: it is quite another CONSIDERED AND AFFIRMED— MAGRATH, J. 87 ning to regard such difficulties as recommended: jam to our voluntary adoption. I J have not referred to the treaty -making power! a? the source of that power to confiscate the property of piiled and wiihout dispute; of providing toriJie enemies, within the territories of the Confederate Slates; i cannot sustain in the proposition which challenges its constitutionality or itfipeuches its validiiyj- And this now brings me to the consideration of ihe thrd of the leading propo<*iiions urged in sup- port of the demurrer. This proposiiion, s-ets forth, that if the others which have been urged shall not be sustained, this must- be: because the pro- ceedings contemplated by the Act are at variance with moral duties of the' citizens of the Con- disposition of the property of public enemies in federate States, which society enforcfes; and vio- lime of war Such treaties, when made, bindi^late privileges, which of common right belong the public faith: and no disposition can be madelito such citizens. * of any property coitriiry to their stipulations. I Betbre I proceed to the examination of these have referred to it for the purpose of showing, lobjeciions, it will be necessary to consider the that the rights whu'h belong; to Congress Uhder the principle of international law, under the sanction treaty making power are inconsisient with theilof which, the Congress of the Conlederaie Slatea power claimed to be reserved to the Siate tollhas passed this Act. daiermine, by virtue of its iniierent sovereign Whatever may be the moral rule, which society power, the question of confiscation or other adopts, and religion approves for the government of disposition of the property of public enemies [lindividuals in their social relations; thfe rule of That thus, the argument which goes to show that international law, every where recognizes retalia- this power is in the State, by exposing it to the uon, as the motive and measure of conduct, which conlYolling influence of another power vested in' circumstances may not only justify but require. Congress, not only takes from it the quality of aliThe iegtslation of the Confederate States has been sovereign power, in which form it only can exi-il marked by the public recognikijn of this principle, in the State; but in ihis also, strips it of the efleci. 'not only in regard to the property, but the persons which under the rule of iuiernaiional law it was^ of al en enemies. By an Aft of the Confederate intended to have. And that the question isjICongrefeS, the President .i^s -lut-horized to select not simply confined to the point, whether the t)owerl.-uch prisoners taken from -tfte Uniied States, and to confiscate the property of the public enemy is inllin such numbers as he may deem expedient, upon the Congress of the Confederate States, or in thePthe persons of whom he may inflict such retaliation, State: but whether theie is such a power, which in time of war can be exercised at all. To a con- clusion upon that point I should come, without hesiiaiion, no niaiter whit might be the inconve- nience, it no siifhcit-nt grant of it, could be found in the Coustilutioii. But in that instrument I find the grant, in terms whioh to me seem to be as express A!t language can command. 1 find this gram of power, not standing by itself; but accouipanied with express grants o( other powers, in relaiion to kindred matters: like it counecied with tti*- great sovereign power to make war and to make peace. I find thus the grants of power, not only embracins the princifial subject-matter: but this, in such measure and kind, as may seem to him, just and proper. (Act No. 261, approved ''SOih August, 1861. J This power is everywhere recognized as belon;;ihg to Government; and one which it may exerciM, when in Its judgment it becomes neces- sary. Under whatever term it may be invoked; whether, retaliation, reciprocity or retorsion, its euil is the same. It is the same hard treatment Used towards the subject of a State or nation, as is by it used towards the subjects of the Slate or naiion which adopts this remedy. It is retaliation resorted to for the purpose of obtainins: the repeal of obnoxious measures. (Manning in.').) Vattel ves ifi his sanction when he says "there is noihing and others like it, not left to implication as result- iin ihis, but what is tonlbrmable to sound politics. ing from the general grant ; but partii-uiarly specified and set lorth : and thus converted into distinct, substantive powers. In the whole scope of those provi>ions which in time of war, by the principles of international law, the usages of nations, and ihe experience derived from the past, are revealed to us, as of right. 'belonaing to a State or nation, to be used fjr its defence; none will be found more universally acknowledged : none the value of which is more admitted : than the right to confiscate the property of the public enemy. The same terms which convey the power # in the Consiimtion of the Coni'ederate States, were |No one can complain of being treated, as he treats others." (B. 2, ch. IS) To understand and appreciate rightly the objec* tion urged aiiainst the mode of proceeding adopied or required by the Act, we must <-learly under- stand what is that mode of proceeding. In the 1st Section it provides that all and every the lands, tenements and hereditaments, goods and chattels, rig Ins and credits, wiihin these Confederate States,- and evelry right and interes\ therein, held, owned, possessed and enjoyed by or tor any alien enemy, since the 21>t May, A. D. 1S60, with some excep- tions therein set forth, be, and the same'are, hereby used in the Coiistiiution of the United States forijseque>iered by the Confederate Slates This the same phrpose. It had a meaning in the, the exercise of that power, the nature of which Consiiiution of the United States not only plainly expressed by the terms which were used : but byl under (he rules of iniernaiional law, and the extent dtid obligations of which under the rule of judicial language in which it had been interpreted :j constimlional law, I have already considered. It and by treatystipulaiionsand legislative enactment lis a lawijl exercise to this exient of power, dele- in relation toils subject-mater. The same Congress gated ty which the Constitu- ments, ^d acting by, as U rests upon, the support tion had been framed; wiihin a few months after of the t.'4verned. ' ■ preparation of that charter; enact this law.'j By thij declaration of its will, ti.e Government which they make almost a contemporaneous of the Ciinlederate Stales has established a law I'osiiion of its meaning. Under such circum [ for the dlizeiis who are under its protection and iices, wiih not the slightest doubt that the; subject lb its authority. The 2d Section pioceeds, •wer is in the Congress of the Confederate States'liherefure, to define the duty of the citizen under to confiscat* in time of war, the property of public the newf-elations which have been impo.sed by the reture, to ueni newprelationii r 58 THE SEaUESTRATION ACT 1st Section of the Acl: and declares such duty, fori each and every cmzen, to consist in giving to the ollii-ers charged with the execution ol this law, | such int'ormaiion as he may have of the |>ropeyty.] esiaie and efleeis mentioned in the 1st StCioQ,. ; ^With this deciaraiion of what it consi the' duty of each and every citizen, the2d Section stops. The 3d Section is more direct: and is aildressed 10 any and every person hoidinsj or coiiiro|Hng such estate, properly and ettects, as by the Isi Section, liaije been declared to be sequestered,— And it directs that the person so bo. ding or controlling ^ such property, es;aie or elleci>. shall give information tnereof to the Receiver. Lfpon ibis being done, It ai-quits him of all respon- sibility for the properly which he has hel^ or controlled. But a willful lailure to give stich^ in- t'ormaiion and do what is provided to be clon^ by him, subjects bim lo certain penalties. By the 7th Section, if the person holding, or controlling such properly, estate and eflecls, skall claim an interest therein, he shall be admilieii to dei'end the case to the e.x.ient of his interest. -^ But to secure to the Government of the Conjed. erale States the benefits of the Acl, and perhaE^to relieve the unwillinaness of persons to discover; by enforcing through judicial proceedings Ihe obligation which ihe Act imposes ; in the 8Ux Sec- tion, the Receiver is authorized to ohtain fiom.Jihe Clerk of the Court, a 'VVrit of Garnishment directed to one or more persons, commanding theiUj to appear and answer, what properly or eflecis of .any alien enemy, he had at ihe service of the process; or since has had under nis possession or control, belonging to or held for an alien enemy : anjj in what sum, at the times mentioned he was indebted to an alien enemy. i If by either of these three modes; that isMhe voluntary statement ot a person in dis^hargt^ of what in the 1st Section is lermed his duty : oi;,lhe statement required of him in the 3rd Seciion because lie is holding or conirolling the property: or the answer made by hiin to the VVrit o) Garnishment which issues under the 8ili S. ciion : property, estate or eflecis ol an alien eu\nivaie disc'veied : a petition i.s filed against the siime, to which are parties all who have an interest, lien or <-.laim ill the propeny; and loa jury is subinitled the; quesiioii: and iheir verdict decides, whether the! person, as alleged is an alien enemy; and whether the property, estate and elfecls iiieniioued in the petition do belong to such alien enemy. Such may be said to be a concise statement ol the proceed- ings which take place in a case of seqiiesiiiUioa. This proceeding or so much of it as seems lo seek discoveiy or information, either by the declai aiion of what IS the duly of the. citizen, or the process lermed a Writ orGarnishiiicni,ischielly objected to. The penaliies which the Act provides are in the 3d Section, and in ihe 8th Section; and these manilestly relate to persons who have in their possession or control propeny sub- ject to sequesiration, a.id willfully conceal the same. From such persons a discovery is unques- tionably exacted : and upon such persons for willful concealment, pains and penaliies are un- doubtedly provided Is 'ons indebted who njgglected to discover and make known ihe same lothe Commissioners forfeif- ed double the value of suchdebis. Similar provis- ion was mnde in the case of persons having in 'their possession, custody or power, property sul ject to confiscation, and negleciing to discover ihe same. Debts under this Act were sequester- ed. And the willful or inieniional concealment or embezzling any part of a confiscated estate, or convening the same to one'.s use wiih intent to defraud the Slate and prevent the Commissioners from selling the same, was declared to be a felony, puni>hable wiih death. (Prince's Dig., pp. 73 to 86, el .spq ) li IS not convenient for me to refer lo the Con- fiscation Acts of any other States: these, however, referred to, and which were tlief laws of South Carolina and Georgia, show that however strin- gent miy be the provisions ot this Acl of the Con; lederate Congre-s; they are not equal in striu- geiicy to tho.-e provisions which were o( lorce in I his State, when once before it was considered necessary to re.-ort lo this exireme measure of legislaiion. But before censure is ca»t upoii the measures which have been adopted under any of the>e Act.-i it will be proper to understand upon whom, and lor what purposes, such provisions were made. The State had passed an Act conliscaiing the estates of those who were the subjects of its enemy. What is the effect of such an Act? By It the right of property, which before the i passage of' tlie Act, was in the several persons thereto entitled, accordiiisr to the proper esiate or interest of each, became divested. a.s,to such per- sons, and vested in Ihe Siate. To this esiate 01* interest in such propeny, the State, by the lerms of the Act: became as completely, abso- lutely and latvfiilly the owner of such estate or interest; as any individual would or^ could have been, by a transfer of such esiate, or interest upon valuable consideration. If a cestui que use competent to transfer the interest which he has in the properly subject to the use, shall do so; the trustee as to him owes no lurther duty or CONSIDERED AND AFFIRM ED. -MAG RATH. J. 59 obligation: it is to the person who has become entitled under the tran>rer, that his legal and equitable duties are iran.slerred. W the estate or the interest of the cestui que use, passes from him, not by his voluntary act, but by the operation ot law: it it is made liable to the cliiim of ajuds- ment creditor, who in a Court of lav\', upon a con- tract the most hard, or penally the most severe, has in that Court been declared eniitled lo recover; tiie duues of that trustee, would be under the order of a Court of Equity, and siitinjif as a court of coii-^ science, transferred to him who had been thus, byt operation o( law, substituted for him, lo whom his; duly at first had been eng^iged. The same priaoi ] pie underlies the whole proceeding undef an Act| Jor confiscation or sequestration. The Govern | ment has succeeded to all the estates and iiUer-j esis of ihe alien enemy. lis liile is complete, lii may bie neces.-ary or it may not he necessary to] secure the possession by |)roctedini!:s ancillary to' the Act. But those proceedmgs do not make the] estate or interest liable to the confiscation or se-^ questration: they only establish the fact that such an e>taie or interest, by virtue of the Act, belongs lo the Government. When, iherelore, it is sugjrested, that in dechir^' 'ingii to be the duty of a ciiizeii to give informa i tion of properly subject to sequesiraiion, iin odious and immoral service was imposed; it is proper tO: reler lo the language in which the duty is so im[ posed. The property, estate or effects are withouti the inforiiiation of any one, declared to be seques-' tfBled. Other proceedings only servi- to ideniifyi such properly : they add nothing to the efieci otihe, Act; thai has already changed the property. Il(..j the Act of Confiscationlilready referred to, it will' be seen, that it considers the ' withholding ol information as the concealment of thai to which the Stale was entitled Nor the discovery ot ihat,i which by being brought to light, assisted the Slatej to confiscate : but the concealment of that which the State had by its Act already declared ion is doubted, u may be, b<;oause ali hough the Govern- ment lias the right of proprriy, it has not the right of possession: or because it has not the right of pn^peny. But it will not be denied that if the Government has the right of property, it has the right of possession: unless that possession is a right, ill the nature of an estate or interest, saved to the person who may be eniitled to it. under the terms of the Act. No such case is before me I haveto.^leal with the case ia which, if the Govern- ment h^ the righi of property; the right of posses- >ion would attach thereto, as a legal conse(]iience. In such a case, to deny the right of possession, is to denythe right of property : to deny the right of property is lo deny the title which the Government has claimed to establish : to deny that liile is lo deny the power and aut,horiiy to confiscate aad sequeter the properly of its public enynies. It the Government has then a right of properly, and also a right of |iO'*se:t-'iou to that which is the thing sequestrated, it considers the person whfo has ihe possession or control of Ihn thina; and does not give information of it; as withholding it (rom the public use: and in so doing denying the public righi. The denial or obstruction of a public right, is a public wrong: and a public wrong is redressed by indictment. Under this Act it is classed as a misdemeanor, and punished by fine and inaprisonmeni. I When I have said that by the Act of the Con Jederale Congress ihe property, if it be the pro- perly of nn alien enemy is, liy that Act, sequester- led, I have lo refer only lo the terms of the Act. It idtjclares that such property as it describes "be and the salne are hereby sequesteredi" The Confisca- tion Act of the Stale of Maryland declared that the pmperty to which it referred, "shall be seized and if liereby contiscated to ihe use of the Slate." In Sniiih Vs. Stale of Maryland, (G Cranch, 286,) seve- r.tl queflioiis were made: one of the questions was whether the interest of a cexttii que use was liable 10 confiscation under the Act. The Court said the Act divested the whole estate ot the former owner and vesled it in the State: tllat when the Aot used the term properly, it meant the thing it-elf 10 be affeyled l)y ihe law,, whether land or personal property. That the thing itself ceased by ihe operations of these laws to belong to the I3ritish subject, and became vesled in the Commis- sioners for the use of the State. That the cestvt que use alihougn not in possession of the prope'rty w'as nevertheless the real owner of it; and if the Commissioners had come into possession of it, no scintilla of interest could ha-ve remained in the crstuiqtieM'i.^. But that no act ol'ihe Comuiissioners Was necessary to obtain the seizure of ihe land, to support ilie use so iransfr)rmed from the cestui que use lo ihe State: and no seizu-e was necessary. Thai by the mere operation of the law all property of Hriiish subjects was to be held as seized and confiscated: and the Commissioners to be con- sidered in ihe lull and actual seizure and posses- sion of the pro))eriy so seized, although no entry or other act. had or should be made or done. Thelengihof thisopinion, forbidsmetoenterupon the consideration of other matters which have been urged in the argument. The conclusion to which I have come upon such matters will be expressed in the opinions I shall lake occasion to give, in the other cases which have been argued iielbre me: and in which these matters were more direcilf discussed. In these cases, 1 have fell thai it wasHue to those who made belore me ihe ques- tion n<»v decided: who are with me engaged in the endeai )r to administer justice according lo the Consii jiion and laws of these Coiitederaie Slates: and wl jse earnestness attested the sincerity of the opinioi they urged upon me; to stale, alihougn |at gre ler length than is usual; but not greater than V as necessary for their full explanation; the Iconsidi rations which have weighed with me, in Irefusir f to sustain the demurrer they have filed. THE MOPES OF PROCEEDING UNDER THE EIGHTH SECTION OF THE SEQUESTEATION ACT, CONSIDERED AND SUSTAINED. Ml^ !!♦- ^ IN THE COIN^FEDERATE COURT, SOUTH CAROLINA DISTRICT. THE CONFEDEEATE STATES, vs, EDWARD McCKADY. MAGRATH— J. The exceptions taken in this case to the Writ ofj Garnishment, and upon which is rested the motion to quash the Writ, seem to me to be founded on a misapprehension of the nature of the process, a> well as of the efl'ect, which under the Act directing! it to be issued, was intended to result from itsser- vice. ' , j By the fifth Section of the Act the Clerk ofthel Courtis directed to issue Writs of Garnishment, at the request of the Receiver, directed to one or more persons, commanding them to appear at the then sitting, or at'any future term of the Couri: and to answer upon oath what property or effects' ot any alien enemy he had at the service of the| process or since has had under his po.'-'session or, control; belongmg to or held lor an alien enemy. And ihe Receiver may test the truth of the returnj made b^ a garnishee by filing a statement under oath that be believes the answer to be untrue; specifying the particulars in which he believes the garnishee has by commission or omis&ion not an- swered truly. And in all cases of litigation under this Act the Receiver may propound intefroffato- ries to the adverse party touching any matter in- volved in the litigation: a copy of which shall be served on the adverse parly, and they shall be answered under oath within thirty days after such service. Upon failure to do so the Conn shall make such disposition of the cause as shall seem most promotive of justice. And if an answer deemed necessary to secure a discovery, the Court may imprison the party in default, until lu answer is made. By the sixteenth Section ol the Act the Attorney- General is directed to prescribe such uniform rules of proceeding under this Act, not in the Act otherwise provided; as shall meet the necessity ol the case. The Attorney-General, in pursuance of this authority, has by his instructions to Receivers directed them forthwith to apply to the Clerk of the Court for Writs ^of Garnishment, under the filth Section oJ the Act; and to propound to the garnishees ceitain interrogatories, which are here endorfcd upon the Writ, and answers to which are required in the Writ. I have considered the modes of proceeding adopted by the Aci; and cannot regard ihem ob- noxious to the cen>ure, or impeached by the ob- jections, which have been expressed or urged. If we refer to the Constiiution, it will be seen that the judicial power extends to all cases of law and equity, arising under this Consiituiion, the laws ot the United Stales and of this Coniederacy, and treaties ma«'e or which shall be made under Its authority: and among other matters of which 'there is a special enumeration; to cbntro'Versies to which the Confederacy shall be a party. (Art. 3, :Sec. 2.) A ca.'e is said to arise within the meaning a|' the Constitution whenever a question respecting the Constitution, laws or treaties ol the Confede- rate States has assumed such a form that the judicial power is capable ol acting upon it. That power is capable of actii g, when the subject matter is submitted to it, by a party who asserts" jhis rights, in the form prescribed by law. (Curtis' IComm. Con., p. 5.) So also a case is said to arise under the Constitution, laws, or treaties of the Confederate States, when the constiuction ol either is involved in .i correct decision, (p. 6.) A suit is the prosecution or pursuit of some claim, demand, or request. In legal parlance, il is the prosecution of some demand in a Court of Jifs- tice (Curtis, p 64.) if, as has been said, a case is said to arise where it is in a form in which the judicial power can act upon it, this affords the proper beginning /or the examination of the objections urged in this case. It has been already decided that by the terms of the Sequestration Act, the property of the alien enemy is divested of the title which he had; and as good a title as he could convey is vested in the Confederate States. To give effect to the Act, two circumstances were waniinic: to di.>^cover the property so vested in the Conlederaie States; and by judicial proceed- ings to establish by the judgment ot a competent Court the (act that it is the property so seque.-tered. To discover the property the Act directs a Writ of Garnishment to issue. There are three ends which are accomplished by Ihe Writ. 1. The party who has such property is notified by the service ol the process of the title of the Government. 2. The nature of the process affects the prqperty in the manner, ot which Sir William Scott has spoken; when he refers to some proceed- ings to reduce such property into possession. 3. By the service of the Writ, evidence is to some extent secured in proof of wilful neglect in not making discovery of the pn periy: if the person upon whom the Writ is served shall after* wards be indicted under the third Section of the . Act. But it is said that the form of the Writ is not regu- lar : that it should be against a person certain : that the defendant in this case must be the alienenemy. It is only necessary to analyze the objection to see that it involves this proposition ; that until it is discovered who is the alien enemy having pro- perty in the possession of a citizen of the Confed- erate States ; no proceeding can be had to seques- trate that properly. And ih t therefore a citizen ol the Conlederate States may remain in the uninter rupted enjoyment of property, to which he has no THE SEQUESTRATION ACT— MAGRATH, J. 61 right or claim ; and the Confederate both right andi'rights, which do not affect the person or property claim ; unlcfS ihe Confederate State:' can fir,-*t dis- of its citizens, but U'hich should subject it to so cover the naaie ofthe alien enemy whose property much objection? is so held : and then issue its process to reduce|j If we compare it with other powers which are ii into pos-sessiori. j|daily exercised by the Government in other mat- Such a proposition, however, cannot be se-j ters, and which must be eserciSfd- without which riousiy urged. It would be obnoxious to manyj,Governtiieni would be powerle.-s: and to which objections far too serious "/ind s-irikiog not to there never has been objection: it will be siill be readily apprehended. Bu^ of one, which be cause ot its public nature; and to which it is in direct opposition mention must he made. It in volves the right of a citizen, i ot only to withhold his aid to his Government in the ascertaiimieni i.l its rights : but moreover to oppose bis Governmeni more clearly seen how much of mi«appiehen>ion Ihere is in the objection to this proceeding. The i-ase of the Revt- nue Laws perhaps furnish an apt illustration By these laws full power and auifco- riiy is given to certain pers ns to enter any ship or ves8e|in which they have rrason to suspect any in the attempt it makes to become p*ses«fd ot 'aoods, wares and merchandise are concealed, tho«e rights. Such a princiile is directly at war .which are subject to duiy : and to send (or, seize with all the obligations which those who live iindcrl ^md secure the same : and if they have reason to the pro'ection ot a Government owe to.ils welfare ' suspect such concealment in a particular dwelling It strikes at once at tfie duty of obedience enjoined, luiuse, store, building or other place, upon appli- upon those who acknowledge the lawful auihoriiy caiioo to the propt-r otficer, they sha'l have a war- ol Governmeni. i rant to enter such house, store, buildini;. or oiher And if the [iroceeding were irregular, at whose 'p ace in the day time, and search for such goods, cost is the irregu ariiy ? Nothing is asked of ihe' And to recivc, conceal, or buy goods, wares and citizen otlhe (Joniederate Slates which he clams inert haiulise, knowing them to l>e i'legaily import- to l)e his. Nothing is done to him, because oi cd and liaMe to seizur. ; upon conviction, dpaws aught which he claims as his property. His per Ijwnh it a penally of doub'e the amount or value ol son is not touched— his house is not searched— hisj|-uch good-, wares and incrchandi-e. And \hiv effects are not seized— but the Government oi his' pcwer. so much more severe than the process ob« couniiy, sends to him. its command, to deliver tel(, In some Acis informers are encouraged. It is not when he discovers that property which he has in -o in this: and I am glad that it is so. The his possesion, and which ht supposed beljn>;ed toj execution ol the Act, Is in the first phce commit- one, is by the law of the land deviated to belong 'opt- d t) the cnizen-« of these Sates. It is not per- anoiher? Is there not a law, not promu'ged by iintledthat the possession ofthe property fht'll be mere earthly legi.-lation, which teaches him to yiel! i(li-turbed; until the verdict ol a- Jury has esiab- up that to which he has no right; andto which some'|li>hed the fact that U is the properiy of an alien other has lau ful claim ? And is thai obligation lessj enemy. solemn when his country is to be benefiied by iisj 1 con»ider the Writ sii«h a Wiit as the Act di- observiince, than when an individual claim the ad- reels to be issued : and 1 consider thai Congress vantage of it ? had perfect auihoriiy to prescribe the form in Bui the process is not irregular: it is in the onl> which the Wni should issue The power ol Con- form in which it can be regular. The pioceeding gress to adopt rules and |>re-ci ibelbrm- of proceed- when it conies before the Court ut)on the petition in;? (or the l^'ourts of the Confederate States, is too and the siibsequeiit pleadings, is not properl\ lear to need argument to support it. Beers vs. against the alien enemy; but against his property Haughton, Pet Rr. 329. Bank U. S. vs. Hal-lead, estate and eflecis. The alien enemy is not brougiit 10 Wheai. R 51. into Court: he cannot be so brought. It is his pro ' U might have been that in much shorter space, the perty. estate and effects, which are wiihin Ihe ter resub ot this opinion could have been announced, ntorial limits of tie Conlederaie Stales; and are I have noi thought, however, labor or lime mis- sought to be identified, that only are before the -pent, which would or might have the effect of re- Court. And the proceedings, there(or« , are in this moving the misapprehensions ofthe proceedings respect, muc:, more similar to an information on under this Act. In this, and in all case* I admire the criminal side, by which the forleiuue of goods ihe injnnctions cf one; who was a Judge ofthe is sought: or a proceeding in the Admiralty by highest reputaiioi^^ and declared thtit the high- Which the rf.5 is submitted lo judicial invesiigaiion: est olijigaiion of a Judge was to do ju-tice ; and than the case to which a similiiude has been made, then iq. Hoi the Allorney but of the client; rtiid it is indis- Mr. J. W. Wilkinson, E>q., in his respohs^i'l'-nsable (or the purpcsfs of private jusiii-e.— ID the Writ or Garnishment, issued under>the Whatever facts, therefore, are oominunicaied by a Act of the Confederate Congress for the seques- ^-''ent todounsel solely on account of that relation, iration of the property of alien enemies, h.is sub- si>ch c•oun^el are not at liberty, even if they wish, mitied by way of defence, to any lurther answer'to disclose: and the law holds their testimony in- than is made by him, the privilege and the obbga-pfompeient." Lord Brougham, when Lord Chan- lion upon him, as an Aiiorney, not to disclose cellor, said: "The foundation ol the rule is not on such communications as have been made to him /cc-ount of any particular importance which the as an Aitorney; nor to give information as to such! 'aw aitribuies to the business of the legal profes- matiersas he has become co-nizant of, by siichjl'^ion, or any piinicular dispoel, Attor- ney or Solicitor, acting for 'the time being in the character of legal adviser. (1 Greenleaf Ev., 274, 275) The rule so stated is fully recognized and en- forced in the Courts of this State. Resting as it thus does upon considerations ol public policy; essential as it is regarded to the correct administration of public justice: coming clown from the early periods when the princi- ples of jurisprudence were established, which are yet preserved: and recognized l)y all Courts of Justice in America and Great Britain as an estab- lished. judicial institution; I should not feel at lib- erty, to deny its applicability in these cases, unless It was abolished by the force of an express enact- ment. I have said that so far from there being an express enacimeni to ihis effect, there is not even a. reasonable support for the implication, that the abolition o*" this privilege M'as intended or desired. The plea of Mr. Wilkinson sets forth a fact, which seems to me to h". of consequence, in the interposi'ion of this privilege at this lime. It ex- pressly Slates that these communications, which are held to be entitled lo this protection, were made to him before the war whicli is now waged by the United Slates against these Confederate Stales. They were, therefore, received at a time when it was lawful to make such communications. And when «made, the protection which Is now asked, fhen arose. When once established, it became fixed. I consider, therefore, the privilege set up in the plea, a good defence to the requirement of the Writ; and that it protects the defendant, either as a paity or a witness, in not making further answer to the mailers, which have been communicated to. him in his prolessional capacity. PRESENTMENT OF THE GRAND JURY. m THE CONFEDEEATE COUET FOE SOUTH CAROLINA. October Term. 1861. • The Grand Jury, according to custom and con- forming to the inctructions of the Conn, present to the Court as worthy of amendment by the proper authority .*ome provisions of ihjs Act for con(i^ca- tinff the property of alien enemies in this Stale. The mischievous moral effatt of hostility exer- cised in this way does not remain for us to debate The enemy has set the example, and it is no longeri a quesiion with us whether we should follow it; We do not appropriate the property of Itiliens fori revenge, but in strict self defence. Their ("uiul« are not paid into our treasury to aid us in (loin.' them injury, but to compensate our people who may be made the victims of their rapacity. The law is justifiable and necessary, but in orsjanizitigr a system under it we have to remember that our most energetic and eiiiepri.-ing men should be sheltered and protected, not wor>ted and oppressed. In the anxiety of our legislative body to make the Ad etiicient the merchant here has not been represented as carernllya8 would have been doubt- position is that of representaiive of the alien partner!' This new and oppressive condition is, as life experience of men of action in any walk of life will admit, wiihout further proof or argiftnent, a great burthen upon our own men. To give security for large sums, upon a very ill defined obligation, in the conl\ision of revoluiion, must be difficult in any case — impossible in most cases. We submit to the Court, that il the demand •or security must be made in carrying the Act of Confiscaiion into effect, il concerns not individuals only, but our whole society, that such time should be allowed as may enab'e the Legislature to recon* sider this part o( the system. Without such con~ siderate discretion, the con-equence must i>e in mo»t cases bankruptcy to men perfectly solvent, and a formidable sacrifice not only of present means, but of credit and chnracter. Credit is in ihis country, above all other countries, the life of the merchant. Commercial truth is his point of honor. It is auony to /ail in his engagements. It less the will of the Legi.--la!ure if the experience of wdnld be belter in the Government to abandon the members had made them familiar with the con- aUosether the confiscaiion of the debts Of alien diijons 01 trade. In the show, and we believe with enemies, than to insist upon the demand of secu- the honest purpose, of affording to partners resident Irities lor the partnership effects, or for debts out- here lime and means for closiusT partnership afr,iirs|!t in a greater ry to our own people. It becomes us to romeinber^degrte in relation to debts due at the North by the intimate relations in which we have lived 'euizen^ of the South. If the citizen of the South with the people of the North. Until December^ is u, giv^j .security for such debts, the requisition is 21,1860, we have not lived near each other as |i,ipossible; it is ilo part of the original transaction; separate nations, but as one people ; and our free ijf forced to pay it niu.si be ruinous. It may be intercourse and absolute free trade with each othei ^proper thai the benefit of these debts, where they has drawn us closer to each other than has everj Lan be realized, should be for the use of the Con- hoppened with partnerships, between different na-ji(ederate States; and iha' the citizen should be lionahties. There was nothing in our political! |r,.qj,, red, if it were deemed necessary, to give position to warn us of so radical a change— ai^,.i.,,riiy not to pay the said debts, except to the warning which would have exi>led had we heforeConfetkraie Slates. But, under any circumstances, been separate naiions. In the dissolution of com- ,0 coerce payment at this time, or to require mercial pannerships, there must occur much that vecunty, that if hereafter required the debts shall proves painful and injurious, but the mere dissolu by pmd^ perhaps at a short day, can but produce lion, or even the sudden dissolution, is not just confusion and distress, which, in most cases, could subject of complaint. It is a political and social |,„i ^nd in commercial ruin. The indirect effect of necessity. Our duty to ourselves and the con»lil lyiie-deihand for security for debts due abroad would uenls of our Government prescribe to us great care |,e to give preference to those debts over debts due in protecting the partner resident here, often the ;,i home, and the means of payment of the debtor niostenterprisingandiru>iworthyamongus. When \vould he exhausted, leaving neither fund nor such vital changes occur, the sense of mutnar.,j.curitV for the navment of the general debts at interest and old trust between individuals, give h,„iie, a result certainly not proposed in the minds to the change sui-h a form as affords time and qC the L'ci^laiive authorities power to avoid loss of capital, and above all. Joss ^y^ recommendl|hal the apartments used for the o credit. But, if in this violent P"hl'«^ disruption ^^.^^,,,,,^^j^„^,,, oflhis. Court, and its officers be o( joint interests, such a construction can be -"ade; ^^^^^^ dnvenienily and comfortably furnished, and of the provisions ol iheAci of the Confederate Gov .u„. or.1)^„.i„ „„„.,..;„.. u^ i^ k„ .1,.. n^..<:.A ... eminent, as will make it operative without any (he lenitives which would be interposed 'between q^^-, individuals, the widest mischief would be produced i It seldom occurs in co-partnerships in trade ihat UyM. H.' ULLILAND.Fore-'MARTIN HENEBERQ articles of agreement exhibit provisions lor new man.] ' — - — securit^ship upon the termination of the trade. A. 1-*. C^ iDWt<"LL.^ Bui here, for want ofexperience in this department ,1^'''^^'^ '. CnEbTER. of life, Congress has imposed upon the resident j\hieS ' ci'MMINGS more conveniently anu comic thai aniearly provision be mai ° Goverameni for a fire proof :en v-' . ~ le by the Confederate Court House for this partner a new burthen not before known betweenij'f. N. J( tbe partners, and this, too, when, their only"F. GILl iNSOJS. ;s. JAMES I,. UKANDT. B. McCALIj. |B JOH.\.-^0N. I AU«tUsTUS S. .rOHNSON. PaRKKK J. HOLLAND. D. B. COMSTOCK, THE SEQUESTRATION ACT OF THE CONFEDERATE STATES. AN ACT FOR THE SEQUESTRATION OF THE ESTATES, PROPERTY. AND EF- FECTS OF ALIEN ENEMIES, AND FOR THE INDEMNITY OF CITIZENS OF THE CONFEDERATE STATES, AND PERSONS AIDING THE SAME IN THE EXISTING WAR WITH THE UNITED STATES. Whereas, ihe Government and people of the Uniied Stales have de()aried from ihe usages ol civil, zed warfare in CAinfi-cating-and deslroyiiig the properly of ihe people of ihe Confederate States, of all kinds, whrther used for miliiary'« pur|)Ose.s or not; and whereas, our only protection against such wrongs is to be ound in such measures ol relalia- | lion as will ultimaiely indemnify our own citizens • for their lo-ses, and restrain the wanton excesses j of our enemies : Therefore, || Skctio.n 1 Be It enaele.d by the Congrexx of Ae\\ Confederate Slates oj Anitricn, Tliat all and every j the lands, tenements, herediiamen's, goods a.4ilj| chattels, ngtits and credits, within these Confedife i raie States, and every rii^ht and interest (herein held, owned, po.^ses^ed or enjoyed by or fur any alit-n enemy since the iweniy Hr.^day of May, one thousand eight hundred and sixiy-one, exc-ei t such' debts due lo an alien enemy as may have been paid iniO the Trea-ury of any one of the Confederatt- States prior to the passage of this law, be, and tjjie' same are hereby, sequestraied by the Confedera'e Slates of America, and shall be held for the full indemnity ol any true and loyal ciiizen or resideni of ihese Confederate Stales, or other per-on aidinsi! said Conlederate Slates in the prosecution of tbe! present war between said Contederate Stales andi the Uniied Stales of Amfrii-a, and for which he[ may suffer any loss or injury under the Act of thel Uniied States to which this Act is retaliatory, or] under any other Act of the United Stales, or o( anyj Slate thereof, authorizing the seizure, condenina- ti(-n, or coiiti-cation of ihe property of citizens or residents of the Confederate States,- or other per-! son aidicitf said Conlederaie States, and the' same shall be seized and di>posed "f as provided^ for in this Act: Providfd, however^ When t'le es- tate, prc'perty or rights to be effected by this Act were or are wiihin some Slate of this Confederacy which has become such since said iwenty-firsl day! of May, then this Act shall operate upon, and as toj sufh estaie, |iropertv or rights, and all persons claiming the same (rom and after the day such! Slate so became a member of this Confederwey, andi not before: Pruvidtd furllier^ That the pre isionsj of this Act shall not extend to the stocks or otherj public seeunties of the Confederate Government, or of any of the States of this Confederacy held or! owned liy any alien enemy, or to any debt, obliga tioii or sum due from the ConleJeraie Government, or any of the States, to such alien enemy: And provided, also, That the provisions of this Act shall not embrace the |)roperty of citizens or residents of eiiher of the States of Delaware, Maryland, Kemucky or Missouri, or of the District ol Colum- bia, or the Territories of New Mexico, Arizona or the Indian Territory South of Kansas, except such 01 said citizens or res dents as shnll commit actual hosiiliiies ayainst the Confederate States, or aid and abet the Uniied States in ihe existing war against the Confederatp States. Sec 2. And be it farther enacted, That it is, and ~liall be, the duty of each and every ciiizen of these Confederate State.< »p or chattels, rights or credits, or any imerest therein, of or for such alien enemy, sfieedily to inform the Receiver, hereafter provitJed to be ap- Ipoiiiied, of the same, and to render an account (thereof, and, so far as is praclicahle, to place the Same in the hands of such Receiver; whereujion, -uch person shall be lully acquitted o/"all respon- >ibility for property and eflpcts so reponed and turned over. And any such^erson willfijlly tailing to give such information and' render such account, shall be guilty ot a high misdemeanor, and, upon indictment and conviction, shall be hned in a suin> ^not exceeding five thousand dollars and lmp^i^onea inot Jonger than six month-; said fine and imprison- ment to be determined by ine Court trying the lease, and shall further be liable to be sued by said !Coiifederate Sia'es, and sui>jected to pay double jthe value of said estate, property or eflects of the said alien enemy, held by him or subject to his Jcontrol. j Skc. 4 It shall be the duty of the several Judge* of this CouCederacy to give this Act s[iecially in ichargetoihe Grand Juries of these Ctmiedcrate States, and it shall be their duty at each sitting Well and truly to inquire and re|ior£all lands, ten* lements and hereditaments, goods and chattels, (Tights and credits, and every interest therein, with- jin the jurisdiction of said Grand Jury, held by or ifor any alien enemy, and it shall be the duty of [the several Receivers, api>oined under tliis Act, [to take a copy of every such report, and to proceed |in obtaining the possession and control of all such iproper^y and etfects reported, and to institute pro- |ceeding-i (or the sequestration thereof in the man- |ner hereinafter provided. I Sec 5. Be itjuriher enacted, That each Judge of !thi-^ (Confederacy shall, as early as practicable, ap- l)0int a Receiver (or each section of the State for which he holds a Court, and shall require him be- ifore entering upon the duties of hi" office, to give ja bond in such penalty as may be prescribed Dy jthe Jiulge, with good an'd sufficient seeurity, to be !ap|)rove'l by the Judge, conditioned ihat he will jdiligeiiily and faithlully discharge the diitics impos- led upon him by law. And said officer shall hold his ioflice at the plca.sure cf the Judge ol the district or !beclion lor which he is appointed, and shall be re» !moved for incompetency, or inefficiency, or infidel- VHE SEaUllisTRATlON ACT. (16 t^ ia lbe- execution therefor, thereof. Notice shall thereupon be forthx^ith' Sec. 7. Any person in the possession and control issued by the Clerk of the Court, or by the Receiv of the subject matter of any ripecl thereto until he shall, by sworn plea, sei forth substantially the matters before required oT parties pleading. And the decree or judsjment of the Court, rendered in conformity to this Act, shall' forever protect the garnishee in respect to the matter involved. And in all cases of garnishment under this Act, the Receiver may test the truth ol the garnishee's answer by filing a statement under oath, that he believes the answer to be untrue, specifying the particulars in which he believes ihe garnishee has, by otnission or commission, not answered truly; whereupon the Court shall cause an issue to be made between the Receiver and the garnishee, and judgment rendered upon the trial of other issues. And in all cases of litigation under this Act, the Receiver may propound interrogato- ries to the adverse party touching any matter in-| volved in the litigation, a copy ol which shall be served on- the opfosite party or his attorney, aii'l which shall be answered under oaih within thirty days of such service, and upon failure so to an- swer, the Court shall make such disposition of the cause as shall to it seem most promotive of justice, or should it deem answers to the iDterrogalories necessary in orulficient cau«e is shown therefor, direct the sale of any personal property, other than slaves, se- questered under this Act, on such terms as to it .-hall seem best, and such sale shall pa-s the title of the person as whose property the same has been sequestered. Sec. 13. All settlements of accounts of Receivers lor sequestered property shall be recorded, and a copy tiiereof shall be forwarded by the Clerk oi the Court to the. Treasurer of the Confederate Stales within ten days after the decree, interlocu- tory or final, has been passed ; and all balances found against the Receiver shall, by him, be paid over into the Court, subject to the order of the Treasurer of the Confederate States, and upon the failure of the Receiver for five days to pay over ihe same, execution shall issue therefor, and he shall b^ liable to attdchment by the Court and to isuit upon his bond. And any one embezzling any money under this Act shall be liable to indietmentv and on conviction shall be confined at hard labor for not less than six months nor more than five years, in the discretion of the Court, and fined in double the amount embezzled. Sec. 14. Be it further enacted. That the President of the Confederate Slates shall, by and with the advice and consent of Congress, or of the Senate, if the appointment be made under the Permanent Government, appoint three discreet CommissioD-« ers, learned in law,. who shall hold at the seat of Government two terms each year, upon notice given, who shall sit so long as the busiuess before them shall require, whose duty it shall be, under such rules as they may adopt, to hear and adjudge such claims as may be brought 1)efbre them by any one aiding this Confederacy in the present war against the Uiiiied States, who shall allege that be has been put to loss under the Act of the United States, in retaliation of which this Act is passed, or under any other Act of the United States, or of any State thereof, authoriziijg the seizure, condem- nation or confiscation of the properly of any citizen or resident of the Confedera e States, or other per- sons aiding said Confederate States in the present war against the United St.iles, and the finding of such Commissioners in favor of ahy such claim shall be priina facie evidence of the correctness of the demand, and whenever Congress t-hall pass the claim, the same shall be paid from any money in the Treasury, derived from sequestration under this Act : Provided, That said Board of Commis- sioners shall not continue beyond the organization of the Court of Claims, provided for by the Con- stitution : to which Court of Claims the duties herein provided to be discharged by Commissiorl'era shall belong upon the organization of said Court. The salaries of said Commissioners shall be at the rate of two thousand five hundred dollars per an- num, and shall be paid from tlie Treasury ef the Confederacy. And it shall be the duty of ihe At- torney General or his As>;istant, to represent the interests of this Government in all cases arising under this Act before said Board of Commissioners. Sec. 1.'') Be it further enacted. That allexpensea incurred in proceedings under this Act shall be paid from the Sequestered Fund, and the Judges, in settling aecouuis with Receivsrs, shall tnake to -.V THE CONFISCATION ACT OF THE UNITED STATES. 67 them proper altowsnces of compensation, taking^ two and a half p«»r c»int. on receipts, and the same: amount on expenditures, as reasonable compen^a-' tion, in all cases. The fees of the olficers ol Courij shall be such as are allowed by law for similar ser- vices in other ca?e<, to be paid, however, only from the Sequestered Fund: Provided, That all sum- realized by any Receiver in one year for hisservi ce.<«, exceeding five thousand dollars, shall be paid; into the Confederate Treasury lor ihe use of thel Confederacy. \ * j Sic. 16. JBe it further enacted. That the Attorney- General shall prescribe buch uniform rules of pro-l ceeding under thi> law. noi hetein otherwise pro- vided for, as shall meet the necessiiies of the case j Sec. 17. Be it further enacted. That appeals mavj lie from any iinal decision of the Court under this' law in ihe sanie manner and within the same time as is now, or hereafter may be by law, pre.-cribed! lor appeals in other civil cases. ' Sec 18 Be xt further enaeted, That the word! "person" in this law includes all private corpora* tionsj and in all -cases, when corporations become] parties, and this 1 iw requires an oaih to be made, it shall be made by some officer of sXich corpora' tion. [ Sec 19. Be it farther enaeted. That the Courisj are vested with jurisdiction, and required by ihi- Act to settle all partner?hips heretofore existing' between a citizen and one who is nn alien enemy; to separate the interest of an alien enemy, and tol sequestrate it. And shall, als^o, sever all joint' rights when an alien enemy is con<;erned, and se-l queslrate the interest of such alien eneinv. Sec. 20. Be it further enacted. That in all ca'^es] of administration of anyjnaiter or thing, under this; Act, the Court having jijrisdiction may make such orders touching the preservation of the property; or effects under the direction or control of the Receiver, not inconsisteiii with the foregoing pro- visions, as to it shall seem proper. And the Re- ceiver may, at any time, ask and have the instruc- tions of the Court, or Judge, respecting his conduct jin the disposition or management of any property jor effects under bis control. Sec. 21. Be it further enacted. That the Treasury tNoies o( this Confederacy shall be receivable in jpayment of all purchases of property or efiects sold under this Act. i Sec. 22, Be tt further enacted, That nothing in ithi> Act shall be construed to destroy or impair the !lien or other rights of any creditor, a citizen or re- Isident of either of the Confederate States, orof any |Other per^^on, a citizen or resident of any Country, jState or Territory, with which this Confederacy is Jin friendship, and which person is not in actual hos- tility to this Confederacy. And any lien or debt claimed against any alien enemy, within the mean- ing of this Act, shall be propounded and filed in the Court, in which the proceedincs of sequestra* ilion are had, within twelve months from the insti-^ .- luiion of such proceedings for sequestration; and"/) the Court shall cause all proper parties to be made and notices to be given, and shall hear and deter- jmine the respective rights of all parties concerned; \Provided,hoioevtr,\\\2ii no sales or payments over lof money shall be delayed for, or by reason of such jrii^hts or proceeding-; but any money realized by the Receiver, whether paid into the Court or 'Treasury, or still in the Receiver's hands, shall Island in lieu of that which produced said money, and be held to answer the demands of the creditors aforesaid, in the same manner as that which produced such money was. And all claims not 'propounded and filed as aforesaid., within twelve months as aforesaid, shall cease to exist against the estate, properly, or effects sequestered, or the 'proceeds thereof. ' Approved August 30 1S61. f CONFISCATION ACT OF THE UNITED STATES. AN ACT TO CONFISCATE PROPERTY l^SED FOR INSURRECTION- ■ ART PURPOvSES. Be It evaded bu the Senate and House of Repre-. sentatives of the United States of America- in Co/i-\ gress asaenib/fd, That if, during the present or any future insurrection against the Govt-rnment of the United States, afier the ■Pre^iden^ ijf the United States shall have declared, by proclamation, that the laws of the United States artf'opposed, and the! execution thereof obstructed by combinations tot) powerful to be suppressed by the ordinary course of judicial proceedings, or by the povvervesied in the marshals Ly hiw, any pferson oijfjpersons, his, her or their agent, attorney or employee, shall purchase or acquire, stli or give-any property, ol whatsoever kind and de-cripiion, with intent to use or employ •the same, or suffer the same to be used or employ ed in aiding, abetting or promoting such insurrection or ^e^i8t8nce to the laws, or any person or peruonsi engaged therein, or if any perton or persons, being: the owner or owners of any such properly, shall knowingly use or employ, or consent to the use ori employment of the same as aforesaid, all such^pro- perty is hereby declared to be lawful subject of price and capture wherever found; and it shall be the duty of the'President of the United Slates to caasethe same to be seized, confiscated and con- demned. '*" »' SkC;^^ ^. That such prizes and capture shall be condemntd in the District or Circuit Court ol the lUnited States having jurisdiction of the amount, jor in Admiralty in any district in which the same imay be seized, or into which they may be taken and proceedinzs first instituted. Skc 31 That the Attorney-General or any District Attorne^of the United States in which said proper- ty may at the time be, may institute the proceed- ings of (Condemnation, and in such case they shall be wholly for the hent'fit of the United States, or lany pelson may file an information with »uch attorne] , in which case the proceedings shall be lor the I se of such inlormer and the United Slates in equal parts. Sec. ' . That whenever any person claiming to :be entitl (d to the service or labor of any other per- son undi r the laws of any Stale, shall employ such .person i i aiding or promoting any insurrecuon, or resisting the laws of the United States, or shall peimit h m to be so employed, he sii.ill forfeit all right to ! uch service or labor, and lue ;,erson whose llabor an service is thun claiine i shbll bethence- iforlh dii -harged therefrom, any l-v«- t^i the contra- !ry uotw thstanding. THE UNITED STATES' COxXFISCATION ACT. EXPLANATORY LETTER FROM THE SECRETARY OF THE TREASURY. Department of State, ) Washington. September Ul. 1S61. j Sir: — In order lo prevvenc the seizure o( property belonging to citiznns of insurrectionary States, not wnrranted by the Acts of Congress relnting toihai subject, it IS ilioughl advisable to direct the special attention ol Marshals and District Attorneys of tbe United Slates to the provisions of ihe;>e Acts: The tifih section of the Act of July 13 provides that ail goods and chattels, wares and merchandise, coming from or proi^eeding to a place or Stale de ciared lobe in insurrection, together with the vessel or vehicle carrying the same, or conveying pe^son^ to or from such Slate or place, shall be forfeited'if the United Slates. I This section obviously applies to all properly in transit or purchased, or provided with a viewtn' transit, between loyal and disloyal State«, and es | pecially to property lorming the subject of commer cial intercourse. Such property, whenever found, IS liable to seizure, and the only redress ofpartie;- who think themselves aggrieved is by appeal lo tbej Secretary of the Treasury, who abne is invested by law with the power of mitigation and remission The first section of the Act approved August 6ih declares that if any person or persons, bis, her, or their aeents, attorneys or employees, shall purchase or ac'^uire, sell or give any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed in aiding or abetiing,or promoting such insurrection, or any person or persons engaged therein,' or it any person or persons, being the owners of any such property, shall knowingly use or employ,or suffer the use or employment of the same as afore- said, all such property is hereby declared to be l»wlully subject of prize and capture wherever found. No doubt can be entertained that this section w'as well considered, and that its operation was intended to be limited to property used in further- ance of insurri ction only. Seizures under the Act of July 13th should be made by the olficers. or under the direction of the officers of the Tr< nsury Department, and all District jAttorneys and Marshals of the United Slates should jafford all pr.iciieable counsel and aid in the ' jexec^tion ol the law. Seizures under the Act of August 6th should be 'made by the Marshal of the di>trict in which such properly maybe lound, under the general or Ipariicubir direciion of the District Attorney orother isiipenor authority. j For such seizure there is no power of mitigation :or omission in the Secretary of the Treasury, but [the Di>tricl Attorney or other superior authority, may direct the discontinuance of any proceeding in relation thereto, and the restoration of the properly seized It will be seen from an inspection of these jprovisions of the Acts of Congress that no property is confiscated or subjeciedto forfeiture except such as i.s in transit to or Irom insurrectionary States, or used for the promotion of the insurrection. Real estate, bonds, promissory notes, moneys on deposit, and the like, are not therefore subject to seizure and confiscation in the absence of evidence of such unlawful use. All officers, while vigilant in the prevention of the conveyance of property to or from insurrection- ary States, or the use of it for insurrectionary purposes, are expected to be carelul in avoiding unnecessary vexation and costs by seizures not warranted by law. S. P. CHASE, Secretary of the Treasury. 'U.-^., i. ...e: vie --. and ^) Lomm^ ,'