tag="{http://www.w3.org/1999/xhtml}a">[2] If the clause of the Constitution prohibiting 'attainder of treason to work forfeiture except during the life of the person attainted,' be necessarily applicable to the Confiscation Act, it seems to us impossible to avoid the conclusion that the act is unconstitutional. So far as the language of the prohibition is decisive of anything, it must be taken to include all sorts of property, real as well as personal—the term forfeiture certainly having that extent of application in the old English law and practice, from which the framers of our Constitution took it, and there is nothing elsewhere in the Constitution or in its history to warrant any other construction. So the Congress of 1790 understood it in the act declaring the punishment of treason and some other high crimes. As to the perpetuity of forfeiture, it seems equally necessary to hold that it is prohibited by the clause of the Constitution in question. Such is undeniably the first and obvious meaning of the terms. It has been argued indeed that it was not the intention of the framers of the Constitution to prohibit perpetual forfeiture of property from being 'declared' by Congress, but only to prohibit 'attainder of treason' from 'working' of itself that effect by necessary consequence—as it did under the Common Law of England. It has also been argued that the constitutional restriction does not relate to perpetuity of forfeiture, but only requires that the forfeiture or act of alienation take place, have effect, and be accomplished 'during the life of the person attainted,' and not after his death.

But this reasoning is more subtile than satisfactory. A fair consideration of the subject leaves little room for doubt that the framers of the Constitution had in view and intended to prohibit everything which under the old English common law followed upon 'attainder of treason'—to prohibit forfeiture in perpetuity of property of every sort, no less than 'bills of attainder,' 'corruption of blood,' and barbarities of punishment, such as disembowelling, quartering, etc.

If therefore the constitutional restriction on forfeiture apply to the Confiscation Law, it makes the law unconstitutional, in so far as it enacts the perpetual forfeiture of the personal estate of rebels; and the discrimination made in regard to their real estate does not save the constitutionality of the act.

If, therefore, the Confiscation Law is to be held as constitutional, it can be so, as it seems to us, only on the ground that it does not fall within the scope of the constitutional prohibition in question. This ground may be maintained by asserting that the constitutional prohibition of perpetual forfeiture applies only to cases of 'attainder of treason,' that is, according to Blackstone, of 'judgment of death for treason,' and that cases under this act are not such; that the limitations applicable to ordinary judicial proceedings against traitors are not applicable here; that the Confiscation Act seizes the property of rebels not in their quality of criminals, but of public enemies; that it is not an act for the punishment of treason, but for weakening and subduing an armed rebellion, and securing indemnification for the costs and damages it has entailed—in short, not a penal statute, but a war measure; and that the Constitution which gives Congress the right to make war for the suppression of the rebellion, and to subject the lives of rebels to the laws of war, gives it the right to subject their property also to the same laws—putting both out of the protection of the ordinary laws; and finally that all the objects aimed at by the measure are legitimated by the principles of public law.

If these views can be sustained, it follows that Congress was justified not only in enacting the perpetual confiscation of the personal property of rebels, but need not, and should not, have passed the explanatory clause prohibiting 'forfeiture of real estate beyond the natural life' of the rebel. So far as weakening the rebellion, indemnifying the nation for costs and damages, or the rights and interests of the heirs of rebels, are concerned, there is no reason in justice or in policy for the discrimination made between personal and real estate; if it is right and wise to take the one in perpetuity, it is equally so to take the other. In our judgment, it is right and wise to do both.

MILITARY ADMINISTRATION—NO ARMY OF RESERVE.

In looking over the war, we can all now see a very great error in the military administration—the neglect, namely, to provide and keep up a proper reserved force. It is the grand mistake of the war. Two years and a half of war, and no army of reserve! Eighteen months ago, a force of reserve of at least two hundred thousand men should have been formed. It could probably then have been formed of volunteers. From it, vacancies made in the armies in the field by battle, disease, or expiration of time of service, could have been filled with drilled and disciplined soldiers, and reinforcements drawn to meet any special exigency. The victory of Gettysburgh might have resulted in the total destruction of Lee's army before he could recross the Potomac; and Rosecrans might have been strengthened without weakening the Army of the Potomac or any other. Whether the cost of forming and keeping up such a force of reserve would have greatly exceeded the cost of the recent draft, we do not pretend to know. We are inclined to think it would not. But that is a question of little moment. Money wisely spent is well spent: money unwisely saved is ill saved. With such a force, the recent draft might not have been necessary—at all events there would have been no necessity for suspending active military operations in Virginia, and awaiting the slow completion of the draft, at a moment when, large additions to the forces in the field were precisely the one thing needful. The army of reserve would at once have supplied disciplined soldiers, and their places in the camps of instruction and reserve could have been filled with the new conscripts as fast as they were collected.

CONSOLATION—ENFORCEMENT OF THE DRAFT IN NEW YORK.

But grave as the error is which we have signalized, there is something that might well console us for greater misfortunes than it has entailed, and which gives us another illustration of the truth that God and Time often work for us better than we for ourselves, and out of our errors bring good that we could not forecast.

It would not be wise to assert that the not having such a reserved force necessitated the recent draft, and thereby occasioned the horrible outbreak in New York. But if it may even be safely suggested as possibly true, the successful enforcement of the draft becomes all the more a matter for boundless joy and congratulation. Important as its enforcement throughout the country was as a means of filling up the ranks of our armies, the outbreak in New York made it a thousand times more important as the only adequate assertion of the supremacy of national law.

There can be no doubt as to the nature, origin, and purpose of that outbreak. It was the result of a long-prepared traitorous conspiracy in the interest of the rebels. The enforcement of the draft against mob violence instigated by treason, was indispensable not only to the successful prosecution of the war against the rebels of the South, but to the maintenance of the supreme authority and power of the National Government, and of the foundations of social order at the North. Not to have enforced it might have insured the triumph of the rebellion and the independence of the South; it certainly would have rendered the North no longer a country fit for any decent man to live in. Such and so great was the significance of the crisis. The responsibility of the Administration was immense. The President met it nobly.