But the Senator from Vermont [Mr. Collamer], in his ingenious speech, to which we all listened with so much interest, was truly festive in allusion to certain proceedings much discussed in this debate. The Senator did not like proceedings in rem, although I do not know that he positively objected to them as unconstitutional. It is difficult to imagine any such objection. Assuming that criminals cannot be reached to be punished personally, or that they have fled, the Senator from Illinois [Mr. Trumbull], and also the Senator from New York [Mr. Harris], propose to reach them through their property,—or, adopting technical language, instead of proceedings in personam, which must fail from want of jurisdiction, propose proceedings in rem. Such proceedings may not be of familiar resort, since, happily, an occasion like the present has never before occurred among us; but they are strictly in conformity with established precedents, and also with the principles by which these precedents are sustained.
Nobody can forget that smuggled goods are liable to confiscation by proceedings in rem. This is a familiar instance. The calendar of our District Courts is crowded with these cases, where the United States are plaintiff, and some inanimate thing, an article of property, is defendant. Such, also, are proceedings against a ship engaged in the slave-trade. Of course, by principles of the Common Law, a conviction is necessary to divest the offender’s title; but this rule is never applied to forfeitures created by statute. It is clear that the same sovereignty which creates the forfeiture may determine the proceedings by which it shall be ascertained. If, therefore, it be constitutional to direct the forfeiture of rebel property, it is constitutional to authorize proceedings in rem against it, according to established practice. Such proceedings constitute “due process of law,” well known in our courts, familiar to the English Exchequer, and having the sanction of the ancient Roman jurisprudence. If any authority were needed for this statement, it is found in the judgment of the Supreme Court of the United States in the case of the Palmyra, where it is said:—
“Many cases exist where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other; but the practice has been, and so this Court understand the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personam.”[19]
The reason for proceedings in rem is, doubtless, that the thing is in a certain sense an offender, or at least has coöperated with the offender,—as a ship in the slave-trade. But the same reason prevails, although perhaps to less extent, in proceedings against rebel property, which, if not an offender, has at least coöperated with the offender hardly less than the ship in the slave-trade. Through his property the traitor is enabled to devote himself to treason, and to follow its accursed trade, waging war against his country; so that his property may be considered guilty also. But the condemnation of the property cannot be a bar to proceedings against the traitor himself, should he fall within our power. The two are distinct, although identical in their primary object, which is punishment.
Pardon me, Sir, if, dwelling on these things, I feel humbled that the course of the debate imposes such necessity. Standing, as we do, face to face with enemies striking at the life of the Republic, it is painful to find ourselves subjected to all the embarrassments of a criminal proceeding, as if this war were an indictment, and the army and navy of the United States, now mustered on land and sea, were only a posse comitatus. It should not be so. The Rebels have gone outside of the Constitution to make war upon their country. It is for us to pursue them as enemies outside of the Constitution, where they wickedly place themselves, and where the Constitution concurs in placing them also. So doing, we simply obey the Constitution, and act in all respects constitutionally.
II.
And this brings me to the second chief head of inquiry, not less important than the first: What are the Rights against Enemies which Congress may exercise in War?
Clearly the United States may exercise all the Rights of War which according to International Law belong to independent states. In affirming this proposition, I waive for the present all question whether these rights are to be exercised by Congress or by the President. It is sufficient that every nation has in this respect perfect equality; nor can any Rights of War accorded to other nations be denied to the United States. Harsh and repulsive as these rights unquestionably are, they are derived from the overruling, instinctive laws of self-defence, common to nations as to individuals. Every community having the form and character of sovereignty has a right to national life, and in defence of such life may put forth all its energies. Any other principle would leave it the wretched prey of wicked men, abroad or at home. In vain you accord the rights of sovereignty, if you despoil it of other rights without which sovereignty is only a name. “I think, therefore I am,” was the sententious utterance by which the first of modern philosophers demonstrated personal existence. “I am, therefore I have rights,” is the declaration of every sovereignty, when its existence is assailed.
Pardon me, if I interpose again to remind you of the essential difference between these rights and those others just considered. Though incident to sovereignty, they are not to be confounded with those peaceful rights which are all exhausted in a penal statute within the limitations of the Constitution. The difference between a judge and a general, between the halter of the executioner and the sword of the soldier, between the open palm and the clenched fist, is not greater than that between these two classes of rights. They are different in origin, different in extent, and different in object.