CONFISCATION. 



221 



need only be seized under an allegation of dis- 

 loyal practices, and as the accused cannot be 

 heard to deny that allegation (and if he re- 

 mains silent no proof of it is required), the 

 whole matter is very summarily disposed of to 

 the great comfort and advantage of the in- 

 former, and to the increment of his personal 

 possessions. 



"It was adjudged by the Supreme Court of 

 the United States, in the case of Brown vs. the 

 United States (Cranch 8th), that enemy's prop- 

 erty found on land was not liable to confisca- 

 tion b> the mere fact of the hostile character 

 of the owner, and without an act of Congress 

 expressly subjecting it to confiscation. In that 

 case the court was unanimous, with the ex- 

 ception of Judge Story, who, sitting in the 

 Circuit Court in Massachusetts, had reversed 

 the decree of the District Court acquitting the 

 property, and whose decree was in return re- 

 versed by the Supreme Court. That decision 

 remains unshaken to the present day. Only 

 day before yesterday it was followed by Judge 

 Nelson in the Circuit Court in this very dis- 

 trict, who refused to condemn a quantity of 

 rosin seized in a distillery in Newbern, North 

 Carolina, on the taking possession of that place 

 ' by the Federal forces. 



" Judge Betts most strangely in the opinion 

 speaks of this proceeding under the confisca- 

 tion act as a civil suit. It would clearly have 

 been more pertinent, however, to have shown 

 that an alien enemy, under an indictment for 

 treason, is precluded from being heard in his 

 defence and must be hanged, not because he is 

 guilty, but because, being an enemy, he has no 

 " persona standi " in the court of the country 

 where he is tried. Indeed, it would have been 

 even more to the purpose to produce some au- 

 thority for the proposition that an alien enemy, 

 sued for a debt or for damages for an assault 

 and battery, or other tort, in a court of the 

 hostile Government, must be mulcted in the 

 alleged debt, or damages and costs, on account 

 of his belligerent status, without being heard 

 in his defence ; and finally, the provision of the 

 fifth article of the Constitution of the United 

 States, that ' no person shall be deprived of 

 life, liberty, or property without due process 

 of law,' would appear to an unprofessional 

 mind to bo a much more apt and proper cita- 

 tion. 



"Even in prize causes, where the libel need 

 contain no allegation of ownership, and does 

 not assume to know or to prove who the own- 

 er is, the books are full of cases where the 

 property has been condemned, on the final 

 hearing, it is true, on the ground of enemy 

 ownership ; but it would be difficult to find one 

 where the whole case had been prejudged on 

 a motion to strike the claim from the files, 

 thus depriving the party of the opportunity of 

 a hearing on the merits and precluding him 

 from an appeal." 



Duration of the forfeiture. It will be re- 

 membered that, after the passage of the act of 



1862, a joint resolution explanatory of the act 

 was passed, to obviate an objection raised by 

 the President as was suggested, and which ap- 

 pears in his message of July 12th, 1862 (see 

 ANNUAL CYCLOPAEDIA, 1862, page 374), being 

 that the provisions of the act divesting title 

 forever were unconstitutional. The constitu- 

 tional restriction that " no attainder of treason 

 shall work corruption of blood or forfeiture, 

 except during the life of the person attainted" 

 and to enforce which the resolution was passed, 

 received judicial construction in proceedings 

 instituted under the act. Judge Wylie, in his 

 decision before quoted, held that this provision 

 did not forbid the absolute forfeiture of real 

 estate. 



The question was elaborately argued by 

 Judge John C. Underwood, of the United 

 States District Court for the eastern district of 

 Virginia, in his opinion upon proceedings for 

 the confiscation and sale of the real estate of 

 one Hugh Latham, and in which he decreed a 

 sale of the estate, and a conveyance of the 

 same in fee to the purchaser. He arrives at 

 this construction as follows : 



The decree in this and similar cases must depend 

 np_on the construction given to article third, section 

 third of the Constitution of the United States, and the 

 legislation of the last Congress for the confiscation of 

 rebel property. 



This court cannot limit the decree to a condemnation 

 of a traitor's right, title, and interest in the property 

 forfeited for the term of his own life, with a reversion 

 to his heirs, for the reason that it does not consider 

 such limitation warranted by the section and acts of 

 Congress above referred to. The language of the Con- 

 stitution is as follows : 



The Congress shall have power to declare the punishment 

 of treason, out no attainder of treason shall work corruption 

 of the blood or forfeiture, except during the life of the per- 

 son attainted. 



The authors of the constitutional proTision were 

 doubtless profound lawyers, and used the term " for- 

 feiture " in the strict technical and well-settled legal 

 nieaning. Blackstone gives us a whole chapter on this 

 important word, which he begins thus : 



Forfeiture is a punishment annexed by law to some ille- 

 gal act or negligence in the owner of lands, tenements, her- 

 editaments, whereby he loses all his interest therein, and 

 they go to the party injured as a recompense for the wrong 

 sustained. 



Again he enumerates " forfeiture," deed, device, etc., 

 as the modes of absolute conveyance of real estate, and 

 it seems clearly that this was the sense in which it was 

 used in the constitutional provision. 



The court holds that the authors of the clause 

 meant not that only the life-tenure of real es- 

 tate should be forfeited, but that the act of 

 forfeiture must be legally completed during the 

 lifetime of the party attainted. The word ex- 

 cept should be used in the sense of unless, the 

 sense in which it was used commonly at the 

 time the clause was drawn, and which is given 

 by "Webster : 



If we use the word "except" in the above sense in 

 the constitutional provision, or make it read " unless 

 during the life of the person attainted," we shall at 

 once come to the true intent and meaning of the pro- 

 vision, to wit : That the forfeiture was to DC perfected 

 during, and not after, the lifetime of the party at- 

 tainted. 



The conclusion reached by Judges Wylie and 



