222 



CONFISCATION. 



Underwood, it will be seen, is in direct conflict 

 with the opinion of the President at the time 

 of the passage of the act of 18C2. The con- 

 struction of Judge Underwood, which over- 

 ruled this opinion of the President and his 

 decree, which seems to disregard the explana- 

 tory resolution of Congress, viz. : that " no 

 punishment or proceedings under said act shall 

 be so construed as to work a forfeiture of the real 

 estate of the offender beyond his natural life," 

 would appear to have received the sanction of 

 the Administration, and a great number of 

 cases were decided in conformity with the prin- 

 ciples laid down in the Latham case as it was 

 stated about the first of December, as follows : 

 The Hon. John C. Underwood, Judge of the United 

 States District Court of Virginia, has just returned 

 from Norfolk, where he has cleared the docket in three 

 days, five out of the twenty cases upon it being post- 

 poned in consequence of the absence of witnesses. 

 Decrees were entered confiscating the personal and 

 real estate of fifteen rebels, of whom three were for- 

 merly in the Union navy, and are now in the rebel 

 navy, viz. : Commodore Barron and Capts. Page and 

 Sinclair. Some of the estates confiscated are among 

 the finest in the aristocratic quarter of the town. The 

 fee simple, according to principles laid down in Judge 

 Underwood's decrees at Alexandria, goes to the pur- 

 chaser from the United States. The court was ad- 

 journed till the third Monday in January, when it 

 is anticipated that about one hundred cases will be 

 disposed of under the confiscation law. Yesterday 

 Judge Underwood opened court again in Alexandria. 

 Of the seventy cases which were on the docket there, 

 about half are yet to be disposed of. 



Is real estate covered by the act 0/1861? 

 In November an information was filed in the 

 United States Court, held at Nashville, Ten- 

 nessee, against the "Republican Banner " print- 

 ing office and real estate, under the act of Au- 

 gust 6th, 1861. A motion was made to quash the 

 information, on the ground that real estate did 

 not come within the provisions of the act, not 

 being property subject to prize and capture. 

 This motion was denied on the 6th of Novem- 

 ber, by Judge Trigg, with the* concurrence of 

 Justice Catron, of the Supreme Court of the 

 United States. The following are extracts from 

 Judge Trigg's opinion : 



It is not denied that the words of the act, " and prop- 

 erty of whatever kind or description," are very com- 

 prehensive, and in their terms embrace real as well as 

 personal property. But it is insisted that Congress did 

 not intend to include all kinds of property by the broad 

 and comprehensive language employed, and that this 

 is manifest from the words used in the act denouncing 

 the penalty against the property used or employed, or 

 intended to be used or employed, as therein stated. 



The act declares that " all such property is hereby 

 declared to be lawful subject of prize and capture 

 whererer found;" and it is argued that the words 

 "prize and capture" are purely technical in their 

 meaning, and apply only to personal property, real 

 estate not being a subject of prize ana capture, and 

 that these words, therefore, must be understood to have 

 been used in their technical sense. And the words 

 "prize and capture" being thus technical in their 

 meaning, must control the previous words, and limit 

 and confine their operation to that description of 

 property to which "prize and capture alone are ap- 

 plicable." 



**** 



The term prize then would seem to have an exact 



legal and technical signification, and is appropriate only 

 to captures made from an enemy on the high seas in 

 time of war. And if our construction of the statute of 

 August 6th, 1861, is to be limited by the strictly tech- 

 nical sense of the words " prize and capture," it would 

 follow that such property only as might be captured 

 upon the high seas, and which was intended to be used 

 or employed in aiding or promoting the insurrection, 

 could be the lawful subject of condemnation under said 

 statute. Thus it will be seen that, in the construction 

 of the act under consideration, if we are to be controlled 

 by the purely technical meaning of the words " prize 

 and capture,'' the operation of the law will be confined 

 to such captures only as may be made upon the high 

 seas, and all property on land would be exempt there- 

 from, and be not lawful subject of prize. 



I do not mean to assert that Congress has not the pow- 

 er to declare any other property, than that which shall 

 be captured from an enemy in time of war, upon the high 

 seas, a lawful subject of prize; but simply to maintain 

 that no capture of property as prize can be so consider- 

 ed technically, unless there be an act of capture on the 

 high seas. In other words, that property captured or 

 taken on land as prize could not be considered as prize 

 in the technical meaning of the phrase, and that the 

 prize court would have no jurisdiction over it. 



The question presented to the court is not without 

 difficulty, but it is clear, from what has been stated, that 

 in giving a construction to this statute, it will not do to 

 be limited by the mere technical sense of the words 

 " prize and capture," for in that case it is apparent 

 that a large and distinct class of property would be ex- 

 cluded from its operation. And it is manifest from the 

 reading of the act that property^ other than such as* 

 might be captured upon the sea "was intended to fall 

 within its provisions. For the act, independent of the 

 sweeping provision " any property of whatsoever kind 

 or description," expressly declares that " all such prop- 

 erty is hereby declared to be lawful subject of prize 

 and capture wherever found." To give a just con- 

 struction, therefore, to the statute we must ascertain 

 what the Congress intended, and to do this, after look- 

 ing at the words of the act itself, we may look to the 

 surrounding facts and circumstances which would 

 properly have influenced Congress in its passage. 

 * * * * * 



These technical words, then, cannot control us in our 

 construction, and we must look to the whole body of 

 the act, ascertain the intention of Congress in passing 

 it, and construe the technical words " prize and cap- 

 ture," in the sense intended by them, and not in the 

 strict legal sense in which they are usually understood. 

 *#**** 



The act declares that if " any person or persons, 

 his, her, or their agent, attorney, or employe, shall 

 purchase or acquire, sell, or give any property of what- 

 soever, kind or description, with intent to use or em- 

 ploy ttie same, or sufier the same to be used or em- 

 ployed, in aiding or abetting or promoting such insur- 

 rection or resistance to the laws, or any person or per- 

 sons engaged therein ; or if any person or persons, be- 

 ing the owner or owners of any such property, shall 

 knowingly use or employ the same as aforesaid, all 

 such property is hereby declared to be lawful subject 

 of prize and capture wherever found ; and it shall be 

 the duty of the President of the United States to cause 

 the same to be seized, confiscated, and condemned." 

 The language of this act is broad and comprehensive, 

 and, looking at the surrounding facts and circum- 

 stances at the time, there being then a formidable re- 

 bellion in progress, the intention of Congress, in en- 

 acting this law, must have been to deter persons from 

 so using and employing their property as to aid and 

 promote the insurrection, and thereby to diminish and 

 weaken the power of the rebellion ; and perhaps it was 

 also intended, by taking from him his property so un- 

 lawfully e_mployed, to inflict upon the party a penalty 

 for his misconduct in thus aiding and promoting a re- 

 sistance to the laws. What, then, is included, it may 

 be asked, under that broad language of the statute, 



