CONFISCATION 



223 



" any property, of whatsoever kind or description," 

 which is lawful subject of prize and capture, and liable 

 to be seized, confiscated, and condemned? We answer 

 that it is manifestly any property, of whatsovgr kind, 

 which is capable of being used or employed in aiding, 

 abetting, or promoting the insurrection. The only 

 question, then, is whether real estate can be so used or 

 employed ; for if it can, there is no more reason why it 

 should not be seized and confiscated than any other de- 

 scription of property. Certainly the mischiefs to re- 

 sult from such use of it would be as great as those from 

 the use of property of any other kind. Suppose that a 

 person, with the avowed purpose of aiding the insur- 

 rection, should purchase a piece of ground suitable for 

 his object, and proceed to erect upon it the necessary 

 buildings and machinery for the manufacture of guns 

 and other small arms, and he does proceed, in accord- 

 ance with his previous intent, to the manufacture of 

 such weapons of war, to supply the rebel army, can it 

 be contended that such property real estate, if you 

 choose is not used, and as effectually used, in aiding, 

 abetting, or promoting the insurrection, as any mov- 

 able property whatever ? And if so, why should it not 

 be as much a subject of confiscation as any other? All 

 property used in its ordinary and legitimate mode is 

 exempt from the operation of the act, but the moment 

 it is purchased or acquired, sold or given, with intent 

 to use or employ it in aiding the insurrection, or if the 

 owner knowingly or intentionally uses or employs his 

 property for such a purpose, it immediately becomes 

 the subject of seizure and condemnation under the act, 

 whether it be real or personal property. The words 

 " prize and capture " in the act were intended to have 

 the same meaning which is given to the word " seizure " 

 in the act of July, 1862, and to apply as well to real as 

 personal property. * * * 



Upon the whole, I am of the opinion that the infor- 

 mation filed in this case ought not to be quashed. 



I concur in the foregoing opinion of the District 

 Judge. J. CATRON, Associate Justice. 



The Constitutionality of the Acts. The ques- 

 tion of the constitutionality of the act of 1861 

 was disposed of by Judge Trigg in the opinion 

 in the case of the "Kepublican Banner," as 

 follows : 



The question raised by claimant's counsel in the 

 closing argument, as to the constitutionality of the act, 

 was not made upon the original motion as the same 

 was entered, and was not argued on behalf of the 

 United States. No authority, however, was produced, 

 and it.seemsto me that the arguments relied on to sus- 

 tain its unconstitutionality would be as applicable to 

 any other law of Congress imposing the penalty of for- 

 feiture, as to the act we are considering. 



The constitutionality of the act of 1862 was 

 brought directly in question in proceedings in- 

 stituted in New Orleans in December. No de- 

 cision was given during the year, but the 

 following points were made on either side. M. 

 F. Day, Esq., on behalf of the United States, 

 said: 



When we find terms in that instrument which are 

 not 'clearly defined in the Constitution itself, we must go 

 to the common law to ascertain the meaning of those 

 terms ; and any technical terms in the Constitution, 

 which have a known signification in the common law, 

 are to be understood in the Constitution in the same 

 sense in which thsy are used in the common law. 



Section 3, of Article III., of the Constitution, de- 

 clares that " the Congress shall have power to declare 

 the punishment of treason, but no attainder of treason 

 shall work corruption of blood or forfeiture, except 

 during the fife of the person attainted." 

 _ Now, it has been contended that this provision is a 

 limitation upon the power of Congress for the punish- 

 ment of treason. This is an error. This word at- 

 tainted is not a limitation of the power given by that 



portion of the sentence which precedes it. " The Con- 

 gress shall have the power to punish treason." 



The whole question turns upon the meaning of the 

 word attainder. There is nothing in the Constitution 

 or laws of the United States that tells us what attainder 

 is. When we fix the meaning of the term it will be 

 easy to fix the power of Congress. Attainder is the 

 resulting consequence of a conviction and sentence of 

 death. Then it was a consequence just as certain to 

 follow, as death is certain to follow when the head is 

 severed from the body. The power is given Congress 

 to declare the punishment of treason, except that no 

 resulting consequence shall work corruption of blood 

 or forfeiture, except during the life of the party at- 

 tainted. The consequences of attainder are the cor- 

 ruption of blood and the forfeiture of estate. 



On the whole, I conclude that the Constitution 

 means just as though it read : " You may punish trea- 

 son as you please, but if you make any provision for 

 its punishment, no mere sentence of death shall work 

 corruption of blood or forfeiture of estate beyond the 

 life of the person attainted." The joint resolution in 

 no way limits the operation of the act, except as to any 

 resulting consequences. 



The next position taken by the claimants is on the 

 right of trial by jury. They rely on the constitutional 

 provision that a man cannot be deprived of life, prop- 

 erty, or liberty, without " due process of law, and 

 claim that due process of law means a trial by jury. 



There are two answers to this argument: First, this 

 proceeding can in no case be considered as a criminal 

 proceeding. It is merely a proceeding to enforce a 

 forfeiture, and the universal practice in these cases 

 nas been to enforce forfeitures without trial by jury. 



There is another position that is impregnable that 

 is the war right. We are in a state of war a public 

 war on the part of the United States, and a private 

 war on the part of the rebels. The statutes put it on 

 that ground. The property is to be condemned as 

 enemy's property. 



The whole war power is rested in the President and 

 Congress. There is no power on earth that can dic- 

 tate to Congress what disposition they shall make of 

 the property of enemies, and even when the power is 

 left to" the discretion of the President there is no power 

 on earth that can question it. Who is to say to Con- 

 gress what course they shall pursue, not only toward 

 the rebels themselves, but toward their property, or 

 to attempt to control that body in the exercise of the 

 means which it shall use to prosecute the war. They 

 have an unlimited discretion to do all things necessary 

 to carrv out the power given them by the Constitution 

 of the United States, and they are the sole judges of 

 the means necessary to accomplish these purposes, 

 and their judgment is final and supreme. 



There is no power in the judiciary to limit the dis- 

 cretion of Congress in this matter : whether it is a wise 

 direction or not, they are not responsible to the judi- 

 ciary. The representatives are only responsible to the 

 people. This grant of power to Congress to conduct 

 the war is as broad as a grant can be. Courts -have no 

 power to say how a war should be conducted. 



On behalf of the claimants Mr. C. Eoselius 

 followed : 



The protection of life, liberty, reputation and prop* 

 erty is, or at least ought to be, a preeminent purpose 

 in every government. The powers of the Government 

 are separate and distinct. Those powers which belong 

 to one department are exercised by officers belonging 

 to that department, who exercise their powers inde- 

 pendent of any of the otbers. Each department is 

 separate, co-ordinate and equal. In this admirable 

 system no majesty is recognized but the majesty of the 

 law. And no man can exercise any power except such 

 as has been delegated to him merely as the servant of 

 the people. Man, individually, is without any power, 

 except that power which under the law he has the 

 right to enjoy and exercise. 



Under such a government one of the first principles 

 which strikes the reflecting mind is, that no person 





