Daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1859-1865, 1862-01-30
[From the Press Of yostcrday.I
L. S. DISTRICT COURT.

I
U. S. DISTRICT COURT.
Special Term.
At the opening of the Court, ON Tuesday.
| his Honor, Judge jackson, delivered his
decision upon the construction of the
conhscation act of August 6, 1861. as fol-
lows:
U. States of AnCrica) Upon a proceeding
Matthew Il. Houston.
This is proceeding instituted under tile
act OF Congress passed August 9th, 1861,
entitled an act to cOuisc0tc property used
for 1nsrrrectionary purposes, in which the
construction of the first section comes up
Tor the hrst time in this Court for decision.
The questions involved have been discussed
with much ability by the District Attorney,
on cehalt of the Government, and by three
different counsel, for the defendant, The
difficulties that present themselves to the
mind of the Court do not arise so much
from giving construction to the statute,
us they do from the application to be
made of it. AS the questions involved
are likely to be of frequent occurrence,
1t becomes important to the country to
know the effect of the operation of this
law. 1t is conteuded by the counsel for
the Govcinnsnt that this statute, whilst it
is penal is also remedial. On the other
hand, the counsel of the defendant contend
that the statute is IL penal one, and must be
surety construed ltis IL general rule that
pch"l laws are to be strictly construed.
This rule, however, is subject to some
notifications, one of which is-that penal
statut3S are not to be construed so strictly
as to dNent the obvious intention of the
Legislature. TITS therefore proper, esDc-
| Clhlly us the statute is for the first time
the subject OF judicial Interpretation, to
reterto the mischief that Congress desired
to provide ii remedy for, as well AS the
punishment sought to be imposed upon the
authors and ahettOrs of it. Whut then
was the evil complained of? IL was re-.
hellion set Ou foot by citizens of portion
of the States, against the Ia Hful exercise
OF authority by the Federal Government of
those States. What then was the remedy
provided by this act! 1t was first to in
duce those to Withdraw from the rebellion
who were connected with it at the passage
of this act. Second, to deter and prevent
others from engaging in the rebellion who
had not UP to that time Joined it, This
may he considered remedial in its charnc-
ter. What was the punishment of the per-
son who adhered to, or joined tho rebel
lion after the President issued his procla-
nation 1t was the loss or contisCation of
all property which in any way gave life
and vitality to the rebellion. The COURTS
therefore of the opinion that this law
should be so construed as to give to the
words employed their fullest import, there
by embracing everything the Legislature
intended by the use OF them.
Having promised these general remarks,
the Court will proceed TO the examination
of the act, it being the desire OF the Court
! tFNn -tru1i 1it,1r NlNi
the intention of its trainers only so far as
that intention can be fairly deduccd
from the language of the net. There are
two clauses to this section. The first clause
! provides that ''if amy person or persons,
MS her or their agent, attorney or em-
ployee, shall purchase or acquire, sell or
give any property of whatsoever kind or
description, with intent to use or employ
the same, or suffer the same to DO used or
employed in aiding, abetting or promoting
such insurrectiOn or resistance to the laws
or any person or persons, being the owner
or owners of any such property, shall
knowingly use or employ, or consent to the
use or employment of the same as afore.
said" then all such property is declared
| the subject of prize, capture and confisca-
ton.
The Court is of opinion that the words
sOeyer kind or description" comprehend
every species of property, real, personal
aud mixed. Tha; it is not necessary that
the property 'Purchased or acquired" !"
"sold or given" as p, divided in the first
clause, should be actually used 'sto aid
abet or promote the insurrection or the re-
sisthnce of the laws OF any person or per-
sons engaged therein," to consummate the
forfeiture contemplated by the act. 1t is
sufficient if the purchase or acquisition.
sale or gift is made with the intent SO to
be used. The word intent in that clause
is potential, and determines the forfeiture
whether the property is used or not. If
actually SO used it would furnish stronger
evidence of the intent, for without the in
tent the forfeiture could not accrue under
the FIRST clause.
The second clause differs from the frst
in this: 1t does not contemplate pur.
chase or acquisition, sale or gift. tits in
tended to operate against the owner who
knowingly uses or employs, or consents
to the use OF employment of the property
for the purposes indicated in the GFst
clause. In the first clause the use is not
essential to the forfeiture, whilst IN the
second clause in the case of the owner, the
"use" is essential. What would constitute
sRch use, is question of law and fact to
be determined by jury under instructions
from the Court upon the facts as they may
be presented in each case upon trial.
The Court'is further of opinion that the
words ''any such property" in the second
clause, refer to the words ''any property of
whatsoever kind or description" in the
first clause, and that the second clause
should be read as actually embracing
those words. The Court does not concur
with one of the counsel for the defence
that these words in the second clause, re-