The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-11-14

ed, and to do this, after looking at tho
words of the act itself, we NAV look ~ t tLe
surrounding facts and circumstances wb;ob e
would probably have influenced Congress-
in its passage. , e'ess
And In order that technical words usad;
the act may not be deprived of their inn.
weight i'm fixing its construction. wa nus, Jus.
regard the subject of it, and see wbethnss
those technical words are technical IN i.s
supIect, Tor II they are, they must be under.
stood in their technical sense. If the words
used are not technical to the subject of tbs
act, they are improperly or inacurataIv
used, and it is rule of construction that Z
| words or expressions are used inaccuratsIr
they will be construed in the sense miami
ed, where that sense appears upon H.
whole face of the act. Now what is The
subject of the act we are considerinp9 10
is the confiscation of property used T., ~
surrectionary purposes; and 1t is dif6cnit
to perceive that the technical words relied
upon to govern the construction of tho an.
are or can be technical to that subject. Fo.
by said act new class of forfeitures. if wa
may so term them. is created, growing ont
OF the present unhappy condition of our
] country, and which were never before
known to our laws. These technical words
then, cannot controlus 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 capture" in the sense intended
by them, and not in the Strict legoL sense in
which they are usually understood.
The act declares that if "any person or
persons, his, her, or their agent, attorney
or employee, 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 be
used or employed, in aiding or abetting or
promoting such instruction or resistance
10 the laws, or any person or persons en-
gagged therein; or if any person or persons
being 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, contiscated, and condemned The
language of this act is broad and compre-
hensive, and looking to the surrounding
facts and circumstances at the time, there
being then formidable rebellion in pro-
gress, the intention of Congress, in enact
ing this law, must have been to deter per-
sons from SO using and employing their
property as to aid and promote the insur-
rection, and thereby to diminish and weak
the power of the rebellioH-and perhaps it
was also intended, by taking from him his
property so unlawfully employed, to in
flict upon the party a penalty for his mis-
conduct in thus aiding and promoting re-
sistance to the laws. What, then, is inclu-
language of the statute, "Gny property Of
whatsoever kind or description" which is
lawful subject of prize and capture, and
liable to be seized, confiscated, and con-
demned? We answer, that it is manifest
lv any property, Of whatsoever kind,
| >;ol,: l.
in aiding, abetting or promoting the insur-
rection. 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 contiscated
than any other description of property
Certainly the mischefs to result from such
use of it would be as great as those from the
use ofproperty of any other kind. Suppose
that person, with the avowed purpose of
aiding the instruction, should purchase
piece of ground suitable for his object. and
proceed to erect upon it the necessary bull
dings and machinery for the manufacture
of guns and other small arms, and he does
proceed, in accordance with his previous
intent, to the manufacture ofsuch weapons
of war, 70 supply the rebel arIiy-can it be
cOntended that such property, real estate if
you choose, is not used, and as effectuay
used, in aiding, abetting, or promoting the
instruction as any movable property
whatever? And, if so, why should it not
be as much 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 in
surrection, or if the owner knowingly or
intentionally employs his property for such
purpose, it Immediately becomes the sub
iect of seizure and condemnation under the
| act, whether it be real or personal proper
| ty. The words "priZe and capture in the
act were intended 10 have the same mean
ing which is given to the words 'seizure'
| in the act Of July 1882, and to apply as
we'll to real as to personal property.
The second! section does not affect, or IN
any manner conflict, with this construction
of the act. That section only provides for
| the condemnation of the property seized,
and directs in what courts it shall be
made. It declares "that such prize and
capture shall be condemned in the District
or Circuit Court of the United States hav-
ing jurisdiction of the amount, or in adj
mirality in any district in WHICH the
same may be seized, or into which they
may be taken and proceedings first instl-
tuted." The plain Interpretation OF this
provision is, and no Doubt it was so intend
ed that the District Court, and, where the
value of the property seized shall amount
| to the sum of five hundred dollars, the
Circuit Court, concurrent with the District
Court shall have cognizance of such sell
zure when the same shall be made on land
or on waters not navigable from the sea BY
vessels of ten or more tons burden. But
if the seizure be made upon the high seas
or on waters navigable from the sea by
vessels of ten or more tons burden, then
the proceedings must be instituted bv the
Admiralty, and of course in the District
Court, which by the act of 1880, has exciu-
sive cognizance of Admiralty cases.
The question raised by claimants com
sci in the closing argument, as to the con-
stitutionality of the act, was not made
upon the original motion as the lame was
entered, and was not argued on behalf OF
the United States. No authority however
was produced, and it seems to me that the
arguments relied on to sustain its constr
tutionality would be as applicable to any
other law of Congress imposing the penalty
of forfeiture as to the act we are consider
ing.
Upon the whole, 1 am of opinion that the
information filed in this case ought not 70
be quashed. .
| concur in the foreuoinp Opinion OF the