The Burlington weekly hawk-eye. [volume] (Burlington [Iowa]) 1860-1876, 1863-11-14
The Confiscation Act Of 1861.

| we mentioned last week that the United
States Court was engaged in hearing the
argument in a suit against the Republican
Banner printing office and real estate, IL
beled for confiscation under the act OF Aug.
6, 1861. The opinion of the Court was de-
| livered Yesterday. Itoverrules the motion
| of the defendants counsel to quash the libel
of information, and sustains the law. The
opinion was pronounced by Judge Trlgg,
Associate Justice Catron concurring. The
opinion will be found at length below
Under this decision there can be no doubt
about the confscation of the property in
volved. The Banner concern, and its con-
| federates the Union and American, Gazette,
Patriot, &C., may be regarded as on the
high road to contiscation. -NdShvitle Union,
Nou. 9Th.
| THE UNITED STATES VS.. REPUBLICAN BAN
| N:R OFFICE, &C., NO. s..
| This cause is submitted to the court upon
a motion to quash the information filed by
the United States Attorney, upon the
ground that the real estate mentioned there
| in was not subject to seizure by virtue OF
the act of August 6, 1861, under which
the proceeding in this cause has been in
| stituted.
The question, then, to be decided by this
Court is, does the act Of Aug. 6, 1861, en-
brace real estate within its provisions, and
make that, as well as personal property,
for the causes mentioned in said act, a
subject of seizure. contiscation and con-
aemnation?
The act reads as follows: 18th Statutes
at Large, 319.) I'VE omit the act.
| 1t is not denied that the words of the act,
"and property of whateverkind or descrip-
ton" are very comprehensive, 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 prop
erty by the broad and comprehensive Ian
guage emplyed, 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 en-
| ployed, as herein stated.
The act declares that call such property
is hereby declared to be lawful subject of
prize and capture wherever found" and it
| is argued that the words "prize and cap
ture' are purely technical in their mean
ing, and apply only to personal property,
real estate not being a subject of prize and
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 prevl-
Gus words, and limit and confine their OPP
Grafton to that descrition of property to
which "prize and capture" alone are appli-
cable.
| The words of statute are ordinarily to
be understood in their common, popular
sense, regard being had to the connection
in which they are used, and the subject to
which they relate. But it is equally a rule
| of construction, contended for by the
counsel of the claimants, that technical
words must be understood in their techni-
cal sense, as applicable to the subject of the
statute in which they are used. They must
be technical to the subject of the particular
statute, and not to any other subject. The
more common application, however, Of
| hi rr,ln &c To unrIS YNhr w al
have obtained a peculiar legal Specification.
In law phrase many words have an exact
technical sense, unlike or more limited or
extended than their popular one; and in
| this sense they are ordinarily to be con-
structed in statutes. l Bsh. 36S-9-70.
! Now let us test the application of these
| rules to the statute we are considering, and
see how far those technical words, 'prize
and capture on which the argument of
the counsel of the claimants is based
should he permitted to govern its construc-
| ton.
prize and capture" are undoubtedly
| words which have technical meaning,
and if those words have obtaineda pecu-
liar legal Specification, an exact technical
sense, applicable to the subject of the stat
ute, then, under the above rule, they must
| be understood to have been used in that
sense, and thus control US in our construc-
| ton of that statute.
!
now have in view, to inquire into the ORR
gin Of Courts Of Admiralty and their juris-
dction as prize courts, or as instance
courts. 1t is sufficient for our present pur-
pose to note the fact, that Prize Courts of
Admiralty have existed for very long Pc
Rod, and that their jurisdiction is quite
distinct from the ordinary Admiralty
Court, although blended in the same
Judge. The jurisdiction of these Courts,
and in England the prize court itself, is
only called into action in time of war, and
is governed by general principles Of policy
and the law of nations. The ordinary prize
jurisdiction of the admiralty extends to
all captures in war made on the high seas.
81 know of no other definition of prize
goods,' said Sir. William Scott, in the case
Of the Two Friends, ethan that they are
goods taken on the high seas, ja.re beth, out
of the hands of the enemy" l Rob. Rep.
81, cited Kent 39l, Ninth Edition. Then,
according to constitute goods or property
under the ordinary legal acceptation ofthe
term, they must be taken or captured on
the high seas, must be so taken jure 6eth,
and must be taken out of the hands of the
enemy. In fact it has been held, that
goods taken on shore as prize, where
there has been no act of capture on the
high seas, were not to be considered as
prize, and that the Prize Courts had no jul
| risectiOn in such a case. Cited by Sir
William Scott in the case ofthe Two Friends
above referred to.
The term p,'ize then would seem to have
an exact legal and technical Specification,
and is appropriate only to captures made
from an enemy on the high seas in time OF
war. And if our construction of the sta
tute of August 6, 1861, is to be limited by
the strictly technical sense of the words
prize and capture it would follow that
such property only as might be captured
upon the high seas, or which was intended
to be used or employed in aiding or pro-
noting the insurrection. could be the law,
full subject of condemnation under said
statute. Thus it will be seen that, in the
construction Of the act under considera-
ton, if we are to be controlled by the pure
ly 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 prop
erty on land would be exempt therefrom
and be not lawful subject of prize.
i do not mean to assert that Congress has
not the power to declare any other proper
ty, than'that which shall be captured from
an enemy in time of war; upon the high