The New York herald., 1869-01-13

hostilities may be enforced afterwards That was
decison In that case reversed decision Of Chief
Justice Taney In the Maryland district TO the con-
the % ean enforce re- an act " Of forfeiture IN
Cured by the defendant In this case IN respect to
perty now claimed, Notwithstanding the Pres-
ton OF hostlllties. There is no doubt about
that. But the dldculty in this case lies back OF all
prove the rst material allegation in the information
In the case and that is that they are entitled TO the
Of the property n such ~ manner snss
IN this action Now, the reason take this view Is
this the nth section declares that all property IN
there Ii the decision Of Chief Justice Taney. IN the
Maryland district 10 the eject that the clear inter-
pretanon Of that section y snas NO property
was actually seized while Ia such ransttu.
without passing on that point, am not satisfied
Of the act that for the oence set forth the property
shall be forfeited TO the United States tnasmuch Is
y @ ts nss ana 'ns
the ninth section must be considered IN connec-
ton with the nth. And the ninth section pro
of the property claimed. must be pursued in
any court OF the United States In any district where
ceednrs nued and sneh ase COURT sSa have
diction the same as u the seizure had been
made 10 such district" My view Of the statute s that
the nth section to be enforced "only" by seizure
Of the property, and that it cannot be enforced IN
Is statutory II Congress thought 1T TO limit the stat
ut0ry right OF the United States forfeiture TO be
enforced by seizure only Of the property and while
the government Is so limited, and inasnuch as that
Is Its only right, and unable to seize the property
their right consequently to the property not seized
does not come into being and 1t is limited to i'm
perfect. right. Congress has not gone further
than to say, "You can have the property
yo1 asaosz can se,ze n,,s', is - bn. & Dy any ny
him, has disposed Of the property that the govern
ment cannot seize II ana become possessed OF 1t,
then the government cannot enforce the forfeiture.
That is entirely consistent with the argument OF
counsel. but that the power III limited which he
cnnmse 70 ~ Is Ssray Me ,e nn,s dis%en
Interpretation upon the statute from that put on IT
by the counsel for the government. There have
cided 18th Howard), which lays down the law in gen.
eral LANGUAGE, as cited by counsel.
rendered dul bv the courts to this case
the lasr OF which was that In Sth Howard, delivered
by Judge Wayne, and continued
That decision must be considered as going no
further than the question before the court; and II IS
contrary, IN my ludgment, 70 sound principle PIE M and
tains that the United States can enforce for
feiture OF property In suit OF the kind now before
the court, by claiming that the forfeiture, as be-
plete and perfect at the time Of the commission Of
the offence, without any judicial proceedings
ant at 1et the time. respecsive of 'ns
IL 1t was 80 under some statute-I do not
think It can be so under the statute Of 1851.
or the act, taken in connection with the ninth sec
tion, Is forfeiture that can be enforced only by
be enforced in his action even Il the regustons Of
the Secretary OF the Treasury to be considered
coming under judicial notice, and even assuming
that this property would be forfeited by the effect OF
treasury in pursuance q tie act Of isss si that
same section declares that the property which shall
be seized In violation Of the Treasury regulations
shall be forfeited to the United States, yet the
fnrf fOrf
accruing under the act shall be pursued In the mode
prescribed by the eighth and ninth sections OF
So that in that sense the construction OF the OF
1852 Is precisely similar to that OF 1861 and therefore
sse ecesSu@s ssSss o1 qs g Se SasS s4 @ q
"by seizure Of the property and In no other way.
slider these @ two acts a E Going toseiIer because they
afterwards coupled together in the regulations.
me act Of August only provides that 4 any person.
have declared by proclamation that there ls an IN
surrection, shall have or give any property 70 aid
perty 20 be seized, condemned ana confscated, and
the confscaton shall take place In the District or
Circuit Court having Jurisdiction ~ admiralty
does not declare forfeiture at ALL but provides that
the President shall cause the property 70 be selze,
not refer TO 1t at all Therefore II u plain there
be no suit instituted unless the property 10 drst
seized.
Then again. the act of July II, lso2 to insure the
speedy termination Of the rebellion. In It no for
feiture Is declared It only provides that the Presi
Of y Gnsd X Sos
appear In this case that there was any property
a A ana e. Sw ns ss .oy s esn &c
Judged from what s appended to H. for the informa
ton embodies the affidavit In itself as part OF the
infornatIon and the information emb0dies the am
davIt In itself a. part Of the afdavit each embraces
the other, and from the construction to be put on
both together 1t IS quite evident that the
the property & Of the public auth authorities n ,ss
sovereign right or the United States they were the
owners OF II; that they became the owners OF this
property from the very moment that these rebel
authorities claimed It. Whether you call this a sue
cession or not Is OF no consequence; that Is the
theory Of the Information. II 1t was shown that this
property did belong 10 those rebel authorities carry
ing on this rebellion and calling themselves Con-
federate government-if this were proved, then the
right OF the United States by virtue OF ts being the
sovereign power-and these authorities being rebel
authorties-woud be paramount, and 1t would
become the rightful owner OF the property,
o. q hs na n e ~
the sovereign authority OF the United states would
undoubtedly make conversion OF the property In
this case tort, and make II wrong against the I'M
diate right OF possession by the Unred states. But
there Is no testimony TO tins erect in the case On
the contrary we evidence Is quite clear that none OF
the property OF the so-called Confederate gov
ernment, or Of any subordinate government state
United states. So, as before remarked, the right
lies at the very threshold of the case
that ,he claim TO recover rests on the whole
statute, aud, In my Judgment, is not supported by
the statute, even concedns all the facts TO be az
shown by the government; and therefore, under the
decision quoted It viii be the duty OF the Court to
instruct the jury that on both the facts and the law
the claimants cannot recover, and that the verdict
VIII be for the defendant and against the govern
ment am not satisfied but that should hesitate
Ia 80 instructng the jury IN case like this OF such
importance 4 Il was not perfectly clear to me and II
not recover under any circumstances. !, therefore,
gentlemen OF Che Jury under this view OF the case
both ~ 20 the facts and the law instrnct you to rem
der verdict for rhe defendant.
Mr. Phelps moved for u stay OF proceedings TO
enable the government to prepare writ Of error.
The Court granted thirty days lor the purpose.
Mr. seward moved the discharge OF the attach
ment against the property. Action was deferred by
the Court on the motion for the present. Counsel
for the government Samuel q. Courtney United
States District Attorney, and Mossrs. h. K. Phelps
and simon, Assistant District Attorneys: Messs.
John h. Ward and Clarence Seward Tor defendants.
The Court adjourned Till this morning.