New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-12-24
more estsl [ished for civil authority
throughout the land. When this is done
the people will be able to correct other
abuses.
JUDGE TALIAFERRO ON CONFISCA.
TlON.
Dissenting Opinion.

Dissenting Opinion.
The following opinion OF Mr.. justice
Taliaferro is published by request of man,
of our citizens who feel an interest in tn!
question. 1t will be seen that this AN
.jurist takes the same view of contiscatior
as tina. entertained by the Supreme Cour
Of the United States in the case of Miller
executors against the United States. deed
ed last spring, and published in the RE
PUBLICAN in April. The decision is also re
ported in II Wallace:
dissent from the opinion of the majority
Of the court for the following reasons:
The act of Congress OF July II. 1862 was
enacted for several purposes, and embraces
different and distinct objects. Among these
objects, two are pre-eminent: First. to pun
ish treason and rebellion; second. to seize
and coniiscate the property of rebels. The
first three sections declare the punishment
to be inflicted upon persons convicted OF
treason against the United States or of in,
citing, assisting or engaging in rebellion
against the United States. Persons con
victed of either of these offenkes incur pains
and penalties that are to affect them per
sonally. In the case Of treason they are to
suffer death or imprisonment not less than
L,
be fined not less than ten thousand dollars.
and to be deprived of the ownership of
stores, if they own any, the fine to be levied
and collected on any or all of the property,
real or personal, excluding slaves. In the
case of melting to rebellion, or aiding or as
sisting therein, etc. imprisonment not to
exceed ten years, Il fine not exceeding ten
thousand dollars, liberation OF slaves, if
owning slaves, etc, at the discretion OF the
nrfI, Ia, Il
to be forever incapable Of holding any Office
under the United States
Let 1t be observed that the provisions of
these three sections Of the act apply to any
and all persons without distinction.
The fourth section has no immediate bear
ing on the subject of the penalties pre-
scribed for Otfenses under the act.
The fifth section makes it the duty of the
President of the United States to cause the
seizure of all the estate property. etc, of
every kind Of certain persons designated
therein III six different classes, and to apply
and use the same and the proceeds thereof for
the support of the army of the United States.
The succeeding sections provide the mode
by which the provisions OF the fifth section
shall be carried out. The proceedings are
to be IN rem. The courts to be vested with
power to make such orders, establish such
forms Of decree and sale and direct such
deeds and cOnveyances, where real estate is
sold, as shall vest in the purchasers Of such
property good and valid titled.
Here, then, we have by that fifth section
entirely different purpose OF the legisla-
ton. He does not appear here as the
avenger of wrongs. nor does ne evince the
disposition to punish the wrong-doer cor
poreally, or by fine, or disabilities. That he
has already done in his sovereign capacity
by the provisions of the three first sections
He now, by the law which belongs to him
by the established rules of war. a calls him
self of the property OF those who have as
sumed towards the nation the attitude of
public enemies, to obtain means to help to
support his own armies by depriving his
enemies to that extent OF means to support
them.
That Congress possesses this right under
the war power there is, l concluded, no
doubt whatever 1t is right inherent in
the nation from the order and fitness OF
things, and which can not clearly perceive
how it can divest itself of. Unless there be
clearly and directly indicating
that Congress has ignored this right. or alb
solutely refused to exercise It. must think
the provisions Of the fifth section show that
it did exercise it. There is certainly no
good reason why Congress should deprive
itself of that important power. and more
when the same power was re-
sorted to by the formidable coalition then
raised against the very life OF the nation.
The resolution bearing the same date with
the act. provides that no punishment or
under said act shall be SO con
strued as to work a forfeiture OF the real
estate Of the offender beyond his natural
life"
1t is referred to as matter OF history that
this resolution was passed iii conformity
n NJ In of I
his doubts of the constitutionaliiy Of the
act. That being the avowed purpose for
which the resolution was passed, the pro-
visO it contains should bear only against
that part OF the act, if any, which is OBJ
loxiOus to the objection raised by the
President. A fair Interpretation, then, of
he resolution, it would seem. restricts
t to those sections which provide for the
of offenders. The fifth section
If the act provides for the exercise of rights
arising from the war power, and are clearly
rec from constitutional objections Ii.
hen, under proceedings authorized by the
ixth, seventh and eighth sections of the act,
owned at the time OF its passage by
persons designated under the fifth section
las been sold, what is to prevent the pur-
'haser from getting a fee simple title! He
acquires, as the law declares good and |
aid title, and this must mean a title in fee,
lnless the qualifying terms of the resolu-
ion limit it to life time estate: and it
learly appears to me it does not III this !
ase, as the property was not sold under
Teri tacias to satisfy personal judgment |
gainst Benjamin, imposing a fine or forfeit
ire. but the proceeding was IN rem, and |
in all respects to admiralty pro-
ceilings The case of Bigelow vs.. Forrest, |
Wallace p. $780, seems at variance with the |
Jews here taken, which, however, think |
re sustained by subsequent decisions of !
he Supreme Court of the United States,
nd especially the cases of NIiller's Elk. VS.. |
he United States and Tyler VS., Defrees, !
eported in IL Wallace. If these cases con-
ict with the views expressed III Bigelow |
g. Forrest, the authority of the latter case |
would seem to be Overruled.
But the plaintiffs hold that whatever be |
he effect OF the decree as to Benjamin |
heir rights are not impaired; that their
mortgage follows the property: that it was |
lot the purpose OF the act Of Congress of |
nly, 1862. to involve the innocent with the |
utility, and that no condemnation of the
after can affect the former.
This plea, l think, is entitled to but little |
onsideration Tile action was in rem,
'urely an admiralty proceeding III form.
ons were notified to come forward and |
make known their objections, if any ex-
sted, why the sale should not be made.
his stood in the place of personal citation.
nd was equivalent to it. 1t was then in
umbent upon the plaintiffs to have made
Injection or to have claimed priority in the
distribution of the proceeds. The pur-
haser obtained the property free of all
laims or liens whatever, and think judy
nent should be given in his favor.
Johnny Lowlow and young Sam Stickney
want to say to all the little boys and girls
hat they have made arrangements to stay |