New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1872-06-21

/ 1t seems 70 me JnaG the case does not show
| sufficient evidence of notice to Marcuard
that any unlawful use was to be made Of
the money loaned by him to defeat his
claim.
Surprising the debt to be valid one, was
/ it a lien or charge upon the property in
\ question when the cause Of contiseatiOn
| occurred This cause can not be said to
have occurred before the passage of the act
1 of Congress, July IL, 1862 but from that
moment it existed, and the general rule is,
/ that Judgment of confiseatiOn relates back
TO the act which causes it. The question,
| then, is reduced to this Whether March,
ards lien on the property in question had
become complete on the seventeenth day of
July, 1862 New Orleans was then in the
| possession of the United States forces.
Military rule prevailed. All civil authority
emanated from the power or existed at the
suffrance of the United States military au-
thOrities from the occupation of the city,
early in May, 1862 Could Shdell, a de-
elared rebel and enemy, in Paris, during
this period transfer or cucumber property
located N New Orleans, within the mill
tary lines of the United States If
| he could do it as to third persons,
could he do it as to the United Statesl
Had he been in the confederacy he
could not have done it at all. For in that
case every attempt to deal with property
within the Union lines would have been
abortiye and void. 1t was forbidden by
public proclamation of the President, and
by the usages of belligerents. Did his resi-
dence in France give any greater validity
to his acts as against the government of the
United States In my judgment it did not.
And Marcuard, in taking a mortgage from
Slidell on property within the Union lines,
took the risk of the exercise by the govern
ment of the United States, of its right as
sovereign power engaged in war, to confs-
cate the property of its enemies.
am, therefore, of opinion that the decree
upon the intervention of Marcuard must be
affirmed.
The next case is that of the Merchants
Bank of New Orleans NO 4O57). This
company held lease granted by Slidell in
1850 to John Robb q Co., for ten years, at
a certain rent. The lessees cOvenanted to
put up on the lots leased buildings to cost
at least $4,000. At the end Of the term
Sidell was to pay them the value of the
buildings, at an appraisement. The bank
claimed a lien, by virtue of this contract,
for the value of the buildings. The district
court rejected the claim. 1t is difficult to
see on what ground lien for this sum can
be maintained. The matter existed simply
in covenant. The lease does not contain a
word which looks like the creation or ex-
pectation of a lien on the property itself.
The bank complains that Fish, the pur-
chaser of the property, was permitted to
except to the Intervention; whereas he had
no right to appear in the suit at all, because
the sale had been suspended, and the mar
shall had not been ordered to proceed. But
it matters not that Fish had no interest.
| The question Is, had the bank any interest
Fish, as dDlicltS c1trie, might call the courts
attention to the want of interest which the
bank had. Unless the bank had lien, the
court can not reverse the decree. In my
Judgment, the bank had no lien, and, there
fore, the decree is affirmed.
/ have not adverted to certain general
questions, applicable to the entire proceed
ings for cOnfscatiOn, because they have
been settled by adjudicatiOns of the Su-
preme Court made since the argument of
these cases. That court has disposed of
the constitutionality of the act, the power
of Congress to pass it, and the character of
that part of it under which the proceedings
are taken. In the case Of Miller VS.. the
United States I'll Wall, 1851 it has decided
that the act has two distinct parts, each
part having a separate object. The first
four sections provide for the punishment of
treason and rebellion as criminal Otfenses,
! and are permanent in their character. The
remaining sections provide for the cOnfs-
cation of the property of certain designated
parties, as enemies property, and are tenn
pOrary in their character, being intended
for the purpose of insuring the speedy ter
minatiOn Of the rebellion.
The proceedings under these sections are
proceedings IN rem, conforming as near as
practicable to proceedings in admiralty, in
cases of admiralty and maritime jurisdic-
tiOn, and to revenue cases, where the seiZ-
ures are made on land. In the latter case,
after seizure, an information is fled by the
law officer OF the government, setting forth
the facts upon which the cOntiscaUiOn is
L IL = IL Z
libel of information or simply an infOrma-
ton, is of no consequence. The same court
has cOgnizance of the case, whether it is in
admiralty or a different revenue proceed
ing. The nature of the case determines its
character. If claimant of the property
appears and contests the material facts
alleged-as, for example, the guilt of the
owner, or his ownership of the property,
the issue is to be tried by a jury.
If no person appears to answer the mer-
its, Judgment is taken by default, and the
court proceeds to examine witnesses or
other evidence ex parte, by way of inquest,
to ascertain the principal facts in the case.
This examination does not require the inter
ventiOn of a jury, being only intended to
inform the conscience of the court. If
third power intervenes for the purpose of
setting up some charge or lien upon the
property, and not of resisting the cOnfsca-
able to the nature of the case, as before
stated. TSee the cases of Garnett, McVeigh
and Miller in IL Wallace, and of the Union
Insurance Company, Armstrong; Foundry,
and Hart, in 6 Wallace
This general view of the nature of the
proceedings will serve to answer at once
many of the objections which were so elabO-
rateIy argued when these cases were heard.
A helligerent has a right to take such course
fo
the cOnfscatiOn of enemy's property as it
sees fit. The rules which it prescribes are
not to be questioned by any code except the
law of nations and its own constitution.
The rights of a government against its own
citizens in insurrectiOn are not less, but are
rather greater, than those it may exercise
toward a foreign enemy. But in either
case the enemy's property may be cOnfs-
Gated simply as SUCH If the government so
determine. Congress, by the act of July
II. 1862, directs property to be seized and
cOnfseated as enemy's property, but only
the property Of certain classes Of persons.
This discrimination renders necessary,
when issue is taken upon the information,
an inquiry into the guilt or innocence of the
owner, not for the purpose of criminal
conviction and sentence, but for the pur-
pose Of determining the status Of the prop
erty seized. Hence many rules, cOustitu-
tiOnal and otherwise, which require to be
observed in criminal prosecutions, have no
application to these proceedings.
The case is altogether unlike that of an
attainder There the criminal prosecution
and conviction are the principal thing. The
attainder, like disqualification to be wit
ness, after conviction Of perjury, follows as
an incident of the conviction. Here the
confseation is the principal thing and an
inquiry into the acts or the conduct of the
owner of the property may, or may not, be
nax,v,;pod NV tho 10 n