The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1882-12-23

I
feloniJus catching and taking. The ae-
cused were convicted and sentenced TO con-
fnoment in the penitentiarv. They are the
same persons who were subsequently par
doned by Governor Cameron.
After the conviction Of the accused an
order was entered for the sale OF the yes-
sels, which il was insisted we're forfeited
to the Commonwealth. Tbertupon Boggs
and others filed their several petitions in
the court. in which they alleged that they
were the owners OF the vessels ordered 10
/ be sold, or had liens thereon by way Of
mortgage; that they were not implicated
! in the violation OF the law. nor have they
any knowledge OF the offence committed
| by the persons who were in charge OF the
vessels, and they asked to be allowed an
opportunity Of proving these facts. and
that their property ought to be restored to
them.
The County Court, however, denied the
hearing and directed the retiti0n To be dis
missed. From these orders appeals were
taken 20 the Circuit Court OF Mathews,
which ultimately affirmed the judgments of
the County Court. Writs Of error were
awarded by the Court Of Appeals. and the
cases coming on to be heard in that court,
the judgments of the Circuit and County
Court. were reversed and the eases remand
ed for further proceedings. They were ar
glied i'm the Court Of Appeals by the Atfor-
ney-GeneraI for the Commonwealth. while
petitioners were represented by John B.
Donovan, John Nicely. Robert McCandlish,
and MesSrs. Sharp d Hughes.
THE UNANIMOUS OPINION
O. the Court was ably written and deliver
ed by Judge Staples about two or three
weeks AGO. lie discussed at great length
the many important questions involved III
these cases. Want Of space enables us TO
give only an abstract Of the opinion.
Judge staples cites the act OF 1850. which
make- the offence Of catching oysters With
drcdges afelony punishable by confinement
in the penitentiary and forfeiture Of the
vessel employed in taking the oysters. He
wa, inclined TO think. although the point
was not free from difficulty. that upon con-
yiction Of the offence the vessel would be
forfeited 10 the State. although the person
convicted might not be the owner of the
vessel. This point was, however. inmate
rial. i'm view OF other and more important
questions arising in the ease. The first OF
these i, ~ 90 whether il l. competent for the
State Il Virginia 10 inflict forfeiture Of the
vessel employed in the violation Of her
oyster laws where ths owner OF the vessel
j. eultlcs> of any offence and entirely
ignorant Of the fact that the vessel i 80
employed. Upon this point the authoriues
iestte no room fuf uOuDt. IN such cases The
vessel which commits the aggression i
treated a. the offender, ~ the guilty thing
or instrument 10 which the forfeiture At
tachcs, without any reference whatsoever
70 the situation or conduct OF the owner.
This i done from the necessity Of the
case. aS the only adequate mean. Of sup
pressing the offence or Of in>uIing IN
dcmulty to the injured party. The unlnw-
ful acts Of the master. or other person IN
charge II the vessel. bind the owner a.
fully a. though they were committed by
the owner himself. and arc TO be REGARDED
a the act, OF Tire owner with respect TO all
their penal consequences.
TIE RIGHT or IRE STATE
governments 10 legisaic in such manner q,
they may deem Just over the public pro-
nerty OF the State. and 10 regulate the Use
Of the same where not restricted bv the
Constitution Of the United states, is a.
complete and unlimited as that OF the Fed
elal Government in matters appeTtaining
10 the general welfare. And this i e,pe-
cialy true with respect 10 the h>h and
oyster@lcds within the territorial limits Of
+ the State. which are the common property
/ OF the citizens OF the State. and were never
ceded TO the Federal Government. In
support Of these views Judge Staples cited
numerous authorities, both state and Fed
/ cral and he said there was not the shadow
/ Of a doubt. both upon reason and atlthOr-
/ ". Of the power OF the state to subject 10
forfeiture any vessel engaged in violating
her laws, no matter who might be the
owner. and whether he was guilty or inno-
cent OF any actual participation in the Of
fence.
The real difficulty in these eases lies in
the fact that the act OF the Legislature
under which these vessels are condemned
contains no provision by which the true
owner may appear and defend his pro-
/ pcrtv. suppose he desires 10 show that
the Vessel was stolen from hi, possession.
and while 20 stolen was employed in yiO-
lating the law: suppose the sheriff or
other officer seiZes the wrong vessel and
takes pO>seS>iOn OF one which was not, In
point OF fact. employed in committing the
offence. Il j. not difficult TO conceive Of
many ground, OF defence the owner might
have against the forfeiture OF hi, property
ruE ACT OF THE LEGISLATURE
makes no provision whatever 10y which the
owner j. notified Of the seizure, or by
which be /, authorized to appear and con-
test the rights OF the Commonwealth to the
conliscaion and forfeiture.
.sIn judicial proceedings" Says Judge
Cooleyl 1.-THE law OF the land requires 4
hearing before condemnation, and iudg-
meut before dispos-esion. Forfcitures OF
rights and property are not to be adiudged
bv legislative acts and confscati0n without
judicial hearing after a due notice would
be void, n not being due process Of law"
Cooley. Al, ijo.
In windsor rs. McVeigb. 3 Otto. 279
the Supreme Court Of the United State
said: THE jurisdiction acquired by the
seizure Of the property i not to pass upon
the question Of forfeiture absolutely. but
} to pass upon the question after opportu-
nitv has been afforded 10 the ownerand par.
ties interested TO appear and be heard upon
the charges"
To tbi. end. some notification of the pro-
ceedlng, beyond that arising from seizure
prescribing the time within which the ap-
near.nce must be made, i essential. such
notification may be given by monnior,
public proclamation. or publication III
some other form. The manner Of The pub
bcation /. immaterial, but the notification
Is indispensable.
Upon thi. point the opinion cites grea'
number O! authorities which show thaf :
law contiscating property for an alleged
offence without soIae form OF nOtiiieatior
To the owner. and without giving him m
opportunlty OF making defence, II uuefi.
void, contrary TO the Bill oil Rights ana
THE ruxpAxESTL PRINCIPLES
OF the social compact.
As was said by the supreme sour. o.