Where, pursuant to the act of Aug. 6, 1861, c. 60, entitled "An
Act to confiscate property used for insurrectionary purposes,"
lands were seized and condemned, the purchaser of them under the
decree took an estate in fee.
Pasteur, the owner in fee of lands in New Orleans, remained in
the possession of them until Nov. 17, 1863. A libel of information
under the Act of Aug. 6, 1861, c. 60, was then filed against them
in the proper district court of the United States. A decree for
their condemnation and forfeiture was rendered Dec. 5, 1863, by
virtue whereof they were sold, Jan. 13, 1866. Under the purchaser,
the defendants Lynd and Lewis derive their title.
Pasteur died May 3, 1874. His widow and children then brought
this suit for the lands and for the fruits and revenues derived
therefrom since his death.
The defendants demurred to the bill, setting up as the principal
ground therefor that by the proceedings in the district court,
including the seizure, libel, decree of condemnation, and the sale
thereunder, the fee, and not simply the life estate of Pasteur, in
the forfeited lands passed to the purchaser, and that therefore the
complainants were entitled to no relief. The demurrers were
sustained and the bill dismissed. The complainants thereupon
appealed.
Mr. R. Stewart Dennee for the appellants.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The single question in this case is whether the purchaser of
real property condemned under the Act of August 6, 1861, c. 60,
entitled "An Act to confiscate property used for insurrectionary
purposes," takes a fee or only an estate for life. The act provides
that if during an insurrection against the government of the United
States, after the President has declared by proclamation
Page 106 U. S. 316
that the laws of the United States are opposed and the execution
thereof obstructed by combinations too powerful to be suppressed by
the ordinary course of judicial proceedings or by the power vested
in the marshals by law, any person shall purchase or acquire, sell
or give, any property with intent to use or employ the same, or
suffer the same to be used or employed in aiding, abetting, or
promoting such insurrection or resistance to the laws, or any
person engaged therein; or if any person, being the owner of any
such property, shall knowingly use or employ, or consent to the use
or employment of the same, as aforesaid, all such property shall be
lawful subject of capture and prize wherever found, and the
President may cause the same to be seized, confiscated, and
condemned. Provision is then made for judicial proceedings of
condemnation in the courts of the United States. The seizure and
condemnation in the present case were because the property had been
used and employed, with the knowledge and consent of the owner, in
aid of the insurrection.
Express authority is vested in Congress by the Constitution to
"make rules concerning captures on land and water." Art. I, sec. 8.
The statute now in question is manifestly an exercise of that
power. As was said by Mr. Justice Strong in
Miller v.
United States, 11 Wall. 268,
78 U. S.
308,
"it imposed no penalty. It declared nothing unlawful. It was
aimed exclusively at the seizure and confiscation of property used
to aid, abet, and promote the rebellion, then a war, or to maintain
the war against the government. It treated the property as the
guilty subject."
All private property used or intended to be used in aid of an
insurrection with the knowledge or consent of the owner is made the
lawful subject of capture and judicial condemnation, and this not
to punish the owner for any crime, but to weaken the insurrection.
The offense for which the condemnation may be decreed is one that
inheres in the property itself, and grows out of the fact that the
property has become, or is intended to become, with the approval of
its owner, an instrument for the promotion of the ends of the
insurrection. To justify a judicial sentence of condemnation, the
consent of the owner to the hostile use of his property must be
proven, but if it be proven, condemnation is decreed not
Page 106 U. S. 317
because the owner has subjected himself to punishment, but
because the property has been devoted to the insurrection, and must
suffer the consequences. The property is the offending thing, and
condemnation is decreed because its owner has voluntarily allowed
it to become involved in the offense.
In war, the capture of property in the hands of the enemy used
or intended to be used for hostile purposes is allowed by all
civilized nations, and this whether the ownership be public or
private. The title to movable property in hostile use captured on
land passes to the captor as soon as the capture is complete --
that is to say as soon as the property is reduced to firm
possession. The absolute title to immovable public property owned
by the enemy does not pass until the war is ended and peace
restored. Then, unless provision is made to the contrary by the
treaty of peace or otherwise, the ownership is changed if the
conquest is complete. In regulating the capture of private property
devoted to the use of an insurrection against the authority of the
United States, Congress has provided for a judicial inquiry into
the facts and a sentence of condemnation before title can pass out
of the owner. When the inquiry is had and the necessary sentence
pronounced by the appropriate judicial tribunal, the title passes
by reason of the capture or conquest, the lawfulness of which has
been established in an adversary proceeding against the property
seized under the direction of the President, and subjected to the
jurisdiction of the court designated by law for that purpose. The
title acquired by the purchaser in this case was of that kind. The
property bought had been seized under the authority of the statute
as property used in aid of an insurrection against the United
States with the consent of its owner. The fact of hostile use with
the owner's consent was established, and the requisite sentence of
judicial condemnation entered. In this way the title of the United
States by capture was perfected. That title, as against the owner
and his heirs, was the fee. The defendants below, who are the
defendants in error here, have succeeded to that title.
Property captured in war is not taken to punish its owner any
more than the life of a soldier slain in battle is taken to punish
him. The property as well as the life is taken only as
Page 106 U. S. 318
a means of lessening the warlike strength of the enemy.
Young v. United States, 97 U. S. 39.
There is here no question of pardon and amnesty, as there was in
the case of
Armstrong's
Foundry, 6 Wall. 766, where it was held that the
pardon of the owner before a sentence of condemnation relieved him
from the consequences of his assent to the unlawful use of his
property so far as the United States were concerned, and might to
that extent be used as a bar to further proceedings in the
condemnation suit. But in that case, the pardon was set up as a
defense against the condemnation. Here, there is nothing of the
kind. The court having the property in possession and proceeding
against it, has decreed its condemnation. So long as this decree
stands, it affords conclusive evidence of a perfected title in the
United States by a lawful capture, judicially ascertained and
determined. To these proceedings the ancestor of the heirs for
whose benefit this suit is prosecuted was in law a party, and both
he and they are bound by the adjudication. The judgment is one that
cannot be collaterally impeached.
It is true that in the case of
Armstrong's Foundry,
supra, it was said by Chief Justice Chase in the opinion that
"the statute regarded the assent of the owner to the employment of
his property in aid of the rebellion as an offense, and inflicted
forfeiture as a penalty," but this language must be construed in
connection with the facts then under consideration. There, the
question was whether the pardon could be used as a bar to the
pending proceedings for condemnation, and the effect of what was
said was no more than to apply to that case the principle
afterwards announced by the same learned Chief Justice in
United States v.
Padelford, 9 Wall. 531,
76 U. S. 543,
and declare that the law made the proof of pardon of the owner a
complete substitute for proof that he gave no consent to the use of
his property in aid of the rebellion. The guilty consent of the
owner to the unlawful use is necessary to make the property a
subject of lawful capture, and as the pardon was, under the rule in
Padelford's Case, equivalent to proof that no such consent
was given, the lawfulness of the capture could not be established,
and consequently, as against the United States, there must be a
judgment of acquittal.
Page 106 U. S. 319
The Act of July 17, 1862, c. 95, proceeds upon an entirely
different principle. That was, according to its title, "An act to
suppress insurrection, to punish treason and rebellion, and to
seize and confiscate the property of rebels." Its object was not to
authorize the capture of property used to promote an insurrection,
but to confiscate the property of traitors. The seizure was to be
made not because the property was in law the offender, but because
the owners were engaged in rebellion and would not return to their
allegiance to the United States. The object evidently was not to
make the property a lawful subject of capture and prize, as in the
act of 1861, but to punish the owner for countenancing the
rebellion. This distinction recognized in all the cases where the
matter has received consideration. The Justices who dissented from
the judgment in
Miller v. United States, supra, while
arguing that the act of 1862 was unconstitutional, impliedly
admitted the validity of that of 1861, because it was directed
against the property as the offending thing. It was also because
the act of 1862 was in the nature of a punishment of the owner for
his treason that the explanatory resolution, No. 63, 12 Stat. 627,
was passed to meet the objections which had been suggested by the
President. In this way, the condemnation of real property under the
act of 1862 was confined to the natural life of the offending
owner; but nothing was done with the act of 1861, because that had
reference only to the capture and condemnation of property for its
unlawful use.
It follows that the court below was right in holding that the
fee passed by the condemnation, and its judgment is
consequently
Affirmed.