Kirk v. Lewis

9 F. 645

• Court: U.S. Circuit Court for the District of Eastern Louisiana
• Decided: December 15, 1881
• Status: Published

Opinion

Billings, D. J.

There have been several grounds urged in support of the demurrer. I shall consider but one: Did the respondents purchase the fee of the property or only a life-estate ? The hill and record of this confiscation proceeding, which are made part thereof, show a sale by the United States marshal, and a purchase by the defendants, of the property here demanded, under the act of August, 1861. That act provided for the seizure and confiscation of property used, or intended to be used, to aid in a rebellion, then a war. It made no discrimination between the property of citizens and that of aliens. It excited no scruples as to its constitutionality in the mind of the president. It was qualified and restricted by no joint resolution; in fact, it added nothing to the undoubted right of war which the government before that possessed to seize and dispose of all property used in aid of its enemies. The sole effect was to declare the purpose of congress to enforce a belligerent right. The supreme court says this emphatically in Miller v. U. S. 11 Wall. 308, and they reaffirm the same doctrine in Osborn v. U. S. 91 U. S. 477. All the cases in which the supreme court have limited the estate which passed at a confiscation sale to a life-estate have been prosecuted under the act of July 17,1862. In all these cases the restriction has been put on the estate in consequence of the joint resolution. See Bigelow v. Forrest, 9 Wall. 341, and Day v. Micou, 18 Wall. 156. But the joint resolution was in its terms confined to the act of 1862. The effect of this confiscation, which in its terms included the fee, is to be determined by the character of the act of 1861. This the supreme court say was an exercise of the war power, and not of municipal sovereignty. This is consistent with the rulings of the supreme court in the Armstrong’s Foundry, 6 Wall. 769. That case holds that a pardon, properly pleaded, ended proceedings under the act of 1861. That case does not decide the question presented here. The power given by the constitution to the president to pardon is without qualification, and a complete pardon remits all forfeitures except where the rights of third persons have intervened. This is equally true where the forfeiture arises under a merely municipal law or the law of nations, and does not conflict with the doctrine, as above established, that a forfeiture arising jure belli is to be measured by the grant of power to congress to declare war and make peace; or with the other doctrine, that the act of congress under which this forfeiture was made was the exercise of a belligerent right on the part of the government of the United States.

Let the demurrer be sustained.