United States v. Republican Banner Officers

The citation for this case is 27 Fed. Cas. 781, Case No. 16,148. The case involved the Nashville Republican Banner, a proconfederate newspaper in Tennessee. The case came to the Circuit Court for the District of Tennessee in November of 1863, with Justice John Catron of the Supreme Court of the United States sitting as the circuit judge and Judge Connally F. Trigg sitting as the District Judge.

The paper’s printing office and real estate had been seized in accordance with the Second Confiscation Act. The lawyers for the claimants [who can be understood as the defendants in the case] argued that the statute applied only to personal property and not to real property, therefore real estate was exempt from confiscation, and in addition the act itself was unconstitutional.

In his opinion, Judge Trigg wrote, “The question then to be decided by this court is: Does the act of August 6, 1861, embrace real estate within its provisions, and make that, as well as personal property, for the causes mentioned in said act, a subject of seizure, confiscation, and condemnation? It is not denied that the words of the act, ‘any property of whatsoever kind or description,’ are very comprehensive, and in their terms would embrace real, as well as personal, property. But it is insisted that congress did not intend to include all kinds of property by the broad and comprehensive language employed, and that this is manifest from the words used in the act in denouncing the penalty against the property used or employed, or intended to be used or employed, as therein stated. The act declares that ‘all such property is hereby declared to be lawful subject of prize and capture wherever found’ and it is argued that the words ‘prize and capture’ are purely technical in their meaning, and apply alone to personal property, real estate not being a subject of prize and capture, and that these words, therefore, must be understood to have been used in their technical sense. And the words ‘prize and capture,’ being thus technical in their meaning, must control the previous words, and limit and confine their operation to that description of property to which ‘prize and capture’ are applicable.” [27 Fed. Cas. 781, 781-782]

In interpreting the words of the statute and applying them to the case at hand, he wrote, “Now, what is the subject of the act we are considering? It is the confiscation of property used for insurrectionary purposes; and it is difficult to perceive that the technical words relied upon to govern the construction of the act are or can be technical to that subject For by said act a new class of forfeitures, if we may so term them, is created, growing out of the present unhappy condition of our country, and which were never before known to our laws. These technical words, then, cannot control us in our construction, and we must look to the whole body of the act, ascertain the intention of congress in passing it, and construe the technical words ‘prize and capture’ in the sense intended by them, and not in the strict legal sense in which they are usually understood.” [27 Fed. Cas. 781, 782] Judge Trigg tells us, “The language of this act is broad and comprehensive, and looking to the surrounding facts and circumstances at the time, there being then a formidable rebellion in progress, the intention of congress, in enacting this law, must have been to deter persons from so using and employing their property as to aid and promote the insurrection, and thereby to diminish and weaken the power of the Rebellion—and perhaps it was also intended, by taking from him his property so unlawfully employed, to inflict upon the parry a penalty for his misconduct in thus aiding and promoting a resistance to the laws.” [27 Fed. Cas. 781, 782-783]

Judge Trigg also looks at whether or not real estate can be used to further the rebellion, thus making it liable to confiscation: “The only question, then, is whether real estate can be so used or employed, for if it can, there is no more reason why it should not be seized or confiscated than any other description of property. Certainly the mischiefs to result from such use of it would be as great as those from the use of property of any other kind. Suppose that a person, with the avowed purpose of aiding the insurrection, should purchase a piece of ground suitable for his object, and proceed to erect upon it the necessary buildings and machinery for the manufacture of guns and other small arms, and he does proceed, in accordance with his previous intent, to the manufacture of such weapons of war to supply the rebel army—can it be contended that such property, real estate if you choose, is not used, and as effectually used, in aiding, abetting, or promoting the insurrection as any movable property whatever? And, if so, why should it not be as much a subject of confiscation as any other? All property used in its ordinary and legitimate mode is exempt from the operation of the act, but the moment it is purchased or acquired, sold or given, with intent to use or employ it in aiding the insurrection, or if the owner knowingly and intentionally uses or employs his property for such a purpose, it immediately becomes the subject of seizure and condemnation under the act, whether it be real or personal property.” [27 Fed. Cas. 781, 783] Thus, the act does apply to real property in addition to personal property.

Judge Trigg concludes by taking on the question of whether or not the act itself was unconstitutional. “The question raised by claimant’s counsel in the closing argument, as to the constitutionality of the act, was not made upon the original motion as the same was entered, and was not argued on behalf of the United States. No authority, however, was produced, and it seems to me that the arguments relied on to sustain its constitutionality would be as applicable to any other law of congress imposing the penalty of forfeiture as to the act we are considering.” [27 Fed. Cas. 781, 783] The act, then, is constitutional.


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