"The statute of 1861, ch. 28, has been referred to, as assuming that there are loyal citizens in the rebel states who are to be aided and protected, and it is urged that their property should not be subject to confiscation. That act places two millions of dollars in the hands of the President, to be used at his discretion in arming, organizing, and sustaining loyal citizens in rebel districts. This act undoubtedly contemplates that there may be such loyal citizens, and that it may be expedient so to aid and strengthen them: and it makes an appropriation for that purpose. But it is wisely left to the unrestricted judgment of the President to determine who are such loyal citizens, if any, and to what extent they shall be treated as such.

"It adds to the means of the President, but in no degree detracts from his previous authority, to treat persons or property as he shall deem best.

"It has been contended that the proviso in the 24th section of the crimes act of 1790, ch. 9, should prevent condemnation of this cargo as prize. That act describes certain offences, and prescribes their punishment; and among them is the crime of treason.

"The proviso declares, that no conviction shall work corruption of blood or forfeiture of estate. This shows that the lawgivers thought that death was a sufficient penalty, without confiscation following as a legal consequence of conviction.

"There is an analogous provision in the Constitution (art. 3, § 3), and, as it has embarrassed some minds, it deserves attention.

"In the first place, the objection assumes, that there can be no condemnation unless the claimants

are traitors. This is an error. As already stated, property may be treated as hostile, although the. owner has not been guilty of treason. He may be an alien, owing no allegiance; or a citizen, whose opinions or wishes are not proved to be hostile, and yet, he may be so situated, and his property be so used, as to subject it to capture as prize.

"A striking case is to be found in The Venus, 8 Cranch, 253. In that case a citizen of the United States, residing at Liverpool, shipped property for New York, on the 4th of July, 1812, having no knowledge of the war, which had been previously declared by the United States. This property was captured by an American privateer, and held by the Supreme Court to be lawful prize. The court, in delivering their opinion, say, that although the claimant, being a citizen of the United States, 'cannot be considered an enemy in the strict sense of the word, yet he is deemed such, with reference to the seizure of so much of his property, concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy, although not criminally so.' (See also the cases collected by Sir William Scott, in The Hoop, 1 Rob., 196.)

"In the case now before me, it is not contended or offered in proof by either party, that these claimants have been guilty of the crime of treason; and surely the claimants cannot set it up, in argument, as a defence. In the second place, the owner may, by certain acts, have subjected his property to be treated as enemy's, and by other distinct acts, committed the crime of treason; and confiscation may be inflicted for the former, and the penalty of death

for the latter. Just as the same person may be guilty of larceny, and subsequently of murder, and be fined for the first, and afterward convicted of the capital offence.

"Third, suppose there should be but one act, which is such a use of property as subjects it to confiscation, and, at the same time, constitutes an overt act of treason; and suppose further, that the government cannot proceed for both penalties, yet they may elect. They are not bound to prosecute for the crime; and if they enforce the forfeiture, the most that can be contended is, that they are thereby precluded from subsequently having a conviction.

for the treason.

"The acts passed by Congress last summer have been referred to, as expressing the views of the legislature upon the subject of confiscation in the present war. As they do not reach cases like the present, it is contended that it was the intention of the legislature that such property should not be condemned. It is obvious that, in their general purpose and effect, they were intended to make the prosecution of the war more efficient, to give additional means and power to the President, but in no degree to curtail the authority which he previously possessed. They embrace some cases in which confiscation would not follow from the general law, and render others more definite and certain, and provide new modes of procedure. The belligerent right of capture at sea previously existed, and Congress has left it unimpaired.

"Further still. This right of maritime capture was not only well known, but had actually and notoriously been exercised.

"The last session of Congress closed on the sixth day of August. Prior to that time divers captures had been made of vessels and cargoes belonging to inhabitants of insurgent districts. In particular, The General Parkhill was captured on the twelfth day of May, and sent to Philadelphia, and there condemned as enemy's property, at the June term of the District Court. The Pioneer, Crenshaw, North Carolina, and Hallie Jackson, were sent into the port of New York in the course of May and June, and the vessels or their cargoes have since been condemned as enemy's property. In this very case of The Amy Warwick, the capture was made on the tenth of July, and the libel was filed on the eighteenth of that month. All these captures were made by ships of war, and of course under orders emanating from the President. Yet, so far from discountenancing these proceedings, Congress, as we have already seen, did, by the act of the sixth of August (chap. 63, sec. 3), expressly confirm all orders, respecting the army and navy, which had been made by the President since the fourth of March last.

"The counsel for the claimant has relied upon a recent charge, by Mr. Justice Nelson, to the Grand Jury in the Second Circuit. That learned judge did not enter into any discussion of prize law. The occasion did not call for it. He expressed the opinion, if correctly reported in the newspapers, that loyal citizens of rebel districts were not to be treated as enemies, nor their property confiscated. But he did not undertake to say who were to be deemed loyal citizens, what was to be the evidence of their fidelity, or how the presumptions arising

from continued residence in the enemy's country are to be overcome.

"The counsel for the captors has relied upon a remark made by Judge Dunlop, in the case of The Tropic Wind, and upon the learned decisions of Judge Cadwallader, in the case of The General Parkhill, and of Judge Betts, in the cases of The Crenshaw, North Carolina, Pioneer, and Hallie Jackson. These cases are directly in point, and I might well have rested my decision solely upon the authority of those able and distinguished judges. But as it has been contended that those decisions are not sustained by the authorities which were cited in their support, I have yielded to the earnest invitation of the eminent counsel in this cause, to investigate the principles and authorities which it involves. "Claim rejected and the property condemned."

At a subsequent period, and in the same case, "on the claim of Dunlop, Moncure & Co.," after the doctrines announced in the foregoing opinions of the several District Courts, had undergone elabo rate discussion and criticism, as well in the national legislature, as in coördinate and appellate tribunals, the learned judge takes occasion to review his former opinion at great length, and to announce in the following instructive disquisition, that he has "seen no reason to change that opinion:"

"The decrees of the District Courts condemning property as hostile, have been objected to, on the ground that they pronounce the owners to be enemies, when in fact they may be personally loyal. But it is a mistake to suppose that those judgments go beyond the fact of permanent residence, and