Kirk v. Lynd

• Decision Date: 04 December 1882
• Citation: 1 S.Ct. 296,27 L.Ed. 193,106 U.S. 315
• Parties: KIRK, Tutrix, etc., and others v. LYND and another
• Court: U.S. Supreme Court

106 U.S. 315

1 S.Ct. 296

27 L.Ed. 193

KIRK, Tutrix, etc., and others v. LYND and another.

December 4, 1882.

K. Stewart Dennee, for appellant.

Jno. A. Campbell and Thos. L. Bayne, for defendant.

WAITE, C. J.

The single question in this case is whether the purchaser of real property condemned under the act of August 6, 1861, (chapter 60, 12 St. 319,) '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 proc- lamation 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.' Article 1, § 8. The statute now in question is manifestly an exercise of that power. As was said by Mr. Justice STRONG, in Miller v. U.S. 11 Wall. 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 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...