text:
Miller v. United States (78 U.S. 268)/Dissent Field

Mr. Justice FIELD, with whom concurred Mr. Justice CLIFFORD, dissenting.

I am unable to agree with the majority of the court in the judgment just rendered in this case, and will state, with as much brevity as possible, the grounds of my disagreement.

The case was brought for the forfeiture of personal property belonging to the appellant, and is founded upon what is termed the Confiscation Act of July 17th, 1862. There is, it is true, a count in the libel upon the act of August 6th, 1861, but no reliance has been placed upon it to support the forfeiture. The case has proceeded upon the theory that the stock, alleged to have been seized by the marshal, was in Michigan, and had been there since it was issued, a period anterior to the rebellion, and, of course, to the passage of the act in question, a position inconsistent with any claim that the property had been subsequently purchased to be used, or had been used, in aiding, abetting, or promoting the rebellion. No further attention will therefore be given to that act.

I shall direct my attention, in the first place, to the validity of the legislation embodied in the act of July 17th, 1862, and then assuming that legislation to be valid and in accordance with the Constitution, shall consider whether the proceedings in the case are in conformity with its requirements.

The authority for the legislation in question must be found in what are termed the war powers of the government; which, so far as they touch upon the present subjects of inquiry, are the power to declare war, to suppress insurrection, and to make rules concerning captures on land and water; or, in what is termed the municipal power of the government to legislate for the punishment of offences against the United States.

It has been held, that when the late rebellion assumed the proportions of a territorial civil war, the inhabitants of the Confederate States, and the inhabitants of the loyal States, became reciprocally enemies to each other, and that the inhabitants of the Confederate States engaged in the rebellion, or giving aid and comfort thereto, were at the same time amenable to the municipal law as rebels. The correctness of this determination is not disputed. The question is, not as to the right of the United States to adopt either course against the inhabitants of the Confederate States engaged in the rebellion; that is, the right to treat them as public enemies, and to apply to them all the harsh measures justified by the rules of war; or the right to prosecute them in the ordinary modes of criminal procedure for the punishment of treason; but what course has Congress, by its legislation, authorized. For it is evident that legislation founded upon the war powers of the government, and directed against the public enemies of the United States, is subject to different considerations and limitations from those applicable to legislation founded upon the municipal power of the government and directed against criminals. Legislation in the former case is subject to no limitations, except such as are imposed by the law of nations in the conduct of war. Legislation in the latter case is subject to all the limitations prescribed by the Constitution for the protection of the citizen against hasty and indiscriminate accusation, and which insure to him, when accused, a speedy and public trial by a jury of his peers.

The war powers of the government have no express limitation in the Constitution, and the only limitation to which their exercise is subject is the law of nations. That limitation necessarily exists. When the United States became an independent nation, they became, to use the language of Chancellor Kent, 'subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe as their public law.' And it is in the light of that law that the war powers of the government must be considered. The power to prosecute war granted by the Constitution, as is well said by counsel, is a power to prosecute war according to the law of nations, and not in violation of that law. The power to make rules concerning captures on land and water is a power to make such rules as Congress may prescribe, subject to the condition that they are within the law of nations. There is a limit to the means of destruction which government, in the prosecution of war, may use, and there is a limit to the subjects of capture and confiscation, which government may authorize, imposed by the law of nations, and is no less binding upon Congress than if the limitation were written in the Constitution. The plain reason of this is, that the rules and limitations prescribed by that law were in the contemplation of the parties who framed and the people who adopted the Constitution.

Whatever any independent civilized nation may do in the prosecution of war, according to the law of nations, Congress, under the Constitution, may authorize to be done, and nothing more.

Now, in Brown v. United States, Mr. Chief Justice Marshall, in delivering the opinion of the court, said that it was conceded that 'war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found,' and added that 'the mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation the judicial department must give effect to its will.' The question presented for considertion in that case was whether enemy's property, found on land at the commencement of hostilities with Great Britain in 1812, could be seized and condemned as a necessary consequence of the declaration of war; and the decision of the court was that it could not be condemned without an act of Congress authorizing its confiscation. The language of the eminent chief justice is perhaps subject to some qualification, if it was intended to state as a rule of public law that all property of the enemy, whether on land or water, was subject to confiscation. Mr. Wheaton, who is authority on all questions of public law, says that by the modern usage of nations, which has acquired the force of law, 'private property on land is exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory,' and that 'this exemption extends even to the case of an absolute and unqualified conquest of the enemy's country.' And Mr. Chief Justice Marshall, in the subsequent case of The United States v. Percheman, observed that it was unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country, and that 'the modern usage of nations, which has become law, would be violated; that sense of justice and right, which is acknowledged and felt by the whole civilized world, would be outraged if private property should be generally confiscated, and private rights annulled.'

But assuming the severe rule laid down by the chief justice to be the true rule, it applies only to the property of enemies, and by enemies is meant permanent inhabitants of the enemy's country. It is their property alone which is the subject of seizure and confiscation by authority of Congress, legislating under the war powers. Their property is liable, not by reason of any hostile disposition manifested by them or hostile acts committed, or any violations of the laws of the United States, but solely from the fact that they are inhabitants of the hostile country, and thus in law are enemies.

If we turn now to the act of July 17th, 1862, we find that its provisions are not directed against enemies at all, but against persons who have committed certain overt acts of treason. It does not purport in any part of it to deal with enemies. It declares in its title that its object is 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.' The other purposes relate principally to slaves, their employment or colonization, and the power of the President to proclaim amnesty and pardon. They have no bearing upon the questions under consideration, and need not be further noticed. The first section of the act prescribes the punishment for treason thereafter committed. It punishes it with death, or, in the discretion of the court, with imprisonment for not less than five years and a fine of not less than ten thousand dollars; and it provides that the slaves of the party adjudged guilty, if any he have, shall be declared free. The second section provides for the punishment of the offence of inciting, setting on foot, or engaging in any rebellion or insurrection against the authority of the United States or the laws thereof, or engaging in or giving aid and comfort to the rebellion then existing. The third section declares that parties guilty of either of the offences thus described shall be forever incapable and disqualified to hold any office under the United States. The fourth section provides that the act shall not affect the prosecution, conviction, or punishment of persons guilty of treason before the passage of the act, unless such persons are convicted under the act itself.

Then follow the clauses which provide for the seizure and confiscation of the property of certain classes of persons, who may thereafter be guilty of certain overt acts of treason. They contain no directions whatever for the seizure of the property of enemies, but only of persons who may thereafter violate the provisions of the act. Among the classes designated are included persons who may thereafter hold any agency under the Confederate States or under any State composing the Confederacy, and persons owning property in any loyal State or Territory of the United States or District of Columbia, who shall thereafter assist and give aid and comfort to the rebellion; persons who may or may not be enemies in the sense in which the term is used in the law of nations; that is, permanent inhabitants of the enemy's country. So through all the provisions of the act, there is not a single clause which indicates, in the slightest degree, that it was against public enemies its provisions were directed. They are applicable to all persons who may do certain acts, whether they be enemies or not within the meaning of the law of nations.

The only place in the act where the word enemies is used, is in the clause which provides that if it be found by the courts, before which proceedings are instituted, that the property seized belonged to a person engaged in the rebellion or who had given aid or comfort thereto, it should be condemned as enemies' property; that is, should be condemned in the same manner as if it were enemies' property. This clause does not provide that the property shall be condemned if found to be enemies' property, but that when condemned it shall be with the like effect as though it were such property.

It would seem clear, therefore, that the provisions of the act were not passed in the exercise of the war powers of the government, but in the exercise of the municipal power of the government to legislate for the punishment of offences against the United States. It is the property of persons guilty of certain acts, wherever they may reside, in loyal or disloyal States, which the statute directs to be seized and confiscated. It is also for acts committed after the passage of the statute, except in one particular, corrected by the joint resolution of the two houses, that the forfeiture is to be declared. If it had been the intention of the statute to confiscate the property of enemies, its prospective character would have been entirely unnecessary, for whenever public war exists the right to order the confiscation of enemies' property, according to Mr. Chief Justice Marshall, exists with Congress.

That the legislation in question was directed, not against enemies, but against persons who might be guilty of certain designated public offences, and that the forfeiture ordered was intended as a punishment for the offences, is made further evident by what followed the passage of the act of Congress. After the bill was sent to the President it was ascertained that he was of opinion that it was unconstitutional in some of its features, and that he intended to veto it. His objections were that the restriction of the Constitution concerning forfeitures not extending beyond the life of the offender had been disregarded. To meet this objection, which had been communicated to members of the House of Representatives, where the bill originated, a joint resolution explanatory of the act was passed by the House and sent to the Senate. That body, being informed of the objections of the President, concurred in the joint resolution. It was then sent to the President and was received by him before the expiration of the ten days allowed him for the consideration of the original bill. He returned the bill and resolution together to the House, where they originated, with a message, in which he stated that, considering the act and the resolution, explanatory of the act, as being substantially one, he had approved and signed both. That joint resolution declares that the provisions of the third clause of the fifth section of the act shall be so construed as not to apply to any act or acts done prior to its passage, 'nor shall any punishment or proceedings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.'

The terms here used, 'forfeiture' of the estate of the 'offender,' have no application to the confiscation of enemies' property under the law of nations. They are, as justly observed by counsel, strictly and exclusively applicable to punishment for crime. It was to meet the constitutional requirement that the punishment by forfeiture should not extend beyond the life of the offender that the joint resolution was passed. The President said to Congress, the act is penal, and does not conform to the requirement of the Constitution in the extent of punishment which it authorizes, and I cannot, therefore, sign it. Congress accepts his interpretation, and by its joint resolution directs a construction of the act in accordance with his views. And this construction, thus directed, is decisive, as it appears to me, of the character of the act. Indeed it is difficult to conceive of any reason for the limitation of the forfeiture of an estate to the life of the owner, if such forfeiture was intended to apply only to the property of public enemies.

The inquiry, then, arises, whether proceedings in rem for the confiscation of the property of parties charged to be guilty of certain overt acts of treason, can be maintained without their previous conviction for the alleged offences. Such proceedings, according to Mr. Chief Justice Marshall, may be had for the condemnation of enemies' property when authorized by Congress. The proceedings in such cases are merely to authenticate the fact upon which, under the law of nations, the confiscation follows. But here the inquiry is, whether, upon the assumption that a party is guilty of a particular public offence, his property may be seized, and upon proof of his guilt, or its assumption, upon his failure to appear upon publication of citation, condemnation may be decreed. The inquiry is prompted from the supposed analogy of these cases to proceedings in rem for the confiscation of property for offences against the revenue laws, or the laws for the suppression of the slave trade. But in these cases, and in all cases where proceedings in rem are authorized for a disregard of some municipal or public law, the offence constituting the ground of condemnation inheres, as it were, in the thing itself. The thing is the instrument of wrong, and is forfeited by reason of the unlawful use made of it, or the unlawful condition in which it is placed. And generally the thing, thus subject to seizure, itself furnishes the evidence for its own condemnation. Thus, goods found smuggled, not having been subjected to the inspection of the officers of the customs, or paid the duties levied by law, prove of themselves nearly all that is desired to establish the right of the government to demand their confiscation. A ship entering the mouth of a blockaded port furnishes by its position evidence of its intention to break the blockade, and the decree of condemnation follows. A ship captured whilst engaged in the slave-trade furnishes, in the use to which it was subjected, the material fact to be established for its forfeiture. In all these cases the proceeding is against the offending thing. And it is true that in these cases criminal proceedings will also lie against the smuggler, or slave-trader, if arrested, and that the proceedings in rem are wholly independent of, and unaffected by, the criminal proceedings against the person. But in the two cases the proof is entirely different. In the one case, there must be proof that the thing proceeded against was subjected to some unlawful use, or was found in some unlawful condition. In the other case the personal guilt of the party must be established, and when condemnation is founded upon such guilt, it must be preceded by due conviction of the offender, according to the forms prescribed by the Constitution. 'Confiscations of property,' says Mr. Justice Sprague in the Amy Warwick, 'not for any use that has been made of it, which go not against an offending thing, but are inflicted for the personal delinquency of the owner, are punitive, and punishment should be inflicted only upon due conviction of personal guilt.'

If we examine the cases found in the reports, where proceedings in rem have been sustained, we shall find the distinction here stated constantly observed. Indeed, were this not so, and proceedings in rem for the confiscation of property could be sustained, without any reference to the uses to which the property is applied, or the condition in which it is found, but whilst, so to speak, it is innocent and passive, and removed at a distance from the owner and the sphere of his action, on the ground of the personal guilt of the owner, all the safeguards provided by the Constitution for the protection of the citizen against punishment, without previous trial and conviction, and after being confronted by the witnesses against him, would be broken down and swept away.

There is no difference in the relation between the owner and his property and the government, when the owner is guilty of treason and when he is guilty of any other public offence. The same reason which would sustain the authority of the government to confiscate the property of a traitor would justify the confiscation of his property when guilty of any other offence. And it would sound strange to modern ears to hear that proceedings in rem to confiscate the property of the burglar, the highwayman, or the murderer were authorized, not as a consequence of their conviction upon regular criminal proceedings, but without such conviction, upon ex parte proof of their guilt, or upon the assumption of their guilt from their failure to appear to a citation, published in the vicinage of the property, or posted upon the doors of the adjoining court-house, and which they may never have seen. It seems to me that the reasoning, which upholds the proceedings in this case, works a complete revolution in our criminal jurisprudence, and establishes the doctrine that proceedings for the punishment of crime against the person of the offender may be disregarded, and proceedings for such punishment be taken against his property alone, or that proceedings may be taken at the same time both against the person and the property, and thus a double punishment for the same offence be inflicted.

For these reasons I am of opinion that the legislation, upon which it is sought to uphold the judgment in this case, is not warranted by the Constitution.

I proceed to consider whether, if that legislation be valid and constitutional, the proceedings in the case are in conformity with its requirements.

The act of Congress requires the seizure of the property, the forfeiture of which is sought, to be made under directions of the President. This seizure is preliminary to the commencement of proceedings for the condemnation of the property. 'After the same shall have been seized,' says the statute, such proceedings shall be instituted. This preliminary executive seizure is essential to authorize the filing of a libel of information, and in that sense it is essential to give the court jurisdiction to proceed; but it does not of itself vest in the court jurisdiction over the property. The President could discharge the property from the seizure without the permission of the court or invoking its action. The mere fact that the marshal is employed as the agent in making the seizure does not alter the case. He does not then act as an officer of the court under its process. Any other person might be selected by the President as his agent. In cases under the revenue laws the seizure is often made by the collector or some officer other than the marshal, and the same thing might be done here. The preliminary seizure, if the property be movable, only determines the court in which judicial proceedings shall be instituted. To give the court control over the property something more is essential. The property must be brought into the custody of the court, and this can only be done under the process of the court. The very theory upon which all proceedings in rem are sustained is that jurisdiction of the court is acquired by taking the res into its custody. It is the seizure under judicial process, judicial seizure as distinguished from any preliminary seizure in any other way, which gives the jurisdiction, and nothing else ever has been held to confer jurisdiction in this class of cases.

Now in the case before us there was not in my judgment any preliminary seizure of the property made by order of the Executive or through his officers or agents, or any subsequent seizure under judicial process. The proceeding was instituted for the forfeiture of 200 shares of the common stock of the Michigan Southern and Northern Indiana Railroad Company, and 343 shares of the Detroit, Monroe, and Toledo Railroad Company, and the only pretence of seizure consisted in a notice given by the marshal, previous to the suit, to the vice-president of the first company and the president of the second company that he had seized the stock in question. The marshal returned that he made the alleged seizure by giving notice in this way. Neither the president of one company or the vice-president of the other company were in possession of the stock, nor were they the agents of the owner, nor was any possession ever taken of the property by the marshal, unless such notice had the power of transmitting the possession to him. To constitute a valid seizure of property as a basis for a proceeding in rem, the party previously in possession must be dispossessed and unable any longer to exercise dominion over the property, and such dominion must be transferred to the officer making the seizure. No other seizure than this will sustain proceedings in rem, according to the established doctrine in admiralty and revenue cases, unless a different mode of seizure is specially prescribed by statute. No other mode would conserve the principle of notice to the party whose property was to be affected, which is essential to the validity of all judicial proceedings. 'It is a principle of natural justice of universal obligation,' says Chief Justice Marshall, 'that before the rights of an individual be bound by judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. Where these proceedings are against the person notice is served personally or by publication; where they are in rem, notice is served upon the thing itself. This is necessary notice to all those who have any interest in the thing and is reasonable because it is necessary and because it is the part of common prudence for all those who have any interest in it to guard that interest by persons who are in a situation to protect it.'

The doctrine that notice to the owner is given by seizure of the thing, rests upon the presumption that the owners of property retain possession of it themselves, or place it in the care and management of persons who will represent them and communicate to them any proceedings taken against their interest in relation to it. In this case this doctrine is entirely disregarded. The notice given to the president of one company and the vice-president of the other might, with equal propriety, have been given to any other strangers to the owner. How the marshal could get possession of a thing which he did not touch nor handle nor control, by giving notice to two individuals in Detroit, themselves having no control or possession of the property, passes my comprehension. Shares or stock in companies can only be seized in virtue of statutory provisions, which prescribe a mode of seizure equivalent to actual taking of possession. No such provisions existed in the law of Michigan, in which State the proceedings were had. The Attorney-General, in his instructions to the district attorney for carrying out the act, directed that stocks should be seized according to the methods prescribed by the State law. As no such methods were prescribed by the law of Michigan, or especially prescribed by the court, the case was one for which no provision was made.

After the libel was filed there was no new attempt to make any other seizure of the property than the one previously made. The process of the court directed the marshal to hold the stock which he had seized, referring, evidently, to the preliminary seizure. The marshal returned that he had seized and held the property, referring, as I understand it, to such preliminary seizure.

But further, the act of Congress declares that the proceedings for the condemnation of the property seized shall conform, as nearly as may be, to proceedings in admiralty or revenue cases. Here the proceedings are against property on land, and they must, therefore, conform, as nearly as possible, to proceedings in revenue cases. Now, the act of 1799 prescribes the proceedings in revenue cases, and provides that after default 'the court shall proceed to hear and determine the cause according to law.' And, in the case of The United States v. The Schooner Lion, Mr. Justice Sprague, whose great learning justly adds weight to his opinions, gave a construction to this clause. A default had been properly entered, and it was contended by the district attorney that condemnation followed of necessity, upon default, without a hearing, but the learned judge, citing the clause mentioned, said: 'This makes it imperative that there shall be some hearing before a decree of forfeiture, but to what extent must depend upon the circumstances of the case. The court will at least examine the allegations of the libel to see if they are sufficient in law, and the return of the marshal and such affidavit or affidavits as the district attorney shall submit. Where it appears that the owners have had full notice of the proceedings, and ample opportunity to intervene, and have voluntarily declined to do so, slight additional evidencc will be sufficient. Indeed, a wilful omission by the owners to answer and thereby make disclosure as to material facts within their knowledge, might, of itself, satisfy the court that a forfeiture should be decreed. But the court will require the prosecutor to introduce full proof of the allegations in the libel whenever the circumstances shall make it reasonable.' It will hardly be pretended that the circumstances in this case did not render it reasonable that such full proof should be had, and yet no such proof was had. The only proof offered was of a doubtful admission of the claimant, and consisted of the ex parte deposition of a single witness to a conversation which he alleged he had had with the claimant in 1863 in Virginia.

But this is not all. The act of Congress of 1862 further provides, in prescribing the proceedings to be taken, that 'if' the property seized 'shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned.' Evidently some finding of the court is here contemplated upon presentation of proofs, and it appears to me, was intended as authority for the subsequent decree, as much so as the verdict of a jury is authority for the subsequent judgment, and that without such finding the decree cannot stand. The record discloses that no such finding was made, and that no decree even was entered, as required by the 29th Admiralty Rule, that the libel be taken pro confesso, so as to justify the assumption that its allegations were true.

As the act is highly penal in its nature, it would seem that, according to well-received rules, it should be strictly construed, and a rigid compliance with its provisions exacted. But the very opposite course in the construction of the act appears to have been adopted by the majority of the court.

I am of opinion that the judgment of the court below should be reversed.


text: Talk:Miller v. United States (78 U.S. 268)/Dissent Field

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text: Tyler v. Defrees

title: Tyler v. Defrees


text: Talk:Tyler v. Defrees

title: Talk:Tyler v. Defrees


text:
Tyler v. Defrees/Opinion of the Court

ERROR to the Supreme Court of the District of Columbia.

This was an action of ejectment to recover certain real property in the city of Washington. The defendant pleaded title from a purchaser at a sale of the property under a judicial decree, made in proceedings instituted under the Confiscation Act of July 17th, 1862. It was conceded that the plaintiff had a good title to the premises, unless that title had been divested by the sale under that decree. The issue involved was, therefore, the validity of the decree.

The provisions of the confiscation act just referred to, along with some facts in connection with it, are set out fully in the report of Miller v. United States (the leading one of the confiscation cases), immediately preceding this one; and to the part of the report of that case beginning on page 269, with the words (prefixed by an * ), The act of July 17th, 1862, contains fourteen sections,' to the words (prefixed by a+) On the 24th November, 1863,' on page 274, the reader must now please to turn. He will find there what but to avoid mere repetition would be given here; and that which makes a necessary part of the statement of the present case. After reading it, he may resume his reading here.

The facts of the present case were found by special verdict. It appeared that in June, 1863, the marshal of the District of Columbia, in pursuance of an order addressed to him by the district attorney of the United States, stating that proceedings were to be instituted for the condemnation of the same to the use of the United States, seized the property in question. His return stated that he had made seizure of the property and given notice to the tenants in possession, as directed, and accompanied his return with a copy of the notice served on the tenants, which stated that the property seized was 'held subject to the order of the United States District Court, and the district attorney.'

Shortly after this return the district attorney filed a libel of information for the forfeiture of the property, alleging against Tyler that since the 17th of July, 1862, he had held and exercised an office and agency, of honor, trust, and profit, under the Confederate government, and that he had given aid and comfort to the rebellion, and to those engaged in it, by acting as a soldier and as a non-commissioned officer in the army and navy of the Confederate States, and by contributing money and property to aid and encourage those engaged in the rebellion.

Upon this libel being filed, an order was made, that process issue, and that notice by given to the owner or owners of the property, and to all persons interested or claiming interest therein, to appear and answer the information on the first Monday of August then next (1863), and show cause, if any they had, why the property should not be condemned and sold; and that notice be given by posting a copy of the order upon the door of the court-house, and by publication in the National Republican, a newspaper of the District.

A monition was accordingly issued, commanding the marshal to attach the property, and to detain the same in his custody until the further order of the court, and to give notice to all persons having or claiming any interest in the property to show cause as above stated. This process was never served by the marshal, and the only return which he made to it was a certificate that he had made the publication of notice in the designated paper.

On the 29th of July, 1863, and not on the first Monday of August, which latter day was specified as the day for the claimants and others to appear and show cause against the condemnation of the property, the court, without evidence being taken in the case, upon the papers and pleadings filed, entered a decree that the property be forfeited and condemned to the United States.

Upon this decree process issued to the marshal, to sell the property, and under the said process the property was sold, and purchased by a person through whom the defendant claimed.

Upon the facts found by the jury, the court ordered judgment in favor of the defendant. From this judgment, the case was brought to this court on writ of error.

Messrs. Brent and Merrick, for the plaintiff in error:

I. The title of the plaintiff was not divested by the mere act of seizure made by the marshal. The act of Congress contemplates and directs the institution of judicial proceedings to accomplish a divestiture. The proceedings are indeed assimilated to proceedings in admiralty; but judicial proceedings of some kind are absolutely necessary in order to divest the title of the owner. Now, therefore, assuming that judicial proceedings were essentially necessary, the regularity of the proceedings in each particular instance becomes legitimate matter of inquiry, though in a collateral issue, like the present, we are restricted to the question of jurisdiction.

The act requires that 'the proceedings should conform as nearly as possible to proceedings in admiralty and revenue cases.'

The general jurisdiction in admiralty and revenue cases is regulated by the Judiciary Act of September 24th, 1789. Various decisions, in which this act has received a judicial construction, show that the seizure ascertains and determines the forum wherein judicial proceedings were to be instituted, but does not of itself subject the property to the judgment of the court.

After the forum is ascertained, what is to be done? The act of Congress of March 2d, 1799, provides that 'all goods, &c., &c., seized by virtue of this act, shall be put into and remain in the custody of the collector, or such other person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required to ascertain whether the same have been forfeited or not.' And the same act goes on to provide that 'the collector within whose district the seizure shall be made, or the forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect, &c., &c., &c.'

These sections contemplate a second seizure of the property by the marshal as an officer of the court. The act provides that the collector shall retain it only until the institution of proceedings in court. As soon as these proceedings are instituted, the marshal, in virtue of the process and monition of the court, must take it out of the hands of the collector and into his own custody. For 'as soon as the marshal seizes the same goods under the proper process of the court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future orders of the court.'

The admiralty rules have been framed under this view of the law. Rule twenty-two requires that 'all informations and libels of information, upon seizure, &c., shall conclude with a prayer of due process, &c.' And rule nine prescribes, that 'in all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ships, goods, or other things to be arrested; and the marshal thereupon shall arrest and take the ships, goods, or other things, into his possession, &c.'

What need of a warrant of arrest, if the property was already in the custody of the court and subject to its judgment? The office of the process was to bring it into the court. The duty of the marshal in executing the process is to arrest the property seized by taking it into his custody; and his return is to be, that he has arrested the thing, and cited all persons interested, &c., & c., as he was by the warrant ordered to do. Then, and not till then, the jurisdiction of the court attaches.

A court acquires jurisdiction only by either one of two modes: 1. As against the person, by service of process. 2. In rem, by arresting the thing under the order or writ of the court.

In a proceeding either in personam or in rem, the process must be the process of the court. Now the seizure made here by the order of the district attorney was simply an executive act, not a judicial notice. The marshal, in making that seizure, acted as the agent of the district attorney, or of the executive branch of the government, not as the officer of the court. In a suit by the United States, could a court obtain jurisdiction in personam by an executive mandate, without any process from the court directing the defendant to appear?

Again, the object of process, either in personam or in rem, is to give notice of a pending case. Did this seizure, under the act of July 17th, 1862, give such notice? The President may seize for the purpose of using, and if he chooses he may take proceedings to condemn. Under the revenue acts, the person making the seizure is required to proceed at once. Under this act the President may never proceed.

The evidence of seizure is the marshal's return-a jurisdictional fact which must appear in the record. But conceding that the fact of seizure by the officer of the court might be proved, in the absence of a return, from other sources, there is no proof of such seizure here. And what appears in this record?

1. A writ, and no return upon it.

2. No finding by the jury of the fact of seizure.

There is nothing to show that the marshal, as an officer of the court, ever had this property in his custody, nothing, that that was done which could give the court jurisdiction.

That the person who at one time seized this property was the same person who was marshal of the court when the monition issued, can make no difference. There is nothing to prevent that person from acting in two or more different capacities, and he did not act as the officer of the court, or in obedience to any process issuing from it, when he made this seizure.

II. The decree of sale was passed 29th July, 1863, prior to the first Monday in August, on which last day the monition and attachment were returnable, so that the legal notice prescribed was disregarded and the decree rendered without either actual or constructive notice. Of course such a sale is not judicial, but void to all intents, and in whatever way it may be presented to a court as a muniment of title.

The libel does not on its face show that the plaintiff in error had not within sixty days after public warning and proclamation by the President ceased to aid, &c., in the rebellion, as required by the sixth section of the act of 17th July, 1862.

III. The decree of condemnation does not find the essential fact, that the property belonged to a person engaged in the rebellion. The seventh section only authorizes the condemnation of the property seized 'if it shall be found to have belonged to a person engaged in rebellion, or who has given aid and comfort thereto.' The libel alleges that the 'said accused is and was on the 17th day of July, and previously thereto had been the owner' of the property seized in this case, and that the accused had engaged in the rebellion and given aid and comfort thereto. But there is no finding in regard to these facts by the court.

IV. The act of 17th July, 1862, is entitled 'an act to suppress insurrection, to punish treason and rebellion, &c.' Its character as a penal act is proclaimed in its title; it provisions are in harmony with its title. They are through out punitive and highly penal; they punish with death or with imprisonment almost as bad as death, the crime of treason; they create a new crime, that of rebellion, and punish it with imprisonment or fine, or with both, at the discretion of the court, and, to all these penalties superadd those of confiscation and of civil disability, heretofore unknown to our penal code. No one can doubt, that this is a penal statute designed to punish treason and rebellion. If such be the fact, every proceeding having for its object to inflict that punishment, is in effect, and should be in form, a criminal prosecution. The proceedings in the present case fulfil none of the requirements of the Constitution for a criminal prosecution in a crime of this magnitude. The accusation is preferred not by the indictment of the grand jury, but by a libel of information filed by the district attorney. The accused was not 'informed' of his accusation, unless an advertisement in a newspaper be considered such information. Finally, he was not confronted with the witnesses against him, but was tried in his absence, and the trial was by the judge, not by a jury. If it be said that this is not a criminal prosecution, because it is in the form of a civil process, we answer: 1st, that this is precisely what we complain of, and that the nature of a proceeding does not depend on its form, but, on the contrary, its form on its nature.

The conclusion is therefore inevitable, that the present case involved a criminal prosecution disguised under the forms of a civil process. Consequently that this was not 'due process of law' in the sense of the Constitution.

How will the defendant seek to escape from these unanswerable arguments?

He will say: 1st. That property may be confiscated for crime, by proceedings in rem, without conviction of the owner.

2d. That property confiscated under the act of July 17th, 1862, is confiscated, not for crime, but as enemy's property.

Both these propositions are incorrect. In support of the first, the defendant would doubtless rely on the decisions of this court in various cases of maritime seizure, for breaches of navigation laws, in which it was held that the prohibition contained in the fifth amendment to the Constitution did not apply to confiscations by proceedings in rem, for violation of the laws of impost, navigation, and trade.

An examination of the principles on which these decisions are founded will show that they do not sustain the proposition for which they are cited.

Proceedings in rem have, from time immemorial, been employed in courts of admiralty, as means of enforcing a jus in re, that is a claim or right (such as a privilege, or lien, or an hypothecation), in the specific thing proceeded against. At a later period it was adopted in England for enforcing the forfeiture of vessels or merchandise for breaches of revenue or navigation laws; but, of course, always confined to property that was directly connected with the alleged violation of law, either as the subject of it or as the means with which it was committed. This practice existed both in the mother country and in the colonies when the Constitution was adopted, and the Supreme Court, in the cases above referred to, decided that the prohibition contained in the fifth amendment to the Constitution did not apply to this class of cases. But why did it not apply to them? For two reasons: 1st. Because they were not of a criminal nature. 2d. Because the words 'due process of law,' in that amendment, must be understood with reference to the laws in force at the time it was adopted; and as the confiscation of property by proceedings in rem against it for violations of laws of impost, navigation, and trade was a process in use at that time, it was included in the words 'due process of law.'

The Palmyra, one of the cases referred to, illustrates the principles on which these decisions are founded. This vessel was libelled for the violation of a special statute which declared that any vessel violating its provisions should be forfeited, but affixed no personal penalty to the offence. The defence set up was a want of a previous conviction of her owner. She was condemned on the grounds: 1st, that the law created no crime of which the owner could be convicted; 2d, that 'this doctrine had never (in England) been applied to seizures of forfeitures created by statute in rem, cognizable on the revenue side of the Exchequer.' That, in these cases 'the thing is primarily considered as the offender, or rather the offence is primarily attached to the thing.' 'Many cases exist where the forfeiture is solely in rem, there is no penalty in personam,' &c. The court adds, however, that 'if the objection was presented at common law it must prevail.'

Now, in the present case the law does impose a personal penalty on the owner. There is a crime, of which he can be convicted, and he is charged with that crime, and the law expressly declares, that the property cannot be condemned, unless that crime shall have been committed by the owner. 2d. In the present case the objection of a want of conviction of the crime, is presented in a case at common law. But the point to which the attention of the court is particularly called, is the care with which the right to confiscate property, by proceedings in rem, in confined to cases on the revenue side of the Exchequer,' in which the thing is considered as primarily the offender.' In the present case it is not pretended that the houses and lots seized, have committed the offence for which their forfeiture is demanded, or have been in any manner instrumental in, or connected with, the said offence. On the contrary, the owner thereof is alone charged with the offence. It is evident, therefore, that these decisions afford no countenance whatever, to the novel doctrine that Congress may authorize the confiscation of property for crime, without a previous conviction of the owner, by proceeding against the property itself.

Chancellor Kent, in commenting on these decisions, says that 'it may now be considered as the settled law of this country, that all seizures under laws of impost, navigation, and trade, if made upon tide waters, navigable from the sea, are civil cases of admiralty jurisdiction.' So far, therefore, from supposing that these decisions afford any ground for extending this mode of proceeding to any other class of cases than those of 'impost, navigation, and trade,' he regrets that the Supreme Court should have gone as far as they had in sustaining them, and doubts the correctness of those decisions, which permit a resort to this mode of proceeding in seizures, even of this class, which were not made on navigable waters, inasmuch as, in England, such seizures, when made on land, were cognizable only in the Court of Exchequer, where the trial of all facts is by jury.

He concludes his remarks on this subject by the following reflections apposite to the present case:

'These proceedings for the forfeiture of large and valuable portions of property under revenue and navigation laws, are highly penal in their consequences, and the government and its officers are always parties, and deeply concerned in the conviction and forfeiture; and if, by act of Congress, or judicial construction, the prosecution can be turned over to the admiralty side of the District Court, as being neither a criminal prosecution nor a civil suit at common law, the trial of a cause is transferred from a jury of the country to the breast of a single judge.'

The second ground on which these proceedings are sough to be sustained, is equally untenable.

Before we discuss this point, however, we ask a question. If it be true that property confiscated under the act of 1862, is confiscated on the ground that it is the property of an enemy, why in the present case was it not alleged to be the property of an enemy? Why was not its condemnation asked for, and the decree of condemnation based on that ground? There is nothing in all the proceedings looking to the condemnation of the property as that of an enemy; on the contrary, it is demanded on the ground that the owner has committed acts of treason and rebellion, crimes which cannot be committed by an enemy. If then, it be true that the property can only be condemned on the ground that it is enemy's property, the decree, for that reason alone, if for no other, would be void. But supposing the sentence of condemnation to have been based on the ground that the property belonged to an enemy, have Congress declared, or could Congress declare, the property of a citizen to be that of an enemy?

The word enemy in its legal sense has a different meaning from that in which it is ordinarily used. It has no reference to the feelings or conduct of a person, but simply to his nationality. On the other hand, no citizen, however inimical his feelings or his conduct towards his own country may be, can claim the immunities or incur the liabilities of an enemy. The word is therefore synonymous with alien enemy, and this is the sense in which it is used by all legal writers. To call a rebel an enemy, therefore, would be a contradiction in terms.

The act of 1862 is chargeable with no such contradiction.

The whole argument for the contrary rests upon a single ambiguous expression in the 7th section, to wit: that which declares that the property shall be condemned 'as enemy's property.' The defendant assumes that the words 'as enemy's property,' here mean, 'because it is enemy's property,' or 'on the ground that it is enemy's property;' but how could that be, when previous sections of the act had declared the very parties whose property is thus to be condemned, to be traitors and 'rebels,' and punishes them as such? The expression means, simply that the property shall be condemned as if it was enemy's property, or, in the same manner as if it was enemy's property.

Messrs. A. G. Riddle, S. L. Phillips, and L. Madison Day, for the defendant in error:

I. The District Court had jurisdiction in the confiscation of the property in question, both under the statute of the 17th July, 1862, and by the general law of proceedings in rem, the moment of seizure and institution of proceedings.

The 5th section of the Confiscation Act of 1862 declares:

'To insure the speedy termination of the present rebellion, it shall be the duty of the President to cause seizure of all the estate,' &c.

'To secure the condemnation and sale of any such property, after the same shall have been seized, so that it may be available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States, in any District Court thereof, or in the United States District Court for the District of Columbia, within which the property above described may be found.'

Here is the legislative declaration of what shall give jurisdiction to a court for the purposes of condemnation and sale. Seizure, and the institution of proceedings-a libel, according to the form of the admiralty-both of which are found by the special verdict.

But, independently of any statutory regulation, in all proceedings in rem a court of admiralty, whether as a prize or instance court, has jurisdiction and absolute control over the thing as soon as seized and libelled. The District Court does not derive its jurisdiction from any possession, actual or supposed, of its officers, but from the act and place of the seizure for the forfeiture; and if it at once acquires jurisdiction, it is not avoided by any subsequent irregularity. In a case of seizure on land, it was held nothing more was necessary to give jurisdiction in cases of this nature, than that seizure should be made within the district. And where it was held, for the first time, that seizures made on land were cases at common law and triable by jury, it was still held that a libel stating the fact of seizure on land would give jurisdiction.

In order to institute and perfect proceedings in rem, it is necessary that the thing should be actually and constructively within the reach of the court. It is actually within its possession, when it is submitted to the process of the court; it is constructively so when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem.

II. The court having had jurisdiction over the thing, can such an irregularity as entry of final decree before return day of monition, be relied upon in this collateral action?

It is a rule without exception, that the judgment of a court of competent jurisdiction while unreversed concludes the subject-matter as between the said parties. They cannot again bring it into litigation. In Blaine v. The Charles Carter, a ship had been sold under executions issued within ten days after judgment, contrary to the express provision of the 22d section of the Judiciary Act, but no writ of error was taken out. The court declared that if the executions were irregular 'the court from which they issued ought to have been moved to set them aside. They were not void, because the marshal could have justified under them; and if voidable, the proper means of destroying their efficacy had not been pursued.'  Mr. Justice MILLER delivered the opinion of the court.

The question for our consideration is, whether the confiscation proceedings, as found in the special verdict, divested the title of the plaintiff in the lot?

These proceedings do not come before us on a writ of error to correct any irregularities or mere errors of law in the court which rendered the judgment, but they come before us collaterally as the foundation of the defendant's title.

According to the well-settled doctrine in such cases, no error can be regarded here, or could have been considered in the court below on the trial, that does not go to the extent of showing a want of jurisdiction in the court which rendered the judgment condemning the property.

Counsel for the plaintiff in error recognize this principle, but it is remarkable what a number of supposed errors in the proceedings are found by them to be jurisdictional. Almost every point that has been urged in the cases of Garnet v. The United States, and Miller v. The Same, on writ of error directly to those confiscation proceedings, is here relied on as sufficient to defeat the jurisdiction. Looking to the errors alleged, it may safely be said that if half that has been so earnestly urged by counsel in these cases be well founded, the confiscation acts would be nugatory from the difficulty of putting them judicially in force, though their constitutionality were conceded.

Undoubtedly, by the individual, whose property is thus seized and condemned for acts of hostility to his government, the course pursued would be scrutinized with an eye quick to detect errors, and it is not strange that this critical spirit should affect the argument here. When to this is added the belief, long inculcated, that the Federal government, however strong in a conflict with a foreign foe, lies manacled by the Constitution and helpless at the feet of a domstic enemy, we need not to surprised that both the power of Congress to pass such a law as the one in question, and the capacities of the courts to enforce it, should meet with a stout denial.

But we do not believe that the Congress of the United States, to which is confided all the great powers essential to a perpetual union-the power to make war, to suppress insurrection, to levy taxes, to make rules concerning captures on land and on sea-is deprived of these powers when the necessity for their exercise is called out by domestic insurrection and internal civil war-when States, forgetting their constitutional obligations, make war against the motion, and confederate together for its destruction.

And we are further of opinion that where, the constitutionality of the confiscation acts being established, we are called upon to sit in review on the judicial proceedings of the inferior courts in the enforcement of these statutes, we are to be governed by the reasonable and sound rules applicable to analogous cases in the courts, and not by a system of procedure so captious, so narrow, so difficult to understand or to execute, as to amount to a nullification of the statute.

The framers of the act of July 17th, 1862, appear to have anticipated much of what has been since urged in regard to the mode of proceeding in the execution of that statute. Seeing very clearly that the cases of seizure under the law would be mainly on land, and would not, in that case, be cognizable as admiralty cases, and that being founded on the principle of confiscating enemy property, they were not strictly revenue cases; their attention was called to the proper mode of procedure in the enforcement of the law.

As the act was designed to introduce the principle of confiscating enemy property seized on land, like that seized on water, applying the confiscation, however, to the property of a limited class of enemies, instead of to all enemies, it was conceived that the proceeding should be, in its essential features, analogous to those which the courts of admiralty were accustomed to use in property captured at sea. The same courts were to have jurisdiction, the same officers were to administer the law, and, as those courts were already in possession of jurisdiction in revenue and admiralty cases, and as the analogies of those cases to the new jurisdiction conferred were supposed to present a mode of enforcing the law adapted to the latter in their main features, it was enacted that the proceedings under the statute should conform, as near as might be, to proceedings in admiralty or revenue cases; and, foreseeing also that in some respects they could not be strictly so conformed, the statute authorized the courts to make such orders, establish such forms of decrees and sale, and direct such deeds, when real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of the act.

Unquestionably, it was within the power of Congress to provide a full code of procedure for these cases, but it chose to give a direction on the subject which, adopting, as a general rule, a well-established system of administering the law of capture, looked to the fact that departures from that system might be necessary, and invested the courts with a discretion in that regard.

Five or six cases arising under this statute were argued before us at the last term, and, appreciating both the difficulty and the importance of some of the points raised in argument, they were all ordered to be argued again at this term, and have, under that order, been ably and fully reargued. They have all been disposed of but this, and the court have not hesitated, where there was a substantial departure from the mode of proceeding directed by the statute, to reverse the decree of the courts below in the cases which were here on error to those proceedings. And when we have found the proceedings to be conformable to the course of procedure of revenue and admiralty cases, we have held the decrees to be valid. The cases thus decided, and especially the case of Miller v. United States, in effect dispose of all the objections taken to the action of the court in this case, even if that action were here for review directly, instead of being presented collaterally in another suit.

But, as one point was much and earnestly pressed as peculiar to this case, and as conclusive against the validity of the confiscation proceedings, that point will be further considered.

It is argued that there was no such judicial seizure of the land which was condemned and sold as to bring it within the jurisdiction of the court.

The record shows that the marshal of the District of Columbia, in which court the proceeding was had, and within the territorial jurisdiction of which court the land was situated, did seize the land under the instruction of the attorney of the United States for the district. No objection is made that this seizure was not full and complete. The order of the district attorney was directed to the marshal of the District of Columbia and described the property to be seized, and stated that the seizure was to be made for the purpose of instituting proceedings for its condemnation under the act of July 17th, 1862. The marshal returned on this paper that he had seized the property and given notice to the tenants in possession, and he makes a part of this return the notice served on the occupants of the premises, in which he states that it is to be held subject to the order of the United States District Court for the District of Columbia. After this the libel was duly filed in that court, and a monition was issued from it to the same marshal, ordering him to give due notice and to attach the property and to detain the same in his custody until the further order of the court in the premises. To this monition no return was made by the marshal except a certificate of publication of notice.

The proposition of the plaintiff's counsel is, that because no return of the marshal was made that he seized the property under this monition, the court had no jurisdiction of the case, and its subsequent condemnation and sale were void.

When we consider that it was the same officer and the same individual who had already seized the property, and had it in his control and possession, and that his statement to that effect was before the court, with the addition that he held it subject to the order of the court, that he was the only executive officer of the court who could make the seizure, the point raised seems to be as narrow and unsubstantial as the second seizure would be useless.

The argument is based upon the analogy of revenue seizures, which are always of personal and movable property, and which are always made in the first instance by some other officer or individual than the marshal, and which must be taken possession of by the marshal as the representative of the court. This is usually done under a process of the court for the purpose of bringing the property under its recognized control. And this is at once the reason, and suggests the limit of the two seizures in revenue cases so much relied on by counsel.

Now, suppose the property in this case had been personal property, how could the marshal make a seizure of that which was already in his manual possession? Whose possession would he displace? Could one hand represent the seizure under the monition and the other the seizure under the act of Congress? And can it be seriously contended that this must be done to give the court jurisdiction, when the officer of the court held the property already for condemnation or discharge as the court might order?

It may, however, be said that he should have made return of the writ, that he had seized and held the property under that. Such a return as to seizure would have been false, because he had seized it before and could make no second seizure, in fact, by taking it from his own possession. And he had already informed the court that he detained the property subject to its order.

The proceeding inaugurated by the district attorney is designed to bring the property before the court. It can have no other purpose or end, unless it is released by his order. The district attorney and the marshal are both officers of the court, and for that reason are selected to institute the proceeding by which the power of the court is called into exercise. When, therefore, the property is in the course of this proceeding seized by the marshal, and when with the filing of the libel all that has been done is brought before the court and it adopts and recognizes this seizure, the property is held by him subject to the order of the court, and is under its control, and no second seizure by the same officer can be necessary.

In regard to real estate, the argument is still more forcible. The remarks of this court in Cooper v. Reynolds, already cited, are directly in point. Speaking of the various modes of acquiring jurisdiction, it was there said, that 'while the general rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the officer of the court, such jurisdiction may be acquired by acts which are of equivalent import, and which stand for and represent the dominion of the court over the thing, and in effect subject it to the control of the court. Among this latter class is the levy of a writ of attachment or seizure of real estate, which being incapable of removal, and being within the territorial jurisdiction of the court, is for all practical purposes brought under the jurisdiction of the court by the officer's levy of the writ and return of that fact in the court.'

When, therefore, the officer, as in this case, had seized the property for condemnation, and had made known that fact to the court, it was quite certain that it would be within reach of its process when condemned for sale, and when it became necessary to put the purchaser in possession of it. No change of the title or possession could be made, pending the judicial proceedings, which would defeat the final decree. The seizure was therefore, in our judgment, sufficient to subject the land to the jurisdiction of the court.

The judgment of the Supreme Court of the District of Columbia is therefore

AFFIRMED.

Mr. Justice DAVIS expressed his concurrence in the judgment, though he stated that he had not been able to concur in all that was said by the court in the preceding opinion.

Mr. Justice FIELD, with whom concurred Mr. Justice CLIFFORD, dissenting.

title: Tyler v. Defrees/Opinion of the Court


text: Talk:Tyler v. Defrees/Opinion of the Court


text:
Tyler v. Defrees/Dissent Field

Mr. Justice FIELD, with whom concurred Mr. Justice CLIFFORD, dissenting.

I am compelled to dissent from the judgment of the court in this case.

I agree with the majority that as the decree of confiscation, under which the defendant asserts title to the demanded premises, comes before us collaterally, it cannot be attacked for mere errors or irregularities committed in the progress of the cause in which it was rendered. It can be only attacked for defects which go to the jurisdiction of the court, either over the subject-matter or the parties, or to render the particular decree. It is not strictly correct to say that, if the jurisdiction over the subject-matter and the parties exists in a particular case, any defect in the decree rendered can only be taken advantage of an appeal or by direct proceedings. That jurisdiction may exist and yet the decree may be so variant from that which the court was authorized to pronounce as to be void on its face. If the law, for example, authorize a pecuniary fine, the court cannot award imprisonment. If the law directs only damages to be assessed, the court cannot decree a specific performance. If the law declares that only a life estate shall be confiscated, the court cannot disregard its limitation and condemn the fee. The judgments in such cases would be void in whole or part, notwithstanding complete jurisdiction was had over the subject and the parties controversy. There are certain limitations to the action of courts even after they have acquired jurisdiction which they cannot transcend without opening their judgments to collateral attack. In other words, jurisdiction over the subject-matter and parties does not authorize a judgment in the case of any and every kind.

All reasonable presumptions are indulged in support of judgments when collaterally attacked. So large are these presumptions that they generally answer as an explanation for the absence of all matters in the record, which are required to be taken before the judgment can be lawfully entered. As the presumptions are indulged to supply the absence of averments of the particular facts presumed, they cease to be received when the contrary of the particular supposed facts appears. Thus when a record of a judgment, rendered in an action at law upon an issue joined between the parties, is produced, in which no verdict of a jury or finding of the court appears, upon the existence of which alone the judgment could be entered, it will be presumed that such verdict or finding was had. But, on the other hand, if it affirmatively appear in the record that no such proceeding was had, the judgment may be attacked as having been rendered without authority. It is of no avail, then, to invoke the doctrine that a judgment cannot be collaterally assailed. The doctrine does not apply to a case of this kind, for the record itself establishes the invalidity of the judgment produced.

The objections which I make to the decree, upon which the defendant asserts title, go to the jurisdiction of the court over the property condemned, to its jurisdiction to enter the decree rendered, and to the validity of the act of July 17th, 1862. Similar objections were taken by me in a dissenting opinion to the decree in the case of Miller v. United States, recently decided, but the importance I attach to them justifies their further elucidation.

First; as to the jurisdiction of the court over the property. The executive seizure of the property required by the act of Congress is preliminary to the commencement of judicial proceedings for its forfeiture. 'After the same shall have been seized,' says the statute, proceedings shall be instituted. Now, when the executive seizure in this case was made, what was the condition of the property before judicial proceedings were taken? Was it in the custody of the court? Clearly not. As yet the court had nothing to do with it-no more than, before suit, it has to do with a vessel seized by the collector for a violation of the revenue laws, or brought into port by a prize crew for an attempted breach of blockade. The fact that the marshal was employed as the agent of the President in making the seizure, did not change the position of the property. The President might have selected any other person as his agent with the same result. He might, at this stage, have released the property from seizure upon his own volition, without interfering with the authority of, or coming in collision with the court. As yet no relations were established between the court and the property seized. Whatever the marshal, in making the preliminary seizure, may have said to the occupants of the premises seized, or whatever notice he may have given to them, whether it was that he held the property subject to the directions of the President, or to the order of the District Court or district attorney, in no wise affected the condition of the property, or created any relation between it and the court. The existence of any such relation did not depend upon the declaration of that officer, who, as yet, was not acting under any judicial process.

The next proceeding was the filing of the libel of information; but that did not change the relation between the court and the property. The libel was the foundation for the issue of the process of the court to bring the property within its custody; but, of itself, without such process, it worked no change in the condition of things. When was it ever pretended that the mere filing of a libel, without the issue of process, brought person or thing into the custody of the court? When the libel was filed process was ordered, and process was issued, commanding the marshal to attach the property and detain the same in his custody. By attachment under this judicial process, had it been made, the court would have acquired jurisdiction over the property, for it is by seizure under judicial process, and that alone, that the court takes the res into its custody. But the process thus issued was never served, and the jurisdiction of the court over the property rested upon the preliminary seizure alone. And yet we are told by the majority of the court that the objection that this preliminary seizure was insufficient to give the requisite jurisdiction, and that a new seizure, under judicial process, was necessary, is a very narrow and unsubstantial objection. I answer, that no objection is narrow or unsubstantial which goes to the jurisdiction of the court to forfeit the property, of a citizen upon ex parte proceedings, without a hearing, for alleged public offences of which he is assumed to be guilty, because he did not appear to a citation, which the law prohibited from being communicated to him. This court has repeatedly dismissed writs of error because tested by a wrong officer, or made returnable on a day other than the first day of the term, or because they did not embrace all the parties to the record; and when it has been urged that the objections taken to them were extremely narrow and unsubstantial, the answer has been that nothing could be treated as narrow and unsubstantial, and for that reason disregarded, which was prescribed by law as the mode of exercising the appellate jurisdiction of the court. So, here, nothing can justly be considered as either narrow or unsubstantial which is required by law to give jurisdiction to a court to enforce penal statutes, in the absence of the alleged offenders against their provisions.

Second; as to the jurisdiction of the court to render the decree in the confiscation case. The act of Congress, as already stated, is highly penal in its consequences, and by all established canons of interpretation should be strictly construed. Its every requirement should be rigidly exacted. What, then, are its requirements? It declares that the proceedings instituted for the condemnation of the property seized shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if the property shall be found to have belonged to a person engaged in the rebellion, or who has given aid and comfort thereto, the same shall be condemned.

As the proceedings in the case upon which the defendant relies related to land, they should have conformed, according to those provisions, as nearly as practicable to proceedings in revenue cases. Now the statute of 1799 prescribes the proceedings in these cases, and declares that after default is made in one of them, 'the court shall proceed to hear and determine the cause according to law,' a clause which has been judicially held, and in my opinion correctly held, to make it imperative upon the court that there shall be some hearing before a decree of forfeiture is rendered, and 'the court will require,' says Mr. Justice Sprague, in such cases, 'the prosecutor to introduce full proof of the allegations in the libel whenever the circumstances shall make it reasonable.'

If we consider the provision of the law of 1799, and the provision of the act of 1862, for a finding, it seems impossible to escape the conclusion, that a finding upon hearing is an essential prerequisite to any decree of forfeiture in these confiscation cases. The authority to render the decree is in express terms made conditional upon a particular fact being found. If the fact designated be found, says the statute, the property shall be condemned, which is equivalent to declaring that if such fact be not found, no condemnation shall be decreed. As the record produced in the case, upon which the defendant relies, shows that no hearing was had and no finding was made, the decree of forfeiture rendered therein appears to me to be an act of judicial usurpation.

Third; as to the validity of the clauses of the act of 1862, providing for the seizure and confiscation of the property of rebels. This point I have already considered at length in the dissenting opinion in Miller v. United States, and I shall only add a few words. In that dissenting opinion I expressly stated that it had been held that, when the late rebellion assumed the proportions of a territorial civil war, the inhabitants of the Confederate States and the inhabitants of the loyal States became reciprocally enemies to each other, and that the inhabitants of the Confederate States engaged in the rebellion, or giving aid and comfort thereto, were at the same time amenable to the municipal law as rebels, and that the correctness of this determination was not disputed; that the question was, not as to the right of Congress to adopt either of these courses, but what course had Congress, by its legislation, authorized. It is indisputable, that whatever Congress may authorize to be done, by the law of nations, in the prosecution of war against an independent nation, it may authorize to be done when engaged in the prosecution of a territorial civil war against the domestic enemies of the United States. I contend only that the limitations, which the law of nations has imposed in the conduct of war between independent nations, should apply and govern the United States in whatever war they may prosecute. I do not doubt, and never have doubted for a moment, that the United States possess all the power necessary to suppress all insurrections, however formidable, and to make their authority respected and obeyed throughout the limits of the republic. But this recognition of the power of the government cannot be permitted to preclude a comparison of all legislation, adopted to uphold its authority, with the Constitution. And in so comparing the act of July 17th, 1862, I am unable to find in that great instrument any sanction for the clauses in the act providing for the seizure and confiscation of the property of persons charged with particular criminal acts. I do not find it in the war powers of the government, for they sanction only the confiscation of the property of public enemies. I do not find it in the municipal power of the government to legislate for the punishment of crimes, for that is subject to limitations, which secure to the accused a trial by a jury of his peers, and the right to be confronted with the witnesses against him.

It is true, as already stated, that enemies participating in the rebellion, or giving aid and comfort thereto, might have been treated as rebels and held amenable to the municipal law. Yet the terms, enemies and rebels, are not synonymous, even though the rebellion attained the proportions of a territorial civil war. A permanent resident of the Confederacy was an enemy, although he may always have opposed the rebellion and remained loyal in his feeling and action to the National government. His position as an enemy was determined by his residence, and had nothing to do with his personal disposition or conduct. But he was not a rebel, and could not have been prosecuted as such unless he was personally guilty of treasonable acts.

Congress well understood the distinction between enemies and rebels, and we are not justified in supposing that it intended to disregard this distinction in its legislation, even were that practicable, as it was not.

My conclusion is that the judgment of the court below was erroneous, and should be reversed.

title: Tyler v. Defrees/Dissent Field


text: Talk:Tyler v. Defrees/Dissent Field

title: Talk:Tyler v. Defrees/Dissent Field


text:
Page:A short history of social life in England.djvu/58

38 but he must produce a guarantor for his subsequent behaviour. Here we have the origin of the "best man" of to-day. Clasping hands in the presence of the family, at the house of either bride or bridegroom, constituted the marriage service of these pagan days. Nevertheless, we get many of the words in our Prayer-book to-day, copied, for the most part, from an old Anglo-Saxon marriage contract, couched in the language of a legal transfer of land:—

"I take thee, John, to be my wedded husband, to have and to hold, from this day forward, for better for worse, for richer and poorer, in sickness and health, to be bonny and buxom, in bed and at board, till death do us part, and thereto plight I my troth."

With the introduction of Christianity later the words "If Holy Church do so ordain" were added.

The consumption of the home-made loaf (ancestor to the wedding-cake), made by the bride to denote proficiency in housekeeping, as well as the satin slipper institution, date from this period. The origin was practical. Upon marriage the authority of the father over his daughter was transferred to the husband, a fact


text:
The Distilled Spirits

IN error to the Circuit Court for the District of Massachusetts; the case being this:

The 48th section of the Internal Revenue Act of June 30th, 1864, as amended by an act of July 13th, 1866, enacts that

'All goods, wares, merchandise, articles or objects, on which taxes are imposed by the provisions of law, which shall be found in the possession, or custody, or within the control of any person or persons in fraud of the internal revenue laws, or with design to avoid payment of said taxes, may be seized, &c., and shall be forfeited to the United States.'

The 45th section of this later act enacts that

'All distilled spirits found elsewhere than in a bonded warehouse, not having been removed from such warehouse according to law, and the tax imposed by law not having been paid, shall be forfeited.'

By the 42d section of the same act a penalty is imposed on persons executing any false and fraudulent bond or other document for the purpose, among other things, of withdrawing from any bonded warehouse any spirits or other merchandise, or which shall be used in fraud of the internal revenue laws. By this section the property is forfeited and the party executing the document made liable to imprisonment.

The act of 1864 contained no specific provisions for the forfeiture of distilled spirits. The act of 1866 in certain sections (that is to say, in sections from 40 to 45) made provisions about them, including cases in which the government would be entitled to a forfeiture of such spirits. One section, the 40th, enacted that distilled spirts when inspected might be removed, under bond, without payment of tax, from the bonded warehouse of the distiller to any general bonded warehouse. Another, the 41st, that spirits or other merchandise might be removed from bonded warehouse for the purpose of being exported. Another, the 42d, already quoted, makes penal the making of any false bond or other document to evade payment of the tax; another, the 43d, that owners of distilled spirits intended for sale, manufactured before the date of the act, should give notice to the collector to gauge and prove them; another, the 44th, that forfeited spirits should be disposed of by the commissioner of internal revenue; and another, the 45th, as already mentioned, that all distilled spirits found elsewhere than in a bonded warehouse, not having been removed from such warehouse according to law, and the tax unpaid, should be forfeited.

With these various provisions on the statute-book, the United States filed an information stating that the collector of internal revenue at Boston, in April, 1867, had seized 278 barrels of distilled spirits as being forfeited by removal from a bonded warehouse without paying the tax due thereon.

The first count of the information was founded on the 45th section of the act of July 13th, 1866, and alleged that the spirits were found elsewhere than in a bonded warehouse, not having been removed therefrom according to law, and the taxes not having been paid.

The second and third on the 48th section of the act of June 30th, 1864, as amended by act of July 13th, 1866, and alleged that the spirits were in the possession of one Harrington, for the purpose of being sold in fraud of the internal revenue laws, and with design to avoid the payment of taxes.

Subsequently, Harrington appeared and claimed 124 of the barrels, and a certain Boyden the remainder; and they pleaded that none of the goods became forfeited as alleged in the information, and that the allegations therein were not true. Issue was taken on each of these pleas. It appeared in proof, that in April, 1867, a large quantity of spirits were withdrawn from the United States bonded warehouses in Boston upon the pretence of an intent to transport the same to Eastport, Maine, for exportation thence. False and fraudulent bonds were given therefor, and the spirits were never attempted to be transported to Eastport, but were removed for consumption and sale in Boston and its vicinity, and the taxes were not paid. The government contended that the spirits seized were parcel of this lot, and that the claimants were parties to, or cognizant of, the fraud. The claimants contended that part of the spirits in controversy were not a portion of the spirits fraudulently withdrawn, but were from different and distinct lots, and that the spirits claimed by Harrington had been rectified in leaches in which various lots were mixed, including, possibly, some of the lot fraudulently withdrawn, which it was impossible to identify. They further claimed that the spirits were bought in open market without knowledge of the fraud, and that such of the fraudulent lot as Harrington had bought, he had bought through Boyden as his agent. Evidence was given on both sides, tending to prove these several points.

The claimants requested the court to instruct the jury as follows:

'1. That if the spirits had been deposited in a United States bonded warehouse, and had been removed therefrom upon application to the collector of the district in which they were situate, and by his authority, for rectification or transportation for exportation, they are not liable to forfeiture.

'2. That if the said spirits had been removed from a United States bonded warehouse, upon application to the collector of the district, and upon the furnishing of bonds which were satisfactory to and accepted by him, and upon permission thereupon granted by the collector, and were seized before the expiration of the time allowed for rectification or transportation, the spirits are not liable to forfeiture.

'3. That if the said spirits had been removed from a United States bonded warehouse according to the forms of law, viz., upon application made in due form to the collector for leave to withdraw, and upon bonds being given in the prescribed form, and permission thereupon given in due form for their removal, and said spirits had been bought by the claimants of the party withdrawing, or his agent, without knowledge of the fact that the bonds were worthless, or that said spirits were removed from the warehouse with intent to defraud the government, they are not liable to forfeiture.

'4. That if a portion of the spirits proved in this case not to have paid a tax had passed through the rectifiers in which there were other spirits, and so become mixed with them, no portion of the spirits, when rectified, would be liable to forfeiture.'

The court declined to give the first and second of these instructions, but gave the third, with this qualification, that if Boyden bought the spirits as agent for Harrington, and Boyden was cognizant of the fraud, Harrington would be bound by his knowledge.

It declined to give the fourth instruction as prayed for, and instead of it instructed the jury that:

'If the rectified spirits came from vats and rectifiers in which the spirits so fraudulently withdrawn, or any portion, were mixed with other lots of similar spirits of the claimants, so that they could not be distinguished, the government were entitled to the forfeiture of a fair proportion of these spirits, although the mixture might have been innocently made, provided the jury were satisfied of such facts as would, under the instructions of the court, forfeit the spirits so fraudulently withdrawn if they had not been so mixed; and if the jury were satisfied of such facts, and also found the spirits so fraudulently withdrawn were mixed with other similar spirits of the claimants by them fraudulently, with knowledge of the fraud committed, for the purpose of destroying the identity of the spirits and defrauding the government, and were so mixed that they could not be distinguished and identified, that the entire quantity of this mixture seized was forfeited to the United States.'

To the above rulings, and refusals to rule, the claimants took exceptions. The jury found against 50 barrels, claimed by Harrington, and all those claimed by Boyden; and the court decreed accordingly. On appeal to the Circuit Court, that court affirmed the decree. The case was now here on error.

Mr. R. M. Morse, Jr., for the claimants:

The question raised by the refusal of the presiding judge to give the first and second instructions prayed for by the claimants is, whether, upon the facts conceded by the government, the latter were entitled to a forfeiture under either of the sections of the statute under which the information was framed.

We submit that upon the facts conceded by the government, the forfeiture could be had only under section 42, on which, however, no count in the information is founded.

It will be noticed that the act of June 30th, 1864, contained no specific provisions for the forfeiture of distilled spirits. Under the act, therefore, all proceedings for forfeiture of spirits must have been brought under section 48. But the act of July 13th, 1866, provides in sections 40 to 45, inclusive, for all cases where the government would be entitled to a forfeiture of spirts. Hence, to give proper effect to these sections, which else would be meaningless, it must be assumed that section 48 of the act of 1864, as amended by the act of 1866, was intended to apply not to all goods, but to all goods except those for which specific provision was made in the subsequent sections. If this view is correct, then the counts under section 48 of the act of 1864, as amended, cannot be maintained.

The third and fourth prayers relate to the issues of fact submitted to the jury.

The questions of fact in controversy were:

1st. Whether the claimants, or either of them, were parties to the fraudulent withdrawal of the spirits from the warehouses.

2d. Whether they were cognizant of it.

3d. Whether the spirits seized were a part of the spirits fraudulently withdrawn.

4th. Whether they had been mixed with other liquors and then rectified; and,

5th. Whether such mixture, if made, was innocently or fraudulently made.

The fair inference from the verdicts, taken in connection with these instructions, is, that the jury found that Boyden was cognizant of the fraud, but not that he was a party to it, and that Harrington had no knowledge of the same; and that some part, if not the whole, of the spirits seized could not be identified with the spirits originally withdrawn from the warehouses in violation of law.

We consider first the third prayer for instruction, which had relation only to the claim of Harrington.

The only question to be considered is, whether the knowledge of the agent at any time obtained and not communicated to the principal, is to be held to be the knowledge of the principal so as to subject to forfeiture under a severe penal statute, merchandise liable to forfeiture, by the terms of the act itself, only when the principal has knowledge of the fraud.

There is some conflict in the authorities upon this point; but the weight of authority establishes the rule to be, that the principal is not affected by the knowledge of the agent, unless the knowledge is acquired by the agent while in the employ of the principal and in the course of the very transaction in which he is employed. This doctrine was laid down in 1729, in Fitzgerald v. Fauconberge. In Lowther v. Carlton, Lord Hardwicke said:

'If a counsel or attorney is employed to look over a title, and if by some other transaction, foreign to the business in hand, has notice, this shall not affect the purchaser.'

The doctrine was affirmed by the same judge in Warrick v. Warrick, and in Worsley v. Earl of Scarborough; by Lord Erskine in Hiern v. Mill, and by Lord Eldon in Mountford v. Scott. In Kennedy v. Green, Lord Brougham held that a client was not to be held cognizant of a fraud, although his solicitor was the contriver and actor in the same, because the solicitor's knowledge was not obtained in the course of his employment for that client.

In the United States the weight of authority is in support of the same doctrine.

In England, however, it has been held that when one transaction is clearly followed by and connected with another, or when it is clear that a previous transaction is present to the mind of the agent when engaged in another transaction, there is no ground for the distinction by which the rule that notice to the agent is notice to the principal had been restricted to the same transaction. But this relaxation of the rule has not generally obtained in the United States. The courts of Vermont, New Hampshire, South Carolina, Alabama, and Illinois are the only ones that have supported it; and in none of the decisions of these States does it appear that the American authorities were examined.

But even if the court should adopt the modification of the rule, as stated in Hargreaves v. Rothwell and Dresser v. Norwood, yet the instruction was wrong, as it failed to give the qualification which is held in those cases to be essential to affect the principal with the prior knowledge of his agent, to wit: that it must appear that the previous transaction is present to the mind of the agent when engaged in another transaction, or that one transaction is clearly followed by and connected with another so that that fact may necessarily be inferred.

The fourth instruction prayed for applies to the case of both claimants.

Both the prayer for instructions and the instruction of the presiding judge in the District Court assumed that the spirits were mixed with other spirits in the rectifiers, so that they could not be distinguished. The case being one of a loss of identity of the original offending spirits, we submit that neither the new species nor any part of it is liable to forfeiture, and this whether the mixture was innocently made or for the purpose of destroying the identity.

Mr. B. G. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Distilled Spirits


text: Talk:The Distilled Spirits

title: Talk:The Distilled Spirits