^^s^ A -s I, ^ 1 (. ^^ * 4 4 ^ .\ • -0 « <^^^' ,0 O V' ,;V> oo^ U -^ V^ '^0^ ^ V^ Digitized by tine Internet Arciiive in 2010 witii funding from Tine Library of Congress littp://www.arcliive.org/details/constitutionalitOOdayl T xi e: CONSTITUTIONALITY AND LEGALITY OF CONFISCATIONS IN FEE, Under Act of jlily 17, 1862. "Their right and constitutional power to do so cannot be even plausibly controverted." — Court of Claims. Per Chief Justice Casey. By L. MADISON DAY. NEW ORLEANS. 1870. .]]27 THE CONSTITUTIONALITY AND LEGALITY OF CONFISCATIONS IKT FEE. 1. Congress has poiver to conf scale the property of rebels and traitors, in fee, for treason. The provision of the Constitution, Art. Ill, sec. 3, par. 2, which says : " The Congress shall have power to declare the punishment of treason ; hut no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted," has reference 07ihj to at- tainder as at Common Law. This is evident from the fact that Congress is expressly inhibited by the Constitution from passing a bill of attainder. Art. I, sec. 9, par. 3. For it would be absurd to say tliat the power given to Con- gress by the Constitution to prescribe the punishment of treason could, by any possibility, have any reference what- ever to an attainder of treason ibr life, by legislative act, when it is expressly declared in that same Constitution that " no bill of attainder or ex post facto law shall bo passed." And as Congress is thus prohibited by the Constitution from passing a bill of attainder of any kind, it is very evident that there can be no attainder under the Constitution, except as a resulting consequence from a sentence of death for treason. In England, an attainder for treason was had in one of two ways : First, by bill of attainder ; second, by virtue of a sentence of death (or outlawry, which is equivalent) — that is, an attainder as a co isequence resulting from a sentence of death (or outlawry) tor treason. Now, as the first of these two ways of effecting an attainder is expressly prohib- ited by the Constitution, it follows, irresistibly, that the attainder of treason, corruption of blood, Hl-H : 'I'lie Vt'uicr, 2 W«llare, 258; Mrs. Alex- ander's cotton, ib.. 4(1-1. 27 All the inhabitants, then, of the seceded States being, in law, enemies of the United States, the latter had a perfect right to resort to the belligerent right of confiscation ; for it is a proposition never doubted^ that a sovereign endeavor- ing to reduce his revolted subjects to obedience, possesses both sovereign and belligerent rights. He may exercise one or both at his option ; and the character of the act will de- termine in which capacity the act is performed. Marshall, C. J., in Rose v. Himley, 4 Cranch R., 272-3 ; Prize Cases^ 2 Black, 673. The Government, therefore, possessing both sovereign and belligerent rights against the revolted States and their in- habitants, the act of July 17, 1862, entitled " An act to sup- press insurrection, to punish treason and rebellion, and to seize and confiscate the property of rebels, and for other purposes,'" must be regarded as an exercise of both sovereign and bel- ligerent rights. And being so regarded, there can be no doubt whatever but that all tlie seizures and condemnations of property provided for in the different sections of the act are to be regarded as made in the exercise of belligerent rights. The first section of the act prescribes the punishment for treason. And the second section provides the punishment for aiding, countenancing, or abetting the rebellion. These provisions in the first and second sections of the act are clearly to be regarded as an exercise of sovereign authority. But all the subsequent provisions of the act relating to the seizure and condemnation of property are manifestly to be referred to the belligerent right of confiscation. For in the fifth section it is made the duty of the President, in order "to insure the speedy termination of the present rebellion," '^ to cause the seizure of all the property," &c., of the par- ties named in that as well as the sixth section, " and to ap- ply and use the same and the proceeds thereof for the support of the army of the United States." 28 This is but the exercise of the belligerent right of confis- cation, as all the parties whose property was to be seized are spoken of as being in some way connected with the rebel- lion, "and are none the less enemies because they are trai- tors." 2 Black, 674. They were, then, not only enemies in law, but enemies in fact, and their property, therefore, sub- ject to the belligerent right of confiscation for the support of the army. For, as is well said by Chief Justice Marshall in Rose v. Himley, 4 Cranch, 241, 272-3, with reference to a sovereign who was endeavoring to reduce his revolted subjects to obe- dience^ possessing both sovereign and belligerent rights, and to be capable of acting in either character, " the man- ner in which he acts must determine the character of the act. If, as legislator, he publishes a law ordaining punishments for certain ofi'ences, which law is to be applied by courts, the nature of the law, and of the proceedings under it, will decide whether it is an exercise of belligerent rights, or ex- clusively of his sovereign power ; whether the court, in ap- plying this law to particular cases, acts as a prize couit or as a court enforcing municipal regulations." As the manner, then, in which the Government acts must determine the character of the act, we think there can be no doubt that the seizures and condemnation as "enemies' property,'' provided lor in the act, are to be regarded as an exercise solely of the belligerent right of confiscating " ene- mies' property." The owners of the property condemned were by the act, so far as respected property, put upon the footing of enemies, and treated accordingly. This is all the act means with reference to confiscating property, and all that it was intended to mean. In the case of the United States vs. Stock, 5 Blatchford's C. C. R., 237, Mr. Justice Nelson, with reference to the 29 nature and clifiracter of the acts of ^ugust r», 1861, and sev- enteenth July, 1862, says: "These acts provide for the seizure of enemies' property, as prize of war, on land, jure belli, vvliicli, according to the case of Brown vs. The United States, (8 Cruncli, 110,) is not authorized by the law of nations, and can be upluld only by an act of Congress ; in other words, by the municipal law of the nation seeking to enforce ihe forfeiture. The law of nations authorizes cap- tures, as ])rize of war, on the high seas ; the acts of Congress on the land ; and in the latter case these acts expressly pro- vide that the picceedings shall conform to the proceedings in admiralty and revenue cases, and that if the property is found to belong to a person engaged in the rebellion, it shall be condemned as enemies' property. These acts of Congress are but an extension of the rule which, according to inter- national law, has always been applied, j'to'e belli, to enem'es' property." Even the properly of a loyal and peaceful citizen, taken trading with the enemy, " is forfeited as prize." Jecker vs. Montgomery, 18 Hoav., 114. And " the ground of the for- feiture is that it is taken adhering to the enemy, and, there- fore, the proprietor is pro hac vice to be considered as an (nemy." lb. And it was held in the case of the Rapid, 8 Cranch, 155, that after a declaration of war an American citizen could not lawfully send a vessel to the enemy's country to bring away his property, as the law will not tolerate intercourse even for such a purpose. " The whole nation," says the court in the above case, "are embarked in one common bottom, and must be reconciled to submit to one common fate. Ev- ery individual of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country." 30 And all the inhabitants oT enemy territuy, as we have seen, are to be regarded as enemies, and their pioperty, irre- spective of their sentiments and feelings, (2 Wallace, GO ; ih., 404,) liable (o capture and confiscation, except in so far as that relation and exemption may have been changed by the Government itself. Mrs. Alexander's cotton, 2 Wallace, 404. How much more justifiable, tlien^ that the property of those who are not only enemies in haw, but enemies in fact, should be subjected to the belligerent right of confiscation, and condemned in accordance with the requirements of the act as " enemies' property." And this legislation was only nece-siry to enable the courts so to condemn the property and give effect to the will of the nation. Brown vs. Tlie United State*-, 8 Cranch, 110. WAR RIGHT. IV. War gives the right to confiscate ^^ enemies' property." The right to confiscate the property of an enemy is a loar right. Ware, Adm., vs. Hylton, et al., 3 Dall., 227, 199 ; Cooper vs. Telfair, 4 Dall., 14; The Venus, 8 Cranch K , 253 ; Thompson vs. Carr, 5 N. Hamp., 510, 515 ; Brown vs. United States, 8 Cranch R., 125, 122, 123; Norris r6'. Doniphan, 4 Met, (Ky.) R. 385. All the acts of confisca- tion passed by the difi'erent States during tlie Revolution have uniformly been considered as valid and justified by a state of war. 1 Day's R., 4; Sleight vs. Kane, 2 J. Ca., 236, 237; McNeil vs. Bright, 4 Mass. R., 282,304; Gil- bert et al. vs Bell, 15 Mass. 44; 5 Cranch, 353 n ; Smith vs. Maryland, 6 Cranch, 286 ; Asherton vs. Johnston, 2 N. Hamp., 31. " The right to confiscate tlie property of enemies " (says Mr. Justice Chase, 3 Dall., 227) ''during war, is derived SI from a state of tear, and is called the rights of war. This right originates from self-preservation , and is adopted as one of the means to weaken an enemy, and to strengthen our- selves. Justice, also, is another pillar on which it may rest, to wit: a right to reimburse the ex2:>enses of an unjust war." In Brown vs. The United States, 8 Cranch, 122-123, Chief Justice Marshall, in delivering the oj)inion of the court, says: "KesjDecting the power of tlie (.lovernment no doubt is entertained. That war gives to the sovereign full right to take tlie possessions and confiscate the property of the enemy wherever found, is conceded. The mitigations of this rigid rule, which tlie humane and Avise policy of mod- ern 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 Avhen the sovereign authorities shall choose to bring it into operation, the judicial department must give effect to its will."' And, in this same case, at page 125, Chief Justice Marshall further says : "It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate^ but does not of itself confiscate the property of the enemy." Chancellor Kent, in speaking in reference to this subject, has said : " But however strong the current of authority in favor of tlie modern and milder construction of the rule of in- ternational law on this subject, the point seems to be no longer open for discussion in this country ; and it has become definitely settled, in favor of the ancient and sterner rule, by the Supreme Court of the Unite 1 States." 1 Kent's Com., 69, 10th ed., side p. 59. In Thompson vs. Carr, 5N. Hamp., 515, Richardson, Chief Justice, states the law as follows : " The right to confiscate the property of an enemj'", during a war, is derived from a state of war. The right originates in the principle of self- 32 preservation, and is in substance the same as the right of capture." Martens, in his summary of the Law of Nations, (book 8, chap. 3, sec. 9,) says: "The conqueror has a right to seize on the property of the enemy, wliether movable or immov- able. These seizures may be made, first, in oi-der to obtain what he demands as his due or equivalent ; secondly, to defray the expenses of the war ; thirdly, to force tlie enemy to equit- able peace ; fourthly, to deter liira, or by reducing his strength, to hinder him from repeating in futui-e the injuries which have been the cause of the war," Grotius, too, (book 3. chap. 6,) recognizes the right of confiscation in the most unqualified manner. '' A State taking up arms," (says Yaftel, book 3, chap. 9, sections 160, 161,) "has a right to weaken her enemy, in order to render him incapable of supporting his unjust vio- lence^ a right to deprive him of the means of resistance. Hence, as from this source originate all the rights which war gives us over things belonging to the enemy, we have a right to deprive him of his possessions, of everything which may augment his strength, and enable him to make war. This every one enlleavors to accomplish in the man- ner most suitable to him. Whenever we have an opportu- nity, we seize on the enemy's property and convert it to our own use ; and thus, besides diminishing the enemy's power, we augment our own, and obtain at least a partial indem- nification or equivalent either for what constitutes the sub- ject of the war, or for tlie expenses and losses incurred in its prosecution ; in a word, we do ourselves justice." And Bynkershoek, whom Marshall, C. J., in 7 Crauch, 144, says is "a jurist of great reputation," in his treatise on the Law of War, (chap. 7, p. 51, Dup. Tr.,) uses this clear and forcible language : " And surely, such being the 33 state of war, that enemies are on every legal principle pro- scribed and despoilel of everything, it stands to reason that everything belonging to the enemy, which is found in the hostile country, changes its owner and belongs to the Jisk." ''If we follow the strict law of war, even immovables may be sold, and their proceeds be lodged in the public treasury, as is done with movables." And Manning, a late author on the Law of Nations, (p. 136;,) in speaking in reference to the right to confiscate private property on land, is thus explicit: "It is still liable to seizure under circumstances constituting in them- selves a necessity, of which the conqueror is the judge." In commenting on the case of the Emulous, (1 Gall., 563,) Chancellor Kent said : " When the case was brought up on appeal before the kSupreme Court of the United States, the broad principle was assumed that war gave to the sov- erign full right to take the person and confiscate the prop- erty of the enemy wherever found ; and that the mitigation of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself." '"'Though this decision established the right, contrary to much of modern authority and practice, yet a great jDoint was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right to depend upon a special act of Congress." 1 Kent's Com,, 69-70, 10th ed. The right, then, to confiscate under the act of 1862 is clear and unquestionable, and much, if not all modern ob- ject'on to confiscation, is swept away by the act. At all events, no power on earth can now question the exercise of the right. For, as is well said by Chief Justice Marshall, (Schooner 34 Exch. vs. McFaddon, 7 Crancli, 136,) " the jurisdiction of the nation within its own territory is necessarily exclusive and absolute." Judge Story, too, in the case of the Emulous, 1 Gall. R., 575-6, has well said: "It seems conceded^ and, indeed, is quite too clear for argument, that in former times the right to confiscate debts was admitted as a doctrine of interna- tional law. It had the countenance of the civil law, of Grotius, of Puffendorf, and lastly of Bynkershoek, who is himself of thi3 highest authority, and pronounces his opinion in the most explicit manner. Down to the year 1737 it may be considered as the opinion of jurists that the right was un- questionable. It is, then, incumbent on those who assume a different doctrine to prove that since that period it has, by the general consent of nations, become incorporated into the code of public law. I take upon me to say that no jurist of rej)utation can be found who has denied the right of con- fiscation of enemies' debts." And, after remarking that Vat! el had been supposed to be most favorable to the new doctrine, and after stating positively that even he did not deny the right of confisca- tion, this same eminent ^author and judge uses this positive and emphatic language in reference to Vattel : " But if he is singly to be opposed to tlie weight of Grotius and Pufi*en- dorf, and, above all, Bynkershoek, it will be difficult for him to sustain so unequal a contest." lb., 575. Nor is there anything in the subsequent opinion of the Supreme Court in this same case that in the least conflicts with the views above expressed ; but, on the contrary, the right to confisca'e, whenever Congress should see fit so to do by legislative enactment, was unqualifiedly admitted. In commenting on the remarks of an able and distinguished statesman, who had said that the right to confiscate had not 35 been used for some considerable time, Judge St;)ry (1 Gall. R.^ 5*77-8) thus gives his answer to that position: "It is supposed by the same learned writer that the principle of confiscating debts had been abandoned for more than a cen- tury. That the practice was intermitted is certainly no very clear proof of an abandonment of the principle. Motives of policy and the general interests of commerce may combine to induce a nation not to enforce its strict rights, but it ought not, therefore, to be construed to release them. It may, however, be well doubted if the practice is quite so uniform as it is supposed. The case of the Silesian loan, which ex- ercised the highest talents of the English nation, is an instance to the contrary, almost within a half century." To this able and unanswerable exposition of the law may be added the modern usage of manv of the States durinsr the Revolution, and whose acts stand confirmed by the sol- emn judgments of every court which has ever been called up m to pronounce upon the validity of those acts of confis- cation. And it is well said by Sedgwick, J., in Martin v. Com. et al., 1 Mass. R., 385, in reference to the property of those who adhered to the British Crown : "It might not be converted by the owner into means of ofi'ence ; it might justly be seized by the community for its own defence and secu- rity." So the property of rebels and traitors may not be con- verted by the owners into means of offence ; it may justly be seized and condemned as provided in the act, and the pro- ceeds used for the support of the army. No authority of ancient or modern times has denied the right of a belligerent to confiscate the property of the enemy. But it has been said, substantially, that the property of pri- vate individuals ought not to be taken, because the people may have been compelled by their sovereign to engage in a war to which they were opposed, and that, therefore, it 36 would not be just to pun'sli them with a confiscation of their property for the acts of their sovereign, which they could not prevent. Whatever may be the force of this mode of reasoning in regard to the subjects of absolute and despotic governments, it certainly can have no application whatever to a civil war of the description in which we were recently engaged. In arbitrary governments sovereignty is. said to reside in the king. In England it is vested in the Crown, Lords 'and Commons. But in this country our theory of government is that every citizen is a freeman, and that sov- ereignty resides in the great body of the people, and not in the Government. If then, as all admit, the property of one sovereign may be confiscated in war, why may not the prop- erty of all the sovereigns who conjointly inaugurate civil war be confiscated by the victorious part}'^? The principle that would warrant confiscation in the one case would also warrant it in the other. The late war was a war of all the people engaged in the same against the Government, and the act only contemplates the confiscation of the property of those who failed to cease to aid, countenance and abet the rebellion, and return to their allegiance within the prescribed time. There is no analogy, then, in the cases that are put for exempting private property from confiscation and the one under consideration. Nor is there any force in the fur- ther reason that is sometimes given for exempting private property of an enemy situated in the country from confisca- tion. The reason, in substance, assigned for such exemption is that inasmuch as the party had been permitted by the Government to acquire property within the same, it is pre- sumed that it was acquired with the tacit, or implied, under- standing that in case of war between the Government of the owner and that of the country in wliich the property is sit- 37 uate, it would not be confiscated. See Wheat. Int. L., (Law. ed.,) 528. A reason of this kind, it is evident, could have no appli- cation whatever to a civil war. The parties making the war, in such case, did not acquire their property on any- such condition as that of which we have spoken. They acquired their property as citizens of the country in which it is situate, and it would be an absurdity to suppose tliat there was any tacit or implied understanding between them and the Government that in case they made war on the same, that their property should not be confiscated. And so the property of any foreign subject aiding rebellion may be justly confiscated, without at all conflicting with the prin- ciple upon which it is sought to exempt private property situate in a country from confiscation. In the case put there would be no war between the Grovernraent and that of such foreign owner. The reason for the rule of exemption, then^ can have no application, and as the reason of the rule fails, of course, the rule itself must fail. For it would be a mon- strous absurdity to suppose that there ever was, or could be, any understanding of any kind between a foreigner and the Government in which he was permitted to acquire property, that it would not confiscate his property in case he, as an individual, joined in a rebellion to subvert and overthrow the Government. One so acting certainly could not be on any better footing than that of the citizens engaged in the rebellion. But the right of the Government to confiscate every kind of enemy property is established beyond the possibility of a doubt. And this is fully warranted not only by the fore- going authorities, but by the broad and unrestricted language of our distinguished countryman, Mr, Wheaton, as follows : ''It is competent for the national authority to work a trans- 38 mutation, total or partial, of the property belonging to the vanquished party ; and if actually confiscated, the fact must be taken for right. But to work such a transfer of proprie- tary rights, some positive and unequivocal act of confiscation it essential." Wheat. Int. L., (Law ed.,) 55, chap. 2, § 11. For the right to confiscate is l)ut tlie belligerent right of capture. And our late civil war was a public one on the part of the Government, and a private one on the part of the insurgents, or rebels. Poison's Int. L., 40, 1st Am. ed. ; Wheat. Int.. L., (Law ed.,) 520-1. '^ When a party is formed in a State' (says Vattel, Droit des Gens, liv. Ill, cli. 18, § 292) " who no longer obey the sovereign, and are possessed of sufficient strength to oppose him — or where, in a republic, the nation is divided into two opposite factions, and both sides take up arras — this is called a civil ivar." " Custom appropriates the terra ' civil war ' to every war between the raembers of one and the same political society." Bello has said: "When a faction is formed in a State, which takes up arms against the sovereign, in order to wrest from him the supreme power, or impose conditions on him — or, when a republic is divided into two parties which mutu- ally treat each other as enemies — this war is called civil ivar, which means war between fellow-citizens." See Wheat. Int. L., (Law. ed.,) 524, in note. And Poison, in his principles of the Law of Nations, p, 40, 1st Am. ed., says: "A civil war is a war between members of the same state, and, according to Grotius, is a public war as far as the Government is concerned, and private on the part of the insurgents." Such, then, being the nature and character of civil war. 39 of course all belligerent rights attach to the same, just as though it were a war between two independent nations. Vattel, (Droit des Gens, liv. Ill, ch. 18, §§ 293-4,) in speaking on this subject, siys : "A civil war breaks the bands of society and government, or at least suspends their force and effect ; it produces in the nation two independent parties, who consider each other as enemies, and acknowl- edge no common judge. They stand, therefore, in pre- cisely the same predicament as two nations who engage in a contest, and, being unable to come to an agreement, have recourse to arms. This being the case, it is very evident the common laws of war ought to be observed by both parties in every civil war." And Grotius, in his great work, recognizes the fact that civil war is a mixed war, public on the side of the Govern- ment, and private on the part of the people resisting its authority, and gives belligerent rights against the rebels and other nations aiding them. Mr. Wheaton (Int. L., 520-2, Law. Ed.j says: "A civil war between the different members of the same society is what Grotius calls a mixed war ; it is, according to him, public on the side of the established Government, anA. priiale on the part of those resisting its authority. But the general usage of nations regards such a war as entitling both the conten ling j)arties to all the rights of war as against each other, and even as respects neutral nations." In the case of Kose vs. Himely, 4 Cranch, 272, it is ad- mitted that a sovereign who is endeavoring to reduce his revolted subjects to obedience, possesses both sovereign and belligerent rights. And this decision has been held to be authoritative. 13 J. R., 587. The doctrine is fuUv recognized in The United States vs. 40 Palmer, 3 Wheat , 635 ; and in the Divina Pastora, 4 Wheat., 52. Mr. Justice Story, in speaking of the civil war between Spain and her revolted South American colonies, and of the rights of the Government and the rebels, said : " Each party- is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights." The San- tissima Trinidad, 7 Wheat., 337. "When * * * * q{^(i ^oar exists," (says tlie court in the Prize Cases, 2 Black, 667-8,) "hostilities may be prosecuted on the same footing as if those opposing the Gov- ernment were foreign enemies invading the land." "Congress has as much power to 'suppress insurrections' as to ' repel invasions,' and resort may be had to any means known and recognized by the laws of war." 30 Indiana R., 5. The Government, then, has all the rights of a belligerent, and may take and confiscate the property of the enemy wherever its flag flies in the enemy's country. It is but the exercise of a belligerent rjght. " The right of one bellig- erent not only to coerce the other by direct force, but also to cripple liis resources by the seizure and destruction of his property, is a necessary result of a state of war." Prize Cases, 2 Black's P., 671. See also 9 How., 616 ; 16 How., 140, 143, 196, 201. CONFISCATION CONSTITUTIONAL. V. The night to Confiscate is not only a War Right, hut a Constitutional Right. By sect. 8, paragraphs 1, 11, 12, 13 and 18, Art. I of the Constitution, Congress has power to provide for the com- mon defence and general welfare of the United States ; to 41 declare war, make rules concerning captures on land and water, to raise and support armies, to provide for calling forth tlie militia to execute the laws of the Union, suppress insurrection and repel invasion, to make all laws which shall bo necessary (and this is not by way of restriction, but an enlargement of those powers, 4 Wheat., 419-20) and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. These are as broad and comprehensive grants of power as it is possible for language to convey, and where power is given to Congress to do any act it may select, and use all legitimate means that it deems fit and proper to effect that object. Fisher vs. Blight, 2 Cranch, 358, 396; McCulloch vs. State of Maryland, 4 Wheat., 316, 419, 420, 421; 18 How., 281. In Fisher vs. Blight, 2 Cranch, 358, 396, Chief Justice Marshall says : " Congress must possess the choice of means, and must be empowered to use any means whicli are in fact conducive to the exercise of a power granted by the Consti- tution." And in the great case of McCulloch vs. The State of Maryland, 4 Wheat., 421, this same eminent Chief Justice says : "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allov/ to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legiti- mate ; let it be within the scope of the Constitution, and 42 all means which are appropriate, which are plainly adapted to that end, which are not prohihited, but consistent with the letter and spirit of the Constitution, arc constitutional." Let the act of 1862, then, be considered as a war measure adopted by Congress for the purpose of suppressing insur- rection and rebellioji, and every objection to the same must vanish. For war gives rights which no one may deny. In the case of Johnson vs. Mcintosh, 8 Wheat., 588-9^ Chief Justice Marshall has well said : " Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be respecting the original justice of the claim, which has been successfully asserted." " The title by conquest is acquired and maintained by force. The conqueror prescribes its limits." See 9 How., 615, 618. The war right under the Constitution, as well as the Law of Nations, is the paramount and supreme law so long as the war lasts. All other rights, if such there be, which are in conflict or inconsistent with the rights of war, may justly be said to be in a state of suspended animation during the existence of the war. How, then, can the right of con- fiscation, as provided in the act, be denied, or deemed un- constitutional ? But it has been said that the war power is dangerous to liberty, and that Congress has no warrant in the Constitu- tion for the exercise of such an undefined and unrestricted power. The exercise of the war power may be dangerous to rebels and traitors, but it is none the less a legal and constitutional power. Who but rebels and traitors call forth and give vitality to this most extraordinary and unlimited of powers ? And who but the same description of persons prolong its existence? Is it not a power that will lapse into repose as 43 soon as the rebellion is crushed? Most assuredly it is. But as long ns treason and rebellion flourish, it is not only the right, but the duty of the Grovernment to avail itself of all the rights which war gives, as well as every power which the Constitution confers. Admit that the Congress cannot declare war against a State of the Union, yet when one or more States inaugurate a state of civil war upon the Government, it cannot, without ceasing to fulfil its high destiny under the Constitution, decline the gage of battle thus thrown down. The (lovern- ment does not, in such case, declare and make the war. On the contrary, it but repels the war that is made upon itself^ and as long as the same shall last, so long must the Grovern- ment be its own judge of the mode and measure of redress. It is for Congress to say what rights of war shall be en- forced, and for the President, as commander-in-chief, to conduct the operations of war according to the best of his judgment and ability. They are the sole and only judges as to what means are necessary and shall be used in the prosecution of the war, in order to bring the same to a suc- cessful termination. Their discretion in war is above and beyond the control of all earthly power, and all their acts in relation to war are valid and legal when not expressly prohibited by the Constitution. In the case of McCulloch v. The State of Maryland, 4 Wheat., 423, Chief Justice Marshall (even in regard to peace legislation) says : " But where the law is not prohib- ited, and is really calculated to affect any of the objects en- trusted to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legis- lative ground. This court disclaims all pretensions to such power." See also 3 Wheat., 634-5. 44 So the courts must disclaim all right to judge of the neces- sity of the provisions of the act of 1862. The question is not whetlier it was wise or unwise, necessary or unnecessary ; hut tlie sole and only question is, does it come within the legitimate and constitutional power of Congress ? If it be legitimate and constitutional, the courts can have nothing to do but to execute the law. In no case is the court respon- sible for any supposed, imaginary, or real consequences that might flow from the execution of the statute. The legislative department is alone responsible to the people for the justness and fidelity of its acts ; and as Con- gress has the iindouhted con^itiUional rigid to suppress insur- rection and rebellion, it must, of 7iecessihj, have the exclusive selection and use of all such means as it deems proper to effect that purpose. In Seple vs. The United States, in the circuit court at Richmond, Chief Justice Chase, with reference to this question and the several cases arising under this act and that of August 6, 18G1, which had come before the Supreme Court of the United States, says : "In neither of these cases was this point made, either by counsel or by the court, and it is a fair conclusion that, neither at the bar nor on the bench^ was the constitution- ality of the act doubted. We_, at least, unless clearly satisfied that the act is unconstitutional, and satisfied also that the point passed without observation in the Supreme Court, are bound by the action of the court. We shall hold, therefore, for the present, that the act is warranted by the Constitution." And in the following cases it will be seen that the constitutionality of the act has been either ex- pressly or impliedly affirmed. Prize Cases, 2 Black, 035 ; 2 Sprague, 123; Blatch., P. C, 119; Mrs. Alexander's Cotton, 2 Wall., 406 ; Union Ins. Co. vs. United States, 45 6 Wall. J 754; Armstrong Foundry, lb., Y66 ; St. Louis Foundry vs United States, lb., 7*70 ; 30 Indiana, 5. And the Court of Claims, in an elaborate and well-consid- ered o})ini()n, in what are called " The Cotton Cases," (2 Court of Claims Reports, 529,) through Chief Justice Casey, unanimously said : "In regard to the seizure of the enemy's private property on land, Congress, by a series of enact- ments pending the recent rebellion, have so distinctly specified the property subject to capture and confiscation, that nothing scarcely is left for judicial construction. Their right and constitutional power to do so cannot be ev-en plausibly controverted." The only seemingly exception to this uniform and resist- less current of authority in favor of the validity of the act, is the case of Norris vs. Doniphan, 4 Met., (Ky.,) R., 385. But, as the decision in that case is based entirely upon the supposition that the Government did not possess the same belligerent rights in a civil war which it had in a foreign one, it^ too, must be taken as fully supporting the constitu- tionality of the act, since it is conclusively settled by the Supreme Court of the United States, in the Prize Cases, that the Government possesses the same rights in a civil war which it has in a foreign war ; and the Kentucky court in the above case (4 Met., 392, 393) explicitly and unqualifiedly admits that if such be the case, tlien there can be no doubt whatever as to the constitutionality of the act. The act of confiscating enemy property is but a high act of reprisal and war, and necessarily and exclusively inciden- to a state of war, and the right so to do resides in the wart repelling as well as war-making power. In Knoefel vs. Williams, 30 Indiana R., 5, the court well says : ' 'It is ohjecled that this law is unconstitutional. It is argued 46 that this act is an act for the punishment of treason, and that it deprives the person implicated of a trial before the punishment. But we apprehend tliat confiscation acts stand on a niucli broader basis. Congress has power to ' provide for the common defence and general welfare of the United States;' * * * 'to provide for calling forth the militia to execute the laws of the Union, suppress insur- rections, and repel invasions ;' * * * ' and to make all laws which shall be necessary and proper for carrying into execution tlie foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.' Const. U. S., Art. I, sec. 8. Tlie act in question is clearly unthin the powers thus conferred on Congress. * * * * "There is no limit on the war -poicer of the United States, except such only as is imposed by the law of nations. And in this respect there is no difference between a civil and a foreign war. Congress has as much poiver to 'suppress in- surrections' as to ' repel invasions.' Resort maybe had to any means known and recognized by the laws of war." Congress must, then, of necessity, have the power to say in what mode and manner i)roperty may be taken and con- demned as enemies' property. It has the right to select its own mode and means for carrying on war. It is the sole and only judge of the means to be used in war. It deter- mines the character and number of tlie troops to be employed. It appropriates without restriction all the money and means it deems necessary to insure the success of the war. Peace and war depend upon its own unlimited will. It says let there be war, and there is war. And the President and Senate have but to say let tliere be peace, and there is peace. Who, tlien, shall question the power of Congress (and that, too, under the Constitution) as to tlie means of war, 47 and as to the manner in which it shall enforce rights which are incident to a state of war? Its discretion and will in such matters are unquestionably beyond control, and, when made known, must form the rule of decision for the courts, and be regarded as a valid and a constitutional exercise of power. ATTAiNDKR. VI. The Act not a Bill of Attaiuder. It has been said that the act is a bill of attainder, and that as it is provided in the 3d paragraph of section 9, Arti- cle I, of the Constitution of the United States, that " no bill of attainder or ex post facto law shall be passed," the act is^ therefore, unconstitutional and void. This is a great mistake, and deserves to be answered. The act in question possesses no one of the essential requisites of a bill of attainder. Bills of attainder are acts of the sovereign power pronounc- ing capital sentences, where the Legislature assumes judicial magistracy ; and hills of pains and penalties, those which of themselves inflict milder punishments. They are legislative acts, passed for the special purpose of attainting of them- selves particular named individuals, of treason, or felony, or inflicting pains and jienalties beyond or contrary to the Common Law. See 1 Tucker's Black Com , 292. This is implied by the Supreme Court of the United States in the case of Fletcher v. Peck, 6 Cranch, 138, where it is said, "A bill of attainder may aflect the life of an individ- ual, or may confiscate his property, or both." It is the legislative punishment of o. particular individual or individuals by legislative enactment solely, without the intervention of any judicial authority or proceeding whatso- ever, either in personam or iyi rem, that constitutes an act a bill of attainder. A bill of this nature and character no 48 one, ill this country, would say could be constitutionally passed, either hy the State or National Legislature. But that Congress may prescribe tliat tlie doing or not doing of a certain act shall he illegal, and provide a forfeiture of property as a penalty for a violation of the law, must he ad- mitted. When a party violates the law, the forfeiture rightly accrues to the Government as a punishment annexed by law to the illegal act or omission of duty. It would he impossible, therefore, to hold the provisions of the statute in question a bill of pains and })enalties, much less a bill of attainder. No personal punishment is contemplated or provided for in those sections of the statute under which proceedings in confiscation were had. There is no legislative taking of the property of any par- ticular individual or individuals. The forfeiture arises by reason of the conduct of the parties after the passage of the law. On tliis principle, statutes forfeiting ships, goods, and other property have been uniformly sustained and enforced. It is, therefore, evident that there is no ground whatever for saying the act is a bill of attainder, or even a bill of pains and penalties. SKIZURK. VII. Seizures made hij any one, with or ivithout instructions from the President, valid if property condemned. The statute says the property of the persons named therein shall be liable to seizure and forfeiture, and it is made the duty of the President to cause the seizure of the same. It is, therefore, seen that the statute is mandatory , and left no discretion in the President as to the seizure of the property of persons coming within the act. Seizures, then, made by subordinate officers, in pursuance of instructions from the 49 Attorney General, (who is presumed to represent the Presi- dent,) must be taken and regarded as made by tlie author- ization of the President. And this must more especially be so considered where the proceedings not only show such to be the case, but also show the further fact that the property was seized by the marshal in pursuance of process issued from the court in which the proceedings were instituted. For the court certainly acquired jurisdiction by a seizure under its process, even if it did not possess it before, under and by virtue of the first seizure. Besides, the law is too well settled to admit of doubt or controversy, tliat any person may seize property for a forfeiture^ and if the Government comes in and institutes proceedings to enforce the forfeiture, it will be considered a ratification of and equivalent to a previous command or authority to make the seizure. Blatch. P. C, 64, 65, 89, 90, 306, 309, 561 ; The Caledonia, 4 Wheat., 100, 103; Taylor vs. United States, 3 How., 197, 205-6. The filing of the libel is the ratification of the seizure. Blatch. P. C, 561 ; ib., 309. The cases of Coppel v. Hall, 1 Wal., 542 ; The Ouichita Cotton, 4 ib., 521 ; The Ecform, 3 ib., 617 ; and Gelston v. Hoyt, 3 Wheat., 246, do not (as has been supposed) in the least conflict with the foregoing views and authorities. The cases in Wallace related to trade and intercourse with the States in insurrection ; and the defence to avoid a for- feiture was a license and authority from subordinate officers of the Government. But the court very properly held that as trade and inter- course with the enemy was unlawful, unless specially au- thorized and allowed by the President, who alone was em- powered by the statute in liis discretion to authorize and 50 permit it, the power could not be exercised by any one else, either with or without the sanction of the President ; and the defence was, therefore, unavailing and the property con- demned. And the case in 3 Whe:it. was an action for trespass for a seizure which had been adjudged tortious, for a forleiture under the neutrality act ; and the defence was a justification that the seizure was made under and by virtue of instiuc- tions and authority from the President of the United States. But the court very properly overruled the defence, on the ground that the President, under the act, could not use any force outside of the army and navy for that purpose, and that he was only authorized to act and was restricted b}'' the statute to the use of the army andnavy, where the civil au- thority was resisted, or was, in his judgment, insufficient to Enforce and execute the laws. Such a case surely cannot be regarded as at all inconsist- ent or in conflict with the foregoing authorities, which estab- lish beyond all doubt the validity of seizures of property for confiscation, under act ITth of July, 1862, whether made solely by the order of the~ President, or by the marshal in the first instance, by the directit n of the district attorney^ in pursuance of instructions from the Attorney General^, and also by virtue of process issued out of the courts after the first seizure and the filing of the libels. Indeed, the case of Gelston v. Hoyt, 3 Wheat., 240, itself expressly affirms and declares the rule to be, that at Com- mon Law any person may, at his })eril, seize for a forfeiture, and that if the Government comes in and adopts his seizure and the projicrty is condemned, it will be a complete justifi- cation of the seizure. 51 MODE OF PROCEEDING. VIII. The Act is not unconstitutional hy reason of its author- izing and requiring proceeduigs , for the purpose of condem- nation, to he in rem. The first question that naturally arises in this branch of the case is, what is the nature and character of a proceeding in rem ? Is it a criminal or a civil proceeding ? The an- swers to these inquiries must have a decisive influence in determining the validity of the confiscation proceedings under the act. A proceeding in rem is one which has for its object the fixing of the status of a particular thing ; that is, of deter- mining whether it is or is not forfeited. In Gelston v. Hoyt, 13 J. E., 584^ Chancellor Kent, in speaking on this subject, says: " In a case in the Excliequer, where the goods are themselves seized and libeled as being forfeited to the Gov- ernment, and which is termed a proceeding in rem, the ques- tion of forfeiture is the only question that can be made." Mr. Justice Story, in the same case, before the Supreme Court of the United States, (3 Wheat., 312-13,) in reference to the nature of proceedings in rem, said : " All persons hav- ing an interest in the subject-matter, whether as seizing officers, or informers, or claimants, are parties or may be parties to such suits so fiir as their interest extends. The decree of the court acts upon the thing in controversy, and settles the title of the property itself, the right of seizure, and the question of forfeiture.'" And again, at page 318 of the above case, this same eminent jurist says : " Where property is seized and libeled as forfeited to the Government, the sole object of tlie suit is to ascertain whether the seizure be rightful and the forfeiture incurred or not. The decree of the court, in such case, acts upon the thing itself, and 52 binds the interests of all the woi'ld_, whether any party actually appears or not. If it is condemned, the title of the property is completely changed, and the new title acquired by the forfeiture travels with the thing in all its future progress. If, on the other hand, it is acquitted^ the taint of forfeiture is completely removed, and cannot be re-annexed to it." And in the case of the State v. Barrels of Liquor, 47 N. Hamp., 3G9, it is held that a complaint for the condemna- tion of property is a proceeding in rem, for the purpose of determining merely whether the property proceeded against is forfeited or not, and is not a proceeding against any per- son. It is, therefore, seen, from the nature and character of a proceeding in rem, that it is a proceeding against a particular thing, in order to fix its status ; that is, to determine whether it is or is not forfeited ; and this without any reference to any party or parties in interest, whether within or without the country. It would seem, then, to be clear tliat there is no ground for ol)jection to the statute, because it does not re- quire any personal proceedings against the party or owner of the property proceeded against for a turfeiture. For, it is well settled by an unbroken current of authority that proceedings in rem for a forfeiture or an action for a penalty are not criminal but civil proceedings. Markle vs. Acron, 14 Ohio, 491 ; State vs. Barrels of Liquor, 47 N. Hamp., 3G9. Anonymous case, 1 Grail. R., 23; Ketland vs. The Cassius, 2 Dall., 3G5 ; United States vs. The Sally, 2 Cranch R., 40G ; United States vs. The Betsey and Char- lotte, 4 Cranch, 443; 3 Sum. R., 120, 121; 3 Bl. Com., 159; 12 Wheat., 12, 13 ; Barancoat et al. vs. (xunpowder^ 1 Met. R., 230; Earl Spencer vs. Swannell, 3 M. & Welb. R., 1G2; Attorney General vs. Rogers, 11 M. & W., G70 ; 37 Me. R., 330, 333. 53 In the case of the United States vs. La Vengeance, 3 Dall., 297, Avhich was an information to forfeit a vessel for viohition of a law prohibiting the exportation of arms and ammunition. Chief Justice Marshall said : " We are unanimously of opin- ion that it is a civil cause ; it is a process in the nature of a libel in rem; it does not, in any degree, touch the person of the offender. " S. P., 47 N. Hamp., 369. In Barancoat et al. vs. Grunpowder, 1 Met., 230, Chief Justice Shaw says : " The court are of opinion that a libel, sued as a process in rem for a forfeiture, is in the nature of a civil action, and that either pirty may file exceptions in matter of law." So in the case in 1 Grail., 23, Mr. Justice Story said : "It is not true that informations in rem are criminal proceedings. On the contrary, it has been solemnly adjudged tliat they are civil proceedings."' Martin, J., in an elaborate an I well-considered opinion, in The State vs. Williams, 7 Rob., La. R., 266-7, reviewed all the leading authorities, and held that a penal action, or an action to recover a penalty, was a civil and not a criminal proceeding. Judge Martin, in the above case, well says: "The statutes of Jeofails and amendments do not extend to criminal proceedings ; but it has been invariably held that penal actions are within these statutes, and may be amended. 1 Bac. Abr. Title Amendment and Jeofails, A. and C; 2 Str., 1227 ; 2 Dallas, 143 ; 1 Gallison, 23. "In cases of acquittal on criminal prosecutions no new trial can be granted ; but new trials may be granted in penal actions. 4 Bl. Com., 361, 362 ; 1 Durnford & East, 753. " Judge Story says : 'At Common Law, whenever a penalty is given, and no method of recovery is prescribed by the act, an action of information of debt lies, and not an indictment.' 54 He cites, in sup})ort of this position, '2 Strange, 828, and 2 Crancli, 33G. See 2 Gallison, 554. In the case of The United States vs. Lyman, the same doctrine is again pnt forth with great clearness. 1 Mason, 498. " In 1838, the doctrine is once more explicitly declared by Judge Story, after a full examination. He says : ' The usual remedy in cases of a pecuniary penalty is an action or information of debt ; and an indictment for such a penalty will not lie, unless specially allowed by statute, for it is properly recoverable as a debt in a court of revenue by the Government, and is, in no just sen e, aciiminal proceeding.' 3 Sumner, 120, 121." Even an exchequer information for penalties is a civil~ proceeding; it is the "king's action of debt," Cawthorne vs. Campbell, 1 Anst., 205, N., 214; Attorney General vs. Freer, 11 Price, 183, per Graham, B., 185. And in the case of The United States vs. Mann, 1 Gall. R., 178-9, Mr. Justice Story says : "For I take it to be clear, that an information of debt in tlie exchequer for a penalty is as much a civil proceeding as an action of debt. Nor would it be any objection to this construction, even admitting it to be true, that in this manner the jurisdiction of the court would depend, not upon the subject-matter, but on the mode of prosecution. For, without question, all infractions of public laws are oifences ; and it is the mode of prosecution, and not the nature of the prohibitions, which ordinarily distinguish penal statutes from criminal statutes." In the case of the Palmyra, (12 Wheat., 12-13,) the Su- preme Court of the United States uses this emphatic lan- guage : " The strict rules of the Common Law as to criminal prosecutions have never been supposed by this court to be required in informations of seizure in the admiralty for for- feitures, which are deemed to be civil proceedings in rem." 55 Proceedings in rem, then, for a forfeiture, although the forfeiture is intended as a punishment by the hxw-maker for the violation of law, are not to he regarded as criminal, but as cti;i7 proceedings. And in civil proceedings or prosecut'ons for penalties and forfeitures there is no occasion for the intervention of a grand jury and an indictment, but the process is that of informa- tion or libel filed by the law-officers of the G-overnraent. 2 St. Const., § 1786. In Markle v. Akron, 14 Ohio R., 590, 591, Wood, C. J., says: "It is true, for offences, strictly criminal or infa- mous, punishment can only be inflicted through the medium of an indictment or presentment of the grand jury. Con., Art. VIII, sec. 10. There are, however, many offences, made so by statute, which are but quasi criminal, and where the Legislature may direct the mode of redress, untramelled by this constitutional provision," And in the case of the State v. Barrels of Liquor, 47 New Hamp., 374, Mr. Justice Sargent, in reference to the question whether a proceeding in rem was to be tried as a criminal or a civil case, &c., said : " This is a proceeding iii rem, for the condemnation of the liquor and vess.ds. No penalty or fine is to be imposed upon the person who keeps the liquor with intent to sell under this proceeding. All that is done, or that can be done, under this complaint, is to set- tle the question whether the liquor, vessels, &c., sliall be condemned as forfeited to the country, or shall be delivered to the claimants or restored to the place from whe:ice they were taken. It is a proceeding which cannot be commenced by indictment, and the complaint which is made in the first instance is in the nature of a libel, such as ch. 204 Rev. Stats, provides for, and not in the nature of a criminal com- plaint against any person, but is simply a proceeding m 56 rem against the liquors, &c., for tlieir condemnation as for- feited property, &c. ^' This class of cases are to be considered and tried as civil causes are tried. The question involved is only as to the title to property^ like other questions in civil causes. It is only when some crime or misdemeanor is charged upon an individual that all reasonable doubt of the guilt of the accused must be removed. But here no one is accused of any crime ; in fact, it is not a proceeding against any person." So, under the act of 18r)2, the proceedings are strictly civil and in rem, 12 U. 8. Stat., 591, § 7. And in such cases, as well as those where tlicre is both a forfeiture and a personal penalty, no conviction of the party is necessary to enable the Government to enforce the forfeiture in rem. The Palmyra, 12 Wheat., 1, 14, 15 ; United States v. Dry Goods, 17 How. , 85, 91 , 92, 93. The property is divested by the for- feiture, (by the failure to re! urn to their allegiance in the prescribed lime,) and all sales even to a bona fide purchaser without notice would be void. 12 U. S. Statutes, 591, sec. 6 ; United States v. Bags Coffee, 8 Cranch, 398 ; Caldwell v. The United States, 8 How., 36G, 381, 382 ; United States v. Morris, 10 Wheat., 246; Fontaine v. Phoenix Ins. Co., 11 J. R., 300; 3 Wheat., 311, 327. For " where a forfeiture is given by a statute, the rules of the Common Law" (which require legal steps to be taken befoie the property vests) ''may be dispensed with, and the thing forfeited may either vest immediately or on the per- formance of some particular act, as shall be the will of the Legislature." United States y. Grundy, 3 Cranch R., 350. Per Marshall, Cii. J. In the nature of things, then, pro- ceedings in rem for the enforcement of forfeitures and penal- ties cannot be regarded in any otlier light than as civil pro- ceedings, and are in no way dependent on the prosecution 57 and conviction of the offending party. The Palmyra, 12 Wheat., 14, 15. For the seizure and condemnation of property hy a pro- ceeding in rem for a forfeiture may (and often does) take place when there is no personal penalty prescribed, and where^ if there was, it would not be possible to proceed against tlie party personally for a violation of law by rea- son of his absence. And laws authorizing proceedings in rem may be enforced against tlie property seized when the real owner may not, in point of fact, be informed thereof. Gray v. Kimball, 42 Me., 299. In all " criminal proceedings against a party for a capital or otherwise infamous crime," the provisions of the Amend- ments 1o the Constitution of tlie United States undouhtedhj require the trial and conviction of the party by jury, after a presentment or indictment by a grand jury. But in all civil proceedings, even in times of peace, ^ ^ due process oi law" is all that is re<|uired in order to deprive one of his prop- erty, or enforce a penalty. What, then, is " due process of law?" Chancellor Kent, after adverting to what is due process of law in criminal cases, says : " But the better and larger defi- nition of due process of law is, that it means law in its reg- ular course of administration through courts of justice." 1 Kent's Com., 624, 625, 10th edition. In Fisher v. McGirr et at., 1 Gray's R., 27, 28, Chief Jus- tice Shaw says : ''We have no doubt that it is competent for the Legislature to declare the possession of certain arti- cles of property, either absolutely or when held in particu- lar places, and under particular circumstances, to be unlaw- ful, because they would be injurious, dangerous or noxious; and, by due process of law, by proceedings in rem, to provide both for the abatement of the nuisance and the punishment 58 of tlie offender, by tlic seizure and confiscation of the prop- erty, by the removal, sale, or destruciion of the noxious ar- ticles. Therefore, as well to abate the nuisance as to pun- ish the offending or careless owner, the property may be justly declared forfeited, and either sold for the public henefit or destroyed, as the circumstances of the case may re- quire, and the wisdom of the Legislature may direct. Be- sides, the actual seizure of the property intended to be offen- sively used may be effected, when it would not be practicable to detect and punish the offender personally." In this decision we have a clear recognition of the doctrine that a proceeding in rem, by which a party may l)e deprived of his property, is ^ ^ due process of law," and that it is com- petent for the Legislature to provide this mode of proceeding against property because of a violation of the requirements of a statute by the owns'r or those who have the control of the same. It is true, the court held the act of the L'^gislature involved in that case illegal and void, but the decision was rested mainly on the ground that ''no provision is made by the statute for a trial, for a determination by judicial proofs of the facts, upon the truth of which alone the property can be justly confiscated and distroyed." " The judgment, then, passes without trial and without proof, unless that which preceded the seizure, and the seizure itself, are to be consid- ered as legal proof." lb., 36. This case, therefore, so far from being an authority against, must be considered as fully warranting and justifying pro- ceedings 171 rem under the act of 1862, as being '' due 2)roccss of law. ' ' Indeed^ it is perfectly apparent, from the above case, that if the statute had provided for and required regular and 59 legal proceedings in rem, it would have been held legal and constitutional. See 1 Gray, 48-9. Do not parties forfeit their ships;^ goods_, &c., by a viola- tion of the provisions of the revenue laws, and are not these forfeitures enforced by proceedings in rem ? And if this may be done in reference to peiS'.mal property, why may not the same mode of proceeding be adopted in reference to any and every description of property ? If the one may be taken and confiscated under a j^jroceeding in rem, why may not t!ie other betaken in like manner? Would there not be due process of law as much in the one case as in the other? Most assuredly there would. It has, moreover, been held by the highest authority that due process of law means such process as has been usual, and is authorized by the law-making power. 18 How. K., 272 ; 7 Ann. (La.) R., 292. In the first of thesj case.^ process issued direct from the Treasury for a balance due the Treas- ury, and in the latter for the collection of taxes, without any resort whatever to any cuurt, and yet in b.)th cases the pro- cess was hehl to be due process of law. How can it be doubted, then, that the proceedings in rem under the act in question are legal and constitutional ? Here is a well-known and long-established mode of proceed- ing in a court of justice. Here all the world are parties^ and have notice by seizure, as well as by publication of monition, and may come in and be heard if they see fit. The opportunity is then afforded to every one claiming an interest in any property proceeded against to come in and establish his right to the same, and if he fails or neglects so to do, the proj)erty is then condemned according to law in its regular course of administration through courts of justice, and the judgment of condemnation or acquittal is binding CO upon all the world. 13 J. R., 561 ; 42 Me. R , 443, 430 ; Gelston vs. Hoyt, 3 Wheat., 247, 312. The attem})tc(I distinction that it is only in those cases where tlie thing is considered as the offender that a proceed- ing in rem can be sustained, is quite a mistake. ""Most of the forfeitures" (says Conkling in his Treatise, 548, 4th ed.) denounced by our laws, are imposed for omit- ting to do some act enjoined by law.'" In the case of the United States v. Grundy et al., 3 Cranch R., 337, it was decided that, under the act of Congress of December 1792, which declares that if a false oath betaken in order to procure a register for a vessel, the vessel, or its value, shall be forfeited, the United States had an election to proceed against the vessel as forfeited^ or against the per- son who took the false oath, for its value. In Fontaine v. The Phoenix Ins. Co., 11 J. R., 293, 300, the Supreme Court of New York, after referring to the case in 3 Cranch, and after recognizing the correctness of the same, says : "The act of 1792 gives two remedies, the forfeiture of the vessel, or the value, to be recovered from the person who took the false oath ; consequently, the remedy is at the elec- tion of the United States. The property, therefore, could not vest until the seizure. The act in relation to the case before us" (the non-intercourse act of 1809) "affords but one remedy, and that is tlie forfeiture of the vessel, so that the seizure is not necessary to change the property ; the owner loses his right to it immediately after tlie commission of the act producing the forfeiture." Here we have a clear statement of the princii)le on which the law of forfeiture is based. And that principle is, that the party loses his right to the thing by reason of his own act, and not the act of the thing, which has no power or 61 capacity to act of itself, and which is indispensable to make it an offending party. Again, in the case of the Fire Department v. Kip, 10 Wend.^ 270, the court, after referring to the statute pro- hibiting the keeping of gunp )\vder within certain limits, says: " Tlie property would become forfeit by the act of keeiting it contrary to law." Here it is again said that the property would be forfeited in consequence of the act of the owner. There was no thought or idea in the mind of the court of an offending thing. So, under the act of July, 1838, a party running a boat without license is liable to a penalty of $500, and for which sum the boat or vessel so en- gaged shall be liable. This latter provision, it has been held, " is simply used to give a remedy by libel against the boat." 1 Newberry's R., 2G9. The boat, then, in such case, could not be considered the offending thing ; but it is the disregard of the injuction of the law by the owner that renders the vessel liable to seizure and forfeiture. It is not the use of the boat that causes the forfeiture, but it is the disregard of the requirement to procure a license that gives rise to the penalty. So under the ship registry act of 31st December 1T92, where a registered vessel, or a part thereof^ is sold or transferred by way of trust to a subject or citizen of any foreign prince or state, for the purpose of evading the revenue laws thereof, and such transfer is not made known as required in the act, the vessel becomes forfeited. 9 Wheat., 421. And if the register of a vessel thus transferred is used after such transfer, the vessel is also liable to forfeiture for this cause. The Margaret, 9 Wheat., 421. So^, under the sixty-seventh section of the act of 1796, a libel in rem for a forl'eiture of goods by reason of their differing in de- scription from the contents of the entry, is a proper remedy. 200 Chests Tea, 9 Wheat., 430. In the case of the United 62 States V. The Anthony Magin, 2 Pet. Adra. R., 409-70, Judge Winchester well says : '• The (rovernnient prohibits an act under a penalty against the party offending. They say, we for this forfeit the thing in respect to which you have sworn falsely, if it continued in existence, and is yours, but if lost or destroyed, or other persons innocently acquire new rights in that thing, your guilt s-hall still be punished ; if annihilated^ — if sold — pay the value ; if you have fraudu- lently impaired the thing, still paij the value; the one or the other shall be recovered of rjou — -af you, the guilty party." Is there any offending thing in cases of the foregoing character? Certainly not. In the case of The Palmyra, 12 Wheat., 14-15, Mr. Justice Story, says : ''It is well known tliat at the Com- mon Law, in many cases of felonies, the jiarty forfeited his goods and chattels to the Crown. The forfeiture did not, strictly speaking, attach in rem ; but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement that no right to the goods and chattels of the felon could be acquired by the Crown by the mere commission of the offence ; but the right attached oily by the conviction of the offender. The necessary re- sult was, that in cases where the Crown souglit to recover such goods and chattels, it was indispensable to establish its right by producing the recorl of the judgment of con- viction. In the contemplation of the Common Law, the offender's right was not divested until the conviction. But this doctrine never was applied to seizures and forfeitures, created by statute in rem, cognizable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing ; and this, whether the offence be malum prohibi- 63 turn or malum in se. The same ])rinciple applies to proceed- ings in rem, or seizures in the admiralty. Many cases exist where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a joersonal penalty. But in neither class of cases has it ever been de- cided that the prosecutions were dependent upon each other. But the practice has been, and so this coui't understands the law to he, that the proceedings in rem stand independent of and wholly unaffected by any criminal proceeding in per- sonam.'' '"' No personal conviction of the offender is neces- sary to enforce a forfeiture in rem in cases of this nature." S. P., 2 Black., 672-3 ; 6 Am., L. Reg, (N. S.,) 32, 40-1 ; 47 N. Hamp., 369. From this decision, as well as the foregoing authorities, it is clear that the forfeiture of property is based on the act of the owner, and not on the ground that it is an offending thing. True, the court speaks of an offending thing, but it immediately changes the language and puts the forfeiture on the true ground, as will be seen by the following pas- sage : '' The thing is here primarily considered as the offender, or rather, the offence is attached primarily to the thing ; and this, whether the offence he malum j^rohibitum or malum m se." The thing, then, is certainly not to be con- sidered as the offender, but the penalty for the offence of the party is primarily attached by law to the thing, and thus becomes forfeited ]jy reason of the act of the owner or those whom he has entrusted with, the control and management of the thing, and are, therefore, for the time being, to be con- sidered as the owners. It is on this ground that the vessels of innocent owners are forfeited by reason of the acts of those who have them in possession. It is not because the vessel is considered as 64 the offending thing that it is forfeited, but because of the acts of those whom the careless or deceived owner has en- trusted with tlic use and raanagenient of the property, and the ''offence is attached })rimarily to the tiling," that is, the forfeiture attaches primarily to the thing for the acts of those wlio are the apparent owners. This is the true ground on which the doctrine of forfeiture is based. It was on this principle that some of the confiscation acts of the Revolution were founded. By reference to the case of Martin v. The Commonwealth et al., 1 Mass. R., 385-G, it will be seen that the forfei'ure Avas claimed and enforced by a proceeding j?i rem, because of the absence of the owner of the property and his failure to return to the State as required by law. Now, this is a parallel case in princi})le to the one before the court. The proceedings in that case, as in this, were because of the act of tlie owner in not returning to his allegiance, as required by law ; and the forfeiture was not claimed on the ground that the property was an offending thing, but it was claimed, and rightly claimed, because " the offence " (that is, the penalty of forfeiture) "is attached primarily to the tiling," because of the failure of the owner of the thing to obey the mandate of the law. So in Pennsylvania, a party's })roperty was Ibrfeited because he failed to return to the State as re(|[uired by law, and stand his trial for high treason. Ash v. Ashton, 3 Watts & Serg. R , 510. The property was forfeited because of non-compliance of the owner with the requirements of the law, and not because it was or could become an offend- ing thing. And so property acquired by an alien is for- feited to the king; but it is not forfeited because it is an offending thing. It is forfeited, as Mr. Justice Blackstone says, "by way of punishment for the alien's presumption 65 in attempting to acquire any landed property." 1 Bl. Com., 372. And " every State may absolutely forbid its subjects to do any given things wherever they may be, provided they do not enforce that prohibition by any act of jurisdiction exercised out of its own territories, and within those of another State. And the subject so offending may be com- pelled to return home, or punished on his contumaciously remaining abroad, by process against his property situated in his own country." Bowyer's Univ. Pub. L., 181, See 18 How., 114. This being the law, there is really no foundation what- ever for the doctrine of an offending thing. To say that an inanimate thing, incapable of volition or action, is an offender against the law, is a mere rhetorical flourish — an attempt, by the use of figurative language, not only to personify the thing, but to turn the mind from the consideration of the individual offender and tlie nature of the offence against which the law was made, and to jumble together ftict and fancy, law, logic, and imagination. It is bad in every point of view — a poor specimen of legal metaphor, of strained fiincy and foggy metaphysics. In- deed, it is but a legal fiction, which, like the ''Will-o'-the- wisp," or Jack with his lantern, the more it is admired and the further it is pursued, the greater the dangers and delu- sions to which it subjects, to say nothing of the inextricable and perplexing quagmires into which it leads its charmed pursuers. How idle and visionary, then, to talk about an offending thing ! Property commits no crimes. But it is just and proper, when crimes are committed or the majesty and man- dates of the law are not respected and obeyed by those who possess property situate in the country whose laws they set 6r. at defiance, that the offenders should be punished through the forfeiture of property, and a forfeiture enforced by a pro- ceeding in rem, whether they are or are not beyond the reach of the process of law. If they are personally beyond the reach of tlie process of the court, are their crimes against their country to go unpunished? Certainly not. And if the}^ be witliin the country, (and no enemy is more dan- gerous,) it is competent for Congress to prescribe whether the punisliment shall be personal, or whether the violated majesty of the law shall be atmed for by forfeiture of the property of the offending party. There is n 'thing, then, in the doctrine of offending thing. The iiroceeilings required and contemplated by the statute are precisely in nature and extent what a proceeding in 7'em is against a vessel or goods for a violation of law by the owner or possessor thereof. See 12 U. S. Stat., 501, § 7. True, all the world are parties, or may be so if they choose to come in and propound their interest in the proper form, but this does not vary the nature or character of the suit. Even if a claimant appears and puts in his claim, still it is but a suit in rem. Gilpin's K., 314, olo. In this case. Judge Hopkinson says : " (Jertiiiu persons come in and deny the forfeiture, and claim the goods as tlieir property. But they are not substituted as defendants in the cause. It stands, in this respect, as it did before tlie claim was put in. The goods are brought under the authority and control of the court, and two parties appear to claim them, and the judgment of the court is to decide to which of the claimants they rightfully belong. The action or proceedings of both is upon and against tlie goods in the custody of the court, and there is, legally speaking, no party defendant in the case." S. P. 24, How , 436 ; 18 How., 503 ; 2 How., 338 : 2 Wallace, 216. 67 " Libellant and claimant are both actors." 4 Cranch, 23. ^' The proceeeings of that court are in rem, and their sen- tences act on the thing itself." lb. From the nature and character of a proceeding in rem, then, under the statute, it cannot, in any legal sense, be said to be a suit in personam, and that a conviction of the party is necessary to enforce the forfeiture, under the act. Indeed, such a thing would be impossible in a proceeding for a forfeiture. 47 New Hamp., 374-5; 6 Am. L. Keg., (N. S.,) 40. For it is expressly provided in the seventh section of the act of 1862 (12 U. S. Stat., 691) as follows: ''That to secure the condemnation and sale of such property, after the same shall have been seized, so that it may be made available for the purposes aforesaid," (that is, for the support of the army, as provided in the fifth section,) "proceedings in rem shall be instituted in the name of the United States; in any district court thereof," and " which proceedings shall conform as nearly as maybe to the pr.>ceedings in admiralty or revenue cases." It is, therefore, a proceeding which could not be com- menced by indictment. State i'. Barrels of Liquor, 47 N. Hamp., 369, 374. And that a proceeding in rem, although a civil proceed- ing, as we have seen, is a proper and constitutional mode of enforcing the provisions of a highly penal statute solely against property, there can be no doubt. United States v. Eighty-four Boxes Sugar, 7 Pet., 450; 19 How., 92, and foregoing authorities, and C5pecm% The Palmyra, 12 Wheat., 1, and Prize Cases, 2 Black, 672, 673 ; 6 Am. Law Reg., (N. S.,) 32, 40-1 ; 47 New Hamp., 369. For where the seizure is within the admiralty jurisdiction 68 the trial is by the court, as juries do not intervene in pro- ceedings in admiralty. 5 How., 460 ; 3 Dall., 297. And where the seizure is made on land the proceedings are on the Common Law side of the court, and issues of fact are triable by jury. Armstrong Foundry, 6 Wall., 766. But in case of a default the rule is, as was said by Chief Justice Chase, in Semple v. the United States, in the cir- cuit court at Richmond, " The cause was suffered to go by default, and there can be no direction of trial by jury where no issue is made up and no such trial demanded. On the contrary^ it is the constant practice to render judgment of forfeiture in such cases by default, without the intervention of a jury." Conkling's Pract., 568. See 50 Barb., 385, 394. And the same rule was laid down by Judge Ware, in the Mary Ann. Ware's R , 106. S. P. 35 N. Hamp., 132. And Chief Justice Marshall, in The Mary, 9 Cranch, 126, 142, well says: ''By the rules of the court the condemna- tion of the vessel was inevitable ; not because, in fact, she was British property^ but because the fact was charged, and was not repelled by the owner, he having failed to appear and put in his claim." See 35 N. Hamp., 132. From this consideration of the authorities it is manifest that the form and mode of all the j)roceedings are perfectly legal and valid. For where no party appearn, and all are in default and contumacy, there is no fact to be tried ; the libel is taken for confessed, and judgment rendered as though the party had appeared and confessed all the facts charged in the same. A default is an admission of the facts stated in tlie com- plaint or indictment. 12 Minn., 221 ; The State v. Rich- mond, Fost., 24*7. 69 So, where a bill is taken ^jro con/esao, the party is as much bound as if he had appeared in open court and filed an answer admitting the truth of the allegations of the bill throughout. 4 Oilman R., 511, 517; 11 Alab., 668; Sinclair v. Wil- liams, 8 Iredell's Eq. R., 335, 336; Attorney General i/-. Carver, 12 Iredell, 231. No jury is necessary on a default. 25 III., 178. For that which is confessed or admitted needs lo trial to prove, as the fact is as certainly established by confession or admission as though (he same were found to be true by the verdict of a jury. There can be no trial by jury, then, where the case is suf- fered to go by default. And that such is the law is further evinced from the fact that if a right of trial by jury is not demanded by the party who is entitled to the same, it is considered as waived. 4 Wheat., 243, 244; 12 How . 460; 8 Indiana, 217. 218; 1 Pet., 566. But when it is recollected that the confiscation proceeds on the ground that it is "enemies' property," there can be no earthly doubt as to the validity and sufficiency of the proceedings. The title to property captured on land has always been considered as complete by the fact of capture and a firm pos- session. In England the court of admiralty had no jurisdic- tion with respect to booty — property captured on land by land forces exclusively — until the passage of the 3 and 4 Vict., c. 65, which enacts that the court "shall have juris- diction to decide all matters and questions concerning booty of war, or the distribution thereof. "" * * * -'The court shall proceed as in cases of prize of war, and the judgment of the court shall be binding upon all parties concerned." B anda andKirwee Booty, 1 Law (Adm.) R., 109. 70 And not only is it customary and usual for the military to take and use personally without any condemnation what- ever in a court of justice, but they also take and use houses and lands, and levy contributions at will upon all the inhab- itants of the enemy country for the support of the army. Congress mighty therefore, under the war power of suj)- pressing insurrection, have made provision, without the intervention of any court, for the army taking and confiscat- ing the whole enemy country for the support of the army, as well as to indemnify the expanses of the war. But the Government, not wishing that tlie loyal should sufier with the disloyal, made provision in the act for con- fiscating only the property of those whom it put upon the footing of enemies. Hence the necessity of judicial proceed- ings to ascertain the fact of the property seized belonging to a person named in the act. And but for this benign and humane modification of the belligerent right of confiscation, there would have been no occasion whatever for courts to condem the property seized, except for the purpose, perhaps, of making it more available for the support of the army and~the reimbursement of the expenses of the war. Congress, therefore, being under no obligation whatever to provide a remedy in its courts respecting the confiscation of property of the enemy, was at perfect liberty to prescribe its own terms when it saw fit to give one. 18 How., 284 ; 12 ib., 460; 5 ib., 460. In 7 Cranch it is said: "In the case of Smith vs. The State of Maryland, (6 Cranch, 286,) this court sustained a specific confiscation of lands under a law of the State where there was neither conviction nor inquest of office." Chancellor Kent, (1 Com., 112, 10th cd.,) in speaking of the necessity of the condemnation, even of prize, says : ''As 71 between the belligerent ])arties, the title passes and is vested when the capture is complete." " The C[uestion " (that ot" title) " never arises but between the original owner and a neutral purchasing tVoni the captor, and between the orig- inal owner and a re-captor." And this same eminent authority, at page 113, has also said : "A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations has sub- jected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of a neutral vendee, or re-captor, so as to bar the original owner, until sentence of condemnation has been pronounced by some court of competent jurisdiction^ belonging to the sovereign of the captor ; and the purchaser must be able to show doc- umentary evidence of the fact to support his title." From this exposition of the law it is clear that there is a great distinction between what is called military and civil rights. Military rights are evinced alone by possession ; and so long as military jDossession exists, so long does that jiossession furnish conclusive evidence, to all the world, of title. But when the title is changed by sale or other dispo- sition, then the title of the purchaser becomes a civil title, as contradistinguished from the military title, because the latter arises out of a state of war and possession merely, whereas, in the former, the title arises out of contract, dona- tion or grant, and is therefore purely civil. Possession alone, then, is conclusive evidence of the military right, and neutrals are bound to take the fact of possession for tlie law. But as to civil rights, a decree of condemnation can alone furnish record evidence to neutrals of the right of property. By the decree of condemnation, the military right is con- verted into a civil risrht. 72 So fur, then, as respects the right of the captor, there is no necessity whatever for any judicial proceedings. His right and title, so long as he retains possession, is as com- plete without as with a judicial condemnation. Indeel, the latter is wholly incompatible witli the military right. For the latter ceases on a decree of condemnation and becomes merged into a civil right. And all condemnations of vessels and other personalty take place in the country of the captor by proceedings in rem, and the mode and manner pointed out by the laws of the country of the captor. It is, therefore, seen that, strictly speaking, there is no necessity whatever for any condemnation of captured property so long as the property remains in the country or possession of the captor. The title of the captor is as complete without as with a decree of condemnation, for neutrals are bound to see right wherever they see the possesion of the captor. Even lands which have been sold, or those in the possession of the conqueror at the conclusion of peace, and in respect to which the treaty of 1 eace is silent, remain and belong to the conqueror with- out any condemnation whatever in a court of justice. Mr. Wheaton, in reference to this position, has said: "The proprietory right cannot be transferred by the con- queror to a third party, so as tj entitle him to claim against the former owner, on the restoration of the original sover- eign." "But since the Jus postliminii does not, strictly speaking, operate after the peace, if the treaty of jieace con- tains no express stipulation respecting captured property, it remains in the condition in which the treaty finds it, and is thus tacitly ceded to the actual possessor." " 'Il\\e jus post- Uminil is a right which belongs exclusively to a state of war ; and, therefore, a transfer to a neutral, before the peace, even without a judicial sentence of c )ndemnation, is valid, if there has been no recovery or recapture before the peace." " The intervention of peace covers all defects of title, and vests a lawfnl possession in the nentral, in the same manner as it quiets the title of the hostile captor himself." Wheat. Int. L., (Law. ed.,) 884. See 6 Rob. Adm. R. 43 ; ib., 138. It is only when the property of a neutral is captured that there is any real necessity for a condemnation ; and this ne- cessity arises from the fact that '' the property in a neutral captured as an enemy is never changed until sentence of con- demnation is passed." 4 Cranch R., 295, Such, then, being the distinction between military and civil rights, it is clear that there was no occasion whatever, so far as the military right is concerned, for sny legislation on the part of Congress respecting the property of rebels and traitors. But in order to make the same more available, it was neces- sary to have proceedings instituted against the same through courts of justice, as is provided in the act of 1862, so that every claim against the same must cease, (Bynkershoek, 39 Dup. Tr.,) and the decree for all time furnish record evi- dence of the title of the purchaser, as it had been held by the Supreme Court in the case of the United States v. Brown, 8 Cranch, that the courts could not condemn the property of an enemy, as such, without an act confiscating the same. But the right to confiscate is in no way or manner af- fected by the necessity of legislation in order to perfect a right derived from war. In other words, the municipal regu- lations as to modes of procedure are not inconsistent with the war right, as has been supposed. The right to confis- cate is a war right recognized by the law of nations, but the mode of enforcing and establishing the same through courts of justice is necessarily of municipal regulation. In Hudson et al. v. Guestier, 4 Cranch R., 297, Chief Jus- tice Marshall has well said : " Possession of the res bv the 74 sovereign has been considered a.s giving jurisdiction to his court : the particular mode of introducing the subject into the court, or, in other words, of instituting tlie particular process which is preliminary to the sentence, is properly of municipal regulation, uncontrolled hy the law of nations, and, therefore, is not examinable by a foreign tribunal. It would seem, then, that the principles wliich have been stated as applicable in this respect to a piize of war, may be ap- plied to a vessel rightfully seized for violating the munici- pal laws of a nation." See 3 Binn., 257, 250. And not only istlie mode of proceeding for the condem- nation of prize of municij)al regulation, but the municipal law may and does more or less furnish the rule of decision for thee lurts. For, as has been truly said, ''although the theory of public law treats prize tribunals, established by and sitting in tlie belligerent country, exactly as if they were established by and sitting in the neutral country, and as if the}' always adjudicated conformably to the international laAv common to both, yet it is well known that^ in practice, such tribunals do take for their guide the prize ordinances and instructions issued by the bclTigerant sovereign, without stopping to inquire whether they are C;msistent with the paramount rule." Wheat. ^ Int. L., (Law ed.,) 681. And a decree of condemnation so made operates a complete dives- titure of property and concludes the whole world, as the court rendering the decree had complete jurisdiction of the property. But if justice is not done in such case agreeably to what is called the law of nations, the original neutral owner may apply to his sovereign for redress, and it then becomes a question between the two nations to adjust and settle. And the reason of this is, because the court of the captor never had any jurisdiction over the thing or the per- son of the owner with his consent, but, on the contrary, the 75 jurisdiction was acquired by force on the ocean, which is common to all, and therefore not subject to any particular jurisdiction. And if this be the law in respect to neutrals, with what show of plausibility can it be said that a seizure and condemnation under the act in controversy would be illegal ? The mode of proceeding, according to the law of nations, could not be objected to even by a neutral, much less by an enemy ; and the condemnation would certainly be as conclu- sive upon the enemy owner as it would upon a neutral. And if any injustice should be done by the decree, the enemy owner would be without remedy, save that of reprisal and war, in which he was engaged. And the Government, token under no obligation to give a trial, may prescribe its oivn terms when one is granted. 18 Hov/., 284 ; 12 ib., 460 ; 5 ib., 460. Even at Common Law there is a right to take and destroy property of any description, in case of necessity, for self- protection, without any trial whatever. See 1 Dall. R. , 45Y; 2 Denio'sR., 474. The act in question makes it the duty of the President to seize and use all the available property of the rebels for the support of the army. As to this, no one surely can say that it is illegal to take and use the same without a trial. Such a proposition would be as idle and absurd as to claim a right of trial by jury before going into battle, in order to obtain the verdict of jury as to who of the enemy might be put to death. And the principle that wai rants the taking and use of one species of property for the support of the army with- out any trial at all will warrant the taking of any other or all species of property for the like purpose. It is a matter dependent entirely on the discretion of Congress and the President, as the commander-in-chief of the army and navy. 76 Nor can the discietioiiary powers of the President and Con- gress be questioned. 7 How,, 1 : 4 Wlieat., 316. For it is competent for the legislative department (in which the wliole war power resides) to provide for tlie modes of proceding in and out of the courts of the nation, to enforce and render available its war rights as against the enemy. By a condemnation of iiroperty in the mode required, all claims to the same must cease, and a full and complete title vest in the purchaser. Even as regards neutrals, as we have seen, property thus condemned in the courts of a bel- ligerent is divested of every claim, and if the decision be unjust, the claimant must look alone to his sovereign for re- dress. Upon what principle, then, can an enemy object to the mode of proceedings required by the act in the national courts? As an enemy, he has no right to be heard in court. Courts are constituted alone for citizens and friends ; into their sacred precincts an enemy may not enter to claim rights as against the Government he is seeking to destroy, except upon such terms as the Government itself may choose to prescribe .For, as has been well and forcibly said by Mr. Justice Johnson, (12 Wheat., 528,) " 7Far is a suit prosecuted hy the sivord." All the objections, tlien, wliich have been raised, both in and out of court, as to the validity of the act, are as visionary as delusive, and as unsubstantial as the vision of ^neas^ when bemoaning his lost Creusa amid the crumbling ruins and burning strec'ts of fallen Troy. "Ter conatus ibi colo dare brachiii circnin ; Ter frustra comprensa manus effu<2;it imago, Par levibus ventis volncrique siinillima somno." " And thrice about lier neck my arms I flung, And tlirice deceived on vain embraces hung. Light as an empty dream at break of day, Or as a blast of wind she rushed awav." 77 JOINT RESOLUTION. IX. Confiscation of enemies' property is not limited to a mere life hy the joint resolution. It i.s true the Supreme Court of the United States, in the case of Bigehnv v. Forrest, 9 Wal., 339, has held that only a life estate was confiscable under the act of 1862. But that was a case of first impression in that court, and seems to have been founded on a misapprehension of the true mode of ap- plying the law to the facts of the case. The joint resolution only applies to punishments and pro- ceedings against offenders, and does not extend to enemies and limit the confiscation of enemies' property to a mere life estate. The Confiscation Act, as it is called, is an exercise of both sovereign authority and the belligerent right of confiscating enemy property on land during a state of war. The first two sections of the statute relate to the punish- ment of treason and rebellion. This is an exercise of sov- ereign authority, and constitutes alone the criminal portion of the act. The other provisions of the act providing for the seizure and condemnation of the property seized, '^as ene- mies' property," is but an exercise of the belligerent right of confiscating enemy property in time of war. These different provisions of the act are, therefore, to be taken and regarded as separate and distinct from each other. The one relates to citizens and proceedings in time of peace. The other relates to enemies and proceedings in time of war. They are, therefore different from each other in every essen- tial paiticular. And they also differ from each other as to the mode of procedure and the rules of law which apply to an 1 govern the same. A resolution or provision of law, therefore, which only embraces the one cannot be said to 78 extend to and include the other. And this being so, it seems to us that the joint resolution (12 U. S. Stat., 62V) which says, '' nor shall any punishment or proceedings under the act be so construed as to work a forfeiture of the real estate of the offender beyond liis natural life," only applies to punishments and proceedings against offenders under the criminal portion of the act, and does not extend to or limit the confiscation of property under the other pro- visions of the statute, as enemies' property, to a mere life estate. And this is most manifest from the history of the resolu- tion, as well as from the well-known meaning of the terms used in the same. The history anl oijectuf tlij resolution, in short, s this : The President (Mr. Lincoln) thoug'it that Congress, accord- ing to his view of the Constitution, could only forfeit the real estate of a party for treason for and during the terra of his life. And he was further of opinion tliat if a fine was imposed, as i^art of tlie punishment for treason, as prescribed in the first section of the act, the real estate of the party might be seized and sold in fee to pay and satisfy the fine, and that that, therefore, would, in ."-ubstance, be doing indirectly whit could not be done directly. In other ^vords, he thought tliat as Congress could not, in his view, forfeit the real estate of a i»arty in fee for trea- son, it could not reach the same result by means of a fine and a sale of the real estate in fee to pay and satisfy a fine im- })osed as a part of the punishment for treason. And to obviate this objection of the President to the bill was the sole and only object of the amendment to the joint resolution, as its words clearly import and its history fully shows. 79 The joint resolution explanatory of "An act to suppress insurrection^ to punisli treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," as it originally passed the House of Kepresentatives, reads as tbllows : •' That the provisions of the third clause of the fifth section of said act shall be so construed as not to apply to any acts done prior to its passage, nor to include any member of a State Legislature or judge of any State court who lias not, in accepting or entering upon his office, taken an oath to support the Constitution of the so-called Confede- rate States of America." Cong. Globe, Part IV, 2d Sess. 37th Congress^ pages 3373-4. Upon this resolution being called up in the Senate, Mr. Clarke moved to amend the same by adding : "Nor shall any punishment or proceed- ings under said act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." lb. 3374. The object of this amendment will be best understood by giving the exact words of the mover, Mr. Clarke, on the floor of the Senate, and which are as follows : "I present the amendment to meet what I believe to be the objection of the President. That is it exactly." lb. 3380. To this Mr. Trumbull at once replied, "what he believes to be the wishes of the Executive ; and he never would have tliought of presenting the amendment for any other reason Then we are voting to meet the views of the Ex- ecutive, and for no other reason whatever." lb. Here, then, we Jiave the key to the motive of the amend- ment ; and that in the language of the mover was "to meet what I believe to be the objection of the President." Now what was " the objection of the President " to the bill which it was jn-oposed to meet by the passage of this amend- ment to the joint resolution ? 80 The sole objection of" the President to the bill as stated by Senators Harris, King, Trumbull, and Howard, {and to xvhose statements no one dissented,) was, that Congress, ac- cording to his view, could not constitutionally confiscate real estate ior treason, beyond the life of the traitor. Here, then, we have the constitutional ])rovisi()n about atta'nder of treason as the sole and only ground of objection to the bill. Senator Harris, after stating that this question had been one of the subjects of discussion, and upon which there had been a difference of opinion, and that he had shown on a former occasion, at least to his own satisfaction, that the property of rebels might be confiscated in fee for treason, stated what he understood to be the President's opinion, as follows: ''He is of opinion that the real estate of rebels cannot, for treason, be confiscated beyond the term of their lives ; and if the bill now before the President is allowed to stand as it is, it will be vetoed — we may as well understand it — and solely upon that ground. It is a bill that contains other and very valuable and important p;-'ivisions." lb., 3378. And it was stated by Senutor 'Trumbull, (near the c^ose of the debate on tlie I'csolutioii,) and conceded by Senator Clarke, the author of the amendment, that the first sec- tion of the bill was the only niic tliat liad any I'eference to treason. i\[r. Trumbull, on ihat occasion, said: ''This bill, how- ever^ as I understand it, does not provide for trying men for treason and forfeiting their property on their conviction for treason. There is no such principle in the bill. It does not change the punishment for treason, and it contains, if I re- collect rightly, a provision in the first section authorizing the as.sessment of a fine. I believe that is retained " 81 Mr. Clarke. — ^That is retained. Mr. Trumbull. — And that fine could be levied, I suppose, upon the real estate, and the real estate sold under that fine? Mr. Clarke. — The bill so says. Mr. Trumbull. — I would have preferred that that should have been out of the bill ; but there is not in the whole bill, as I understand it — and I wish not to misunderstand it — any other clause, excepting that first section, forfeiting the real estate of a man who is tried for treason. Am I not right ? Mr. Clarke.— That is right. Mr. Trumbull. — Then why talk about this bill forfeiting the real estate beyond the life of the traitor? It is not in the bill, except it is in that first clause, that you shall get at the real estate by means of a fine. * * * As I under- stand it, there is not now in the bill any provision for for- feiting the property of a traitor beyond his life, or for any time, except as it will grow out of that first section. The other provisions of the bill for seizing property relate to property that is captured by the army where the person of its owner is not subjected to trial for treason or any other offences. lb., 3380-1. It is, therefore, seen that the President's objections to the bill grew out of the constitutional provision in reference to attainder of treason. But it is also clear that the provision of the first section of the act in reference to a fine which might be imposed on the conviction of a party for treason was the only part of the bill to which this provision of the Constitution could, by any possibility, have any application. For it was stated and conceded in debate in Congress (and the bill itself shows) that the real estate of one convicted of treason might be sold to pay and satisfy a fine imposed as a part of the punishment of treason. 82 It was tliis provision, and this provision alone, in regaid to the imposition of a fine by the court under the first section of the at, as a part of the punishment of treason, and a fl le in fee of leal estate to satisfy that fine, which gave rise to the doubt in the mind of the Pi-esident as to the constitu- tionality of the bill. And it is also clear, that the only object of tlie amendment to the resolution was to obviate this sole constitutional objection of the President in reference to the operation and effect of a fine imposed under the first section of the act as a part of the punishment of treason. And this being well understood and fully established, the object and extent of the amendment to the joint resolution is of easy solution, (even if there was any doubt as to the meaning of the same from the words used), as the history of legislation, the cause or necessity of making the act, or foreign circumstances, may be looked into for the purpose of ascertaining the intention of the Legislature in making the act, and which, when ascertained, must be respected and obeyed. 1 Wlieat., 115 ; 4 Gill and J., 152, 153. In Maynard vs. Johnson, 2 Nevada R , 25, it is held that in cases of doubtful construction, or where an act will admit of different constructions, the debates of a legislative body may be resorted to to determine the meaning of a law, where tlie language of the same is so ambiguous as not clearly to show the meaning intended to be conveyed. At page 20, of the above case, Mr. Justice Bronson says : '' In cases of doubt, and also where a statute will bear oppo- site meanings, either from inaptness of phraseology or an ungrammatical construction of its several clauses, it is very usual to resort to the discussions of the legislators on the disj)uted point, witli a view to the ascertainment of their 83 intention. This is authorized and legitimate, both in the interpretation of statutes and constitutions." And in Canal Company vs. Railroad Company, 4 Gill and John. R., 153, the court says : "'In Preston vs. Brow- den, 1 Wheat., 115, the Supreme Court of the United States, in construing an act of Assembly of North Carolina, had recourse to the history and situation of the State, and treaties made by that State with the Indians, in order to ascertain the intention of the Legislature, and thereby to arrive at the meaning of the act, and decided that it did not embrace the land in question, though the words of it were sufficiently broad and extensive, on the ground that it did not apriear to liave been the intention of the Legis- lature." From this consideration of the history of the resolution and the law applicable to the same, it is very evident that the joint resolution cannot be held to embrace the confisca- tions specified in the statute, because such was not the in- tention of Congress in passing the resolution. And not only is it clear from the history of the resolu- tion that it was not intended to embrace and apply to con- fiscations '• as enemies' property," but even the very words of the resolution itself show that it was only intended, and can only apply, to jj 3 rsonal and crbalnal proceedings under the first and second sections of the act. The words are : '' Nor shall any punishment or proceedings under the act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." It is, therefore, seen that the resolution, in express terms, refers only to offenders un- der the penal portions of the statute, the first and second sections being the only parts of the act under which it is possible for any one to be considered an offender, or under whicli any personal or criminal proceedings could be had. 84 The provisions of the fifth, sixth, seventh, and eighth sections of the statute relate to persons as enemies, and not to offenders. It is, therefore, not to he extended in its opera- tion heyond offenders under the first and second sections of tlie act, so as to include those who are put, hy the other pro- visions of the statute, on the footing of enemies. The word offender, ex vi termini, means one who has violated some positive provision of law, and who is amenahle to pers mal punishment, in some form or other, for his violation of the law. Enemies, as such, (and all the inhahitants of the se- ceded States, so fixr as belligerent rights were concerned, have been uniformly held by the Supreme Court of the Uni- ted States as enemies, irrespective of their personal senti- ments and dispositions,) are not and cannot be considered as offenders. Offenders are such, under and by virtue of the municipal or statutory law of the land. Enemies, or those who are put upon the footing of enemies, so far as bel- ligerent rights are concerned, are not amenable, as such, to tlie municipal law relating to offenders, but are alone liable to be dealt with according to the law of nations and the rights which war confers. A citizen may be regarded, so far as belligerent rights are concerned, as an enemy, and yet not be an offender. The Rapid. 8 Oranch, 155 ; Jecker V. Montgomery, 18 How., 114. In the first of these cases the property of a loyal citizen was condemned as forfeited to the Government, not because the owner was disloyal and an offender, so as to be amen- able to personal punishment, but because his conduct in sending a vessel to the enemy's country to bring away his property was intercourse inconsistent witli loyalty, and he was, therefore, so far as his property was concerned, to be deemed and taken as an enemy. And so in the case referred to in IS lluw., ]»roperty taken trading with the enemy was 85 held liable to be condemned as prize of war, because the owner, pro hac vice, was to be considered and regarded as an enemy, though not an offender in the proper sense of that term. And, 0:1 the other hand_, a citizen may be, and often is, an offender without b.nng an enemy. When, therefore, we find the word offender used in a statute, as in the joint resolution, it is very clear that it does not include, and was not intended to embrace, any one in liis position or relation as an enemy. An offender in law occupies a very different and distinct position from that of an enemy. Offenders are amenable alone to, and are pun- ishable by virtue of the municipal law. Enemies, (or those the law deems such,) on the other hand, can only be dealt with according to the law of nations and the rules which govern in civilized warfare. It is said, however, in substance, that a citizen engaged in rebellion is not to be considered as an enemy — that he may be regarded as a traitor, but not as an enemy. This is a great mistake. A citizen may at one and the same time be both an enemy and a traitor — an enemy to be dealt with as such whilst the war lasts, and a traitor, to be pun- ished as sucli only when the rebellion is suppressed and the war at an end. In the language of the Supreme Court of the United States, in the Prize Cases, 2 Black, G74, " they are none the less enemies because they are traitors." But though they are both enemies and traitors, they are not to be dealt with in both capacities at one and the same time — enemies, whilst the war lasts, and traitors, to be punished as offenders when the rebellion is suppressed. Such being the law, it is but fair and reasonable to presume that Congress in passing the act of July 17, 1862, to sup- press insurrection, to punish treason and rebellion, to seize 86 and confiscate the property of rebels, and for other purposes, was well aware of the double position in which those in re- bellion had placed themselves, and of its rights to deal with tlicni in one or both of the positions and capacities in which they had placed themselves — that ol" enemies and traitors. And hence we find that Congress, in the act referred to, made provision as a means of su])pressing insurrection for dealing with those in rebellion both as traitors and enemies. For it is for the political department of the Government to fix or determine the status of parties. The provisions of the act, therefore, relating to the different capacities and positions in which those in rebellion had placed themselves, and in which they were liable to be dealt with, are to be re- garded and considered as separate and distinct from each other, as though they were embodied in separate and dis- tinct acts. And this is evident from tlie fact that the crimi- nal portion of the statute could only be enforced after the termination of the war, whilst that relating to the confis- cation of enemies' property could only be enforced during the existence of the war. And tliis being well understood and established, it is very evident -that when Congress passed the joint resolution relating alone to offenders, it did not intend that it should extend to or embrace enemies, and the proceedings against them as such, because an enemy cannot be regarded in the eye of the law as an offender. Enemies can only be dealt with as such, and not as offenders. A statute, therefore, which refers to offenders only as the reso- lution does, cannot be said to extend to and include enemies, or the rights of the Government against them as such, as pro- vided and set forth in the confiscation portion of the act. And not only docs the use of the word "offender" in the resolution show that it was only intended to apply to and embrace jier- sonal and criminal prosecutions under the first and second sec- 87 tions of tlie act, and the consequence which might attach and follow iVom tlie same, but the other words of the resolution clearly and unmistakably show that it was only intended by the resolution to tie up and make the act. as far as the pun- ishment for treason and rebellion was concerned, square with the then President's views of confiscating only a life es- tate for treason. For it says : " Nor shall any punishment or proceedings under tlie act l)e so construed as to work a forfeit- ure of the real estate of tlie offender beyond his natural life." Now, does not this language show, beyond all doubt, that the resolution only refers, and was only intended to refer, to the punishment of treason and rebellion and the proceed- ings incident to the same ? Most clearly^ it does. The '' punishment and proceedings" referred to can only relate to those personal jiunishments and proceedings under and by virtue of the provisions of the first and second sections of the statute, they being the only sections of the act under which any proceedings against the person of an offender could be had, or under which any one could be considered an offender. If the resolution was intended to apply to all proceedings under the act, why was the word offender used in the same ? The word offender was used to fix the limit of the o})eration of the resolution ; it was to apply alone to those punishments and proceedings wliich were against offenders. Besides, to work a forfeiture, according to all the authori- ties, as we have seen above, is to bring about or produce as a resulting conse([uence from some prior act or thing. The resolution, then, like the clause in the Constitution, only provides and guards against mere resulting consequences, or consequences wliich it Avas supposed would follow, as a matter of course, from punishments and proceedings against offenders under the criminal part of the act. 88 For Congress miglit well, ia order to obviate the coiisti- tutional objection of the President us to the punishment of treason, limit the sale, by the resolution, of the real estate of the qffendey^, to pay and satisfy a fine imposed as a part of the punishment of treason to a life estate, without at all modifying the other provisions of the act, confiscating ene- mies' property absolutely. The motive or occasion for the modification in the one case, would certainly l)e entirely wanting as to the other. It would, therefore, seem to be almost a self evident prop- osition that the joint resolution can only refer, and was only intended to refer to punishments and proceedings under the first and second sections of the statute, and does not embrace, and was not intended to embrace,, confiscations of enemies' property under the other provisions of the act. And this would seem to derive great force and strength from the fact, as shown by the act itself, viz : that the object of seizing and condemning the ])roperty seized ''as enemies' property," was to secure the speedy termination of the re- bellion and the support of the army. These being the objects of the confiscation of the enemy's property, is it not evident that the mere confi.-cation of the life estate only of one liable to be killed in battle the next moment after the confiscation of liis property would be next to idle and use- less? Who would purchase such a precarious interest dur- ing a state of war? And what revenue for the support of the army could have been expected from the sale of a mere life estate in the property seized and condemned as enemies' property? None; actually none. Besides, if only a life estate was confiscable, to whom would the })roperty go on the termination of the life estate during the war ? Would it not descend to the heir of the enemy ancestor, and thus again become one of the sinews of war in the hands of the 89 enemy? And would it not have to be condemned over and over again to make it available for the support of the army ? A construction tliat would lead to such a result and thereby defeat two of the main purposes of the act — the suppression of the rebellion and the support of the army — cannot be a sound and correct interpretation of the resolution. Seizure and condemnation of the property seized, '^as enemies' property," was to, and could only, take place dur- ing the war. But the proceedings and punishment for trea- son could only take place and be inflicted after the suppres- sion of the rebellion and the close of the war. For if, as is said in the books, the sovereign who was endeavoring to reduce his revolted subjects to obedience should hang for treason pending the contest, the insurgents would hang also, by way of retaliation, those of the established govern- ment who should fall into their hands, and thus the war would become one beyond the pale of civilized warfare. Hence, civil wars, for the sake of humanity, are governed by the same rules which obtain in wars between independ- ent nations, the parties on either side, during the contest, being regarded and dealt with as enemies and not as offend- ers. The policy, then, of forfeiting only the life estate in tlie property of traitors and offenders after the suppression of the rebellion and the close of the war can have no sort of application Avhatever to the confiscation of enemies' property during the existence of a state of war. The confiscation, then, of enemies' property is a very diff'erent and distinct thing from that of punishing offenders. A law relating exclusively to the latter cannot then be said to extend to and embrace the former. The right to confiscate enemies' property is a belligerent right, political in its nature, and entirely under the power and authority of Congress, and is wholly unfettered by the 90 [)rovi,sions of the Constitution relating to the pnnislnneiit ol' treason and offenders. 30 Indiana R., 5. Sucli being tlie law, it seems to us that that part of tlie act of July 17, 1862, relating to the contiscation of '•'ene- mies' property,' must be held to be separate and distinct from that portion of the act relating to offenders, and that the resolution relates alone to the punishment and proceed- ings against offenders, and does not ap}dy or extend to those parts of tlie statute providing for the seizure and confisca- tion of enemies' property. And as the main purpose of the confiscation portion of the act was the speedy termina- tion of the rebellion, as well as the sup^iort of the army, it seems to us that by no fair and reasonable mode of interpre- tation of the words used in the resolution, can it be held to extend to and limit the confiscation of enemies" property to a mere life estate. To do so would be to extend the resolu- tion, as shown by its liistory, beyond the intention of Con- gress in passing the same. To do so would be to give an extent and meaning to the resolution fiir beyond its import, and which is not warranted by its words. And, finally, to do so would, if the war was still pending, (and the act and the resolution should be construed together as though the war was still in existence,) be to defeat two of the main pur- poses of the act, the suppression of the rebellion and the support of the army. A construction that would lead to such results, it seems to us, cannot be regarded as a sound or proper construction of the statute, and the resolution passed in connection with the same. And this is further manifest from the fact that the act and the resolution Avere both signed on the same day of the same session of Congress, and the further fact that the resolution contains no express words of repeal or modification Avhat- ever, of any provision of the statute. It can, therefore, only 91 operate as a repeal or modification of the act by implication, to the extent, and to the extent only, to whicli they are repug- nant and tvhoU/j {irreconcilable hy any fair and reasonable mode of interpretation. But before one act of Congress will operate a repeal or modification of another, passed even at a different session of Congress, by implication, it must appear that there is a positive and irreconcilable repugnancy between tlie two. A repeal by implication is not favored in any case by the courts. Tlie two acts must be reconciled if possible. McCord V. Smith, 1 Black., 459 ; Nay lor y. Field, 5 Butcher's (N. J.) R., 287 ; State v. Berry, 12 Iowa (4 Whith.) R., 58; 10 Ohio (N. S.) R., 25 ; 1 Head's (Tenn.) R., 113 : 3 Wallace, 633; 22 How., 311 ; 25 Ind., 166. '' That statutes may be repealed by implication and with- out any express words," (there can be no doubt,) " still the leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of legislation together." Sedg. Stat, and Const. L., 12T. And the reason is, " laws are pre- sumed to be passed with deliberation, and with a full knowl- edge of all existing ones on the same subject ; and it is, therefore, but reasonable to conclude that the Legislature, in j^assing a statute, did not intend to interfere with or ab- rogate any prior law relating to the same matter, unless the repugnancy between the two is irreoncilable ; and hence a repeal by implication is not favored ; on the contrary, courts are bound to uphold the prior law if the two acts may well subsist together." lb. In Ind. School Dist. v. Whitehead, 2 Beasley's (N. J.) Ch. R., 291, Chancellor Green well says: ''But the repeal of a statute by implication is not favored. Unless the lat- ter statute is manifestly inconsistent with and repugnant to the former, both remain in force. Courts are bound to up- 92 hold the prior hiw it" the two may subsist together. Tlio matter must be so clearly repugnant that it necessarily im- plies a negative. Dwarris on Stat.^ 0^4 ; 1 Bl. Com,, 89, and cases cited, note 34, Sharswood's ed. ; Beales v. Hall, 4 How. U. S., 37; Bowen v. Lease, 5 Hill, 221, and cases cited, note a, 225." In Ludlow's Heirs v. Johnson, 3 Ohio, 553, it is said: " When the provisions of two statutes are so far inconsistent with each other that botli cannot be enforced, the latter must prevail. But if hy any fair course of reasoning the tioo can he reconciled, both shall stand. * * * ^^ court loill, if it can consistently he avoided, determine that a statute is repealed hy implication.'' In Cass V. Dillion, 2 Ohio State, (Warden,) 610, the court thus states the law : "As repeals by implication are not fii- vored, the repugnancy between the provisions of two stat- utes must be clear, and so contrary to each other that they cannot be reconciled, in order to make the latter operate a repeal of the former. Tin's rule is the result of a long course of decisions. " And in McCool v. Smith, 1 Black, 470, 471, Mr. Justice Swayne well says : "A repeal by imjilication is not favored. The leaning of the courts is against the doctrine, if it be possible to reconcile the two acts of the Legislature to- gether. Sedg. Stat, and Const. Law, 127 ; 4Gill. and J., 1 ; Canal Co. v. Railroad Co., 5 Hill, 221 ; Bowen v. Lease, 2 Barb. S. C. R., 31G, Williams v. Potter." "Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention which may be' collected from the cause or necessity of mak- ing the act, or from foreign circumstances ; and when dis- covered ought to be followed, although such construction 93 may seem to be contrary to the letter of the statute. Plow., 205, 232; 11th Coke Rep., 73; 19th Vin. Abr.,519; 6th Bac. Abr., 384. That, therefore, Avhich is within tlie letter of a statute is sometimes not within the statute, not being within the intention of the makers. 'If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand ;' and where two laws only so far disagree or differ as that by any other construc- tion they may both stand together, the rule that leges poste- riores, pr lores contrarias ahrogant, does not apply, and the latter is no repeal of the former. Eoll. Eep., 90, 91 ; 2d Co. Rep., 5, 6; 11 Coke Rep., 63, 64; 19 Vin. Abr., 519, 525. It is laid down as an esfablished rule, in 19 Vin. Abr., 525, PI. 132, that ' repeals by implication are things disfa- vored by law, and never allowed of but when the inconsist- ( ncy and repugnancy are plain and unavoidable ; for these repeals ctrry along with them a tacit reflection upon the legislators that they should ignorantly, and witliout knowing it, make one act repugnant to and inconsistent with another ; and such repeals have ever been interpreted so as to repeal as little of the preceding law as is possible ;' and in 6 Bac. Abr., 385, that 'where it is manifestly the intention of the Legislature that a subsequent act of Parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it, taken strictly and grammatically, would repeal the former act.' These principles have been recognized and adopted by courts from the time of Roll, Plowden, and Coke to the present day.'' Canal Co. v. Railroad Co., 4 G. & J., 1. Nor is this rule to be departed from on any pretence or suggestion that the spirit of the resolution is more compre- hensive than its words import. For, as is well said by Mr Justice Thurman,inCass V. Dillon, 2 Ohio State, (Warden.) 94 612, •• wIkmi was an enlarged meaning given to a statute beyond the import of its words, in order to repeal another statute by implication ? We have met witli no such case, and none hns been pointed out to us." And this is more especially the case where the two acts (as in this case) Avere passed not only at the same session of Congress, but actually approved by the President on the same day. For, in the case of acts passed at the same session of the Legislature, it is well settled tliat the ordinary rules of construction employed to determine whether former laws have been repealed by the enactments of a subsequent Leg- islature, are inapplicalle, and the rule is (hat the ivhole must he taJcen as one act, and that nothing short of a direct, ex- press, repeal in terms, or such irreconcilable repugnancy as that both cannot stand together, and one consequently must give place to the other, and operate its repeal by implica- tion, has, it is believed, ever been held sufficient to justify a court in holding one act rej^ealed by another passed at the same session. Cain r.s\ Tlie State, 20 Texas R., 355, 3G5 ; Peyton r.v. Mosely, 3 Monroe's (Ky.) Pt., 80; Sedg., Stat, and Const. Law, 415: Neill vs. Reese, 5 Texas, 33; 2 Blackf., 249. Tn Cain v. The State, 20 Texas, the (question was, whether or not an act of the Legislature, which authorized the county courts of the Sta'e to grant a license for the retail of intox- icating liquors in quantities less than a (juart, and imposing a license tax for such privilege, and prescribing a penalty for selling without such a license, was repealed by the pro- visions of the Penal Code of Procedure enacted at a subse- (|Uont period of the same session, and which contained a re- pealing clause, and after enumerating a great many crimi- nal laws of former sessions, concluded as follows : " And all other laws and parts of laws relating to crimes and punish- 95 ments are liereby repealed ;'" and the court, in an elaborate and well-considered op'nion, held that the former act of the same session (and which related to crimes) was not repealed even hy this broad and comprehensive language of the re- pealing clause, and that the C(,nviction of the defendants under the former act for a violation of its provisions was good. At pages 358-365, of tlie above authority, Mr. Justice Wheeler, after quoting the statute, well says : " The mate- rial question to be determined is, whether this act was re- pealed by acts of a later date, passed by the same Legisla- Tnvo "In considering the question^ it is important to observe, that both the act supposed to be repealed and the supposed repealing act are acts of the same Legislature. This, it is conceived, renders inapplicable the ordinary rules of con- struction employed to determine whether former laws have been repealed by the enactments of a subsequent Legislature. By attending to this distinction^ and applying the rule which governs the construction of acts passed at the same session, the question, wo. think, is free from difficulty. The rule is, that in the construction of acts of the same session, the whole must be taken and construed as one act, and to make a latter provision repeal a former, there must be an express repeal or an irreconcilable repugnancy between them ; and then the latter will control. (3 Moore, ^'1 ; Sedg. on Stat, and Const. Law^ 415.) The case of Peyton vs. Moseley, determined in the court of appeals of Kentucky _, is a stronger case, it is conceived, of the apparent repeal, by tlie Legislature, of a prior act, by one subsequently passed at the same session, thfu the legislation in question affords : and yet the court held there was no repeal. An act of the Legislatni-e prescribed the form of a recognizance 96 to be taken in certain cases, concluding with the words, 'witness my hand and seal.' A subsequent act of the same session abolished the use of seals, putting sealed and unsealed instruments on the same footing. It was insisted that the latter act repealed the former. But the court said : ''It is true, as observed by the court below, the expressions of this latter act are very broad, and if it had not passed at the same session with the forn:er, it might, by the ordinary rules of construction, be held to repeal the former pro fan/o- But with regard to acts passed at the same session, we apprehend that the rules of construction are somewhat dif- ferent. When they are compared together, they ought to bo construed as one act on the same subject ; and the pre- sumption of so sudden a change or revolution in the minds of tlic Legislature ought not to be indulged. There ought to be an express repeal, or an absolute inconsistency between the two provisions, to authorize a court to say that the latter had repealed the former. If both these provisions were in the same act, both must have effect, if possible. Hence, the conclusion would be, that the recognizance directed to be taken with a seal, in which the bail stipulated for the prin- cipal, ought to be held as an exception to the general pro- vision which dispensed witli a seal.' (3 Monroe, SO.) And thus the court, instead of holding acts, of the same session, apparently repugnant, the one to repeal the other, gave effect to both, although in order to do so it became necessary to engraft the former upon or incorporate it in the latter act as an exception to its jtrovisions."' ''It is not to be supposed, nothing short of expressions so plain and positive as to force upon the mind an irresistible conviction, or absolute necessity, will justify a court in pre- suming that it was the intention of the Legislature that the acts passed at the same session should abrogate or annul one 97 another. The decent respect due a co-ordinate department of the Grovernment would seem to forbid that such a pre- sumption be indulged in by the court. As we had occasion to say in Neill vs. Keese, ' it would not be a reasonable mode of construing acts of the Legislature so to construe them as to make one act repeal another passed at the same session. It cannot be supposed that it was their intention that acts thus passed should abrogate and repeal one another.' 5 Tex. R., 33. "If the minds of the Legislature had really undergone so sudden a revolution, it seems impossible to doubt that they would have made it known, and removed all occasion for controversy on the subject by a direct express repeal of the act in terms." " Nothing short of a direct express repeal in terms, or such irreconcilable repugnancy as that both cannot stand together, and one consequently must give place to the other and operate its repeal by implication, has, it is believed, ever been held sufficient to justify a court in holding one act repealed by another passed at the same session." "There must be a positive repugnancy between the pro- visions of the new laws and those of the old ; and even then the old law is repealed by implication only, j^ro tanto, to the extent of the repugnancy." Daviess v. Faribain, 3 How., 646 ; Wood v. United States, 16 Pet., 362. Tested by the principles of the foregoing authorities, the resolution cannot be considered as a repeal or modification of the confiscations provided for in the act. The utmost that can possibly be claimed for it is a modification or limi- tation of the sale of the real estate of a convicted traitor, to pay and satisfy any fine imposed by the court as apart of ihe punishment for treason, to the term of the life of the traitor. This is the source of its origin and the 98 ultima Thule of its destination, and beyond tliis it can- not go. And with tliis consideration of the resolution ai.d the highest respect and regard for the opinion of the Supreme Court of the United States, in Bigelow v. Forrest, we venture to say that we entcrtian no doubt whatever but that when the »{uestion therein decided comes again before that learned court and is fully and fairly argued before the same, the decision will be that confiscations in fee underact ITth July, 1862, are legal and valid. But if it should be thought, or even conceded, for the sake of argument, that the resolution was a modification of the specific confiscations provided for in the act, and a conse- quent concession to the views of President Lincoln, that Congress could only forfeit a life esta'e for treason, then it may be said, and said successfViUy, that sucli concession and modification were shortly afterwards entirely de{)artedfrom, both on the part of the Presi lent and Congress, by subse- quent legislation. By the act of twelfth of Marcli, 180:5, (12 U. S. Stat., 820, ch. 120,) provision is made for the ai)poiiitment of special agents by the Secretary of the Treasury to receive and collect captured and abandoned property in States, &c., designated by the proclamation of the President of July 1, 1862, as being in insurrection. I'rovision is also made in said act for the sale and disposition of such i)roperty, and the pay- ment of the proceeds into the Treasury of the United States. And it is furtlier provided in this act that "any person claiming to have been the owner of any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to tie pro- ceeds tliereof in the Court of Claims ; and on })roof to the >sa'. irf.'acLiuii of said court of his ownership of said property^ 99 of his right to the proceeds thereof, and that he has never given any aid or comfort to the present rehellion, to receive the residue of such proceeds, after the deduction of any purcliase money which may liave been paid, together with the expenses of transportation and sale of said property, and any other lawful expenses attending the disposition thereof." From this provision it is seen that the only reined/j for a loyal citizen whose property had by mistake or otherwise been sold under the act was to apply to the Court of Claims, (and this only by virtue of said act,) and on proof of loyally and ownership, he might recover the net proceeds. And but for this provision in the act, tlie loyal owner would have been without any remedy whatever. Not only would his property have passed absolutely to the purchaser of the same from the Government, but he would have ha 1 no claim whatever to any part of the proceeds arising from the sale of the same. Such being the law, then, in reference to loyal owners of captured or abandoned property, is it not manifest that the disloval have no risrht or claim whatsoever to either the property condemned and sold, or the proceeds thereof? And by reference to the act of .July 2, 18G4, (13 (J. S. Stat. 375, ch. 225, §§ 2 and 3,) it will be seen that pi-ovision is made for taking possession of abandoned houses and lands by the special agents authorized by the above act of 18G3, and the first section of the latter act is extended so as to include the descriptions of property mentioned in ''An act entitled 'An act,' &c., and "An act entitled 'An act to su2)[iress insuri-ection, to punish treason and lebellion, to seize and confiscate the property of rebels, and for other purposes,' approved July seventeentli. eighteen hundred and sixtv-two." 100 And it is further provided, in the latter part of section 8 of the aforesaid act of 1864, (13 U. S. Stat., 376,) as fol- lows : "That all property, real or i)crsonal, shall be le- garded as abandoned when the lawful owner thereof shall be voluntarily absent therefrom, and engaged either in arms or otherwise in aiding or encouraging the rebellion." From these provisions it is seen that the principle and provisions of the act of 1863, in relation to hotli captured and abandoned property are directly applied and extended to all property mentioned in the confiscation act of the seven- teenth July, 1862. And as confi-cation and sales, under said act of 1863, were in fee, even though the same might have belonged to loyal citizens, it follows, as a mat- ter of course, that Avhen the principles of that act were applied, as we have shown above, to property mentioned in the act of 1862, sales under the latter act were in any event, also in fee. For it is hardly to be supposed that Congress intended to confiscate loyal citizens" property in fee, as stated above, and only forfeit the life estate of rebels and traitors and enemies. To do so would be to punish loyalty with greater severity than disloyalty. To do so would be to punish the innocent and reward the guilty. To do so would be to dis- courage loyalty and to hold out a premium to insurrection and rebellion. A construction that would lead to such ab- surdities and such unjust results cannot receive the counte- nance of any court. AVe therefore conclude that whatever might have been the scope and object of the joint resolution, it was repealed by reason of the incompatibility of subsequent acts with the same. For if the resolution be held to repeal or modify the act of 1862 by implication as to confiscation, the applica- tion of the like rule and principle must make the subse- 101 quent acts to which we have referred entirely abrogate the resolution, as confiscations by the latter acts are and were intended to be in fee. In any and every possible view, then, we think it clearly established, both on the score of authority and subsequent legislation, that confiscations in fee, under the act of 1862, are legal and valid, and this more especially so after the passage of the captured and abandoned property acts of 1863 and 1864. DECREES IN FEE. X. Condemnations in fee not void, but only voidable, even if only a life estate ivas confscahle. The district and circuit courts of the United States, though of limited jurisdiction, are not inferior courts in the teclmical sense of that term. Kennedy v. Georgia State Bank, 8 Howard, 586 ; Ex parte Watkins, 3 Pet., 193; Chemung Bank v. Judson, 4 Selden, 254 ; Wright v. Marsh, 2 Iowa, 94 ; Wood v. Moran, 1 Sum., 580 ; Skilleru's Exs. V. May, 6 Cranch, 267; McCormick v. Sullivan, 10 Wheat., 199 ; Baldwin v. Hale, 17 J. R., 272 ; Reed v. Vaughan, 15 Missouri, 137, 141-2 ; Rowan v. Holcomb,16 Ohio, 463, 465 ; Thompson v. Lyle, 3 Watts & Serg., 1G6. They are to be regarded and considered as domestic courts, of superior and general jurisdiction as to all matters over which they are by the Constitution and laws of the United States invested with jurisdiction and authority. Gillett v. Powel, 1 Spear's Eq. R., 142, 144; Ex parte Hall, 5 Ne- vada, 158 ; Adams v. Way, 34 Cal., 413 ; Reed v. Vaughan, 15 Missouri, 137, 141-2 ; Bowan v. Holcomb, 16 Ohio, 463, 465 ; and foregoing authorities. For it is w^ell settled that limitation of power does not 102 necessarily imply inferiority. Peacock v. Bell, 1 Saun- ders, 15. And tlie rule is, that where a general authority is given by statute to a superior court over all matters of a given class, the court, in the exercise of the new power or author- ity Ihus conferred, will not be regarded as an inferior court. Harvey v. Tyler, 2 Wallace, 328, 342 ; Voorhies v. Bankof the United States, 10 Pet., 449 ; Grignon's Lessee v. Astor, 2 How., 319; Kemp's Lessees. Kennedy, 5 Cranch, 173 ; 18 New York, 592 ; 28 lb., 653 ; 34 Cal., 412-13 ; Reed v. Vaughan, 15 Missouri, 137 ; Rowan v Holcomb, 16 Ohio, 463. In Rowan v. Holcomb, 16 Ohio R., 463, 465, the supreme court of Ohio says : " The district court is a court of record, created under the powers of the Constitution of the United States, having jurisdiction over matters of bankruptcy, by tlic acts of Congress. Matters of bankruptcy, by the act, are conferred upon the district court as a part of its general jurisdiction ; and in principle its orders of final discharge may be pleaded precisely as the judgments and decrees of any court of general jurisdiction." And in Reed ik Vaughan, 15 Missouri R., 137, 141, Mr. Justice Scott said : '' The courts of the United States, though possessing a limited jurisdiction, yet, in the intendment of law, s'and upon the same footing as courts of record of gene- ral jurisdiction. All the presumptions which are indulged in favor of superior tribunals of general jurisdiction are equally extended to the courts of the United States. In plead- ing a julgment or decree of one of these courts, there is no necessity for showing the facts which confer jurisdiction than in a plea of judgment of the highest tribunal known to the law. Their judgment cannot be impeached for error or irregularity in a collateral proceeding ; they can only be 103 vacated on motion in the courts in wnicli they are rendered, or reversed from error in an appellate jurisdiction." The district courts of the United States are courts of rec- ord, and are not to be regarded as inferior courts, so that their proceedings in causes not within their jurisdiction may be deemed void and questioned collaterally. Thompson v. Lyle, 3 Watts and Sergeant's R., 166. At page 168 of the above authority Kennedy, J., says : '■ Though the district court of the United State's be one of those tribunals which Congress under the Constitution has established, and, in reference to the Supreme Court, thereby directed to be established, is denominated an inferior court, yet I take it that neither the district courts nor the circuit courts of the United States are of inferior jurisdiction, at least not so as to render their process and proceedings in causes, without their jurisdiction, absolutely void. See Stan- ley vs. The Bank of America, 4 Dall., 11 ; McCormick vs. Sullivan, 10 Wheat., 102; 1 Kent's Com., 303." S. P. Kemp's Lessee vs. Kennedy, 5 Cranch, 1'73. Such being the character of the courts of the United States, it follows that even if the joint resolution was a modification of the confiscation portion of the act, so as to limit the con- fiscation of enemies' property, under th3 same, to a mere life estate, (and even were the resolution not repealed by implication by the provisions of the captured and abandoned property acts of 1863 and 1864,) still, as the district courts of the United States had jurisdiction of the subject-matter of confiscation under the act of l^th July, 1862, and a con- sequent right to condemn the property in some form, (either in fee or for life,) the condemnation in fee is not void in any event, but at most only voidaNe. Butler vs. Potter, 17 J. R., 145 ; Knowles vs. Muscatine, 20 Iowa, 249 ; Easton vs. Calender, 11 Wend., 90, 95 ; Henderson vs. Brown, 1 Caines' 104 R., 102 ; Grignon's Lessee vs. Astor, 2 How., 341 ; Griffin vs. Mitchell, 2 Cow., 349 ; Adkins vs. Bremer, 3 Cow., 209 ; Vail rs. Owen, 19 Barb., 26; Kemp's Lessee vs. Kennedy, 5 Cranch, 113. "It is only where a judge or court has no jurisdiction of tlie subject-matter of the proceeding or action in wliich an order is made or judgment rendered that the order or judg- ment is wholly void." Hobart vs. Frost, 5 Duer, 673. In the case of Butler vs. Potter, 17 J. R., 145, the court says: "The justice had jurisdiction to give judgment for costs ; although he was limited as to the amount, and gave judgment for m re than he ought, it was an erroneous, not a void, judgment. The case of Prigg v. Adams, (2 Salk., 674,) is in point," * * * " The distinction is this : Where the justice has no jurisdiction whatever, and undertakes to act, his acts are coram nonjadice, but if he has jurisdiction, and errs in exercising it, then the act is not void, but void- able only." In Hendeison v. Brown, 1 Caine's Rep., 102-3, where assessors were sued in trespass for assessing a theatre as a dwelling-house, Mr. Justice Kent said : "I distinguish this case from those cases in the Englisli books, where the asses- sors and collectors of their land-tax have been held responsi- ble. The assessors had no authority at all over the subject- matter which they included in the tax. Here the theatre was required to be assessed by the assessors ; if a dwelling- house, then as such ; if not a dwelling-house, then as a lot of ground, with due regard to the imjtrovcments thereon. * * The assessors had jurisdiction of the subject-matter. They were bound to assess that building in the one view or the other ; and in the exercise of that duty, it is nlleged and ad- mitted that they did not exercise their judgment duly. But this is very different from the case in which they were not 105 to exercise any judgment at all over the subject, in which they had stepped out of their path, and taken cognizance of a subject not at all delagated to them. In such an instance their proceedings would have been truly coram non judice, and they trespassers. Here the subject was by law 5?(6 judice, and the grievance is a mere error or mistake by them while in the exercise of a lawful jurisdiction." And in Easton v. Calendar, 11 Wend., 90, it was held, by Mr. Justice Nelson, that notwithstanding the trustees, in ap- portioning a school-tax among the taxable inhabitants, must apportion only the sum voted, and not include therein, in making the apportionment, i\\Q percentage allowed by law to the collector for collecting the tax, the tru-tec'^ who had made up the apporiionment upon the sum voted and the percentage, althi)ugh erroneous, were not liable in trespass for causing property to be sold in the collection of the tax. And the reason assigned for this decision was, that the trustees had jurisdiction of the subject-matter of the appor- tionment of the tax, and that, consequently, though their action in the matter in assessing more than the law allowed was erroneous, the assessment was not absolutely void, but only voidable, and therefore valid till reversed or set aside in the manner provided by law. In Knowles vs. The City of Muscatine, 20 Iowa R., 248, it was held that an order of a court establishing a road of greater width than was authorized by the statute was not void, but irregular or erroneous merely, and was valid until reversed. At page 249 of the above case, the court says: "The inquiry is, was the ordi-r void or erroneous merely? It ap- pears that the county court hadfidl and complete jurisdiction over the parties and the subject-matter. The order made was never appealed from, but remained in full force and virtue. 106 Under such circumstances, we incline to the opinion, and so hold, that the order was not void, but irregular or erroneous merely." Mr. Justice Miller, in Harvey vs. Tyler, 2 Wall., 328, 346, in answer to the objection that the judgment exonerating land for taxes accrued after the passage of the statute was null and void, because the act only authorized an exemption for taxes accrued before the passage of the act, said : "If this were true, we do not feel sure that, under the principles just considered, it would invalidate the judgment of the court. It would be a mistake as to the law, which would make the judgment enoneous ; but would it, therefore, be void ?" And in Grigon's Lessee v. Astor, 2 How., 319, 340-1, Mr. Justice Baldwin, in speaking of the foi'ce and effect of a judgment and the protection of purchaser under the same, well said : "A purchaser under it is not bound to look be- yond the decree ; if there is error in it of the most palpable kind, if the court which rendered it have, in the exercise of jurisdiction, disregarded or misconstrued the plain pro- visions of the law wliich gave them power to hear and deter- mine the case before them, the title of a purchaser is as much protected as if the adjudication would stand the test of a writ of error." From this consideration of the authorities it is evident that confiscations in fee cannot, in any event, be regarded as void, but only voidahJe. And this distinction is of the greatest importance. For if a reversal should ever be had on any ground in any case, it is of the utmost importance, for the protection of bona fide purchasers at judicial sales as well as the protection of the officers of court, that the reversal should be (as we have no doubt but that it will be) placed on the proper ground — 107 that of voidable or erroneous and not void decrees. For if the decrees were held void the sales under the same would he null, even as to bona fide purchasers, and all the officers of court lible as trespassers. A conclusion whicli would lead to such results it is believed will never be reached by any court, when there can be no doubt but that the court had jurisdiction of the subject-matter of confiscation and only erred, if at all, in the construction of the law as to whether a fee on a life estate should be condemned. 3- ^'^K ■X^ .^^^' '-. .^^ -^c. v^^ '^-. .9-- ,0 o <^- u. >0o ~6' 'c>vV 1 ^ ^ .av ""<^r. aV ■^o_ ,-0^ ,-^ " ■? . -^ ^^^ V^ ^. c*^- - ,.<^- ^.^ v^