1. An information
in rem under the fifth, sixth, and
seventh sections of the Confiscation Act of July 17, 1862, for the
confiscation of the real estate of a person falling within the
provisions of those sections -- such information not being in any
sense a criminal proceeding -- is not, after default made and
entered and after a final judgment of condemnation, to be held
fatally defective because it has averred that the property
Page 87 U. S. 93
seized belonged to someone who was one OR another of the persons
referred to in the fifth and sixth sections of the act (thus making
its allegations in the alternative), and has not averred it
otherwise.
2. When an information avers that on a day named a seizure was
made by the marshal under written authority given him by the
district attorney in compliance with instructions issued to
him by the Attorney General of the United States
by
virtue of the Act of Congress of July 17, 1862 (the
Confiscation Act above mentioned), and when, to a citation or
monition founded on the information, default has been made, it
will, after such final judgment and condemnation be presumed that
the requirements of the statute (which direct apparently that a
seizure be made
prior to filing the information, and that
this seizure be by order of
the President of the United
States) have been complied with.
3. When an information under the said act, filed in the district
court, is really in common law form, and the proceeding has the
substance and all the requisites of a common law proceeding, the
fact that the information is entitled "a
libel" of
information and that the warrant and citation is called a
"monition" does not convert it into a proceeding on the admiralty
side of the court.
4. What amounts to a sufficient service of process under the
said act.
5. The fact that the warrant, citation, and monition in the
district court was not signed by the clerk of the court is
unimportant, it having been attested by the judge, sealed with the
seal of the court, and signed by the deputy clerk.
6. Where, on an information under the said act, the information
alleging that the property belongs to A. and that it is liable to
forfeiture under the act -- all allegations being in form -- the
court has proceeded, as the act directs it to do after default, to
hear and determine the case, and only after such hearing and
consideration condemns the property, it must be presumed that the
property belonged to a person engaged in the rebellion or one who
had given aid and comfort thereto.
7. The President's proclamations of amnesty in the year 1868 did
not amount to a repeal of the Confiscation Act.
On the 17th of July, 1862, Congress passed an act entitled "An
act to suppress insurrection, to punish treason and rebellion, to
seize and confiscate the property of rebels, and for other
purposes." [
Footnote 1]
The act contains fourteen sections. The first prescribes the
punishment for treason, punishing it with death or, in
Page 87 U. S. 94
the discretion of the court, with imprisonment and fine, and
liberating the offender's slaves.
The second provides for the punishment of the offense of
inciting, setting on foot, or engaging in any rebellion or
insurrection against the authority of the United States or the laws
thereof or engaging in or giving aid and comfort to the rebellion
then existing.
The third declares that parties guilty of either of the offenses
thus described shall be forever incapable and disqualified to hold
any office under the United States.
The fourth provides that the act shall not affect the
prosecution, conviction, or punishment of persons guilty of treason
before the passage of the act, unless such persons are convicted
under the act itself.
The fifth section enacts:
"That to ensure the speedy termination of the present rebellion,
it shall be
the duty of the President of the United States to
cause the seizure of all the estate and property, money,
stocks, credits, and effects of the persons hereinafter named in
this section and to apply and use the same and the proceeds thereof
for the support of the army of the United States, that is to
say:"
"
First. Of any person hereafter acting as an officer of
the army or navy of the rebels, in arms against the government of
the United States."
"
Secondly. Of any person hereafter acting as President,
Vice-President, member of Congress, judge of any court, cabinet
officer, foreign minister, commissioner, or consul of the so-called
Confederate States of America."
"
Thirdly. Of any person acting as governor of a state,
member of a convention or legislature, or judge of any court of any
of the so-called Confederate States of America."
"
Fourthly. Of any person who having held an office of
honor, trust, or profit in the United States, shall hereafter hold
an office in the so-called Confederate States of America."
"
Fifthly. Of any person hereafter holding any office or
agency under the government of the so-called Confederate States of
America or under any of the several states of the said Confederacy,
or the laws thereof, whether such office or agency be
Page 87 U. S. 95
national, state, or municipal in its name or character,
provided that the persons, thirdly, fourthly, and fifthly
above described shall have accepted their appointment or election
since the date of the pretended ordinance of secession of the state
or shall have taken an oath of allegiance to, or to support the
Constitution of the so-called Confederate States."
"
Sixthly. Of any person who, owning property in any
loyal state or territory of the United States or in the District of
Columbia, shall hereafter assist and give aid and comfort to such
rebellion; and all sales, transfers, or conveyances of any such
property, shall be null and void; and it shall be a sufficient bar
to any suit brought by such person for the possession or the use of
such property, or any of it, to allege and prove that he is one of
the persons described in this section."
The sixth section makes it the duty
of the President to
seize and use as aforesaid all the estate, property, moneys,
stocks, and credits of persons within any state or territory of the
United States, other than those named in the fifth section, who,
being engaged in armed rebellion, or aiding and abetting the same,
shall not, within sixty days after public warning and proclamation
duly made by the President of the United States, cease to aid,
countenance, and abet such rebellion, and return to their
allegiance to the United States.
The seventh section provides:
"That to secure the condemnation and sale of any of such
property,
after the same shall have been seized, so that
it may be made available for the purpose aforesaid, proceedings
in rem shall be instituted in the name of the United
States in any district court thereof, or in any territorial court,
or in the United States District Court for the District of
Columbia, within which the property above described, or any part
thereof, may be found, or into which the same, if movable, may
first be brought, which proceedings shall conform
as nearly as
may be to proceedings in admiralty or revenue cases, and if
said property, whether real or personal,
shall be found to
have belonged to a person engaged in rebellion or who has given aid
or comfort thereto, the same shall be condemned
as enemy's
property and become the property of the United States, and may
be disposed of as the court
Page 87 U. S. 96
shall decree and the proceeds thereof paid into the Treasury of
the United States for the purposes aforesaid."
The eighth section authorizes the said courts to make such
orders, and establish such forms of decrees of sale, and direct
such deeds and conveyances to be executed where real estate shall
be the subject of sale, as shall fitly and efficiently effect the
purposes of the act, and vest in the purchasers of the property
good and valid titles.
The thirteenth section authorizes the President, at any time
thereafter, by proclamation, to extend to persons who may have
participated in the existing rebellion, pardon, and amnesty, with
such exceptions, and at such time and on such conditions as he may
deem expedient.
The fourteenth section gives the courts aforesaid full power to
institute proceedings, make orders and decrees, issue process, and
do all other things to carry the act into effect.
In pursuance of this act, the United States, on the 15th of
September, 1863, filed what it entitled a "libel" of information,
but what in form and substance was an information, in the District
Court of the United States for the District of Louisiana, for the
condemnation and forfeiture of certain real property, to-wit, eight
hundred and forty-four lots and ten squares of ground in New
Orleans, all described in the information. One of the averments of
the information was that the lots and squares had, on the 15th of
August, 1863, been seized by the marshal, in compliance with
written instructions issued by the Attorney General of the United
States to the district attorney thereof, by
virtue of the Act
of Congress of July, 1862, the act above quoted, and that they
belonged to John Slidell. It was not, however, said in terms that
the seizure was made by order of the President of the United
States. Other averments were the following:
"5th. That the said John Slidell, subsequently to said 17th day
of July, in the year of our Lord 1862, did act as an officer of the
army or navy of the rebels in arms against the government
Page 87 U. S. 97
of the United States, OR as a member of Congress, OR as a judge
of a court, OR as a cabinet officer, OR as a foreign minister, OR
as a commissioner, OR as a consul of the so-called Confederate
States of America; OR that while owning property in a loyal state
or Territory of the United States, or the District of Columbia, he
did give aid and comfort to the rebellion against the United
States, and did assist such rebellion."
"6th. That the said John Slidell, subsequently to said 17th day
of July, in the year of our Lord 1862, did act as governor of a
state, OR as a member of a convention or legislature, OR as judge
of a court of one of the so-called Confederate States of America,
to-wit, the State of Louisiana, OR did hold an office in the
so-called Confederate States of America, after having held an
office of trust or profit in the United States; OR did hold an
office or agency under the government of the so-called Confederate
States of America, OR under one of the states thereof, said office
being national, state, or municipal in its name and character,
which said office or agency he accepted after the date of the
pretended ordinance of secession of the State of Louisiana; that he
did take an oath of allegiance to, or to support the Constitution
of the so-called Confederate States."
"7th. That the said John Slidell, subsequently to said 17th day
of July, in the year of our Lord 1862, within a state or territory
of the United States, was engaged in armed rebellion against the
government of the United States, and did not, within sixty days
after public warning and proclamation duly given and made by the
President of the United States, on the 25th day of July, in the
year of our Lord 1862, cease to aid, countenance, and abet such
rebellion, and return to his allegiance to the United States."
"8th. That the said John Slidell, subsequently to said 17th day
of July, in the year of our Lord 1862, within a state or territory
of the United States, was engaged in aiding and abetting an armed
rebellion against the government of the United States, and did not,
within sixty days after public warning and proclamation duly given
and made on the 25th day of July, in the year of our Lord 1862 by
the President of the United States, cease to aid, countenance, and
abet such rebellion, and return to his allegiance to the United
States."
On the presentation of the libel of information, the
district
Page 87 U. S. 98
court directed a warrant to issue to the marshal commanding him
to seize the property described and to cite and admonish the owner
or owners and all other persons having or pretending to have any
right, title, or interest in or to the same to appear before the
court on or before the third Monday from the service thereof to
show cause, if any they had, why the property should not be
condemned and sold according to the prayers of the libellants.
The "order of publication," made September 15, 1863,
"
Ordered that notice be given to the owner and owners
of said property and real estate, and all persons interested or
claiming an interest therein, to appear and answer this information
on the 5th day of October, 1863, and show cause, if any they have,
why said property and real estate, and the right, title, and
interest therein of the said John Slidell should not be condemned
and sold according to law; and that notice be given by posting a
copy of this order upon the
front door of the court house
in the district, and by publication in the
Era newspaper
twice a week previous to said 5th day of October, A.D. 1863, the
first publication to be on or before 19th instant."
The marshal, on the 3d of October, returned:
"Received, 16th September, 1863, and on the same day, in
obedience to the within order of seizure, seized and took into my
possession the within described property, posted copies of the
warrant, libel, and judge's order on the
door of the court
house, published
monition in the
Era, a newspaper
printed and published in New Orleans, on the 18th, 23d, 26th, 30th
September, 3d October, 1863, returnable 5th October, 1863."
The warrant, citation, and monition was signed by the
deputy clerk (not by the clerk), and was attested by the
signature of the judge and the seal of the court.
On the 18th of April, 1864, after due monition and proclamation,
no claim or defense having been interposed, a default was
entered, and the information was adjudged and taken
pro
confesso. Depositions were then taken and filed, and on the
18th of March, 1865, after consideration of the law and the
evidence, the district court adjudged and decreed a
condemnation
Page 87 U. S. 99
and forfeiture of the property to the United States, there
having been, as the reader will understand without its being said,
no jury trial in the case. The exact language of the decree, after
its recital, was:
"That the eight hundred and forty-four lots and ten squares of
ground, with all the buildings and improvements thereon,
property of John Slidell, and
fully described in the
libel of information on file, be, and the same are hereby,
condemned as forfeited to the United States."
Subsequently, a
venditioni exponas was issued, under
which portions of the property were sold. The money produced, it
was said at the bar, was yet in the registry.
On the 17th of March, 1870, the case was removed to the circuit
court by writ of error, where the judgment of the district court
was reversed and the libel of information was ordered to be
dismissed. The sales, however, were confirmed.
That court said:
"The information is a remarkable specimen of loose pleading and
uncertain statement. From the allegation in the fifth article, no
man can tell what John Slidell did. The next article is of the same
ambiguous and inconsequential nature. The extreme ambiguity of the
charges in it is something more than a matter of form; it amounts
to a substantial defect. There is in truth no charge at all. There
is no charge that Slidell acted as a foreign minister of the
confederacy. The allegation is that he either did that or something
else; but we are not informed what. If the defect were one of form,
it might be amended, but being substantial, it seems to me it is
fatal."
"The other articles of the information do not save it. The same
ambiguity is kept up in the seventh and eighth articles as in the
previous ones, but they do not set forth any of the offenses which
in the statute are made the basis or cause of confiscation. They
are evidently meant to be assigned under the sixth section of the
act. But that section refers to persons who in any state or
territory of the United States, other than those named as
aforesaid, were engaged in the rebellion. Now the states named as
aforesaid were the loyal states which had just been named
Page 87 U. S. 100
in the last clause of the fifth section. Therefore the states or
territories other than those were the disloyal states or rebellious
states. So that the sixth section of the act only refers to persons
who within any disloyal or rebellious states or territory were
engaged in the rebellion."
"Yet the seventh article of the information merely alleges that
Slidell, within a state or territory of the United States, was
engaged in rebellion. It does not make a charge within the
statute."
"The whole information, therefore, is substantially defective,
and the judgment must be reversed."
From this action of the circuit court the case was brought
here.
It is proper here to refer to certain proclamations relied on in
support of the decree of that court.
On the 4th of July, 1868, the President, in pursuance of
authority given to him by Congress, issued his proclamation.
[
Footnote 2] After preamble
reciting the then condition of things, it said:
"And whereas it is believed that amnesty and pardon will tend to
secure a complete and universal establishment and prevalence of
municipal law and order in conformity with the Constitution of the
United States and to remove all appearances or presumptions of a
retaliatory or vindictive policy on the part of the government,
attended by unnecessary disqualifications, pains, penalties,
confiscations, and disfranchisements, and on the contrary to
promote and procure complete fraternal reconciliation among the
whole people, with due submission to the Constitution and
laws."
"Now, therefore, I hereby proclaim and declare unconditionally
and without reservation to all and to every person who directly or
indirectly participated in the late insurrection or rebellion,
except such person or persons as may be under presentment or
indictment in any court of the United States having competent
jurisdiction, upon a charge of treason or other felony, a full
pardon and amnesty for the offense of treason against the United
States, or of adhering to their enemies during the late
Page 87 U. S. 101
civil war, with restoration of all rights of property except as
to slaves, and except also as to any property of which any person
may have been legally divested under the laws of the United
States."
On the 25th of December, 1868, another proclamation was made
relinquishing all previous reservations and exceptions, proclaiming
and declaring unconditionally and without reservation to all and
every person who directly or indirectly participated in the late
insurrection or rebellion a full pardon and amnesty for the offense
of treason against the United States or of adhering to their
enemies during the late civil war, with restoration of all rights,
privileges, and immunities under the Constitution and the laws
which have been made in pursuance thereof.
Page 87 U. S. 104
MR. JUSTICE STRONG delivered the opinion of the Court.
The circuit court was of opinion that the information was
insufficient; that it did not aver distinctly and separately what
John Slidell had done; that it, in fact, made no charge at all
against him, and therefore that it was substantially defective. In
this opinion we cannot concur. As was said in
Miller v. United
States, [
Footnote 3] the
proceedings directed by the fifth, sixth, and seventh sections of
the Confiscation Act are proceedings
in rem, and they are
required to conform, as nearly as may be, to proceedings in
admiralty or revenue cases. They are in no sense criminal
proceedings, and they are not governed by the rules that prevail in
respect to indictments or criminal informations. It may be conceded
that an indictment or a criminal information which charges the
person accused, in the disjunctive, with being guilty of one or of
another of several offenses, would be destitute of the necessary
certainty, and would be wholly insufficient. It would be so for two
reasons. It would not give the accused definite notice of the
offense charged, and thus enable him to defend himself, and neither
a conviction nor an acquittal could be pleaded in bar to a
subsequent prosecution for one of the several offenses. But in
proceedings against real or personal property to obtain a decree of
condemnation
Page 87 U. S. 105
and forfeiture under the Confiscation Act, liability of the
property seized to confiscation is alone the subject of inquiry. No
judgment is possible against any person. The enactment of Congress
was that property belonging to anyone embraced within several
classes of persons should be subject to seizure and condemnation.
Persons were referred to only to identify the property. Not all
enemies' property was made confiscable -- only such as was
designated by the act, and reference to the ownership was the mode
selected for designating that which was made liable to
confiscation. If the property belonged to a person who had filled
either of the offices specified or who had done any of the acts
mentioned in the fifth, sixth, or seventh articles of the
information, it was the property which the act had in view. The
United States had, therefore, only to aver and prove that the lots
and squares seized belonged to someone who was one or another of
the persons referred to in the fifth or sixth sections of the Act
of Congress. In either alternative, the property was made subject
to confiscation. It may be the information might have been more
artificially drawn, and that if the owner had appeared in answer to
the citation, he might have interposed successfully a special
demurrer. But after default was made and entered and after a final
judgment of condemnation, faults in the mode of pleading, mere
formal faults, can be of no importance. They cannot have injured
anyone. If the information set forth, though informally, a
substantial right of action, it was sufficient, and the judgment
cannot be disturbed because of such faults. And that it did in this
particular cannot be questioned, for if the ownership of the
property was in a person embraced in either class mentioned in the
fifth and sixth sections of the act (no matter which class), it was
liable to confiscation. This the information averred. It pursued
the words of the law, and that in an admiralty or a revenue case is
all that is required. In the case of
The Emily and the
Caroline, [
Footnote 4]
which was a case where
Page 87 U. S. 106
the libel described the offense in the alternative, pursuing the
words of the law, alleging that the vessel was fitted out within a
port of the United States, or caused to be sailed from a port
within the United States, for the purpose of carrying on trade or
traffic in slaves, the same objection was raised which has been
raised in this case -- namely that the charge was in the
alternative. But it was overruled. The Court admitted that fitting
out and causing to sail were distinct offenses, but denied that
charging them in the alternative was exceptionable. It was said
that in
"admiralty proceedings, a libel in the nature of an information
does not require all the formality and technical precision of an
indictment at common law. If the allegations are such as plainly
and distinctly to mark the offense, it is all that is necessary.
And where it is founded upon a statute, it is sufficient if it
pursues the words of the law."
Reference was then made with approbation to a note of Judge
Story in the beginning of 7th Cranch to the case of
The
Caroline, [
Footnote 5] in
which it was said the Court did not mean to decide that stating the
charge in the alternative would not have been sufficient if each
alternative had constituted an offense for which the vessel would
have been forfeited. The Court then added these observations:
"It is said this mode of alleging two separate and distinct
offenses leaves it wholly uncertain to which of the accusations the
defense is to be directed. This objection, if entitled to
consideration, would apply equally to an information laying each
offense in a separate count,"
and they concluded that the objection, if available at all, must
go to the full length of limiting every information to a single
offense, which they thought was not required by any principle of
justice or sanctioned by any rule of practice applicable to
admiralty proceedings. The same doctrine was asserted by Chief
Justice Marshall in
Jacob v. United States. [
Footnote 6] So in Parsons on Shipping and
Admiralty, [
Footnote 7] the
author, in view of the authorities, gives his opinion that a
libellant may state his case in the alternative. So in
Cross
Page 87 U. S. 107
v. United States, [
Footnote 8] Judge Story remarked that "in proceedings in
admiralty, the same strictness is not required as in proceedings in
common law courts. And where the seizure is on land," said he,
"although the proceedings would seem to be analogous to
informations in the Exchequer, yet I do not know that in our courts
the rigid principles of the common law applicable to such
informations have been solemnly recognized."
These considerations, in our opinion, justify us in ruling that
the circuit court erred in deciding that the information is fatally
defective because it does not aver distinctly and separately what
John Slidell had done, but makes its allegations in the
alternative.
No other reason than this we have mentioned, and which we regard
as insufficient, was assigned by the circuit court for reversing
the decree of confiscation, and ordering the information to be
dismissed. But during the argument in this Court, other objections
have been urged against the decree, which, if they are valid, would
justify its reversal, though some of them would not warrant the
dismissal of the libel. It therefore becomes necessary to examine
and determine whether they exhibit error in the action of the
district court.
The first of these objections, and the one most pressed, is,
that the court was without jurisdiction of the case. It is said no
other property than such as had, prior to the filing of the
information, been seized by the direction of the President of the
United States, was within the purview of the seventh section of the
Confiscation Act, and, therefore, within the limited jurisdiction
of the district court; and it is insisted the record does not show
there had been any executive seizure of the eight hundred and
forty-four lots and ten squares of ground before the information
was filed, or, indeed, at any time.
Undoubtedly, though not an inferior court, the district court is
one of limited jurisdiction, and that it has jurisdiction
Page 87 U. S. 108
of the particular case which it attempts to adjudicate, must
always appear. Undoubtedly also, only such property as has been
seized by executive order is within the power of that court for
confiscation proceedings. Thus much is conceded. But it is a
mistaken assertion that the record in this case does not show an
executive seizure of the property condemned before the district
court assumed any jurisdiction over it. The information avers that
such a seizure was made on the 15th of August, 1863, by the
marshal, under written authority given him by the district
attorney, in compliance with instructions issued to him by the
Attorney General of the United States, by virtue of the Act of
Congress of July 17, 1862 (the Confiscation Act); and to a citation
or monition founded on the information, default was made. What the
effect of this default was we do not propose now to discuss at
length. We have gone over the ground recently in the case of
Miller v. United States, [
Footnote 9] and to that case we refer. In view of what was
there said and decided, and in view of the authorities cited, it
must be held that the default established the truth of all the
material averments in the information, and among others, that there
had been an executive seizure before the information was filed. It
was equivalent in effect to a confession. Now, while it is true a
party cannot, by consent, confer jurisdiction where none would
exist without it, it is equally true that when jurisdiction depends
upon the existence of a fact, its existence may be shown as well by
the confession of a party as by any other evidence.
It is next contended that the court had no jurisdiction, even if
the seizure alleged in the information was made, because it is not
averred to have been made by order of the President of the United
States. As we have seen, the libel sets forth a seizure made by the
marshal, under authority given by the district attorney, in
pursuance of instructions issued by the Attorney General of the
United States,
by virtue of the Act of Congress
(
viz., the Confiscation Act). It is said
Page 87 U. S. 109
this exhibits no authority given by the President for the
seizure, and that the Attorney General was not empowered to direct
it. But if the seizure was made by virtue of the Act of Congress,
as the information avers it was, it was necessarily caused to be
made by the President, for he only was empowered by the act to
cause it. Then the Attorney General must have been the agent of the
President to give instructions to the district attorney, and
through him to the marshal. The language of the statute is, "it
shall be the duty of the President to cause the seizure," &c.
This implies that the seizure is to be made by the agents of the
President. And a direction given by the Attorney General to seize
property liable to confiscation under the Act of Congress must be
regarded as a direction given by the President. In
Wilcox v.
Jackson, [
Footnote 10]
it was ruled that the President speaks and acts through the heads
of the several departments in relation to subjects which appertain
to their respective duties. Therefore where, by an act of Congress,
all lands reserved from sale by order of the President were
exempted from preemption, this Court ruled that a request for a
reservation made by the Secretary of War for the use of the Indian
department, must be considered as made by the President within the
meaning of the act. The same doctrine was asserted in
United
States v. Eliason. [
Footnote 11] It may, we think, be properly applied to the
present case. While it is true the right of seizure and
confiscation grows out of a state of war, the means by which
confiscation is effected have a very appropriate relation to the
duties of the law department of the government. But whether this is
so or not, it is sufficient that the information in this case avers
the seizure was made by virtue of the Act of Congress. It must
therefore have been caused by the President.
It is next objected that the suit was on the admiralty, and not
on the law side of the district court. The seventh section of the
Confiscation Act enacts that the proceedings shall conform as
nearly as may be to the proceedings in admiralty
Page 87 U. S. 110
or revenue cases. Strict conformity is not required. No doubt in
cases of seizure upon land, resort should be had to the common law
side of the court, and such, in substance, was, we think, the case
here. Everything necessary to a common law proceeding
in
rem is found in the record. An information was filed (called a
libel of information, it is true, but still and information), a
citation as well as a monition was issued, a default was taken,
and, after consideration of the evidence, condemnation was
adjudged. What was lacking in this to a common law proceeding
in rem? The principal lack alleged is that there was no
jury trial. But in courts of common law on jury is called when
there is no issue of fact to be tried. An inquest is sometimes
employed to assess damages; but a jury to find facts is never
required where there is no traverse of those alleged, and where a
defendant has defaulted. What matters it, then, that the
information was called a libel of information, or that the warrant
and citation is called a monition? The substance and all the
requisites of a common law proceeding are found in the record.
Technical niceties are not required either in admiralty or revenue
cases. [
Footnote 12]
It is next objected there was no sufficient service of the
process, but we think the return of the marshal shows exact
compliance with the order of the court directing service, and the
manner in which it should be made. The order was that notice be
given in two ways to the owner or owners of the property, and all
persons interested therein, requiring them to appear and answer the
information. The first of these ways was by posting a copy of the
order on the front door of the court house, and the second was by
publication,
viz., publication of the requirement to
appear in the Era newspaper. In the execution of the order the
marshal went beyond it. He posted copies of the information, of the
warrant, and of the order of the judge, and he published the
monition, which was a citation, as he was directed. The service
was, therefore, sufficiently made.
Page 87 U. S. 111
It is further objected that the information was informal in that
it contained no charge against Slidell, the alleged owner, but that
its averments were in the disjunctive. We have already sufficiently
answered this. So too, the absence of any averment that the causes
of forfeiture were contrary to the form of the statute or statutes
of the United States in such case provided, is no sufficient reason
for reversing the judgment of the district court. Such an averment
is required by the twenty-second admiralty rule, but even in
admiralty a failure to make it cannot be taken advantage of in a
court of errors. [
Footnote
13] The defect is only formal. It is true the absence of such
averment in indictments and criminal informations has been held to
be a fatal fault, but for reasons inapplicable to civil
proceedings, and we need not repeat that the present is a civil
case.
Another objection urged against the proceedings in the district
court is that the warrant, citation, and monition was not signed by
the clerk of the court. It was attested by the judge, sealed with
the seal of the court, and signed by the deputy clerk. This was
sufficient. An act of Congress authorized the employment of the
deputy, and in general, a deputy of a ministerial officer can do
every act which his principal might do. [
Footnote 14]
A further objection urged against the adjudication of forfeiture
made by the district court is, that it was made without any finding
that the property belonged to John Slidell, or any person included
in either of the classes designated in the fifth and sixth sections
of the Confiscation Act. This is a renewal of the complaint so
earnestly pressed in
Miller v. United States, and which we
held to be without foundation. It is said that notwithstanding the
default, it was the duty of the court to
"proceed to hear and determine the case according to law, as is
directed by the eighty-ninth section of the Act of March 2d, 1799,
[
Footnote 15] respecting
forfeitures incurred under that act."
But were this conceded, of what avail would it be in this case
in support of the objection?
Page 87 U. S. 112
The court did proceed to hear and determine the case after the
default was entered. And it was not until after such hearing and
consideration that the property was condemned. This appears by the
record. Having heard and considered evidence, it must be presumed
the court found that the property belonged to a person engaged in
the rebellion, or one who had given aid or comfort thereto, as well
as all other facts necessary to the rendition of the judgment. This
is a presumption always made in support of judgments of courts
after their jurisdiction is made to appear. No rule of law required
the district court to state in detail in its record its findings of
fact, and no such practice has prevailed in any court except some
which are both of limited and inferior jurisdiction. Nor is it to
be considered in a court of error whether the evidence was
sufficient to warrant the findings presumed to have been made, and
without which the judgment could not have been given. A less degree
of evidence is certainly needed after a default. Even in
United
States v. Lion, [
Footnote
16] so much relied upon, where a condemnation was sought under
an act of Congress which enacted that after the default the court
should proceed to hear and determine the case according to law,
Judge Sprague said, "To what extent there must be a hearing must
depend on the circumstances of the case." "The court," said he,
"will at least examine the allegations of the libel, to see if
they are sufficient in law, the return of the marshal, and such
affidavit or affidavits as the district attorney shall submit."
And he added that a willful omission by the owners to answer
might of itself satisfy the court that a forfeiture should be
decreed. But without further consideration of this objection, we
refer to the opinion delivered in
Miller v. United States,
to which we still adhere.
There remains but one other matter which requires notice. It is
contended that the proclamations of amnesty in 1868 amounted in
effect to a repeal of the Confiscation Act. To this we cannot
assent. No power was ever vested in the
Page 87 U. S. 113
President to repeal an act of Congress. Moreover, the property
condemned in this case became vested in the United States in 1865,
by the judgment of forfeiture, and the sale under the
venditioni exponas merely converted into money that which
was the property of the government before. No subsequent
proclamation of amnesty could have the effect of divesting vested
rights. Even the express repeal of a statute does not take away
rights of property which accrued under it while it was in
force.
We have thus reviewed the whole record of the proceedings in the
district court, and we have been able to discover nothing which
justified a reversal of the decree of condemnation.
Judgment of the circuit court reversed and the cause
remanded with instructions to affirm the judgment of the district
court.
[
Footnote 1]
12 Stat. at Large 589.
[
Footnote 2]
Appendix No. 6, Stat. at Large 1868.
[
Footnote 3]
78 U. S. 11 Wall.
268.
[
Footnote 4]
22 U. S. 9 Wheat.
381.
[
Footnote 5]
11 U. S. 7 Cranch
496.
[
Footnote 6]
1 Brockenbrough 520.
[
Footnote 7]
Vol. 2, p. 383, edition of 1869.
[
Footnote 8]
1 Gallison 31.
[
Footnote 9]
78 U. S. 11 Wall.
268.
[
Footnote 10]
38 U. S. 13 Pet.
498.
[
Footnote 11]
41 U. S. 16 Pet.
291.
[
Footnote 12]
Samuel, 1 Wheat.
9;
The
Hoppet, 7 Cranch 489.
[
Footnote 13]
The
Merino, 9 Wheat. 401.
[
Footnote 14]
Comyn's Digest, Officer, D., 3.
[
Footnote 15]
1 Stat. at Large 696.
[
Footnote 16]
1 Sprague 399.
MR. JUSTICE CLIFFORD:
I dissent from the opinion of the Court in this case because it
is repugnant to the repeated decisions of this Court, to the
eighty-ninth section of the Collection Act, and to the twenty-ninth
admiralty rule of this Court, which was adopted as the rule of
decision more than thirty years ago, and because it is opposed to
the whole current of the decisions of the admiralty courts and to
the rules laid down by the most approved writers upon admiralty
law. [
Footnote 2/1]
Apart from that, I also adhere upon the merits to the dissenting
opinion in the case of
Miller v. United States. [
Footnote 2/2]
[
Footnote 2/1]
The Vengeance,
3 Dall. 297;
The Sarah,
8 Wheat. 394; 1 Stat. at Large 696; Admiralty Rules, No. 29;
The David Pratt, Ware 495; Clerke's Praxis, art. 35;
The Schooner Lyon, 1 Sprague 400; 2 Conklin's Admiralty,
2d ed. 178; Benedict's Admiralty, §§ 449, 552; 2 Browne's
Civil and Admiralty Law 401; Dunlap's Practice 206; 2 Parsons on
Shipping and Admiralty 400.
[
Footnote 2/2]
78 U. S. 11
Wall. 314.
MR. JUSTICE FIELD:
I dissent from the opinion and judgment of the court on the
grounds stated in the dissenting opinions in the cases of
Miller v. United States, and
Tyler v.
Page 87 U. S. 114
Defrees, reported in the 11th of Wall. so far as they
are applicable to the facts of this case; and on the further ground
that the libel of information is fatally defective in charging no
one offense positively, but several offenses in the
alternative.
MR. JUSTICE DAVIS also dissented.
MR. JUSTICE BRADLEY, not having heard the argument, took no part
in the judgment.
