(See S. C., "The Confiscation Cases," 20 Wall., established by proof of seizure through the 92-114.) intermediate directions. Proceedings under Confiscation Act-effect of default-seizure-jury, when not required— marshal's return-formal defects-presumption proclamation of amnesty.

This case, which originated in the District III. By the 13th section of the Act of July Court of the United States for the District of 17, 1862, "The President is hereby authorized Louisiana, is a proceeding under the Act of Conat any time hereafter, by proclamation, to ex-gress of July 17, 1862, known as "The Confistend to persons who may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions and at such times, and on such conditions as he may deem expedient for the public welfare."

That it restores all rights of property. That proceedings hostile to any of the parties engaged in the late civil war, would be in violation of the spirit and letter of the Proclama-erate States of America, to wit: the State of tion.

The saving in the amnesty Proclamation of July 4, 1868, is just that it saves the title of third possessors in the property; but so long as the proceeds are undisturbed, they are in gremio "7. That the said John Slidell, subsequentlegis. The action of the court would be neces-ly to said seventeenth day of July, in the year sary to complete the execution; this action is of our Lord one thousand eight hundred and

sixty-two, within a State or Territory of the | are in no sense criminal proceedings, and they United States, was engaged in armed rebellion are not governed by the rules that prevail in reagainst the Government of the United States, spect to indictments or criminal informations. and did not within sixty days after public It may be conceded that an indictment or a warning and Proclamation, duly given and criminal information which charges the person made by the President of the United States on accused, in the disjunctive, with being guilty of the 25th day of July, in the year of our Lord one or of another of several offenses, would be eighteen hundred and sixty-two, cease to aid, destitute of the necessary certainty, and would countenance and abet such rebellion, and return be wholly insufficient. It would be so for two to his allegiance to the United States." 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 *con- [*105 demnation and forfeiture under the Confiscation Act, liability of the property seized to confiscation is alone the subject of inquiry. No judg ment is possible against any person. The enactment of Congress was that property belonging to any one embraced within several classes of persons should be subject to seizure and condemnation. Persons were referred to only to

"8. That the said John Slidell, subsequently to said seventeenth day of July, in the year of our Lord one thousand eight hundred and sixtytwo, 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 twenty-fifth day of July, in the year of our Lord eighteen hundred and sixty-two, 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 informa- | identify_the_property. Not all enemies' prop98*] tion, the District *Court directed a war-erty was made confiscable; only such as was desrant 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 prayer of the libelants. To the warrant and citations issued under this order, the Marshal returned on the 3d of October, 1863, that he had seized the property and taken it into possession; that he had posted copies of the libel of information, warrant and judge's order, and published a monition, as directed by the court; and on the 18th day 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 and forfeiture of the property to the United States. Subsequently, a venditioni exponas was issued, under which portions of the property were sold.

ignated 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 5th, 6th or 7th 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 some one who was one or another of the persons referred to in the 5th or 6th 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 any one. 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 5th and 6th 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 revenue case is all that is required. In the case of The Emily and the Caroline, 9 Wheat., 381, which was a case where *the [*106 That court was of opinion that the informa- libel described the offense in the alternative, tion was insufficient; that it did not aver dis- pursuing the words of the law, alleging that the tinctly and separately what John Slidell had vessel was fitted out within a port of the United done; that it, in fact, made no charge at all States, or caused to be sailed from a port withagainst him, and, therefore, that it was substan- in the United States, for the purpose of carrytially defective. In this opinion we cannot con- ing on trade or traffic in slaves, the same objeccur. As was said in Miller v. U. S., 11 Wall., tion was raised which has been raised in this 268, 20 L. ed. 135, the proceedings directed by case, namely: that the charge was in the alterthe 5th, 6th and 7th sections of the Confiscation native. But it was overruled. The court adAct are proceedings in rem, and they are re-mitted that fitting out and causing to sail were quired to conform, as nearly as may be, to pro- distinct offenses, but denied that charging them ceedings in admiralty or revenue cases. They in the alternative was exceptionable. + was

On the 17th day 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, but the sales were confirmed.

We are now called upon to review the action of the circuit court.

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, p. 496, 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 as serted by Chief Justice Marshall in Jacob v. U. S., 1 Brock., 520. So in Parsons on Shipping and Admiralty, vol. 2, p. 383, ed. of 1869, the author, in view of the authorities, gives his opinion that a libelant may state his case in the 107*] alternative. So in Cross *v. U. S., 1 Gall., 31, 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.

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 of the par- [*108 ticular 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. U. S., supra, 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 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 AttorneyGeneral of the United States, by virtue of the Act of Congress (viz.: the Confiscation Act), 12 Stat. at L., 589. It is said *this exhibits [*109 No other reason than this we have mentioned, no authority given by the President for the and which we regard as insufficient, was as-seizure, and that the Attorney-General was not signed by the circuit court for reversing the de-empowered to direct it. But if the seizure was cree of confiscation, and ordering the informa- made by virtue of the Act of Congress, as the tion to be dismissed. But during the argument information avers it was, it was necessarily in this court, other objections have been urged caused to be made by the President, for he only against the decree, which, if they are valid, was empowered by the Act to cause it. Then would justify its reversal, though some of them the Attorney-General must have been the agent would not warrant the dismissal of the libel. It, of the President to give instructions to the distherefore, becomes necessary to examine and trict attorney, and through him to the marshal. determine whether they exhibit error in the ac- The language of the statute is, "It shall be the tion of the district court. duty of the President to cause the seizure," etc. 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, 13 Pet., 498, 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

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 7th 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

order of the President were exempted from pre- | have already sufficiently answered this. So, too, emption, this court ruled that a request for a the absence of any averment that the causes of reservation made by the Secretary of War for forfeiture were contrary to the form of the Statthe use of the Indian Department, must be con- ute or Statutes of the United States in such sidered as made by the President within the case provided, is no sufficient reason for reversmeaning of the Act. The same doctrine was as- ing the judgment of the district court. Such an serted in U. S. v. Eliason, 16 Pet., 291. It may, averment is required by the 22d admiralty rule, we think, be properly applied to the present but even in admiralty a failure to make it cancase. While it is true the right of seizure and not be taken advantage of in a court of errors. confiscation grows out of a state of war, the The Merino, 9 Wheat., 401. The defect is only means by which confiscation is effected have a formal. It is true the absence of such averment very appropriate relation to the duties of the in indictments and criminal informations has Law Department of the Government. But been held to be a fatal fault, but for reasons inwhether this is so or not, it is sufficient that the applicable to civil proceedings, and we need not information in this case avers the seizure was repeat that the present is a civil case. 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 7th section of the Confiscation Act enacts that the proceedings shall conform as nearly as may be to the proceedings in 110*] *admiralty 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 an 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 no 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. The Samuel. 1 Wheat., 9; The Hoppet v. U. S., 7 Cranch, 389.

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. Com. Dig. Officer, D., 3.

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 5th and 6th sections of the Confiscation Act. This is a renewal of the complaint so earnestly pressed in Miller v. U. S., 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 89th-section of the Act of March 2, 1799, 1 Stat. at L., 696, respecting forfeitures incurred under that act." But were this conceded, of what avail would it be in this case in support of the objection? *The court [*112 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 It is next objected there was no sufficient serv- thereto, as well as all other facts necessary to ice of the process; but we think the return of the rendition of the judgment. This is a prethe marshal shows exact compliance with the sumption always made in support of judgments order of the court directing service, and the of courts after their jurisdiction is made to apmanner in which it should be made. The order pear. No rule of law required the district court was that notice be given in two ways to the to state in detail in its record its findings of owner or owners of the property, and all per- fact, and no such practice has prevailed in any sons interested therein, requiring them to ap-court except some which are both of limited and pear and answer the information. The first of inferior jurisdiction. Nor is it to be considered these ways was by posting a copy of the order in a court of error whether the evidence was on the front door of the court-house, and the sufficient to warrant the findings presumed to second was by publication, viz.: publication of have been made, and without which the judg the requirement to appear in the Era newspaper. ment could not have been given. A less degree In the execution of the order the marshal went of evidence is certainly needed after a default. beyond it. He posted copies of the information, Even in U. S. v. The Lion, 1 Spr., 399, so much of the warrant, and of the order of the judge, relied upon, where a condemnation was sought and he published the monition, which was a under an Act of Congress which enacted that citation, as he was directed. The service was, after the default the court should proceed to therefore, sufficiently made. 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

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