public trial by an impartial jury, in the State | ceeds to define what is meant by rebels, namely: or district where the offense was committed. The proceedings now before you had for their object, in point of fact, to deprive a citizen of his property, of all his property; and to deprive him of it by reason of a criminal offense, defined and punished by death, fine or imprison ment, by force of the same Act of July 17, 1862. they who have committed treason; they who have given aid and comfort to the rebellion, they, who, being, according to the 7th section, engaged in the rebellion at a certain date, shall not return to their allegiance within sixty days after a Proclamation to be issued by the President. It is not confined to enemies; it is applicable This is necessarily true only in point of fact. to those persons, and to all those persons, who It may be that this legislation was founded on have done certain overt acts which are deother provisions of the Constitution. The scribed and made punishable by the law. powers contained in the Constitution, which I The 6th clause of the 5th section says: suppose will be relied on here, as the sources "The property of any person who, owning of authority for this legislation, are the powers property in any loyal State or Territory of the to declare and prosecute war, to subdue insur-United States, or in the District of Columbia, rection, and to make rules concerning captures on land and water. They are what have been termed the "war powers" of the Government. These war powers are, by the Constitution itself, not expressly restricted. They are restricted from the very designation and nature of the powers themselves which are granted. A power to prosecute war, granted in that great instrument, is a power to prosecute it according to the laws of nations, not in violation of the laws of nations. shall hereafter assist and give aid and comfort to such rebellion," is to be forfeited. It was laid down by this court in the case of Brown v. U. S., 8 Cranch, 110, that it is competent for Congress to capture and to confiscate the whole or any part of the property of ene mies, under the laws of nations. But this has nothing to do with criminals who are enemies. They are permanent inhabitants of the enemy's country. When Congress comes to penal legislation, it is not dealing with inhabitants of the enemy's country as such, or their property, because they are such inhabitants. It is dealing with certain overt acts, which have been done against the Sovereignty of the United States, amounting to offenses defined and punished in the laws of the United States. Then Congress does legislate under the restrictions which are contained in these 5th and 6th Amendments. Then Congress cannot require that any person should answer for a capital or otherwise infamous offense, without an indictment; or that he can be prosecuted criminally, except before an impartial jury in the State and district where the offense was committed, or that he can be deprived of his property without due process of law. This Act of July 17, 1862, is "An Act to Sup press Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for Other Purposes." So much of this Act as undertakes to punish treason and rebellion, and to seize and confiscate the prop. erty of rebels the court has to do with in these cases. The 2d section of this Act creates offenses which were unknown to the law of the United States before its date. The offense of "giving aid and comfort to the existing rebellion" (12 Stat. at L., 590), it makes an offense, and provides for its punishment by imprisoment. Thus far Congress has been legislating by virtue of its municipal authority to create penal laws. Then follow the provisions which carry into effect that part of the title of the Act which I have read, to seize and confiscate the property of rebels," not of enemies. Then the Act pro Captain Semmes was an inhabitant of Maryland, and never ceased to be so. He was never an enemy, within the meaning of the laws of nations, as this court has applied that word, for he was never an inhabitant of the rebel States. He was a traitor and a pirate under the statute law of the United States, but not an enemy. Here is this section which forfeits the property of any person, no matter where he resides, who owns property in the District of Columbia, or any one of the loyal States, upon the ground that he has committed a crime defined and punished by this law. Is such a forfeiture as that, a forfeiture under the laws of nations? It is a forfeiture under this municipal law, and under this only. Now look, if Your Honors please, at the 7th section, and these are the two which are in question in these cases: "That if any person within any State or Territory of the United States other than those named as aforesaid" (that is, other than the loyal States). " "After the passage of this Act, being engaged in armed rebellion against the Government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and Proclamation duly given and made by the President of the United States, cease to aid, counsel and abet such rebellion, and return to his allegiance to the United States,' all his estate shall be forfeited. This, as I have said of the other provision, is directed against all persons of whatever State they may be inhabitants, and without any regard whatever to the question whether they are enemies within the laws of nations and the decisions of this court or not. This, then, is a law which begins by punishing treason, which advances to the definition of a new offense, namely: giving aid and comfort to the rebellion; which punishes that by fine or imprisonment or both, at the discretion of the court; and then it proceeds further and inflicts the forfeiture of all property of all persons who give aid or comfort to the rebellion; and why is not this last just as much a punishment as the fine which is mentioned in the 2d section that defines the offenses? This argument is greatly strengthened by what followed the enactment of this law by Congress. In the Joint Resolution explanatory of "An Act to Suppress Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for Other Purposes," is this clause: "Nor shall any punishment or proceedings under said Act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life." A "forfeiture" of the estate of the "offender." What have these terms to do with the appropriation of enemies' property under the laws of nations? They are strictly and exclusively ap plicable to punishment for crime. There has been before this court at a former term, the case of Armstrong's Foundry, 6 Wall. 766 (73 U.S., XVIII.,882). That was a proceed ing against particular property which had been placed in an illegal predicament with the consent of the owner. Before the final judgment of forfeiture was rendered in this court, Arm strong was pardoned. It was declared by this court that even in that case, the intention of Congress was to forfeit the property as a punishment for an offense committed by the owner, in devoting his property to such a use; and that, therefore, a pardon which condoned all offenses, and this, amongst others, relieved the property from the claim of the Government. How much stronger is the case now before the court, where the proceeding is not against an offending thing, but against the property of a person because he has committed a crime. That this offense of giving aid and comfort to the rebellion is punished by this law by a fine of $5,000, imprisonment for five years, inability or disqualification to hold any office of honor or trust under the United States, and forfeiture of all property; that this is an infamous offense within the meaning of the Constitution, will hardly be denied. That this is a criminal prosecution within the meaning of the Constitution, if it be not legislation exclusively directed against enemies' property within the scope of the war power of the Government, as I have endeavored to explain it, also cannot be denied. Here is a charge of crime, and here is a forfeiture of all property by reason of his guilt of that crime, to be enforced by this proceeding. It is equally clear that this is not due process of law, within the meaning of the Constitution. In the heat of the Revolutionary War, Acts of Confiscation were passed; ex post facto laws were passed; bills of attainder were passed, etc. But it was the very excesses into which our ancestors had run during that heated time, which caused the framers of the Constitution of the United States to insert restrictions into it, that no ex post facto law should be passed; that no bill of attainder should be passed; that no man should be deprived of his property save by due process of law. Messrs. Hoar and Akerman, Attys Gen., and B. H. Bristow, for defendants in error, and Geo. F. Edmunds, for the purchasers of the property: As a preliminary question we submit, that the plaintiff in error is not entitled to bring up the record, or to any standing in this court. The statute providing for the seizure of the property, in the prosecution of the war, did not proceed against the property of any particular rebel or enemy, but against the property of any and all enemies. The suit was in rem against the property, and not in personam against the owner. In accordance with the course of procedure in admiralty and revenue cases, the supposed claimant of the property need not have been named. It is believed that no instance can be found before these, of an appeal or a writ of error being brought even, much less sustained, in a cause in rem, by any person who was not a claimant in the court below, except under the English Act of 1797 (38 Geo. III., ch. 38, sec. 2), which was enacted to give persons interested a right of appeal in prize cases, where they had not appeared and become parties, a privilege which, without the statute, they did not possess. All the analogies of the law are perfect in support of this result. See proceedings in equity upon bills taken pro confesso. ́Owner of land cited as terre-tenant in ejectment, and not appearing. Connor v. Peugh's Lessee, 18 How., 394 (59 U. S., XV., 432); Palmer's H. of L. Pr., 140. Persons in interest attempting to intervene. Payne v. Niles, 20 How.,219 (61 U.S. XV,895). While it is no doubt true, in respect to the conclusiveness of a judgment in rem, that all the world are parties, and have an opportunity to assert their rights and to appeal, the only method of such security is by appearing and making claim in the cause dum fervet lis. And it is no excuse to say one did not have notice in fact, and so could not appear. The law does and must, conclusively, impute notice to all persons. If the proceedings are not absolutely void, the judgment is conclusive; and if they are void, the remedy for persons not before the court as a party is, not by writ of error, but by suit for his property. The information alleges, in substance, that Samuel Miller was a public enemy; a rebel citizen, residing in the Ŝtate of Virginia; that he was the owner of the shares of railroad stock named in the libel; that he employed and used the same in aid of the enemy; that owning this stock, situated in a loyal State, he had assisted and given aid to the rebellion against the Government. The information also alleged that the property of Miller, proceeded against, was part of the capital stock (particularly describing it) of two corporations, created under the laws of, and located and existing in, the State of Michigan, and that the property was within the jurisdiction of the court. It further alleged the facts recited as causes of confiscation in section 6 of the Act of August, 1861. 12 Stat. at L., 319. It then proceeded further to allege the various causes of seizure and confiscation provided by the Act of July 17, 1862 (12 Stat., at L., 590, 591); and the Proclamation of July 25 (12 Stat. at L., 1266); and the seizure of the prop erty by the Marshal, under the direction of the President, and his holding it for confiscation and to pray a. decree of confiscation and forfeiture to the United States, with direc tions for the disposition of the property and proceeds, and for process, monition, etc., all in strict substantial analogy to the practice in admiralty and revenue cases, as directed by the | sons to appear in the regular course, and upon Act. The information is sufficient. default of claimants, decreed confiscation and sale, upon evidence of the only fact the The property was within the district where plaintiff in error would have had a right to disit was seized and proceeded against. The cor-pute had he appeared, i. e., that he was a public porations existed in Michigan alone. The stock enemy, and adhered to the Confederate States could be transferred there only, on the books of for if he did not, in due and formal manner, the corporation, and on surrender of the out- claim the property as his, he could not have standing certificates. been heard at all. U. S. v. Leroy, 5 Blatchf. The proceedings after condemnation, the Even in the case of simple debts, for all pur-party has no right to question, for, by the deposes of appropriation to the use of creditors, cree itself, all his right ceased absolutely. etc., the situs of the property is the residence of the debtor. Garnishment, foreign attachment, and trustee process, in such cases, have existed in one form or another, almost as long as any branch of jurisprudence. 2 Conk. Adm. Pr., 138, et seq. The Act of Congress of July 17, 1862, made it the duty of the Executive Department of the Government to seize for the use of the nation all the estate and property, money, stock, credits and effects of the persons enumerated as among the public enemies of the United States. The very word, stocks, which defines his interest, is used. Such incorporeal interests, in whatever form they may exist, are the proper subjects of confiscation, and for such purposes they are within the jurisdiction and power of the sovereign. If the real source of the interest or right to the performance of an obligation is within the ter ritory of the sovereign, it may be cut off and destroyed. Cooper v. Telfair, 4 Dall., 14; Ware v. Hylton, 3 Dall., 199, and authorities cited; Smith v. Md., 6 Cranch, 286. The power of the legislative and war making department to confiscate the property of ene mies on land, cannot be questioned. Brown v. The U. S., 8 Cranch, 110; Mrs. Alexander's Cotton, 2 Wall., 404 (69 U. S., XVII., 915); Ware v. Hylton, 3 Dall., 199; Smith v. Md., cited ante. And in such cases the same power is the sole judge of the exercise of the right, as to the extent, mode and manner. The Act of 1862 puts this species of property by name in the category of enemies' property, if owned under the circumstances stated in the information (and declared in the prize cases to be a case of war), that is, by a public enemy; and it requires in such case that it shall be seized and condemned as enemies' property, and become the property of the United States. Sec. 7. The proceedings were in all respects regular, whether the seizure be regarded either as municipal or belligerent. 1. As a municipal seizure, it was just like a revenue or neutrality case, a proceeding in rem against the property which was before the court; and the property, not the claimant, was the subject of the suit. The Palmyra, 12 Wheat., 1; U. S. v. La. Vengeance, 3 Dall., 297; The Sarah, 8 Wheat., 391. It was a civil case. U. S. v. La. Vengeance, (supra) U. S.v. The Betsey, 4 Cranch, 443. On the filing of the information, the court took control of th property by its officer, in the only way possible; gave notice to all per Ingraham v. Dawson, 20 How., 495 (61 U. S., XV., 989). According to settled principles and practice no trial by jury was requisite or legally possible in a case in rem, where all claimants made default and were in contumacy, or left the property derelict. Conk. Tr., 526; Ben., 249; Man. Ex. Pr., 143, et seq.; Betts, Pr., 38; The Mary, 9 Cranch, 126. But if this be an admiralty cause, then writ of error will not lie. The San Pedro, 2 Wheat., 132. Constructive notice, according to the lawful practice of a court is, to all intents and pur poses, just as effectual as actual notice. It must be that or nothing. The only redress where there is any, in cases of hardship, is an appeal to the discretion of the court, to open the default, not by writ of error. The Mary, 9 Cranch, 126. Nor can this court, upon a writ of error, which must be founded upon the record, consider in any case whether there was too little or no evidence at all before the court below. Parsons v. Bedford, 3 Pet., 443; Minor v. Tillotson, 2 How., 392; New Orleans v. Gaines, 22 How., 141 (63 U. S., XVI., 295); Suydam v. Williamson, 20 How., 427 (61 U. S., XV., 978). But if it be material to fix with precision the legal nature of these proceedings, which we do not perceive, it is easy to show that this was in all respects a belligerent seizure, jure belli, and that neither the provisions of the Constitution, nor the rules regulating municipal seizures, have any intrinsic application to the case. Proceedings in rem to forfeit property are independent of criminal proceedings to punish persons. It is not necessary that the owner should have been previously convicted of a crime in order to forfeit his property by a suit in rem. The property may be treated as hostile, although the owner has not been guilty of treason. If he be an alien owing no allegiance, or a citizen whose opinions or wishes are not proved to be hostile and yet situated in the enemy's country or his property used in aid of the enemy, it may be forfeited. 2 Sprague, 140; The Venus, 8 Cranch, 253; Jecker v. Montgomery, 18 How., 114 (59 U. S., XV., 312); 2 Court Claims Rep., Nott & H., 529; The Prize Cases, 2 Black, 635 (67 U S., XVII., 459); Mrs. Alexander's Cotton, 2 Wall., 404 (69 U. S., XVII., 915); The Peterhoff, 5 Wall., 60 (72 U. S., XVIII., 571); The Grey Jacket, 5 Wall., 369 (72 U. S., XVIII., 653); The William Bagaley, 5 Wall., 405 (72 U. S., XVIII., 588). And this is true, although the war be a civil war. In civil war, this belligerent right of forfeiture of enemies' property may be super added to the exercise of the rights of sovereign | within the meaning of that word as used in the ty. The sovereign may exercise one or both of clause of the Constitution referred to, seems these rights at his option, and the character of clear, according to the exposition given thereof the act will determine in which capacity it is in the case of McCulloch v. Md., 4 Wheat., 413. performed. Rose v. Himely, 4 Cranch, 272; The Prize Cases, 2 Black, 673 (67 U. S., XVII., 478). Mr. Justice Strong delivered the opinion of the court: The intention of Congress in enacting this statute is to be found in the law itself, taken as a whole and with all its parts. Its purpose was to suppress insurrection and carry the then existing war to a successful termination; first, by prescribing punishment for treason-an Act of sovereignty; second, by the seizure and confiscation of the property of rebels, enemiesa belligerent Act. The property to be seized and condemned is to be proceeded against as enemies' property, a term known only in stat-tificates by which it was represented, and deutes declaring and for the enforcement of belligerent rights, and in courts enforcing such statutes. This was a proceeding under the Acts of Congress of August 6, 1861, and July 17, 1862, to confiscate shares of stock in two corporations created by the State of Michigan. The stock had been seized by the Marshal of the district acting indirectly under the orders of the President of the United States. The Marshal made return to the district attorney that he had seized it, with all dividends, interest and moneys due thereon, specifying in his return the stock cerscribing the mode of seizure to have been serving a notice thereof personally upon the vicepresident of one company, and upon the president of the other. An information was then filed in the district court in the nature of a proceeding in rem, against the stock, averring This Act of Congress must be so construed as not to make the Legislature guilty of an absurdity. If Congress had intended that portion of the Act commencing with the 5th sec-it to be the property of Samuel Miller, of Amtion as a punishment for treason, it would have made the forfeiture of the property mentioned in the 5th and 6th sections follow the conviction, as did the forfeiture of the $10,000 and freedom of the slaves provided for in the 1st section of the Act. That all the property of an enemy found within the country during a state of war may be seized and condemned as enemies' property, is a proposition so well established that no argument is necessary to prove it. Brown v. The U. S., 8 Cranch, 110; Ware v. Hylton, 3 Dall., 227. This right exists as well in civil war as in public war. Sir Alexander Cockburn, Lord Chief Justice of England, in his charge in the case of Col. Nelson and Lieut. Brand, who stood indicted for the alleged murder of George William Gordon and Samuel Clark, Oct. 23, 1865, at Morant Bay, during the negro rebell ion in the Island of Jamaica, says: "A rebel in arms stood in the position of a public enemy and, therefore, you might kill him or refuse him quarter and deal with him in all respects as a public enemy." herst County, Virginia, a rebel citizen and inhabitant of the United States. The information further averred that the said Miller was one of the persons described in the several clauses of the 5th section of the Act of 1862, and also that within the States of Virginia and South Carolina, after the passage of the Act, being engaged in armed rebellion against the Government of the United States, and being engaged in aiding and abetting such armed rebellion, he did not, within sixty days after the Proclamation (mentioned in the 6th section) had been made by the President, cease to aid, countenance and abet said rebellion, and did not and would not return to his allegiance to the United States. Upon the information thus filed a warrant and monition were issued, commanding the Marshal to hold the stocks and property thus described, the same having been by him duly seized, until the further order of the court touching the same, and to give notice as prescribed, that all persons having any interest in said property, or having anything to say why the same should not be condemned as enemies' property and sold, according to the prayer of the libel, might appear before the court at a time designated therein and make their allegations in that behalf. To this writ or monition the Marshal returned as follows: "I hereby certify and return that I have seized and now hold all the property described in the within writ" (the stocks aforesaid) "and now hold the same subject to the future order of said court, and have given notice to all persons interested therein, by publication, as required in the within writ." The record then shows that on the day designated in the monition, after default of all persons had been duly entered, One of the purposes of the confiscation pro- and after reading the depositions which had visions of this Act of Congress, is the support been taken on behalf of the United States, the of the army. Now, the power to support armies shares of stock were condemned as forfeited and is one of the enumerated powers of Congress. a writ of venditioni exponas was ordered, under and that body is also clothed with authority to which they were sold. After this Miller apmake all laws necessary and proper for carry-plied by petition to the district court, praying ing such power into execution. The confisca tion of enemies' property was not the only means adopted for the accomplishment of the end proposed; but that it was a proper means How far this right shall be exercised is a question for the Political Department of the Government to determine. The mitigation of the rigid rule of international law, giving the sovereign full right to take possession of and confiscate the property of the enemy wherever found, which the humane policy of modern times has introduced, may affect the exercise of this right, but cannot impair the right itself. It was, therefore, competent for Congress to treat the property of the domestic enemies of the Government as though it were the property of foreign enemies. that the decree of condemnation might be opened and set aside, but the prayer of the petition was denied. The case was then removed to the circuit court by writ of error, and the decree having been affirmed, the second has been brought into this court for review. We notice at the outset an objection urged against the competency of the plaintiff in error to sue out the writ which brings the case here, on the ground that he was not a claimant in the district court, only to say that it is set at rest by the decision made in Mc Veigh v. U. S., a case decided at this term. [ante, 80]. Assuming, then, that the case is properly in this court, and that the plaintiff in error has a right to be heard, we proceed to notice the errors assigned. case, following proceedings in admiralty and revenue so nearly as may be, consistently with the objects Congress had in view. Yet even in admiralty it cannot be doubted, if a warrant with a monition should command a marshal to hold goods already in his possession until the further order of the court touching the same, and he should return that he had seized them and that he held them as required, the jurisdiction of the court over them would be complete. To hold otherwise would be to sacrifice the spirit to the letter of form; the substance to the shadow. It is insisted, however, that inasmuch as the return to to the warrant is silent respecting the mode of seizure, we may look to the seizure made by the Marshal under the executive order before the information was filed. That was made by direction of the district attorney, acting under authority of the President, and the Marshal, in reporting his action, returned that he seized the stock "by serving a notice of said seizure personally upon the vice-president of one company, and upon the president of the other." It is assumed that the judicial seizure made under the judicial warrant was made in the same way, or that it was the same seizure, and it is argued that the action of the Marshal did not amount to a seizure effectual to bring the property within the jurisdiction of the court. The first observation we have to make in regard to this is, that the plaintiff in error has no right to make any such assumption. It is justified by nothing in the record. True, a seizure under order of the President was necessary to warrant the institution of judicial proceedings for confiscation, and it may be, therefore, a proper inexecutive order amounted to such a seizure. But the Marshal's return to the judicial warrant, and his report to the district attorney, speak of distinct transactions, occurring at different times and under different directions. Waiving this, however, and assuming that the manner of seizure spoken of in the return to the warrant and monition was the same as that described in the report to the district attorney, we are of opinion that the seizure was good and effective;sufficient to give the court jurisdiction over the property. The first is: that there was no such seizure of the stocks as gave the court jurisdiction to condemn them as forfeited, and to order their sale. This was a fatal error, if the fact was as claimed. In revenue and admiralty cases a seizure is undoubtedly necessary to confer upon the court jurisdiction over the thing when the proceeding is in rem. In most such cases the res is movable personal property, capable of actual manucaption. Unless taken into actual possession by an officer of the court, it might be eloigned before a decree of condemnation could be made, and thus the decree would be ineffectual. It might come into the possession of another court, and thus there might arise a conflict of jurisdiction and decision, if actual seizure and retention of possession were not necessary to confer jurisdiction over the subject. But how can it be maintained there was no sufficient seizure in this case? The record shows one. The Marshal returned to the warrant that he had seized the property, and that he then held it subject to the further order of the court. Why is not this conclusive? Can a sheriff's or marshal's return to a writ be contra-quiry whether what the Marshal did under the dicted by a plaintiff in error? It is true the return did not describe the mode of seizure, but neither the writ nor the law required that more than the fact should be stated. The return met all the exigencies of the writ. It cannot be presumed, in the face of the record, that an illegal seizure was made, or that some act was done that did not amount to a seizure. But it is said the warrant with monition did not require the Marshal to seize; that it only commanded him to hold the stock, the same having been by him duly seized, until the further order of the court. Whether this was not an order to seize, as well as to hold after seizure, we need not determine. Confessedly, the object of the writ was to bring the property under the control of the court and keep it there, as well as to give notice to the world. These objects would have been fully accomplished if its direction had been nothing more than to hold the property subject to the order of the court, and to give notice. The Marshal had already seized the stock, and it remained in his possession. An order to seize property already in his hands would have been superfluous. All that was needed was that, having the property, he should hold it subject to the order of the court. Thus held by its of ficer, the jurisdiction was complete. But the writ was larger. It commanded him to hold the property, it having been duly seized; and he returned a seizure. The Act of Congress does not require that proceedings in confiscation shall conform precisely to those in admiralty or revenue cases, but only "as near as may be. They must be adapted to the peculiarities of the The Act of Congress of July 17, 1862, made it the duty of the President to cause the seizure of all the estate, property, money, stocks, credits and effects of the persons described, and in order to secure the condemnation and sale of such property, after its seizure, directed judicial proceedings, in rem, to be instituted. It contemplated that every kind of property mentioned could be seized effectually in some mode. It had in view not only tangible property, but that which is in action. It named stocks and credits; but it gave no directions respecting the mode of seizure. It is, therefore, a fair conclusion that the mode was intended to be such as is adapted to the nature of the property directed to be seized, and in use in courts of revenue and admiralty. The modes of seizure must vary. Lands cannot be seized as movable chattels may. Actual manucaption cannot be taken of stocks and credits. But it does not follow from this that they are incapable of being seized, within the meaning of the Act of Congress. Seizure may be either actual or constructive. It does not always involve taking into manual posses |