New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-07-09
An Important Decision.


of ground, situated in New Orleans, was
decided, Mr. Justice Strong delivering the
opinion OF the court.
|, The act became law July IL, 1862, and un-
der instructions from the Attorney General
the district attorney caused the property to
be seized, under the averments that its own
er had been an officer of the s0called Con
federate States. or had given aid and COM
fort to the rebellion; that he had taken the
oath of allegiance to the Confederate States,
and after the seventeenth Of July, 1867,
aided and comforted the rebellion, and did
not return to his allegiance to the United
States.
The marsha! seized the property, and
made return October 3, 1868. April IL,
1864, default was taken pro coHfesso, ana
March 49, 1865, the property was decreed
confiscated to the United States, and subse-
quently portion of it was sold. March IL,
1870, the case was taken on writ OF error
to the Circuit Court, which reversed the
decision of the lower court, dismissed the
libel, but confirmed the sales.
In reviewing the action of the circuit
court Justice Strong says, quoting from
Miller VS.. the United States, ii Wallace,
263, that there was sufficient charge made
against the owner of the property tor 1.-THE
proceedings directed by the fifth, sixth and
seventh sections of the confscatiOn act are
proceedings in rem, and they are required
to conform, as nearly as may be, to pro-
ceedings in admiralty or revenue cases.
They are in no sense Grim inal proceedings,
and they are not governed by the rules
that prevail in respect to indie tments or
criminal informations." In proceedings in
rem liability Of the property seized to con-
fiscation is alone the subject of inquiry
No Judgment 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 identify the property. No. all enc
mics property was made coufiscable; only
such as was desigated by the act, and refer
ence to the ownership was the mode select
ed for designating that which was made
| liable to con6scati0n. In the Emily and
the Caroline, 9 Wheaton. 38l, it was de-
cided that charges in the alternative were
not exceptionable. Chief Justice Marshall
held the same doctrine in Jacob vs.. the
| United States, Brock. 420; and Justice
Story said in Cross vs. the Un tied States, l
Gallison, 81, ''in proceed ings in admiralty
| the same strictness is not required as in
| proceedings in common law courts" The
| The Circuit Court therefore, erred in pro-
nouncing the information defec tive because
the allegations arc in the alternative.
On the objection that the district court
had not Jurisdiction because the seizure
was not by executive order it must be held
| that the default established the truth Of all
the material averments in the information,
it being there asserted the seizure was by
| executive order. Where the jurisdiction
depends on the existenc Ofa fact that may
| be shown by confession as well as evidence.
| The seizure was made under the act of Con
| gress, which empowers the President only
| to cause it. He speaks and acts through
the heads of the several departments VIII
cox VS.. Jackson, l3 Peters, 49S; United
States vs.. Ellison, 16 Peters, 29l.
1t is objected this proceed ing was on the
admiralty and not on the law side of the
| court In cases of seizure of land resort
should be had to the common law side, and
such, in substance, was the case here,
| There was information fled, citation, mo.
milton default taken, and condemnation
after consideration of the evidence. In
courts of common law no jury is called
| when no issue of facts is to be tried, when
| there is no traverse Of those alleged and
where a defendant has defaulted. Technical
niceties are not required either in admiralty
| or revenue cases. Samuel /; Wheat 9; the
| Hopkins, Ccanch 4S9.
The service of tho monition and citation
| by the Judge, sealed with the seal of the
court and signed by the deputy clerk. That
was sufficient, as deputy Of a ministerial
officer may do any act his principal might
do. Comyn. Dig, Officer, d. 3.
1t is said that the adiud icatien was made
without any finding that tho properly be-
longed to any person of the classes named
| in the confscation act. If this were con-
ceded it would be Of no avail in support of
the objection. The court did proceed to
hear and determine the case after tho ce-
| fault was entered. 1t must be presumed
it found the property belonged to person
engaged in the rebellion, or who had given
aid and comfort to it, as well as all other
facts necessary to the rendition Of the
Judgment. 1t is not to be considered in .
court of error whether the evidence was
sufficient to warrant the findings presumed
to have been made, aud without which the
Judgment could not have been giveh. A
less degree of evidence is certainly needed
after q default. In the United States VS..
the Lion, Sprague, 3s3, SO much relied on,
the court said the extent of the hearing
mnst depend upon circumstances.
There remains but one other matter
which requires notice. 1t is contended that
the proclamation Of ann esty in 1868
amounted in effect to repeal of the coDfis-
cation act. To this We can a OF assent. No
power was ever vested in the President to
repeal an act Of Congress g. 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 venditio exponas m ercly converted into
money that which was the property of the
government before. No subseq uent procla-
nation of amnesty could have the effect of