Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1877-01-23

sale was nuliiy-void IN toto. 1t was rem
dcrcd absolutely void by the act OF the court in
refusing to permit McFcigh to appear and be
heard. The authorities on this point arc over
whcmipg, and the decisions Of all the tribunals
of every country, where an enlightened iurs
prudence prevails are all in opc way. It's at the
| very foundation Of justice, that every person
who is to be affected by 40 adjudication, should
have au opportunity OF being heard IN defence,
both IN repcIilng the allegations or fact and up
Oh the matter of law, and no sentence OF any
court is entitled to the least respect, 10 any 9TH
| cr court, or elsewhere, when it has been pro-
nounced erpartc and without opportunity Of
Defence" 4 tribunal which decides without
hearing the defendant, or giving him 10 oppor-
tunity to be heard, cannot claim for its DEGREES
the weight Of a judicial sentence. See Smiths
Leading Cases, vol. l, part 2, ed. 1872, PIP.
Ills; l9 aud 20, and the numerous cases there
cited. Such is the settled law, where the de.
fendant's appearance and answer arc stricken
from the files, and the court then goes on to
decide the case IN the absence of the defendant,
and without being willing to hear him. In that
case the judgment is not only void but may be
reversed on error by an appellate court. But
what difference can it make, that the dclen-
dant's appearance and answer were first recclV'
cd and then stricken from the files, if he was
not permitted to appear? 1t may make this
difference to be sure, that iu the latter case the
refusal Of the curt TO permit hGl TO APP
pear, not being matter Of record in the
case, lie can obtain no relief by writ OF
error to an appellate court. But that diff.
ference strengthens 'the reason Tor giving
him relief in collateral proceeding, which Is
| his only remedy, surely he is entitled to somu
remedy for the greyous wrong which is done
him by not permitting him 10 appear and defend
himself against criminal charge which is made
against him. 1t is not his fault that he has no
romedy by writ Of error. He had no power TO
appear against tho rule Of the court TO the con-
trsry 10 could not. therefore, make the re-
fussl Of the court matter Of record ID the case
The judgment is, therefore, absolutely null ana
void, and must be so regarded in Il collateral
proceeding. The defendant Is in effect not o
party to the proceeding, and jud gment cannot
BIO conclusive against person not party. 1le
defendants right to appear and defend himself
against the criminal charge made against MN IN
the libel is manifest from the nature OF the act
of Congress and all the proceedings against him
in the conhscation case. The act was not made
for the coniscaton of property merely because
it was onemy's property, but because the owner
Oft had been guilty of certain criminal acts de-
fined in tho law. His guilt of these criminal acts
is the foundation ofthe judgment OF conlscstlon
against him. And his right TO defend himself
against tho charge Of these acts is just as clear as
would be his right to defend himself against u
charge of murder or any crime, and D! mostevery
step in the proceedings recognized the 1Ignt Oh
the defendant to appear and make his defence
In the conclusion Of tho libel prayer is msde
, that process OF monition may Issue against tho
owner OF the property therein described and
against all persons Interested or claiming an IN
terest therein, warning them ut some early day
to be therein named, 10 appear and answer lais
libel of information and the owner OF SAID prop
erty being absent and non resident, prayer Is
further made for order Of publication III the
usual form, sc. And to tho same effect are the
subsequent proceedings in the case-as Tor IN
stance the order OF court awarding the monl-
ton, appointing time and place for the trial Of
the cause, and directing notice OF such tlmo and
place and of tho substance of the libel TO be CIV
On by publication thereof in o newspaper: pub
, lisheu in tho city Of Alexsndria. and also by
posting up the ssmo at the court house door
and thst proclamation of tho tendency OF the
; suit be made by the marshal At the court house
7 door twice weekly until the day OF trial All OF
these directions appear by the record to have
! been complied with. What mockery in the
face Of al these proceedings, designed to notify
tho defendant of the charges made against him
, and to afford him an opportunity OF appearing
and making his defence, WAS the application to
his case OF the rule Of court to allow no appear.
ance for any rebel or traitor" thus assuming his
: guilt Of the crime charged :gainst him, which
charge Ito WAS summoned TO answer.
That no was prevented by this rulo thus an
n0unced from appearing aud making his de-
, fence is manifest. uo had appeared and made
his defence in several other conGscston csses
against him tried Just before the trial OF thla one,
: and his appearance aud defence In those cases
had bean stricken from The ilo under the opera
ton rt the run which was then Announced to
his counsel. Io had precisely iho Same reasons
Tor appearing and making his defence in this
Case as in those Cases and no would no doubt
| certainly have done so but for tho Tulo which
barred tho court against him. II WAS certainly
not necessary for him TO do So vain thing rs
TO knock vt the door Of the Court after IL WIS
barred, and when he knew that it would not be
opened to him. !! can hardly be necessary to
cite authority III support of vlcws which seem
TO DO sof.cvidcnt. Tho cases Of Dean VS. Mel
son, 10 Wall, Us LsZoro vs.. Rochroau, Il Id. /,
81 and Tacey vs.. Irwin, IS ID, 5t3, strongly
sustain them; but it Is unnecessary to do more
than refer to them.
Upon tho whole, tho court is OF opinion that
tho judgment Of the circuit court is erroneous
and ought to DO reversed and apnullod; that the
law upon the facts stated in the case agreed is
for the plaintiff and that Judgment ought to DO
rendered accordingly.
Since writing the foregoing opinion We have
received and read Il copy of the opinion ef the
Supreme Court OF the United States in the case
of Windsor vs. McVeigh. recently decided by
that court and not yet reported. We entirely
concur in that OPTION and think the principles
established By is fully sustain tho views OK
presAnu by us III Tue latter Drancn or the tOreSo-
INK opinion. That decision entiraly accords
with the decision of this court in Underwood
vs.. McVeigh, e Graft, 44-tho facts Of the two
cases being precisely aliko. Wo have endeav-
orod to show in tho foregoing opinion that there
is at lesat az mach reason in this case rs there
Was in that, for considering the Judgment Of
conlscGtion void on the ground that it was "a
sentence Of a court pronounced against party
without hearing him or giving him An opportu-
nifty to DO heard Such sentence is not Il ju-
dicial determination Of his rights, and is not en-
titled TO respect in any other tribunal, according
10 the opinion Of tho Supreme Court in tho case
above cited. We doom it unnecessary to say
anything further thar to express our grstilics-
ton tina. principle, which seems to Us to be so
just, hiss th.,s received tho emphatic sanction OF
that high tribunal.
TiIe Thorburn Case
PETERSBIjRCf Va JAN o3-'The trial of