Bigelow v. Forrest
76 U.S. 339

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U.S. Supreme Court

Bigelow v. Forrest, 76 U.S. 9 Wall. 339 339 (1869)

Bigelow v. Forrest

76 U.S. (9 Wall.) 339

Syllabus

1. The Act of March 23, 1863, "relating to habeas corpus and regulating judicial proceedings in certain cases" applies only to suits for acts done or omitted to be done during the rebellion.

2. It does not apply to actions of ejectment.

3. The Act of July 17, 1862 "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels and for other purposes," and the joint resolution of the same date explanatory of it, are to be construed together.

4. Under the two thus construed, all that could be sold by virtue of a decree of condemnation and order of sale under the act was a right to the property seized, terminating with the life of the person for whose offense it had been seized.

5. The facts that such person owned the estate in fee simple, that the libel was against all the right, title, interest, and estate of such person, and that the sale and marshal's deed professed to convey as much do not change the result.

Congress, by an act commonly called the Confiscation Act, passed July 17, 1862, [Footnote 1] during the late rebellion, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," after enacting that treason should be punished with death, provides:

"Section 5. That to insure 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 . . . of the persons hereinafter named and to apply and use the same, and the proceeds thereof, for the support of the army of the United States."

This 5th section proceeded to name six classes of persons whose property should be liable to seizure, and first among them:

"Any person hereafter acting as an officer of the army or

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navy of the rebels in arms against the government of the United States."

And the last clause of it, enacts that

"It shall be a sufficient bar to any suit brought by such person for the possession or use of such property . . . to allege and prove that he is one of the persons described in this section."

The act proceeds:

"Section 7. That to secure the condemnation and sale of any such property after the same shall have been seized so that it shall 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 any territorial court within which the . . . property above described may be found, . . . which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property . . . shall be found to have belonged to a person engaged in rebellion, . . . the same shall be condemned as enemies' property and become the property of the United States, and may be disposed of as the court shall decree, and the proceeds thereof paid into the Treasury of the United States for the purposes aforesaid."

"Section 8. That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto."

"Section 14. That the courts of the United States shall have full power to institute proceedings, make orders, and do all other things necessary to carry this act into effect."

By the latter clause of a "joint resolution explanatory" [Footnote 2] of this act, passed on the same day with it, it was resolved by Congress that no punishment or proceedings under the act should be "so construed as to work a forfeiture of the real estate of the offender beyond his natural life."

It was a part of the history of this legislation of July 17,

Page 76 U. S. 341

1862, that the then President, Mr. Lincoln, immediately after the passage of the act by both houses of Congress, had prepared the draft of a message objecting to provisions that might result "in the divesting of title forever," and suggesting or showing that the bill, as Congress had passed it, was in conflict with that clause of the Constitution which ordains that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted;" [Footnote 3] that before his message was presented to Congress, the joint resolution, above quoted, was passed to remove his objections; and that the President, in a message of July 17, 1862, mentioned that before he was informed of the resolution, he had prepared the draft of a message stating objections to the bill's becoming a law, a copy of which draft he submitted, and also mentioned that, considering that act of Congress and the joint resolution explanatory thereof as substantially one, he approved and signed both.

Under this act, above quoted, as appeared by a case agreed on and stated, in the nature of a special verdict, the District Attorney of the United States for the Eastern District of Virginia, in September, 1863, caused a tract of land in the eastern part of Virginia, of which a certain French Forrest (a person acting as an officer of the navy of the so-called Confederate States, from July 1, 1862, to April, 1865, and thus one of the persons described in the 5th section of the above quoted act) was seized and possessed in fee, to be seized. A libel was afterwards, on the 9th November in the same year, filed on behalf of the United States in accordance with the act in the district court of the district just named, "against all the right, title, and interest, and estate of the said French Forrest in and to the said tract of land." The said libel proceeded to judgment in accordance with the act, and on the 9th of November, 1863, an order of condemnation was made by the court by which it was decreed that the clerk should issue a venditioni exponas to the

Page 76 U. S. 342

marshal, and that the property described in the libel be sold by the marshal of the district for cash to the highest bidder, and that he execute a deed to the purchaser for the same.

In pursuance of the decree, the land was publicly sold, and knocked off on the 10th July, 1864, to one Buntley, to whom the marshal made a deed reciting the venditioni. Buntley's rights under the sale became afterwards vested in a certain Bigelow. Forrest died intestate November 24, 1866, and his only child and heir-at-law, Douglass Forrest -- whom the cases agreed on stated was

"one of the persons described in said section 5th -- that is to say, who acted as an officer of the army and navy of the so-called Confederate States, from and after the passage of the said act till April, 1865."

-- brought an action of ejectment on the 1st of April following in the Circuit Court of Fairfax County, one of the state courts of Virginia, against Bigelow to recover the land, averring seizure in himself on the 1st of January, 1867.

The defendant having pleaded to issue, on the 8th day of November, 1867, filed his petition for the removal of the cause into the circuit court of the United States under the provisions of the 5th section of the Act of Congress of March 3, 1863, [Footnote 4] entitled "An act relating to habeas corpus and regulating judicial proceedings in certain cases."

This act thus provides:

"Section 4. That any order of the President or under his authority made at any time during the existence of the present rebellion shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment made, done, or committed or acts omitted to be done under and by virtue of such order or under color of any law of Congress."

"Section 5. That if any suit or prosecution, civil or criminal, has been or shall be commenced in any state court against any officer, civil or military, or against any other person for any arrest or imprisonment made, or trespasses or wrongs done or

Page 76 U. S. 343

committed, or any act omitted to be done at any time during the present rebellion by virtue or under color of any authority derived from or exercised by or under the President of the United States or any act of Congress, and the defendant shall . . . , in the court in which such suit or prosecution is pending, file a petition stating the fact verified by affidavit for the removal of the cause for trial at the next circuit court of the United States to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him &c. . . . . It shall then be the duty of the state court to accept the surety and proceed no further in the cause or prosecution. . . . . And copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process."

Bigelow's petition for removal complied with the requisitions of this statute respecting the form of procedure for removal.

The prayer of the petition was, however, denied, and by agreement of the parties the case already set forth was stated in the nature of a special verdict, upon which the court gave judgment for the plaintiff. A petition was then presented to the district court of appeals praying for a writ of supersedeas to the judgment and assigning as errors that the circuit court denied the motion to remove the cause into the circuit court of the United States upon the petition which had been filed for such removal, and also that the judgment was not warranted by the facts found in the agreement made in lieu of a special verdict, and that it was against the law and the evidence. The district court of appeals, however, being of opinion that no error had been committed in the cause by the Circuit Court of Fairfax County, refused the supersedeas. A petition was then presented by the defendant to the supreme court of appeals of the state complaining of the action of the district court of appeals and praying for a writ of supersedeas to the judgment, assigning the same errors which he had assigned in his petition to the

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district court. The application to the supreme court was unsuccessful. The supersedeas was denied, and thereupon the present writ of error was sued out. There were two questions, therefore, presented by the record:

1st. The question whether there was error in the refusal of the state circuit court to allow a removal of the cause into the federal court, for if there was not, then obviously there was no ground for complaint that the court of appeals had refused a supersedeas to the judgment because such removal had not been allowed.

2d. The question whether there was error in the judgment of the court upon the merits of the case.

Page 76 U. S. 347

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