Miller v. United States
78 U.S. 268 (1870)

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U.S. Supreme Court

Miller v. United States, 78 U.S. 11 Wall. 268 268 (1870)

Miller v. United States

78 U.S. (11 Wall.) 268

Syllabus

1. In a judicial proceeding to confiscate stocks in a railroad company under the Acts of Congress of August 6, 1861, and July 17, 1862, the person whose property has been seized, may sue out a writ of error though not a claimant in the court below. (McVeigh v. United States, supra,78 U. S. 259, affirmed)

2. Seizure of such stocks may be made by giving notice of seizure to the president or vice-president of the railroad company, and a seizure thus made by the marshal in obedience to a warrant and monition is sufficient to give the district court jurisdiction.

3. Stocks and credits are attachable in admiralty and revenue cases by means of the simple service of a notice, without the aid of any statute.

4. In admiralty and revenue cases, when a default has been duly entered to a monition founded on an information averring the facts necessary to a condemnation, it has substantially the effect of a default to a summons in a court of common law. It establishes the fact pleaded and justifies a decree of condemnation.

5. Where a court having jurisdiction of the case and of the parties enters a judgment, there is a presumption that all the facts necessary to warrant the judgment have been found if they are sufficiently averred in the pleadings.

6. A trial by jury in cases of seizure upon land is not necessary when there are no issues of fact to be determined.

7. The confiscation acts of August 6, 1861, and July 17, 1862, are constitutional. Excepting the first four sections of the latter act they are an exercise of the war powers of the government, and not an exercise of its sovereignty or municipal power. Consequently they are not in conflict with the restrictions of the 5th and 6th amendments of the Constitution.

8. In the war of the rebellion, the United States had belligerent as well as sovereign rights. They had, therefore, a right to confiscate the property of public enemies wherever found, and also a right to punish offenses against their sovereignty.

9. The right of confiscation exists as fully in case of a civil war as it does when the war is foreign, and rebels in arms against the lawful government or persons inhabiting the territory exclusively within the control of the rebel belligerent may be treated as public enemies. So

Page 78 U. S. 269

may adherents or aiders and abettors of such a belligerent, though not resident in such enemy's territory.

10. It is within the power of Congress to determine what property of public enemies shall be confiscated, and the fact that by the statutes of 1861 and 1862, only the property of certain classes of enemies is directed to be seized and confiscated does not show that they were intended to be an exercise of mere municipal power, rather than an exertion of belligerent rights.

This was a proceeding begun originally in the district court for the district just named to forfeit certain personal property belonging to one Samuel Miller, now deceased, in his lifetime, under the Act of Congress of August 6, 1861, entitled "An act to confiscate property used for insurrectionary purposes" [Footnote 1] and the Act of July 17, 1862, entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes." [Footnote 2]

The Act of August 6, 1861, provides that during the then existing or any future insurrection against the government of the United States, after the President shall have declared by his proclamation that the laws of the United States are opposed, and the execution thereof is obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the power vested in the marshals by law, property of any kind, purchased or acquired, sold or given with intent to use or employ the same or to suffer the same to be used or employed in aiding, abetting, or promoting such insurrection, and also any property which the owners shall knowingly use or employ, or consent to be used or employed for that purpose, shall be lawful subjects of capture and prize wherever found, and that it shall be the duty of the President to cause the same to be seized, confiscated, and condemned.

* The Act of July 17, 1862, contains fourteen sections. The first prescribes the punishment for treason, punishing

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it with death, or in the discretion of the court with imprisonment and fine, and liberating the offender's slaves.

The second provides for the punishment of the offense of inciting, setting on foot, or engaging in any rebellion or insurrection against the authority of the United States or the laws thereof or engaging in or giving aid and comfort to the rebellion then existing.

The third declares that parties guilty of either of the offenses thus described shall be forever incapable and disqualified to hold any office under the United States.

The fourth provides that the act shall not affect the prosecution, conviction, or punishment of persons guilty of treason before the passage of the act unless such persons are convicted under the act itself.

The fifth section enacts:

"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, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States, that is to say:"

"First. Of any person hereafter acting as an officer of the army or navy of the rebels, in arms against the government of the United States."

"Secondly. Of any person hereafter acting as President, Vice-President, member of Congress, judge of any court, cabinet officer, foreign minister, commissioner, or consul of the so-called Confederate States of America."

"Thirdly. Of any person acting as governor of a state, member of a convention or legislature, or judge of any court of any of the so-called Confederate States of America."

"Fourthly. Of any person who having held an office of honor, trust, or profit in the United States, shall hereafter hold an office in the so-called Confederate States of America."

"Fifthly. Of any person hereafter holding any office or agency under the government of the so-called Confederate States of America, or under any of the several states of the said Confederacy, or the laws thereof, whether such office or agency be

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national, state, or municipal in its name or character: provided that the persons, thirdly, fourthly, and fifthly, above described shall have accepted their appointment or election since the date of the pretended ordinance of secession of the state, or shall have taken an oath of allegiance to, or to support the constitution of the so-called Confederate States."

"Sixthly. Of any person who, owning property in any loyal state or territory of the United States or in the District of Columbia shall hereafter assist and give aid and comfort to such rebellion, and all sales, transfers, or conveyances of any such property, shall be null and void; and it shall be a sufficient bar to any suit brought by such person for the possession or the use of such property, or any of it, to allege and prove that he is one of the persons described in this section."

The 6th section makes it the duty of the President to seize and use as aforesaid all the estate, property, moneys, stocks, and credits of persons within any state or territory of the United States, other than those named in the 5th section, who, being engaged in armed rebellion or aiding and abetting the same shall not, within sixty days after public warning and proclamation duly made by the President of the United States, cease to aid, countenance, and abet such rebellion and return to their allegiance to the United States.

The 7th section provides:

"That to secure the condemnation and sale of any of such property after the same shall have been seized, so that it may 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 in any territorial court, or in the United States District Court for the District of Columbia, within which the property above described, or any part thereof, may be found or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion or who has given aid or comfort thereto, the same shall be condemned as enemy's property and become the property of the United States, and may be disposed of as the court

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shall decree, and the proceeds thereof paid into the Treasury of the United States for the purposes aforesaid."

The 8th section authorizes the said courts to make such orders, and establish such forms of decrees of sale, and direct such deeds and conveyances to be executed, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of the act, and vest in the purchasers of the property good and valid titles.

The 9th, 10th, and 11th sections relate to slaves. They declare that all slaves of persons engaged in rebellion against the government of the United States, or who should in any way give aid and comfort thereto, escaping within our lines, or captured from such persons, or deserted by them should be deemed captives of war, and forever free; that escaping slaves of such owners should not be delivered up, and that no person engaged in the military or naval service should, under any pretense whatever, surrender slaves to claimants. They provide also for the employment of persons of African descent in the suppression of the rebellion.

The 13th section authorizes the President, at any time thereafter, by proclamation, to extend to persons who may have participated in the existing rebellion, pardon and amnesty, with such exceptions, and at such time and on such conditions, as he may deem expedient.

The 14th section gives the courts aforesaid full power to institute proceedings, make orders and decrees, issue process, and do all other things to carry the act into effect.

Whilst this Act of July 17, 1862, was pending before the President for consideration, it was understood that he was of opinion that it was unconstitutional in some particulars, and that he intended to veto it. His objections having been communicated to members of the House of Representatives, where the act originated, a joint resolution explanatory of the act was introduced and passed by that body, to obviate his objections, which were that the act disregarded the Constitution, which, while ordaining that the Congress shall have power to declare the punishment of treason, ordains

Page 78 U. S. 273

also [Footnote 3] that "no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." This latter clause was considered by the President as a restriction upon the power of Congress to prescribe as a punishment for treason the forfeiture of the real property of the offender beyond his natural life. The Senate, being also informed of the objections of the President, concurred in the resolution. It was then sent to the President, and was received by him before the expiration of the ten days allowed him for its consideration. He returned the act and resolution together to the House with a message in which he stated that considering the act and the resolution explanatory of the act as substantially one, he had approved and signed both. He stated also that he had prepared the draft of a message stating his objections to the act becoming a law, a copy of which draft he transmitted. The following is a copy of the joint resolution: [Footnote 4]

"Resolved by the Senate and House of Representatives of the United States, in Congress assembled that the provisions of the third clause of the fifth section of 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes' shall be so construed as not to apply to any act or acts done prior to the passage thereof; nor to include any member of a state legislature or judge of any state court who has not, in accepting or entering upon his office, taken an oath to support the Constitution of the so-called Confederate States of America, 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."

** In order to carry out these Acts of August 6, 1861, and July 17, 1862, the President charged the Attorney General with the superintendence and direction of all proceedings under them, and authorized and required him to give to the district attorneys and marshals such instructions and directions

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as he might find needful and convenient, touching all seizures, proceedings, and condemnations under them. Accordingly, on the 8th of January, 1863, the Attorney General issued general instructions on the subject to district attorneys and marshals. Among these instructions the following were given with regard to the seizure of property:

"All seizures will be made by the marshal of the proper district, under written authority to be given him by the district attorney, specifying with reasonable certainty the property to be seized, and the owner whose right is sought to be confiscated."

"When the marshal has seized any property under such authority, he will, without any unnecessary delay, make a true return thereof in writing to the district attorney."

"Where the state law directs the method of seizure, it should be conformed to as nearly as may be consistently with the objects of the acts of Congress. If the thing to be seized be personal property, it ought to be actually seized and safely kept; if real estate, the marshal ought to seize all the right, title, interest, and estate of the accused party, giving notice in writing of the seizure to the tenants in possession, if any; if stocks or other intangible property, the marshal ought (if there be no specific method prescribed by the state law) to describe the property as plainly as he can in his return, and leave the court to determine the sufficiency of the seizure."

*** On the 24th of November, 1863, the District Attorney for the Eastern District of Michigan issued the following order to the marshal of that district:

"OFFICE OF THE ATTORNEY OF THE UNITED STATES"

"FOR THE EASTERN DISTRICT OF MICHIGAN"

"DETROIT, November 24, 1863"

"TO CHARLES DICKEY, ESQ.,"

"Marshal of the United States for Eastern District of Michigan"

"You are hereby directed, under and by virtue of the Acts of Congress of August 6, 1861, and July 17, 1862, commonly called the Confiscation Acts, to seize all those 200 shares of common stock in the Michigan Southern and Northern Indiana Railroad Company, a corporation created under and by virtue

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of the laws of the State of Michigan and represented by one certificate for 50 shares, numbered 2767, and dated January 8, 1861, and by one certificate for 150 shares, numbered 3678, and dated May 25, 1861. And all that stock in the Detroit, Monroe & Toledo Railroad Company, a corporation created under and by virtue of the laws of the state of Michigan, to-wit:"

Stock certificate, No. 113, dated March 5, 1857, for 100 shares

Stock certificate, No. 120, dated March 12, 1857, for 100 shares

Stock certificate, No. 129, dated April 7, 1857, for 100 shares

Stock certificate, No. 187, dated Sept. 1, 1860, for 20 shares

Stock certificate, No. 193, dated Nov. 1, 1860, for 23 shares

---

Total . . . . . . . . . . . . 343 shares

"Making in all 200 shares common stock of Michigan Southern & Northern Indiana Railroad Company and 343 shares stock Detroit, Monroe & Toledo Railroad Company and all bonds and the coupons thereto attached, issued by said companies, and all dividends declared by said companies, and all interest and other moneys due upon said stock, bonds, coupons, and dividends belonging to Samuel Miller, of the County of Amherst, in the State of Virginia. And you are further ordered to leave a copy of the said seizure, certified by you, with the clerk, treasurer, or cashier of the companies, if there be any such officer, and if not then with any officer or person who has at the time the custody of the books and papers of the corporations, and to require a certificate of the amount of interest held by said Miller in said coupons. And you are further directed to make true return to me in writing of your doings under this order."

"ALFRED RUSSELL"

"United States District Attorney, Eastern District of Michigan"

On the 6th of February, 1864, the marshal returned to the district attorney that he had seized the shares, bonds, and coupons attached, pursuant to his direction, stating the shares and the dates of the certificates as in the order of the district attorney. And he concluded his return as follows:

"I do further return, that I seized said stock by serving a notice of said seizure personally upon M. L. Sykes, Jr., Vice-President of the Michigan Southern & Northern Indiana Railroad Company,

Page 78 U. S. 276

and President of the Detroit, Monroe and Toledo Railroad Company."

By a stipulation of counsel, the instructions of the Attorney General, the order of the district attorney to the marshal, and the return of the marshal were made part of the record in the cause.

On the 27th of February, 1864, the district attorney filed a libel of information in the District Court for the Eastern District of Michigan against the property. This libel stated that the district attorney prosecuted the proceeding on behalf of the United States and of the informer subsequently mentioned -- one Browning -- against 200 shares of common stock in the Michigan Southern & Northern Indiana Railroad Company; and 343 shares of the Detroit, Monroe & Toledo Railroad Company, and all bonds and coupons attached (describing them as in the order of the district attorney to the marshal),

"the same being the property of Samuel Miller, of Virginia, a rebel citizen, and inhabitant of the United States, who, being the owner of said property, has knowingly used and employed, and has consented to the use and employment of the same in aiding, abetting, and promoting the existing insurrection against the government of the United States and who, owning property in a loyal state, has assisted and given aid and comfort to the present rebellion against the authority of the United States."

The libel then proceeded to allege:

"1st. That the marshal seized the property on the 5th of February, 1864."

"2d. That on the 16th of August, 1861, the President by his proclamation declared that insurrection existed in the States of Virginia, North Carolina, South Carolina, Tennessee, and Arkansas; that during the said insurrection, after the President had declared by proclamation that the laws of the United States were opposed, and the execution thereof obstructed by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the power vested in the marshals by law; and after August 6, 1861, the said Samuel Miller purchased and acquired

Page 78 U. S. 277

the said stocks, and the same were sold and given to him, with intent to use and employ the same, and to suffer the same to be used and employed in aiding, abetting, and promoting such insurrection; and that being owner of the said property, he did knowingly use and employ, and did knowingly consent to the use and employment of the same in aiding, and abetting, and promoting the said insurrection."

The libel then proceeded to state, that in November, 1863, one Browning, residing in the City of New York, filed with the district attorney information concerning the property and the facts above described, and in consequence the proceedings were for the use of such informer and the United States, in equal parts.

The libel then proceeded to make the following charges against Miller.

1st. That at various times since July 17, 1862, he had acted as an officer of the army, and also as an officer of the navy of the rebels, in arms against the government of the United States.

2d. That since that period he had acted as a member of Congress, also as a judge of a court, and also as a commissioner of the so-called Confederate States of America.

3d. That at various times since that period he had acted as a member of a convention, and also as a member of the legislature, and also as a judge of a court of the State of Virginia, and also of other states of the so-called Confederate States.

4th. That at various times since that period, having previously held an office of honor, trust, and profit in the United States, he had held an office in the Confederate States.

5th. That at various times since that period he had held offices and agencies under the government of the Confederate States, and under the State of Virginia, and under other states of the confederacy.

6th. That at various times since that period he had given aid and comfort to the rebellion, by procuring persons to enlist and join the army of the rebels, and by inducing others

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to assist in arming, equipping, transporting, and maintaining such recruits.

The libel then further alleged the issue of a proclamation by the President, July 25, 1862, warning all persons to cease participating in the rebellion and to return to their allegiance to the United States, and that Miller being engaged in armed rebellion against the government, and in aiding and abetting it, did not within sixty days after the proclamation cease to give aid and countenance to the rebellion and return to his allegiance.

It alleged further that the property was situated within the jurisdiction of the court and that the libellants were entitled to have it condemned as confiscated and forfeited to the United States, and concluded with a prayer for the usual process and monition, and that a decree of condemnation be made of the property to be disposed of to the use of the informer and the United States in equal parts.

Upon this libel, process of the court was issued directed to the marshal, commanding him "to hold the said stock -- the same having been by you duly seized" until the further order of the court touching the same and directing him to publish citation to all persons interested in a newspaper in Detroit.

On the 5th of April, 1864, the marshal returned the process, with his endorsement thus:

"I hereby certify and return that I have seized and now hold all the property described in the within writ, and now hold the same subject to the future order of the said court, and have given notice to all persons interested therein by publication, as required in the within writ."

There was no personal service upon Miller nor on anyone professing to represent him. No one appeared on his behalf or in defense of the proceeding. On the 5th of April, 1864, on the day of the return by the marshal of the warrant, after the default of all persons had been entered and after reading the proof which had been taken on the

Page 78 U. S. 279

part of the United States, a decree was entered condemning and forfeiting the property to the United States, the record not showing, however, a decree that the libel be taken pro confesso. By the decree a sale was ordered and the two corporations were directed to cancel the old certificates of stock and issue new certificates to the purchasers at such sale. It was also decreed that after the payment of costs, the proceeds of the sale should be divided between the United States and the informer.

The proof produced at the hearing consisted of an ex parte deposition of one Thatcher, taken in New York. This deposition was thus:

"I reside in New York city. I know Samuel Miller; he resides three and a half miles south of Lynchburg, in the State of Virginia. I do not know of any agent or attorney that he has in the City of New York, nor do I believe that he has any in the Northern states. I saw him about the 1st of July, 1863, at his home near Lynchburg, Virginia. I had a conversation with him there at that time. He told me that he was the owner of about $109,000 registered Indiana state bonds. He also said no interest had been paid on them since the 1st day of January, 1862, and when interest was demanded of the agent in New York, he declined to pay it, saying the bonds and interest had by the acts of Congress been forfeited to the government of the United States. He also said to me in that conversation that he approved of the acts of the Confederate government, and that their ultimate success was as certain as it was for the sun to rise in the morning, although the sacrifices he knew would be great, and that he would be very willing to bear the sacrifices with them; and that he was then giving one-tenth of all his income for the support of the army of the Confederate government, and was also contributing, independently of the foregoing, a large amount to support the wives and children of the soldiers in arms, and other contributions of almost daily occurrence that were needed to keep matters moving. He said he was giving as much for the wives and children of the soldiers as all the rest of the county put together."

Subsequently application was made to the district court

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to open the decree upon affidavits, which it was asserted showed the loyalty of Miller, but the district court denied the application, and on error to the circuit court, the decree was affirmed. The case was brought to this Court on writ of error to the circuit court.

Page 78 U. S. 292

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