The Confiscation Cases
87 U.S. 92

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U.S. Supreme Court

The Confiscation Cases, 87 U.S. 20 Wall. 92 92 (1873)

The Confiscation Cases

87 U.S. (20 Wall.) 92

Syllabus

1. An information in rem under the fifth, sixth, and seventh sections of the Confiscation Act of July 17, 1862, for the confiscation of the real estate of a person falling within the provisions of those sections -- such information not being in any sense a criminal proceeding -- is not, after default made and entered and after a final judgment of condemnation, to be held fatally defective because it has averred that the property

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seized belonged to someone who was one OR another of the persons referred to in the fifth and sixth sections of the act (thus making its allegations in the alternative), and has not averred it otherwise.

2. When an information avers that on a day named a seizure was made by the marshal under written authority given him by the district attorney in compliance with instructions issued to him by the Attorney General of the United States by virtue of the Act of Congress of July 17, 1862 (the Confiscation Act above mentioned), and when, to a citation or monition founded on the information, default has been made, it will, after such final judgment and condemnation be presumed that the requirements of the statute (which direct apparently that a seizure be made prior to filing the information, and that this seizure be by order of the President of the United States) have been complied with.

3. When an information under the said act, filed in the district court, is really in common law form, and the proceeding has the substance and all the requisites of a common law proceeding, the fact that the information is entitled "a libel" of information and that the warrant and citation is called a "monition" does not convert it into a proceeding on the admiralty side of the court.

4. What amounts to a sufficient service of process under the said act.

5. The fact that the warrant, citation, and monition in the district court was not signed by the clerk of the court is unimportant, it having been attested by the judge, sealed with the seal of the court, and signed by the deputy clerk.

6. Where, on an information under the said act, the information alleging that the property belongs to A. and that it is liable to forfeiture under the act -- all allegations being in form -- the court has proceeded, as the act directs it to do after default, to hear and determine the case, and only after such hearing and consideration condemns the property, it must be presumed that the property belonged to a person engaged in the rebellion or one who had given aid and comfort thereto.

7. The President's proclamations of amnesty in the year 1868 did not amount to a repeal of the Confiscation Act.

On the 17th of July, 1862, Congress passed an act entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes." [Footnote 1]

The act contains fourteen sections. The first prescribes the punishment for treason, punishing it with death or, in

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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 ensure 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 sixth 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 fifth 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 seventh 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 eighth 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 thirteenth 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 fourteenth 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.

In pursuance of this act, the United States, on the 15th of September, 1863, filed what it entitled a "libel" of information, but what in form and substance was an information, in the District Court of the United States for the District of Louisiana, for the condemnation and forfeiture of certain real property, to-wit, eight hundred and forty-four lots and ten squares of ground in New Orleans, all described in the information. One of the averments of the information was that the lots and squares had, on the 15th of August, 1863, been seized by the marshal, in compliance with written instructions issued by the Attorney General of the United States to the district attorney thereof, by virtue of the Act of Congress of July, 1862, the act above quoted, and that they belonged to John Slidell. It was not, however, said in terms that the seizure was made by order of the President of the United States. Other averments were the following:

"5th. That the said John Slidell, subsequently to said 17th day of July, in the year of our Lord 1862, did act as an officer of the army or navy of the rebels in arms against the government

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of the United States, OR as a member of Congress, OR as a judge of a court, OR as a cabinet officer, OR as a foreign minister, OR as a commissioner, OR as a consul of the so-called Confederate States of America; OR that while owning property in a loyal state or Territory of the United States, or the District of Columbia, he did give aid and comfort to the rebellion against the United States, and did assist such rebellion."

"6th. That the said John Slidell, subsequently to said 17th day of July, in the year of our Lord 1862, did act as governor of a state, OR as a member of a convention or legislature, OR as judge of a court of one of the so-called Confederate States of America, to-wit, the State of Louisiana, OR did hold an office in the so-called Confederate States of America, after having held an office of trust or profit in the United States; OR did hold an office or agency under the government of the so-called Confederate States of America, OR under one of the states thereof, said office being national, state, or municipal in its name and character, which said office or agency he accepted after the date of the pretended ordinance of secession of the State of Louisiana; that he did take an oath of allegiance to, or to support the Constitution of the so-called Confederate States."

"7th. That the said John Slidell, subsequently to said 17th day of July, in the year of our Lord 1862, within a state or territory of the United States, was engaged in armed rebellion against the government of the United States, and did not, within sixty days after public warning and proclamation duly given and made by the President of the United States, on the 25th day of July, in the year of our Lord 1862, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States."

"8th. That the said John Slidell, subsequently to said 17th day of July, in the year of our Lord 1862, within a state or territory of the United States, was engaged in aiding and abetting an armed rebellion against the government of the United States, and did not, within sixty days after public warning and proclamation duly given and made on the 25th day of July, in the year of our Lord 1862 by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States."

On the presentation of the libel of information, the district

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court directed a warrant to issue to the marshal commanding him to seize the property described and to cite and admonish the owner or owners and all other persons having or pretending to have any right, title, or interest in or to the same to appear before the court on or before the third Monday from the service thereof to show cause, if any they had, why the property should not be condemned and sold according to the prayers of the libellants.

The "order of publication," made September 15, 1863,

"Ordered that notice be given to the owner and owners of said property and real estate, and all persons interested or claiming an interest therein, to appear and answer this information on the 5th day of October, 1863, and show cause, if any they have, why said property and real estate, and the right, title, and interest therein of the said John Slidell should not be condemned and sold according to law; and that notice be given by posting a copy of this order upon the front door of the court house in the district, and by publication in the Era newspaper twice a week previous to said 5th day of October, A.D. 1863, the first publication to be on or before 19th instant."

The marshal, on the 3d of October, returned:

"Received, 16th September, 1863, and on the same day, in obedience to the within order of seizure, seized and took into my possession the within described property, posted copies of the warrant, libel, and judge's order on the door of the court house, published monition in the Era, a newspaper printed and published in New Orleans, on the 18th, 23d, 26th, 30th September, 3d October, 1863, returnable 5th October, 1863."

The warrant, citation, and monition was signed by the deputy clerk (not by the clerk), and was attested by the signature of the judge and the seal of the court.

On the 18th of April, 1864, after due monition and proclamation, no claim or defense having been interposed, a default was entered, and the information was adjudged and taken pro confesso. Depositions were then taken and filed, and on the 18th of March, 1865, after consideration of the law and the evidence, the district court adjudged and decreed a condemnation

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and forfeiture of the property to the United States, there having been, as the reader will understand without its being said, no jury trial in the case. The exact language of the decree, after its recital, was:

"That the eight hundred and forty-four lots and ten squares of ground, with all the buildings and improvements thereon, property of John Slidell, and fully described in the libel of information on file, be, and the same are hereby, condemned as forfeited to the United States."

Subsequently, a venditioni exponas was issued, under which portions of the property were sold. The money produced, it was said at the bar, was yet in the registry.

On the 17th of March, 1870, the case was removed to the circuit court by writ of error, where the judgment of the district court was reversed and the libel of information was ordered to be dismissed. The sales, however, were confirmed.

That court said:

"The information is a remarkable specimen of loose pleading and uncertain statement. From the allegation in the fifth article, no man can tell what John Slidell did. The next article is of the same ambiguous and inconsequential nature. The extreme ambiguity of the charges in it is something more than a matter of form; it amounts to a substantial defect. There is in truth no charge at all. There is no charge that Slidell acted as a foreign minister of the confederacy. The allegation is that he either did that or something else; but we are not informed what. If the defect were one of form, it might be amended, but being substantial, it seems to me it is fatal."

"The other articles of the information do not save it. The same ambiguity is kept up in the seventh and eighth articles as in the previous ones, but they do not set forth any of the offenses which in the statute are made the basis or cause of confiscation. They are evidently meant to be assigned under the sixth section of the act. But that section refers to persons who in any state or territory of the United States, other than those named as aforesaid, were engaged in the rebellion. Now the states named as aforesaid were the loyal states which had just been named

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in the last clause of the fifth section. Therefore the states or territories other than those were the disloyal states or rebellious states. So that the sixth section of the act only refers to persons who within any disloyal or rebellious states or territory were engaged in the rebellion."

"Yet the seventh article of the information merely alleges that Slidell, within a state or territory of the United States, was engaged in rebellion. It does not make a charge within the statute."

"The whole information, therefore, is substantially defective, and the judgment must be reversed."

From this action of the circuit court the case was brought here.

It is proper here to refer to certain proclamations relied on in support of the decree of that court.

On the 4th of July, 1868, the President, in pursuance of authority given to him by Congress, issued his proclamation. [Footnote 2] After preamble reciting the then condition of things, it said:

"And whereas it is believed that amnesty and pardon will tend to secure a complete and universal establishment and prevalence of municipal law and order in conformity with the Constitution of the United States and to remove all appearances or presumptions of a retaliatory or vindictive policy on the part of the government, attended by unnecessary disqualifications, pains, penalties, confiscations, and disfranchisements, and on the contrary to promote and procure complete fraternal reconciliation among the whole people, with due submission to the Constitution and laws."

"Now, therefore, I hereby proclaim and declare unconditionally and without reservation to all and to every person who directly or indirectly participated in the late insurrection or rebellion, except such person or persons as may be under presentment or indictment in any court of the United States having competent jurisdiction, upon a charge of treason or other felony, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late

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civil war, with restoration of all rights of property except as to slaves, and except also as to any property of which any person may have been legally divested under the laws of the United States."

On the 25th of December, 1868, another proclamation was made relinquishing all previous reservations and exceptions, proclaiming and declaring unconditionally and without reservation to all and every person who directly or indirectly participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.

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