1. An informer, in prosecutions under the Act of August 6, 1861,
which subjects to confiscation, upon libel filed, property whose
owner used or consented to its use in aiding the rebellion, has no
vested interest in the subject matter of the suits, and this
notwithstanding that the act declares that where any person files
an information with the Attorney of the United States (as the act
allows any person to do), the proceedings shall be "for the use of
such informer and the United States in equal parts."
2. Hence, the Attorney General may properly, and against the
interest and objection of the informer, ask a dismissal of an
appeal to this Court in cases where the decree below, having been
against it, the government has appealed, and in the same way ask,
upon agreement to that effect with the counsel of the claimants,
for a reversal of a decree, where, on decree against them, the
appeal has been by the other side, and for a remand of the cause to
the court below, with directions to it to dismiss the libel.
The question in this case arose upon a motion of Mr. Evarts,
Attorney General, in fifteen appeals from the Eastern District of
Louisiana, in which judgments had been given on libels for
condemnation and forfeiture -- as having been employed in aid of
the rebellion, with the consent of the owners -- against the
Trent and five other vessels, from which judgments the
owners of the vessels appealed, and given in favor of the
Eleanor and eight other vessels, from which the United
States appealed.
MR. JUSTICE CLIFFORD stated the case more particularly prior to
delivering, as hereinafter, the opinion of the Court.
Property owned by any person who knowingly uses or employs the
same, or who consents to the use or employment of the same in
aiding, abetting, or promoting insurrection against the government
of the United States, under the conditions specified in the first
section of the Act of the 6th of August, 1861, is declared by that
act "to be lawful subject of prize and capture," and all property
purchased, acquired, sold, or otherwise transferred, with intent
that the same may be so used or employed, is also declared to
be
Page 74 U. S. 455
subject to the same proceedings, and the provision is, that it
shall be the duty of the President to cause the same to be seized,
confiscated, and condemned. [
Footnote 1]
Proceedings for the condemnation of such property may be
instituted by the Attorney General, or by any district attorney for
the district in which the property is situated at the time the
proceedings are commenced, and the third section provides that in
such cases, "the proceedings are wholly for the benefit of the
United States," but the same section also provides, that
"any person may file an information with such attorney, in which
case the proceedings shall be for the use of such informer and the
United States in equal parts."
Pursuant to those provisions, libels of information were filed
in these cases by the district attorney of the United States for
the Eastern District of Louisiana, in the circuit court of the
United States for that district, in which it was alleged that the
steamer
Eleanor was seized on the 15th of June, 1865, and
that the steamer
Trent was seized on the 30th of June in
the same year.
Apart from the names of the vessels, and the time when the
respective seizures were made, the allegations of the libels are
similar in every respect material to this investigation. They were
addressed to the judges of the circuit court for that district, and
the introductory allegation in each states that the district
attorney prosecutes for the United States, and in the name and
behalf of the United States and Charles Black informant, against
the respective steamers, their tackle, apparel, and furniture, and
the prayer of the respective libels is for process of monition,
order of publication, and for a decree of condemnation to the use
and ownership of the United States and of the informant.
Both steamers were seized, and process was served in each case;
but the steamers were afterwards released by the order of the
court, made at the request of the claimants, who respectively gave
bonds for their appraised value. Subsequent proceedings in the two
cases were in all respects
Page 74 U. S. 456
the same, except that the decree in the first case was for the
claimants, and in the second for the United States, and the losing
party in each case appealed to this Court. Other appeals in like
cases were entered in this Court at the same term, and they have
remained on the calendar to the present time.
Early in the present term some of the cases were heard upon the
merits; but these cases now come before the Court on certain
motions made in behalf of the United States by the Attorney
General. His motion in the first case is for leave to dismiss the
libel of information; and in the second case, his proposition is to
the effect that the decree of the circuit court, which was in favor
of the United States, shall be reversed, and the cause remanded,
with a view that the same may be dismissed in the court where the
suit was instituted. When the motions were made, they were taken
under advisement; but the court subsequently decided that the
motions ought to be granted unless the informer desired to be heard
in opposition to the discontinuance of the prosecutions. Since that
time the informer has been heard, [
Footnote 2] and the court has come to the conclusion that
the respective motions must be granted.
Provision was made by the thirty-fifth section of the Judiciary
Act for the appointment of an attorney of the United States in each
district, and the same section makes it his duty to prosecute in
such district all delinquents for crimes and offenses cognizable
under the authority of the United States, and all civil actions in
which the United States shall be concerned, except before the
Supreme Court, in the district in which that court shall be holden.
[
Footnote 3]
In the prosecution of suits in the name and for the benefit of
the United States, the seventh section of the act of the 15th of
May, 1820, provided that the district attorneys should conform to
such directions and instructions as they
Page 74 U. S. 457
should receive from the agent of the Treasury; but the first
section of the Act of the 2d of August, 1861, devolves the general
superintendence and direction of district attorneys, as to the
manner of discharging their respective duties, upon the Attorney
General of the United States. [
Footnote 4]
Public prosecutions, until they come before the court to which
they are returnable, are within the exclusive direction of the
district attorney, and even after they are entered in court, they
are so far under his control that he may enter a
nolle
prosequi at any time before the jury is empanelled for the
trial of the case, except in cases where it is otherwise provided
in some act of Congress.
Civil suits, in the name and for the benefit of the United
States, are also instituted by the district attorney, and, in the
absence of any directions from the Attorney General, he controls
the prosecution of the same in the district and circuit courts, and
may, if he sees fit, allow the plaintiffs to become nonsuit, or
consent to a discontinuance.
Settled rule is that those courts will not recognize any suit,
civil or criminal, as regularly before them, if prosecuted in the
name and for the benefit of the United States, unless the same is
represented by the district attorney, or someone designated by him
to attend to such business, in his absence, as may appertain to the
duties of his office. [
Footnote
5]
Under the rules of the common law, it must be conceded that the
prosecuting party may relinquish his suit at any stage of it, and
withdraw from court at his option, and without other liability to
his adversary than the payment of taxable costs which have accrued
up to the time when he withdraws his suit. [
Footnote 6]
Precisely the same rule prevails in the admiralty courts, and
consequently the libellant has the right at any stage of
Page 74 U. S. 458
the cause voluntarily to discontinue the same, and the only
penalty to which he can legally be subjected, in the absence of any
statutory regulation, except, perhaps, in prize cases, is the
payment of the costs of the proceedings. [
Footnote 7]
Although the name of the informer in these cases is mentioned in
the libel of information, still it is nevertheless true that the
suit was instituted by the district attorney in the name and for
the benefit of the United States. Control of these suits,
therefore, while they were pending in the circuit court, belonged
to the district attorney under the general superintendence and
direction of the Attorney General, and he might, if he had seen
fit, have discontinued them at any stage of the proceedings prior
to the appeals. Such control on the part of the district attorney
ceases whenever such a suit, civil or criminal, is transferred to
this Court by writ of error, appeal, or certificate of division of
opinion, as the thirty-fifth section of the Judiciary Act also
provides, that it shall be the duty of the Attorney General to
prosecute and conduct all suits in the Supreme Court in which the
United States shall be concerned, and such has been the unbroken
practice of this Court in such suits from the organization of the
judicial system to the present time. Appointed, as the Attorney
General is, in pursuance of an act of Congress, to prosecute and
conduct such suits, argument would seem to be unnecessary to prove
his authority to dispose of these cases in the manner proposed in
the respective motions under consideration, but if more be needed,
it will be found in the case of
The Gray Jacket, [
Footnote 8] in which this Court decided
that in such suits no counsel will be heard for the United States
in opposition to the views of the Attorney General, not even when
employed in behalf of another of the executive departments of the
government.
Whether tested, therefore, by the requirements of the Judiciary
Act, or by the usage of the government, or by the decisions of this
Court, it is clear that all such suits, so far as the interests of
the United States are concerned, are
Page 74 U. S. 459
subject to the direction, and within the control of, the
Attorney General.
Objection is made to the granting of the motions, in these
cases, upon the ground that it would impair the vested rights of
the informer, mentioned in the respective libels of information.
Argument for the informer is that the allegations of the libels
afford presumptive evidence that he filed the informations with the
district attorney, and that the third section of the act provides
that in that state of the case, the proceedings shall be for the
use of such informer, and the United States, in equal parts.
Perhaps the better opinion is, that the allegations of the libels,
in case of condemnation, would afford
prima facie evidence
that the person therein named, as the informer, is entitled to be
regarded in that character; but the more important inquiry in this
case is, whether he possesses any such interest in the property
seized, before final condemnation, as will prevent the Attorney
General from dismissing the suits, as proposed in the motions? Much
aid will be derived, in the solution of that question, by a
comparison of the third section of the act, invoked as supporting
the views of the informer, with similar provisions in other acts of
Congress, upon analogous subjects. Regulations were prescribed for
the distribution of fines, penalties, and forfeitures, in the first
act passed by Congress for the collection of maritime duties,
including forfeitures arising from seizures on navigable waters, as
well as on land, and the same provisions, in substance and effect,
were incorporated into the act of the 2d of March, 1799, which for
many purposes, remains in force to the present time. [
Footnote 9]
Those regulations direct that one moiety of the fines,
penalties, and forfeitures recovered by those acts, after deducting
all proper costs and charges, shall be paid into the Treasury, and
that the other shall, in certain cases, be divided, in equal
proportions, between the collector, naval officer, and surveyor of
the port; and, in other cases, that one-half of that moiety shall
be given to the informer, and
Page 74 U. S. 460
the remainder only to the officers of the customs. Such fines,
penalties, and forfeitures were required by those acts to be sued
for and recovered in the name of the United States, in any court
competent to try and determine the controversy.
Questions of various kinds arose in the construction of those
regulations, especially in cases where the claims of informers came
in conflict with the assumed rights of subsequent purchasers, and
with the action of the Secretary of the Treasury, in remitting such
forfeitures under the act of Congress conferring that power upon
the head of that department. [
Footnote 10]
Differences of opinion existed among the justices of this Court,
whether a forfeiture under those provisions, or others of like
character, gave such a title to the United States as to overreach a
bona fide sale to an innocent purchaser, when made before
seizure and suit for condemnation, but the majority of the court
adopted the affirmative of that proposition. [
Footnote 11]
No one, however, contended that any such rule could be applied,
in any way, except by relation back to the criminal offense, in
cases where the title had been consummated by seizure, suit, and
judgment, or decree of condemnation. Next controversy arose between
the collector and the heirs at law of his predecessor, in a case
where the seizure had been made by the latter, in his lifetime, and
while he was in office, but the decree of condemnation was not
entered till after his decease, and the appointment of his
successor. Payment of the amount, as ordered in the decree of
distribution, was made to the collector in office at the date of
the decree, but the court held that the money belonged to his
predecessor, in consequence of the inchoate right which he
acquired, by virtue of the seizure, and the incipient steps taken
by him to cause the suit to be instituted. [
Footnote 12]
Page 74 U. S. 461
Express ruling of the court in that case was, that the right of
the collector to forfeitures
in rem, attached on the
seizure, but that the right must be defined and consummated by the
judgment or decree. Authority to remit such fines, penalties, and
forfeitures, was conferred upon the Secretary of the Treasury, by
the Act of the 3d of March, 1797, and the next important
controversy which arose upon the subject, was as to the extent of
that authority, and whether the secretary could remit the share of
the informer, or that of the officers of the customs, subsequent to
the judgment or final decree.
Just prior to the decision, in the case of
Jones v. Shore's
Exrs., Judge Story ruled, in the circuit court, that the right
of the collector, antecedent to the judgment or decree, was merely
inchoate, but he added, what was not necessary to the decision of
the case, that his right to the forfeiture vested absolutely with
the final sentence of condemnation, and that, after judgment, it
could not be remitted by the Secretary of the Treasury. [
Footnote 13]
Unguarded expressions, supposed to support the same conclusion,
are also employed in some of the prior, as well as subsequent,
decisions of this Court. [
Footnote 14]
Doubts arose whether the secretary could remit a forfeiture or
penalty, accruing under the several acts, subsequent to the final
decree or judgment, but those doubts were soon removed by a
unanimous decision of this Court, and one which is characterized by
accurate analysis, clear statement, and sound conclusions.
[
Footnote 15]
Merchandise was imported into the United States in violation of
the nonintercourse act then in force, and the vessel and cargo were
seized on that account, and were afterwards condemned as forfeited.
Subsequent to the decree of condemnation, the Secretary of the
Treasury remitted the whole forfeiture, and this Court held that he
did not exceed his
Page 74 U. S. 462
authority; that neither the rights of the informer, nor the
rights of the collector, or other officers of the customs, were
violated in the case; that their rights were conditional, and
subordinate to the power of remission; and that the secretary had
authority, under that act, to remit a forfeiture, at any time
before or after a final decree or judgment, until the money was
actually paid over to the collector for distribution, and that the
power to remit extends not only to the interest of the United
States, in the forfeiture, but also to the share of the informer,
and that of the officers of the customs.
Informations, to recover municipal forfeitures, whether the
seizure was made on navigable waters or on land, must be instituted
in the name of the United States, and they must be prosecuted, in
the subordinate courts, by the district attorney, and in this
Court, when brought here by appeal, or by writ of error, by the
Attorney General. Where the seizure was made on navigable waters,
the case belongs to the instance side of the subordinate court; but
where the seizure was made on land, the suit is one at common law,
and the claimants are entitled to a trial by jury. [
Footnote 16]
Mention of the name of the informer, in the information, in such
cases, is not necessary, as he is not a party to the suit, nor is
he entitled to be heard, as such, in any stage of the proceedings.
He cannot institute the suit, nor move for process, nor join in the
pleadings, nor take testimony, nor except to the ruling of the
court, nor sue out a writ of error, or take an appeal. Judgment is
for the claimants, or for the United States, and if for the latter,
and the claimants do not remove the cause into this Court for
revision, it then becomes the duty of the court to render the
decree for distribution. Prior to such a decree, the interest of
the informer is conditional, and under the decisions of this Court
it continues to be so until the money is paid over, as required by
law. [
Footnote 17]
Page 74 U. S. 463
Viewed in any light, it is quite clear that the informer, in
these cases, has no vested interest in the subject matter of these
suits, and that both motions ought to be
Granted.
The order in the first case is, that it be dismissed, and that
order also disposes of Nos. 26, 27, 28, 29, 30, and 33, 34, and
35.
Order in the second case is, that the decree be reversed, as
stipulated by the parties, and that the cause be remanded, with
directions to dismiss the libel of information; and this order also
disposes of Nos. 44, 46, 48, 63, and 64, on the calendar.
[See supra <|74 U.S. 166|>166,
Dorsheimer v.
United States.]
[
Footnote 1]
12 Stat. at Large 319.
[
Footnote 2]
He was represented here by Messrs. C. Cushing and B. Butler --
REP.
[
Footnote 3]
1 Stat. at Large 92.
[
Footnote 4]
3
id. 596; 12
id. 285.
[
Footnote 5]
11 Stat. at Large 51;
Levy Court v.
Ringgold, 5 Pet. 454;
United States v.
Corrie, 23 Law Rep. 145;
United States v. Stowell, 2
Curtis 153;
United States v. McAvoy, 4 Blatchford 418;
The Peterhoff, Blatch. Prize Cases 463;
The Anna,
ib., 337.
[
Footnote 6]
1 Tidd's Practice 628.
[
Footnote 7]
The Oriole, Olcott 67.
[
Footnote 8]
72 U. S. 5 Wall.
370.
[
Footnote 9]
1 Statutes at Large 48, 697.
[
Footnote 10]
1 Statutes at Large 506, 626.
[
Footnote 11]
United States v. Bags of
Coffee, 8 Cranch 404;
The Mars, 8 Cranch
417.
[
Footnote 12]
Jones v. Shore's
Exrs., 1 Wheat. 468.
[
Footnote 13]
The Margaretta, 2 Gallison 515.
[
Footnote 14]
Van Ness v.
Buel, 4 Wheat. 74.
[
Footnote 15]
United States v.
Morris, 10 Wheat. 281.
[
Footnote 16]
3 Greenleaf on Evidence ยง 396; 1 Kent's Com. (11th ed) 337;
The Sarah,
8 Wheat. 394;
Armstrong's
Foundry, 6 Wall. 769.
[
Footnote 17]
United States v.
Morris, 10 Wheat. 290.