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
Page 76 U. S. 340
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
Page 76 U. S. 344
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
MR. JUSTICE STRONG delivered the opinion of the Court.
The first question presented by the record for our consideration
is whether there was error in the refusal of the state circuit
court to allow a removal of the cause into the circuit court of the
United States, for if there was not, there is no ground for
complaint that the Supreme court of appeals had denied a
supersedeas to the judgment because the removal prayed for had not
been allowed.
The Act of Congress of March 3, 1863, under which the right to
remove the cause was claimed and under which the right existed if
it existed at all, enacted in its fifth section that if any suit or
prosecution, civil or criminal, had been or should be commenced in
any state court against any officer, civil or military or against
any other person for any arrest or imprisonment made, or other
trespasses or wrongs done or committed, or any act omitted to be
done at any time during the then existing 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, the
defendant might effect the removal of the cause into the circuit
court of the United States holden in the district where
Page 76 U. S. 348
the suit might be pending. The act prescribed the course to be
pursued in order to stay the proceedings in the state court and
transfer the cause into the federal tribunal. It must be conceded
that the plaintiff in error complied with the requisitions of the
statute and its supplements respecting the form of procedure for a
removal of his cause. It remains, therefore, only to inquire
whether the action was one which, under the act of Congress, could
be removed. It was an action of ejectment, commenced on the 1st of
April, 1867, in which the plaintiff averred seizin in himself on
the 1st day of January, 1867, and an entry by the defendant upon
the land on the same day, and a withholding of the possession. It
might perhaps be sufficient to say that the act complained of, for
which the suit was brought, was not, as described by the statute,
"an arrest or imprisonment made," or "other trespass or wrong done
or committed," or "an act omitted to be done during the rebellion."
It is to suits for acts done or omitted to be done during the
rebellion exclusively that the statute is applicable, and prior to
January 1, 1867, the rebellion had ceased to exist.
But we do not rest our judgment upon so narrow ground. In our
opinion, the statute was not intended to apply to actions of
ejectment. It is manifest to us that Congress had in view only
personal actions for wrongs done under authority or color of
authority of the President of the United States or of some act of
Congress. The fourth section made any order of the President or
under his authority a defense in all courts to any action, 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. The description of the causes of action mentioned
in the fifth section is slightly different, not quite so detailed
and specific, but it is evident that they were intended to be the
same in both sections, as well as in the seventh, which prescribed
a statutory limitation to suits and prosecutions. The
specification, which all of these sections contain, of arrests and
imprisonments, or, as in the fourth section, of searches,
Page 76 U. S. 349
seizures, arrests, and imprisonments, followed by more general
words, justifies the inference that the other trespasses and wrongs
mentioned are trespasses and wrongs
ejusdem generis, or of
the same nature as those which had been previously specified. This
construction is fortified by the consideration that the mischief
against which the statute was intended to guard was manifestly the
excitement and prejudice so likely, in times of intense popular
feeling, to attend suits in local courts for personal wrongs --
excitement and prejudice which might render a fair trial difficult
and which might indeed greatly embarrass the government. The same
mischiefs, in the same degree, could hardly have been expected to
attend the trial of possessory actions for real estate. The action
of ejectment is not a personal action, and it appears to us not to
be embraced in any of the classes mentioned in the fourth, fifth,
and seventh sections of the act.
It follows that there was no error in disallowing the removal of
this case into the circuit court of the United States.
We proceed next to inquire whether there was error in the
judgment of the court upon the merits of the case. The plaintiff
below claimed the land as the sole heir of his father, French
Forrest, who had been the owner down to September 1, 1863, and who
died intestate on the 24th day of November, 1866. The defendant
claimed as a purchaser under a decree of confiscation made by the
District Court of the United States for the Eastern District of
Virginia, on the 9th day of November, 1863. French Forrest, the
father of the plaintiff, was an officer in the navy of the
Confederate States from July 1, 1862, until April, 1865. In
September, 1863, under the Act of Congress of July 17, 1862, known
as the Confiscation Act, the land in controversy was seized as his
property, libeled in the district court of the United States, and,
on the 9th of November next following a decree of condemnation was
entered and the land was ordered to be sold by the marshal. Whether
there was a
venditioni exponas issued, as was ordered by
the court, does not appear from the case stated (to which alone we
can look for the
Page 76 U. S. 350
facts), except that the marshal's deed recites its issue. We may
assume that there was. The property was sold at the marshal's sale,
and a deed was made to the purchasers. Subsequently and before the
institution of this suit, the entire interest acquired by the
purchase became vested in Bigelow, the defendant. But what was that
interest?
The fifth section of the Confiscation Act of July 17, 1862,
enacted that it should be the duty of the President of the United
States to cause the seizure of all the estate and property, moneys,
stocks, credit, and effects, of certain persons described in six
classes, and to apply and use the same and the proceeds thereof for
the support of the army. To one or more of these classes French
Forrest belonged. That it was not intended the mere act of seizure
should vest the property seized in the United States is plain from
the provisions of the seventh section, which enacted that to secure
the condemnation and sale of any such property, after the same
shall have been seized, proceedings
in rem should be
instituted in a district court, and that if it should be found to
have belonged to a person engaged in rebellion, or who had given
aid or comfort thereto, it should be condemned as enemy's property
and become the property of the United States, and that it might be
disposed of as the court might decree. Concurrently with the
passage of this act, Congress also adopted a joint resolution
explanatory of it whereby it was resolved 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 is a well known fact in our political history that this
resolution was adopted in consequence of doubts which the President
entertained respecting the power of Congress to prescribe a
forfeiture of longer duration than the life of the offender. Be
this as it may, the act and the resolution are to be construed
together, and they admit of no doubt that all which could, under
the law, become the property of the United States or could be sold
by virtue of a decree of condemnation and order of sale was a right
to the property seized terminating with the life of the person for
whose act it had been seized. It follows,
Page 76 U. S. 351
then, that the estate acquired by the purchaser at the marshal's
sale expired on the 24th day of November, 1866, when French Forrest
died.
It is argued, however, on behalf of the plaintiff in error that
the decree of confiscation in the District Court of the United
States is conclusive that the entire right, title, interest, and
estate of French Forrest was condemned and ordered to be sold, and
that as his interest was a fee simple, that entire fee was
confiscated and sold. Doubtless a decree of a court, having
jurisdiction to make the decree, cannot be impeached collaterally,
but under the act of Congress, the district court had no power to
order a sale which should confer upon the purchaser rights
outlasting the life of French Forrest. Had it done so, it would
have transcended its jurisdiction. And it attempted no such thing.
The decree made has not that meaning. It is true, the cause in the
district court was entitled, "United States against all the right,
title, interest, and estate of French Forrest in and to all that
certain piece, parcel, or lot of land" (describing it), but all
this is descriptive not of quantity of estate, but of the subject
of seizure, and that was land. The proceeding was required by the
act of Congress to be
in rem, and the decree condemned not
the estate of French Forrest, but, using its own words, "the real
property mentioned and described in the libel." The marshal was
ordered to sell the said property, the boundaries of which were
given in the title to the decree. Had the purchasers looked at that
decree (and knowledge of it must be attributed to them), they would
have seen that it was a decree of confiscation of the land, and
they were bound to know its legal effect. It is therefore a mistake
to argue that the plaintiff below was permitted to impeach
collaterally the decree under which the marshal's sale was made, or
that the judgment of the court in this case impeaches it. The
argument assumes what cannot be admitted -- that the decree of the
district court established a confiscation reaching beyond the life
of French Forrest, for whose offense the land was condemned and
sold.
Page 76 U. S. 352
It has been further argued on behalf of the plaintiff in error
that the plaintiff below was barred against maintaining his suit by
the latter clause of the fifth section of the act of 1862, which
enacted that it shall be a sufficient bar to any suit brought by
such person for the possession or use of such property or any of it
to allege and prove that he is one of the persons described in the
section. The agreed statement of facts, in lieu of a special
verdict, finds that the plaintiff is one of the persons described
in said section fifth; but it immediately explains this by adding,
"that is to say, he acted as an officer of the army and navy of the
so-called Confederate States from and after the passage of said act
until April, 1865." Was he therefore barred from maintaining the
ejectment? The land was not seized or condemned for any act of his.
He had no interest in it when it was declared forfeited. He could
not have been heard in opposition to the decree of forfeiture. That
proceeding was wholly
inter alias partes. If, therefore,
he is not at liberty to assert his claim, he is denied the right to
his property without trial, without any procedure in due course of
law, and the practical effect of the bar is to assure to the
purchaser at the marshal's sale the enjoyment of the property after
his right has expired, and to give him by estoppel a greater estate
than he purchased. No construction of the act of Congress that
works such results can be accepted. It is plainly against the true
meaning of the act. We have already remarked that the act and the
contemporaneous resolution must be construed together. The latter
declares that the act shall not be construed to work a forfeiture
of the real estate of the offender beyond his natural life. It can
do this neither directly nor indirectly. The punishment inflicted
upon him is not to descend to his children. His heritable blood is
not corrupted. It is, of course, necessary to give such an
interpretation to the words of the statute that they shall not
contravene the declared intent of Congress. And this may be done
and effect given to every part by holding that the persons
described in the fifth section, who are barred from bringing a suit
for the possession or use of
Page 76 U. S. 353
such property, are those and those only whose property the
President has caused to be seized. Such we think is the meaning of
the clause barring suits.
This is all that need be said of the case. It is enough to show
that in our opinion none of the errors assigned have any real
existence. We do not care to speculate upon the anomalies presented
by the forfeiture of lands of which the offender was seized in fee,
during his life and no longer, without any corruption of his
heritable blood, or to inquire how in such a case descent can be
cast upon his heir notwithstanding he had no seizin at his death.
Such speculations may be curious, but they are not practical, and
they can give no aid in ascertaining the meaning of the
statute.
Judgment affirmed.
[
Footnote 1]
12 Stat. at Large 589.
[
Footnote 2]
12 Stat. at Large 627.
[
Footnote 3]
Art. III, Section 3, clause 2.
[
Footnote 4]
12 Stat. at Large 755.
