ERROR to the Circuit Court for the Eastern District of Michigan.
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 6th, 1861, entitled 'An act to confiscate property used for insurrectionary purposes;'*fn1
and the act of July 17th, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'*fn2
The act of August 6th, 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 17th, 1862, contains fourteen sections. The first prescribes the punishment for treason; punishing 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 offence 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 offences 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 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 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 pretence 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 17th, 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 also*fn3
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:*fn4
'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 6th, 1861, and July 17th, 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 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 6th, 1861, and July 17th, 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 of the laws of the State of Michigan, and represented by one certificate for 50 shares, numbered 2767, and dated January 8th, 1861, and by one certificate for 150 shares, numbered 3678, and dated May 25th, 1861. And all that stock in the Detroit, Monroe, and 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 5th, 1857, for 100 shares.
Stock certificate, No. 120, dated March 12th, 1857, for 100 shares.
Stock certificate, No. 129, dated April 7th, 1857, for 100 shares.
Stock certificate, No. 187, dated Sept. 1st, 1860, for 20 shares.
Stock certificate, No. 193, dated Nov. 1st, 1860, for 23 shares.
Making in all 200 shares common stock of Michigan Southern and Northern Indiana Railroad Company; and 343 shares stock Detroit, Monroe and 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 futher 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 and Northern Indiana Railroad Company, 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 and Northern Indiana Railroad Company; and 343 shares of the Detroit, Monroe and 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 6th, 1861, the said Samuel Miller purchased and acquired 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 ...