[78 U.S. 268, 269] 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;'1 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.' 2
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 [78 U.S. 268, 270] 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:
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:
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 [78 U.S. 268, 273] also3 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:4
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 [78 U.S. 268, 274] 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:
+ 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 [78 U.S. 268, 275] 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.
Total, 343 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:
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:
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 17th, 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 [78 U.S. 268, 278] to assist in arming, equipping, transporting, and maintaining such recruits.
The libel then further alleged the issue of a proclamation by the President, July 25th, 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 indorsement thus:
There was no personal service upon Miller nor on any one professing to represent him. No one appeared on his behalf, or in defence 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 [78 U.S. 268, 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:
Subsequently, application was made to the District Court [78 U.S. 268, 280] 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.
Messrs. W. P. Wells and S. T. Douglass, for the plaintiff in error:
I. The district attorney, undertaking to proceed in conformity to the method of procedure in revenue cases, directed a seizure to be made before the libel was filed.
What was this seizure? Nothing in the return to the writ of error shows. The warrant and return do show, however, that the seizure relied upon by the government was a seizure made before the filing of the libel, and, by stipulation, the facts concerning the seizure are placed before the court, and constitute part of the record. We thus get, and only thus, the instructions of the Attorney-General; the written directions given by the district attorney to the marshal, and the return made by the marshal to the district attorney. The general instructions of the Attorney-General, given in respect to proceedings under the confiscation acts, are detailed and explicit. The district attorney undertook to proceed under them. He gave a written direction, November 25th, 1863, to the marshal, to seize the stocks in question. In obedience to this direction, the marshal performed the acts which are called a seizure, and made a return of what he had done. That return shows that the only seizure was a notice to the president of one road where Miller's stock was and to the vice-president of another. No other act of seizure was performed. Was this sufficient?
1. In admiralty or revenue proceedings in rem seizure is necessary to give the court jurisdiction. The res must be actually or constructively within the possession of the court. 5 There must be an arrest of it,6 a taking of possession and [78 U.S. 268, 281] an exercise of control over the thing seized. This possession must be actual, open, and visible. The persons in previous possession must be dispossessed and unable longer to exercise dominion over the property. There is no such thing known to the law as constructive possession, or typical possession, in a proceeding in rem. 7 The reason of this is obvious. It is in order to preserve the principle of notice to the party whose property is to to be affected, which is a fundamental requisite to the validity of judicial proceedings. 8
Now, in this case the property, unlike the sorts of property usually seized in revenue proceedings, and which are capable of actual possession, was intangible. No actual seizure of it could be made by the marshal. Stocks can only be seized and made the subject of legal process by express statutory provisions, which prescribe something which shall be equivalent to the seizure of other kinds of property. 9 In the absence of any statutory method of seizure prescribed in these acts of Congress, stocks therefore cannot be seized, although expressly mentioned in one of the acts. Any law which provides for their condemnation in a judicial proceeding should prescribe a method of seizure. If the law makes no such provision the essential requisites of a revenue seizure cannot be preserved. And there is a casus omissus in the statute. This view is supported by reference to the instructions of the Attorney-General. He directs that stocks shall be seized according to the methods prescribed in the State laws. But in Michigan there is no law which authorizes the taking of stocks on mesne process. They may be taken on final process, but not in the way pursued in this case. 10
Such so-called seizure as was made here would preserve [78 U.S. 268, 282] no principle of notice. The notice by publication, which is, presumptively, likely to reach persons who have an interest in the property, and a right to appear and defend such proceedings, was in this case nugatory. The person whose property was proceeded against was in an insurgent State. Any communication to him of the published notice would have been illegal. If the requisite of notice to the owner is to be presumed, then the presumption must arise from the seizure. In respect to property which can be the subject of actual possession, the presumption is that it is left in charge of persons who represent the owner. This presumption, in respect to all kinds of property named in the acts, except stocks, would be effectual. If any property of these classes was in the Northern States, it was almost necessarily in possession of agents who could represent the owner and appear in his behalf. A seizure must, of necessity, give these agents notice. But it is otherwise in respect to stocks. The property being intangible is in charge of no agent. The evidence of it, the certificates, is presumptively in the possession of the owner of the stock. The decree here shows that the certificates were outstanding. Even if the possession of the certificates by any one in the Northern States could make him an agent of the owner, there is no pretence that there was any such possession of the certificates by an agent. The method in which the marshal sought to effect seizure shows that no service could be made upon any one in any legal relation to the real owner.
The officers of a corporation are not the agents of the stockholder or the custodians of any particular stock. They may be, in proceedings like this, and as Northern men, probably in this case were, in hostility to the stockholder. There is no such legal relation between them and the stockholder as will in any case raise the presumption which arises in other cases, that the custodian of property seized will appear and defend the owner's interests.
If the seizure, made before the libel was filed, was not a valid seizure, the court had no jurisdiction. We have seen that there was no real seizure made under the warrant of [78 U.S. 268, 283] arrest. The marshal's return upon the warrant shows only, in effect, that he held the stocks by him seized theretofore. But if he had made a seizure upon the warrant, and there had been no valid seizure before the libel was filed, the whole case fails. 11
II. There was no such hearing and proof in this case as are necessary to a valid decree, even if the court had power to hear and determine the case without a jury.
The case is here by writ of error upon the judgment of the Circuit Court. It was taken to the Circuit Court from the District Court by writ of error. This is the proper method of reviewing cases of seizure on land.