US SUPREME COURT DECISIONS

1. In a libel of information for the forfeiture of property, under the Act of Congress of July 17, 1862, entitled "An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," for certain offenses charged against the owner, his alleged criminality lies at the foundation of the proceeding, and the questions of his guilt and ownership are fundamental in the case.

2. The owner of property for the forfeiture of which a libel is filed under the act above mentioned is entitled to appear and to contest the charges upon which the forfeiture is claimed although he was at the time of filing the libel a resident within the Confederate lines and a rebel, and he can sue out a writ of error from this Court to review any final decree of the court below condemning his property.

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." This act provided for the seizure and confiscation of the property of persons holding certain offices or agencies under "the Confederate States," and of persons engaged in the rebellion then existing or aiding or abetting such rebellion who should not cease to aid, countenance, and abet such rebellion within sixty days after public warning chanrobles.com-red

Page 78 U. S. 260

and proclamation by the President and return to their allegiance to the United States. The act contains numerous sections. They are set forth with fullness in a case which was decided soon after this one and which is reported next to it, Miller v. United States, the leading case on the Confiscation Acts, and in which, rather than in this one where the main subjects were hardly reached, the provisions of the statute are inserted. To understand the present case, it is indispensable that the reader be possessed of the nature of that statute, and of its provisions. He will therefore have the goodness to turn forward to page 78 U. S. 269, and to read from the words, beginning with an "*", "The Act of July 17, 1862, contains fourteen sections," on that page, to the words on page 78 U. S. 273, beginning with a "**", "In order to carry out these acts," after which he will resume his reading here.

With this statute in force the United States filed a libel of information in the district court for the District of Virginia, for the forfeiture of certain real and personal property of one William McVeigh, situated in Virginia. The information was in form against "all the right, title, and estate of William McVeigh in and to all that certain piece, parcel, or lot of land," &c., describing it particularly.

The libel alleged that subsequent to July 17, 1862, the said McVeigh held and exercised an office and agency of honor, and trust, and profit, under the government of the Confederate states, and under one of the states of said Confederacy, and that he accepted the appointment, and was elected to the office and agency after the date of the ordinance of secession of said state; and that he took an oath of allegiance to and to support the Constitution of the Confederate states; and that since July, 1862, he had assisted and given aid and comfort to the rebellion, and to those engaged in the rebellion, by acting on the 18th of July, 1862, and at various times subsequently as a soldier, and as an officer, and as a noncommissioned officer in the army and navy of the Confederate states; and by contributing money and property to the aid and encouragement of those engaged in the rebellion. The libel was afterwards amended so as chanrobles.com-red

Page 78 U. S. 261

to charge, in addition to the above offenses, that McVeigh, on the 18th of July, 1862, was engaged in armed rebellion against the government of the United States, and notwithstanding the President, on the 25th of July, 1862, issued his proclamation warning all persons thus engaged to cease participating in aiding, countenancing, and abetting such rebellion, the said McVeigh did not within sixty days thereafter cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States.

McVeigh appeared by counsel, made a claim to the property, and filed an answer. This answer was not contained in the record, and nothing of its contents appeared except what was stated in the order of the court made on the motion of the attorney of the United States.

The attorney of the United States, however, moved that the claim, answer, and appearance be stricken from the files, as it appeared from the answer filed, that at the time of filing it the party was "a resident of the City of Richmond, within the Confederate lines, and a rebel." The court granted the motion. Subsequently the default of all persons was taken, and a decree was rendered for the condemnation and sale of the property. The case was carried to the circuit court, and there the decree was affirmed. It was now brought here on writ of error. chanrobles.com-red

Page 78 U. S. 266

MR. JUSTICE SWAYNE delivered the opinion of the Court.

This is a writ of error to the Circuit Court of the United States for the District of Virginia.

The defendants in error filed in the District Court of the United States for that district a libel of information, under the Act of July 17, 1862, to reach, for the purposes of forfeiture and sale, certain real and personal property of McVeigh, a description of which is fully set forth. The original libel was the same, mutatis mutandis, as that in the case of Garnett, claimant of certain real estate, against the United States. [Footnote 1] An amendment was subsequently made, whereby a farther charge was alleged of the offense defined in the sixth section of the act. The plaintiff in error appeared by counsel, interposed a claim to the property, and filed an answer. The attorney of the United States submitted a motion, that the appearance, answer, and claim should be stricken from the files, for the reasons that the respondent was "a resident of the city of Richmond, within the Confederate lines, and a rebel." An order was made according to the motion. Subsequently a decree pro confesso was taken. The property was condemned as forfeited, and ordered to be sold. The circuit court upon error affirmed the decree, and the case is now before us for review.

It is objected that McVeigh was incompetent to sue out this writ of error. His alleged criminality lies at the foundation of the proceeding. It was averred in the libel that he was the owner of the property described, and that he was guilty of the offenses charged, which rendered it liable to forfeiture. The questions of his guilt and ownership were therefore fundamental in the case. The notice by publication was given to bring him constructively before the court. It was in the nature of the substituted service of process. If he failed to appear, his absence and silence could not affect the validity of the proceedings. After the decree, pro confesso, he occupied the same relation to the record as a chanrobles.com-red

Page 78 U. S. 267

defendant against whom a judgment by default has been taken. The case is wholly unlike a proceeding purely in rem, where no claimant is named, and none appears until after the final decree or judgment is entered, and the case has terminated. We entertain no doubt that the plaintiff in error had the right to sue out the writ, and that the record is properly before us for examination.

In our judgment, the district court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion, our opinion will be confined to that subject. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there, he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice. [Footnote 2]

Whether the legal status of the plaintiff in error was, or was not, that of an alien enemy, is a point not necessary to be considered, because, apart from the views we have expressed, conceding the fact to be so, the consequences assumed would by no means follow. Whatever may be the extent of the disability of an alien enemy to sue in the courts of the hostile country, [Footnote 3] it is clear that he is liable to be sued, and this carries with it the right to use all the means and appliances of defense. In Bacon's Abridgment, [Footnote 4] it is said: "For as an alien may be sued at law, and may have process to compel the appearance of his witnesses, so he may have the benefit of a discovery." chanrobles.com-red

Page 78 U. S. 268

The judgment of the district court is reversed and the cause will be remanded to the circuit court with directions to proceed in it in conformity to law.

[Footnote 1]

See supra, 78 U. S. 256.

[Footnote 2]

Calder v. Bull, 3 Dall. 388; Bonaker v. Evans, 16 Adolphus & Ellis N.S. 170; Capel v. Child, 2 Crompton & Jervis 574.

[Footnote 3]

Clarke v. Morey, 10 Johnson 69; Russel v. Skipwith, 6 Binney 241.

[Footnote 4]

Title Alien, D see also Story's Equity Pleadings § 53; Albrecht v. Sussmann, 2 Vesey & Beams 323; Dorsey v. Kyle, 30 Md. 512, 522.