William Strong

“ And is it not as important to take from them the sinews of war, their property, as it is to confiscate the property of rebel enemies resident within the rebel territory? It is hard to conceive of any reason for confiscating the property of one class that does not equally justify confiscating the property of the other. We have already said that no recognized usage of nations excludes from the category of enemies those who act with, or aid or abet and give comfort to enemies, whether foreign or domestic, though they may not be residents of enemy's territory. ”

“ Can it be that the government may seize credits and corporation stocks of public enemies in those States where provision is made by State legislation for modes of seizure of such property, but may not seize similar property of the same enemies in other States where there are no such statutes? There is, however, such a thing as seizure of corporation stocks in Michigan on final process, effected by service of a copy of the writ on an officer of the corporation, and similar modes of seizure are in use in most, if not in all, the States. Garnishment almost everywhere exists. ”

“ It is argued, however, that the enactments were for the confiscation of property of rebels, designated as such, and that the law of nations allows confiscation only of enemy's property. But the argument overlooks the fact that the rebellion then existing was a war. And, if so, those engaged in it were public enemies. The statute referred exclusively to the rebellion then in progress. Whatever may be true in regard to a rebellion which does not rise to the magnitude of a war, it must be that when it has become a recognized war those who are engaged in it are to be regarded as enemies. ”

“ 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. ”

“ Therefore Congress passed the act of July, 1862, directing the President to exercise this right, and directed in express terms that the property seized should be 'condemned as enemy's property,' &c. The fact, therefore, that a statute provided for the confiscation, has no more tendency to show that it was a municipal proceeding, than an act of Congress declaring war would. Legislation is only an expression of the sovereign will, and so the character and effect of it must depend upon the nature of the subject upon which it acts, and not upon the fact that it is embodied into a statute. ”

“ These are, indeed proceedings to compel appearance, but they are, nevertheless, attachments or seizures, bringing the subject seized within the control of the court, and what is of primary importance, they show that, in admiralty practice, rights in action, things intangible, as stocks and credits, are attached by notice to the debtor, or holder, without the aid of any statute.
It was in this mode, known to the courts, and dependent on no statute, that the marshal seized the stock of the plaintiff in error. It is impossible for us to hold that his act was no sufficient seizure. ”

“ It is ever a presumption that inhabitants of an enemy's territory are enemies, even though they are not participants in the war, though they are subjects of neutral states, or even subjects or citizens of the government prosecuting the war against the state within which they reside. But even in foreign wars persons may be enemies who are not inhabitants of the enemy's territory. ”

“ An assertion of control, with a present power and intent to exercise it, is sufficient. We are told there is no statute in Michigan that authorizes the service of mesne process upon a corporation for the attachment of its stock. Be it so. That does not show that stocks cannot be seized or attached when Congress orders a seizure. Federal officers and Federal courts are not dependent upon State legislation for power to lay hold of property. ”

“ 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 effect of a default to appear in an admiralty or a revenue proceeding is ordinarily the same as in other actions at law. It is a virtual confession. In Benedict's Admiralty, [40] the practice in proceedings in rem is stated to be, if no one appears in response to the proclamation for all persons having anything to say why the property should not be condemned to come forward and make their allegations in that behalf, that, on motion of the libellant's proctor, the defaults are entered, and a decree of condemnation and sale is made on a brief statement by the proctor of the cause of action. ”

“ 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. ”

“ Hence the acts are not valid, because not in conformity with the provisions of the Constitution, the 5th and 6th amendments to which ordain that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury; that no person shall be deprived of his property without due process of law; and that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed. ”

“ In all cases where the garnishee is a debtor, or where the garnishment is of stocks, it is effected by serving notice upon the debtor, or corporation. A corporation holds its stock, as a quasi trustee, for its stockholders. The service of an attachment, though it is but a notice, binds the debt or the stock in the hands of the garnishee, from the time of the service, and thenceforward it is potentially in 'gremio legis.' The statute declares that proceedings to confiscate shall conform, as nearly as may be, to proceedings in admiralty or revenue cases. ”

“ The laws of nations nowhere declare the contrary. And it would be strange if they did, for those not inhabitants of a foreign state may be more potent and dangerous foes than if they were actually residents of that state. By uniting themselves to the cause of a foreign enemy they cast in their lot with his, and they cannot be permitted to claim exemptions which the subjects of the enemy do not possess. ”

“ Nor can this court, upon a writ of error, which must be founded upon the record, consider in any case whether there was too little, or no evidence at all before the court below. [29] The evidence in a common law cause never becomes a part of the record, even if all be in the form of depositions, save when it is referred to in order to raise questions of competency, not sufficiency. If a court, in an actual trial, with both parties before it, should find for the plaintiff, without any evidence, there would be no redress on error, without a statement made in the record that such was the fact. ”

“ It is justified by nothing in the record. True, a seizure under order of the President was necessary to warrant the institution of judicial proceedings for confiscation, and it may be, therefore, a proper inquiry whether what the marshal did under the executive order amounted to such a seizure. But the marshal's return to the judicial warrant, and his report to the district attorney, speak of distinct transactions, occurring at different times and under different directions. ”

“ And they are not the less such because they are also rebels. They are equally well designated as rebels or enemies. Regarded as descriptio personarum, the words 'rebels' and 'enemies,' in such a state of things, are synonymous. And, if this is true, it is evident the statute, in denominating the war rebellion, and the persons whose property it attempts to confiscate rebels, may, at least, have intended to speak of a war and of public enemies. ”

“ 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. ”

“ But waiving this point, if the proceedings are not absolutely void, the judgment is conclusive, and if they are void, the remedy for persons not before the court as a party is not by writ of error, but by suit for his property. ”

“ The second assignment of error cannot, therefore, be sustained.
The third assignment is, that as the proceedings related to seizure on land the case was one of common law jurisdiction, and there should have been a trial by jury; and we are referred to Union Insurance Company v. United States, [46] Armstrong's Foundry, [47] and other kindred cases. But in this cause there was a default. After the default there was no fact to be ascertained. The province of a jury in suits at common law is to decide issues of fact. When there are no such issues there can be nothing for a jury to try. ”

“ If, as a legislator, he publishes a law ordaining punishment for certain offences, which law is to be applied by courts, the nature of the law and of the proceedings under it will decide whether it is an exercise of belligerent rights or exclusively of his sovereign power ”

“ It is not good or bad, as there may or may not be ground for belief that it carried actual notice to the claimant. Justice could not be administered on such a principle. The only redress (when there is any) in cases of hardship, is an appeal to the discretion of the court, to open the default-not by writ of error. ”

“ 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 ”