would be eminently proper for the sovereign to withhold his permission; but Congress did not legislate with reference to such a state of things. It would be a severe rule of interpretation that would exclude all British subjects from the court of claims, because in a few sporadic cases, from motives of state policy, the petition of right was denied. And we cannot impute to the legislature an intention that would produce such a result, in the absence of an express declaration to that effect. Evidently Congress meant to confer on the British subject the right to sue in the court of claims under the act relating to captured and abandoned property, if in the ordinary course of the administration of justice in England, the law secures to the American citizen the right to prosecute his claim against the government in its courts. That the petition of right accomplishes this object, cannot admit of question. If the mode of proceeding to enforce it be formal and ceremonious, it is, nevertheless, a practical and efficient remedy for the invasion, by the sovereign power, of individual rights. Indeed, it is not less practical and efficient than a suit in the court of claims. And in one important particular the two proceedings are alike, for both end with the recovery of the judgments. After they are obtained, it depends in England on the Parliament and in this country on Congress, whether or not they shall be paid.

We all agree that O'Keefe had the right to bring his action in the Court of Claims, and the judgment of that court is, therefore, affirmed.

A money judgment cannot be rendered against the United States in any Federal court, except the court of claims.

The Comptroller of the Currency has no authority to submit the rights of the government to liti gation in any court, without some provision of law authorizing him to do so.

If the government is liable on contract, the court of claims has jurisdiction, and no other court has. Where the only substantial relief, asked by a bill in the circuit court or granted by the decree, is against the United States, the decree will be reversed, with directions to the court below to dis

miss the bill.

[No. 105.]

Argued Mar. 7, 1871. Decided Apr. 3, 1871. PPEAL from the Circuit Court of the United States for the District of Louisiana. The history and facts of the case sufficiently appear in the opinion of the court.

Messrs. Amos T. Akerman, Atty. Gen., C. H. Hill, Asst. Atty. Gen., and B. H. Bristow, Solicitor Gen. for appellants:

Neither the Comptroller nor the receiver was

authorized, by entering his own appearance or that of the United States, to give to the circuit court jurisdiction of the questions presented in this bill.

The circuit court of the United States for the district of Louisiana having no jurisdiction of this case, it results that the case must be reversed and remanded, with directions to dismiss. Hornthall v. The Collector, 9 Wall. 560, 19 L. ed. 560; Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540.

Messrs. J. A. Campbell, Henry B. Kelley, and D. G. Campbell, for appellees.

*Mr. Justice Miller delivered the [*201 opinion of the court:

This is a suit in chancery, brought in the circuit court for the district of Louisiana, by certain creditors of the First National Bank of New Orleans, against Charles Case, receiver of said bank, H. R. Hurlburd, Comptroller of the Currency, Thomas P. May, and G. P. Beauregard, citizens of Louisiana.

The prayer for relief is that the debt of the United States against the bank be ascertained; that they, the United States, be charged with certain sums and required to account for them, and that a writ of injunction issue, restraining the Comptroller from making a dividend of the funds of the bank until this account be adjusted.

The final decree, besides making a general order on the Comptroller to distribute the funds of the bank in his hand ratably among its creditors, as the law directs, decrees against the United States in favor of the creditors of the bank, for the sum of $206,039.91, and that no claim of the United States shall have any priority in the distribution of the funds of the bank, except as to the bonds pledged to secure its circulation.

It is seen, from the bill and decree, that while the United States was not made a defendant, and while it is well settled that it could not be sued in the court below, the only relief prayed by the bill was relief against the United States, and the only decree rendered which was not merely formal, was a decree against the United States for over $200,000, and a further decree barring the right to assert her priority as a creditor of the bank in the distribution of its funds.

It is strange that in any court professing to administer the English system of equitable jurisprudence such a decree could be rendered against any one not made a party to the suit, and who had in no manner appeared in the case; and it is almost incredible that in any Federal court of this Union, except the court of claims, a moneyed judgment could be rendered against the United States.

The contrary has been so repeatedly decided that it is a waste of time to reargue the proposition, which will be found fully asserted in the recent case of De Groot v. United States, 5 Wall. 419, 18 L. ed. 700; United States v. Eckford, 6 Wall. 484, 18 L. ed. 920; The Siren, 7 Wall. 152, 19 L. ed. 129, and The Davis, 10 Wall. 15, 19 L. ed. 875. In the case of United States v. Eckford it was held that, although in a suit in which the United States was plaintiff, a set-off could be pleaded and allowed; yet no judgment could be rendered for a balance found to be due to the defendant by the ver

diet of the jury, either in the circuit court, where the case was tried, or in the court of claims, where suit had been brought on the verdict. It is true, that in the last two cases cited above it was held that in a case in admiralty, where the res was rightfully before the court, and was taken into possession by its officer without the necessity of suit or process against the United States, it could be subjected to certain maritime liens, though the ownership was in the government. But in these cases the government came into court of its own volition to assert its claim to the property, 202*] *and could only do so on condition of recognizing the superior rights of others.

We are quite at a loss to know on what principle the jurisdiction in the present case is asserted, for the briefs for the appellees are devoted wholly to the merits of the controversy. But we must suppose that it is claimed on the ground that the receiver and comptroller, both of whom appeared and answered the bill, represent the United States, and can subject the government to the jurisdiction of the court.

As to the receiver, the claim, if any such be made, is not worth serious consideration. He represents the bank, its stockholders, its creditors, and does not in any sense represent the government.

Nor can such authority be conceded to the Comptroller of the Currency. It may very well admit of doubt whether it is within his competeney to submit himself, in the exercise of duties specially confided to him by acts of Congress, to the control of the courts, and especially of those which can assert no such jurisdiction by reason of their territorial limits. We are not called upon here to decide this question. But we have no hesitation in holding that, however he may submit himself to the jurisdiction of those courts and consent to be governed in his official action by their decrees so far as they affect rights of parties who may come into court and be impleaded in the same suit, he has no authority to subject the United States to such jurisdiction, and to submit the rights of the government to litigation in any court, without some provision of law authorizing him to do so. There is no analogy in the case before us to suits against officers of the customs or of the internal revenue to recover for illegal assessments or collections of taxes or duties, for they are suits against the officer for a tort or for money had and received, and when a judgment is rendered against him the government protects him by paying it, because the money was received for its use. But this is by virute of statute, and the mode of proceeding is pointed out and well defined, and the remedy is limited to cases where the mode is strictly pursued.

203*] *In the answer filed for the Comptroller in this case he says, or is made to say (for it is neither signed nor sworn to by him) that he "submits, on behalf of the United States, to the decision of the court the claims of the United States to priority of payment over the alleged claims of the creditors of said bank that are not disputed."

We have already said that the Comptroller has no power to subject the United States to such jurisdiction.

But he here seems only to submit the question of the government's claim to priority of

payment, while the court not only decides against this priority, but renders a further decree requiring repayment of money had and received from the bank, and the payment of money which the United States is supposed to have assumed to pay in a contract with private parties not before the court. If the government is liable to the bank or its receiver or its creditors, for either of these claims, it would seem that it would be, in the first case, on an implied contract for money had and received; and n the second, on the express contract to pay as alleged. When such liability is denied, or payment is refused, the court of claims has jurisdiction, and no other court has. The United States cannot be subjected to litigation growing out of its relations to these banks in all the various courts in which their affairs may be the subject of judicial controversy.

But it is useless to pursue the matter further. The only substantial relief asked by the bill or granted by the decree, is against the United States. The manifest purpose of the proceeding was to subject the government to a tribunal which could rightfully exercise no jurisdiction in the premises. It was no party to the suit, nor did any party represent its interests who had authority to bind it.

The decree of the Circuit Court is reversed, with directions to that court to dismiss the bill.

NATHANIEL M. PAGE, Exr. of Samuel Miller, Deceased, Plff. in Err.,

บ.

UNITED STATES.

(See S. C. "Miller v. U. 8." 11 Wall. 268-331.) Confederate citizen may sue out writ of errorseizure by serving notice-presumption of jurisdiction-when default warrants a decreeconfiscation acts constitutional-in civil war, property may be confiscated-who are enemics.

In a proceeding under the acts of Congress of Aug. 6, 1861, and July 17, 1862, to confiscate shares of stock in corporations. the property of a confederate citizen, an inhabitant of the United States, the owner may sue out a writ of error to bring the case to this court.

The marshal's return to the warrant that he had seized the property, and that he then held it subject to the further order of the court, made the jurisdiction of the court over it complete.

A seizure of the stock "by serving a notice of said seizure personally upon the vice-president or president of a company,' was a sufficient seizure. The government may seize credits and corporation stocks of public enemies, in those states where no provision is made by state legislation for modes of seizure of such property.

In courts of limited jurisdiction, the presumption is that the court, having jurisdiction and having entered a judgment, did everything that was necessary to warrant the entry of the judgment.

In revenue cases, as in admiralty, default entered establishes facts averred in the libel or information, and warrants a decree of condemnation, if the information contains the necessary averments.

After a default in such cases, a trial by jury is unnecessary.

mate exercise of the war power, and are constituSaid acts, authorizing confiscation, were a legititiona!.

The right to confiscate exists in full force, when

the war is domestic or civil.

In the case of a civil war, those are to be regarded and may be treated as enemies, who, though subjects or citizens of the lawful government, are residents of the territory under the power or control of the party resisting that government, and their property may lawfully be confiscated.

error.

The case is stated in the opinion of the court. Messrs. B. R. Curtis, Wm. P. Wells, and Samuel T. Douglas, for plaintiff in error: 1. There was no such seizure in this case as would give the court jurisdiction to proceed and condemn the property.

The return is 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 & Northern Indiana Railroad, and President of the Detroit, Monroe, & Toledo Railroad. Charles Dickey, Marshal, etc."

This is a proceeding in rem.. The acts of Congress, under which it is instituted, provide that property seized under these laws may be condemned in the district court, and that the proceedings shall be in conformity to admiralty or revenue cases, as nearly as may be. The libel in this case proceeds under both the acts, and alleges offenses under both, as grounds of forfeiture of the property. The district attor ney in respect to the seizure, chose to conform to revenue cases, and endeavored, as is usual in revenue cases, to effect a seizure, before filing the libel. In these cases the preliminary seizure brings the res within reach of the process of court, if a good seizure is made. In the case at bar no seizure was made upon the warrant of arrest issued upon the filing of the libel, other than the previous seizure.

In admiralty or revenue proceedings in rem, seizure is made necessary to give the court jurisdiction.

The Ann, 9 Cranch, 289; Taylor v. Carryl, 20 How. 599, 15 L. ed. 1034; The Washington, 4 Blatchf. 101.

The acts of Congress expressly require seiz

ure.

Act August, 1861, § 1; act July, 1862, § 5. In proceedings in rem, in admiralty or revenue cases, the res must be actually or constructively within the possession of the court. Ben. Adm. Pr. § 434.

There must be an arrest of the res. Betts, Adm. Pr. 32; Adm. Rule 29 of Supreme Court. Attachments in rem are served by actual levy upon the property. Dunl. Adm. Pr. 133, ch. IV. The Process.

The possession must be actual, open and vis

ible.

See Taylor v. Carryl, ubi supra, and the

other cases cited above; also The Silver Spring, 1 Spr. 551.

In two cases, Chief Justice Marshall has stated the rule as to notice in proceedings in Where they are in rem, notice is served upon the thing itself.

rem.

The Mary, 9 Cranch, 144; Mankin v. Chandler, 2 Brock, 127; Rose v. Himely, 4 Cranch, 277. The property consisted of stock in two corporations. No actual seizure of it could be made by the marshal.

See Haley v. Reid, 16 Ga. 437; U. S. v. 1756 Shares of Stock, 5 Blatchf. 231.

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. 2 Comp. L. of Mich. 1213, 1214.

But if he had made a seizure upon the warrant, and there had been no valid seizure before the libel was filed, the court had no jurisdiction. The Washington, 4 Blatchf. 101.

There was no such hearing and proof in this case as are necessary to a valid decree.

The decree shows that the counsel for the government treated the case as one of default. We say, then, no valid default was entered. Adm. Rule of Supreme Court.

The record does not show that the court pronounced a default, nor was the libel adjudged to be taken pro confesso.

If a valid default had been entered, there should have been a hearing, and the government should have proved its case. Adm. Rule 29; U. S. v. The Lion, 1 Spr. 399.

If a hearing was necessary, what should the government have proved?

It should have proved the seizure, and a seizure made previous to the filing of the libel. The return by the marshal, of a seizure, upon the warrant, is not sufficient.

The Washington, 4 Blatchf. 101; The Silver Spring, 1 Spr. 551.

It should have proved some offense under the acts of Congress.

As the proceedings related to a seizure on land, the case is one of common law jurisdiction, and there should have been a trial by jury.

Union Ins. Co. v. U. S. 6 Wall. 760, 18 L. ed. 879; Armstrong's Foundry, 6 Wall. 766, 18 L. ed. 882; U. S. v. Hart, 6 Wall. 770, 18 L. ed. 914.

The acts of Congress in question were enacted in the exercise of the sovereignty of the government over the whole people of the United States, and not in the exercise of its rights as a belligerent under the law of nations. Hence, the acts are not valid, unless they are in conformity with the Constitution.

The 5th and 6th Amendments of the Constitution of the United States, contain restrictions upon legislative power. So far as they are material to this case, they are in the 5th Amendment, that no person shall be held to answer for a capital or otherwise infamous offense, save on indictment or presentment by a grand jury; that no person shall be deprived of his property, save by due process of law; and in the 6th Amendment, that in all criminal prosecutions, the accused shall be entitled to a speedy and public trial by an impartial jury, in the state or district where the offense was committed.

The proceedings now before you had for their object, in point of fact, to deprive a citizen of his property, of all his property; and to deprive him of it by reason of a criminal offense, defined and punished by death, fine or imprisonment, by force of the same act of July 17,

1862.

This is necessarily true only in point of fact. It may be that this legislation was founded on other provisions of the Constitution. The powers contained in the Constitution, which I suppose will be relied on here, as the sources of authority for this legislation, are the powers to declare and prosecute war, to subdue insurrection, and to make rules concerning captures on land and water. They are what have been termed the "war powers" of the government. These war powers are, by the Constitution itself, not expressly restricted. They are restricted from the very designation and nature of the powers themselves which are granted. A power to prosecute war, granted in that great instrument, is a power to prosecute it according to the laws of nations, not in violation of the laws of nations.

It was laid down by this court in the case of Brown v. U. S. 8 Cranch, 110, that it is competent for Congress to capture and to confiscate the whole or any part of the property of enemies, under the laws of nations. But this has nothing to do with criminals who are enemies. They are permanent inhabitants of the enemy's country.

When Congress comes to penal legislation, it is not dealing with inhabitants of the enemy's country as such, or their property, because they are such inhabitants. It is dealing with certain overt acts, which have been done against the Sovereignty of the United States, amounting to offenses defined and punished in the laws of the United States. Then Congress does legislate under the restrictions which are contained in these 5th and 6th Amendments.

Then Congress cannot require that any per son should answer for a capital or otherwise infamous offense, without an indictment; or that he can be prosecuted criminally, except before an impartial jury in the state and district where the offense was committed, or that he can be deprived of his property without due process

of law.

This act of July 17, 1862, is "An Act to Suppress Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for Other Purposes." So much of this act as undertakes to punish treason and Rebellion, and to seize and confiscate the property of rebels the court has to do with in these

cases.

The 2d section of this act creates offenses which were unknown to the law of the United States before its date. The offense of "giving aid and comfort to the existing Rebellion" (12 Stat. at L. 590), it makes an offense, and provides for its punishment by imprisonment. Thus far Congress has been legislating by virtue of its municipal authority to create penal laws. Then follow the provisions which carry into effect that part of the title of the act which I have read, "to seize and confiscate the property of rebels," not of enemies. Then the act proceeds to define what is meant by rebels, namely: they who have committed treason; they who

have given aid and comfort to the Rebellion, they, who, being, according to the 7th section, engaged in the Rebellion at a certain date, shall not return to their allegiance within sixty days after a proclamation to be issued by the President.

It is not confined to enemies; it is applicable to those persons, and to all those persons, who have done certain overt acts which are described and made punishable by the law.

The 6th clause of the 5th section says:

"The property 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," is to be forfeited. Captain Semmes was an inhabitant of Maryland, and never ceased to be so. He was never an enemy, within the meaning of the laws of nations, as this court has applied that word, for he was never an inhabitant of the rebel states. He was a traitor and a pirate under the statute law of the United States, but not an enemy.

Here is this section which forfeits the property of any person, no matter where he resides, who owns property in the District of Columbia, or any one of the loyal states, upon the ground that he has committed a crime defined and punished by this law. Is such a forfeiture as that, a forfeiture under the laws of nations? It is a forfeiture under this municipal law, and under this only.

Now look, if your Honors please, at the 7th section, and these are the two which are in question in these cases:

"That if any person within any state or territory of the United States other than those named as aforesaid" (that is, other than the loyal states).

"After the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such Rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, counsel and abet such Rebellion, and return to his allegiance to the United States," all his estate shall be forfeited. This, as I have said of the other provision, is directed against all persons of whatever State they may be inhabitants, and without any regard whatever to the question whether they are enemies within the laws of nations and the decisions of this court or not.

This, then, is a law which begins by punishing treason, which advances to the definition of a new offense, namely: giving aid and comfort to the Rebellion; which punishes that by fine or imprisonment or both, at the discretion of the court; and then it proceeds further and infiicts the forfeiture of all property of all persons who give aid or comfort to the Rebellion; and why is not this last just as much a punishment as the fine which is mentioned in the 20 section that defines the offenses?

This argument is greatly strengthened by what followed the enactment of this law by Congress.

In the Joint Resolution explanatory of "An Act to Suppress Insurrection, to Punish Treason and Rebellion, to Seize and Confiscate the Property of Rebels, and for Other Purposes," is this clause:

claimant of the property need not have been named.

A "forfeiture" of the estate of the "offender." What have these terms to do with the appropriation of enemies' property under the laws of nations? They are strictly and exclusively applicable to punishment for crime.

There has been before this court at a former term, the case of Armstrong's Foundry, 6 Wall. 766, 18 L. ed. 882. That was a proceeding against particular property which had been placed in an illegal predicament with the consent of the owner. Before the final judgment of forfeiture was rendered in this court, Armstrong was pardoned. It was declared by this court that even in that case, the intention of | Congress was to forfeit the property as a punishment for an offense committed by the owner. in devoting his property to such a use; and that, therefore, a pardon which condoned all offenses, and this. amongst others, relieved the property from the claim of the government.

How much stronger is the case now before the court, where the proceeding is not against an offending thing, but against the property of a person because he has committed a crime.

That this offense of giving aid and comfort to the Rebellion is punished by this law by a fine of $5,000, imprisonment for five years, inability or disqualification to hold any office of honor or trust under the United States, and forfeiture of all property; that this is an infamous offense within the meaning of the Constitution, will hardly be denied. That this is a criminal prosecution within the meaning of the Constitution, if it be not legislation exclusively directed against enemies' property within the scope of the war power of the government, as I have endeavored to explain it, also cannot be denied. Here is a charge of crime, and here is a forfeiture of all property by reason of his guilt of that crime, to be enforced by this proceeding.

It is equally clear that this is not due process of law, within the meaning of the Constitution. In the heat of the Revolutionary War, acts of confiscation were passed; ex post facto laws were passed; bills of attainder were passed, etc. But it was the very excesses into which our ancestors had run during that heated time, which caused the framers of the Constitution of the United States to insert restrictions into it, that no ex post facto law should be passed; that no bill of attainder should be passed; that no man should be deprived of his property save by due process of law.

Messrs. Hoar and Akerman, Attys. Gen., and B. H. Bristow, for defendants in error, and Geo. F. Edmunds, for the purchasers of the property:

As a preliminary question we submit, that the plaintiff in error is not entitled to bring up the record, or to any standing in this court. The statute providing for the seizure of the property, in the prosecution of the war, did not proceed against the property of any particular rebel or enemy, but against the property of any and all enemies.

The suit was in rem against the property, and not in personam against the owner.

In accordance with the course of procedure

It is believed that no instance can be found before these, of an appeal or a writ of error being brought even, much less sustained, in a cause in rem, by any person who was not a claimant in the court below, except under the English Act of 1797 (38 Geo. III. ch. 38, § 2), which was enacted to give persons interested a right of appeal in prize cases, where they had not appeared and become parties, a privilege which, without the statute, they did not pos

sess.

All the analogies of the law are perfect in support of this result. See proceedings in equity upon bills taken pro confesso.

Owner of land cited as terre-tenant in ejectment, and not appearing. Connor v. Peugh's Lessee, 18 How. 394, 15 L. ed. 432; Palmer's H. of L. Pr. 140.

Persons in interest attempting to intervene. Payne v. Niles, 20 How. 219, 15 L. ed. 895.

While it is no doubt true, in respect to the conclusiveness of a judgment in rem, that all the world are parties, and have an opportunity to assert their rights and to appeal, the only method of such security is by appearing and making claim in the cause dum ferret lis.

And it is no excuse to say one did not have notice in fact, and so could not appear. The law does and must, conclusively, impute notice to all persons.

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 information alleges, in substance, that Samuel Miller was a public enemy; a rebel citizen, residing in the state of Virginia; that he was the owner of the shares of railroad stock named in the libel; that he employed and used the same in aid of the enemy; that owning this stock, situated in a loyal state, he had assisted and given aid to the Rebellion against the government.

The information also alleged that the property of Miller, proceeded against, was part of the capital stock (particularly describing it) of two corporations, created under the laws of, and located and existing in, the state of Michigan, and that the property was within the jurisdiction of the court.

It further alleged the facts recited as causes of confiscation in section 6 of the act of August, 1861. 12 Stat. at L. 319.

It then proceeded further to allege that various causes of seizure and confiscation provided. by the act of July 17, 1862 (12 Stat. at L. 590, 591); and the proclamation of July 25 (12 Stat. at L. 1266); and the seizure of the property by the marshal, under the direction of the President, and his holding it for confiscation and to pray a decree of confiscation and forfeiture to the United States, with directions for the disposition of the property and proceeds, and for process, monition, etc.. all in strict substantial analogy to the practice in admiralty and revenue cases, as directed by the act. The information is sufficient.

The property was within the district where it was seized and proceeded against. The cor