Bigelow v. Forrest
ERROR to the Supreme Court of Appeals of Virginia, the case being this:
Congress, by an act commonly called the Confiscation Act, passed July 17th, 1862,  during the late rebellion, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' after enacting that treason should be punished with death, provides:
'Section 5. 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 . . . of the persons hereinafter named, and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.'
This 5th section proceeded to name six classes of persons whose property should be liable to seizure, and first among them:
'Any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States.'
And the last clause of it enacts that
'It shall be a sufficient bar to any suit brought by such person for the possession or use of such property, . . . to allege and prove that he is one of the persons described in this section.'
The act proceeds:
'Section 7. That to secure the condemnation and sale of any such property, after the same shall have been seized, so that it shall 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 any Territorial court, within which the . . . property above described may be found; . . . which proceedings shall conform, as nearly as may be, to proceedings in admiralty or revenue cases; and if said property . . . shall be found to have belonged to a person engaged in rebellion, . . . the same shall be condemned as enemies' 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.
'Section 8. That the several courts aforesaid shall have power to make such orders, establish such forms of decree and sale, and direct such deeds and conveyances to be executed and delivered by the marshals thereof, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of this act, and vest in the purchasers of such property good and valid titles thereto.
'Section 14. That the courts of the United States shall have full power to institute proceedings, make orders, and do all other things necessary to carry this act into effect.'
By the latter clause of a 'joint resolution explanatory'  of this act, passed on the same day with it, it was resolved by Congress that no punishment or proceedings under the act should be 'so construed as to work a forfeiture of the real estate of the offender beyond his natural life.'
It was a part of the history of this legislation of July 17th, 1862, that the then President, Mr. Lincoln, immediately after the passage of the act by both houses of Congress, had prepared the draft of a message objecting to provisions that might result 'in the divesting of title forever,' and suggesting or showing that the bill, as Congress had passed it, was in conflict with that clause of the Constitution, which ordains that 'no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted;'  that before his message was presented to Congress, the joint resolution, above quoted, was passed to remove his objections; and that the President, in a message of July 17th, 1862, mentioned, that before he was informed of the resolution, he had prepared the draft of a message, stating objections to the bill becoming a law; a copy of which draft he submitted; and also mentioned that, considering that act of Congress, and the joint resolution explanatory thereof, as substantially one, he approved and signed both.
Under this act, above quoted, as appeared by a case agreed on and stated, in the nature of a special verdict, the District Attorney of the United States for the Eastern District of Virginia, in September, 1863, caused a tract of land in the eastern part of Virginia, of which a certain French Forrest (a person acting as an officer of the navy of the socalled Confederate States, from July 1st, 1862, to April, 1865, and thus one of the persons described in the 5th section of the above quoted act), was seized and possessed in fee, to be seized. A libel was afterwards, on the 9th November in the same year, filed on behalf of the United States, in accordance with the act, in the District Court of the district just named, 'against all the right, title, and interest, and estate of the said French Forrest, in and to the said tract of land.' The said libel proceeded to judgment in accordance with the act, and on the 9th of November, 1863, an order of condemnation was made by the court, by which it was decreed that the clerk should issue a venditioni exponas to the marshal, and that the property described in the libel be sold by the marshal of the district, for cash, to the highest bidder, and that he execute a deed to the purchaser for the same.
In pursuance of the decree the land was publicly sold, and knocked off on the 10th July, 1864, to one Buntley, to whom the marshal made a deed reciting the renditioni. Buntley's rights under the sale became afterwards vested in a certain Bigelow. Forrest died intestate November 24th, 1866, and his only child and heir-at-law, Douglass Forrest-whom the cases agreed on stated was 'one of the persons described in said section 5th, that is to say, who acted as an officer of the army and navy of the so-called Confederate States, from and after the passage of the said act till April, 1865.'-brought an action of ejectment, on the 1st of April following, in the Circuit Court of Fairfax County, one of the State courts of Virginia, against Bigelow, to recover the land, averring seizure in himself on the 1st of January, 1867.
The defendant having pleaded to issue, on the 8th day of November, 1867, filed his petition for the removal of the cause into the Circuit Court of the United States, under the provisions of the 5th section of the act of Congress of March 3d, 1863,  entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases.'
This act thus provides:
'Section 4. That any order of the President or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest or imprisonment made, done, or committed, or acts omitted to be done under and by virtue of such order or under color of any law of Congress.
'Section 5. That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress; and the defendant shall . . . in the court in which such suit or prosecution is pending file a petition, stating the fact verified by affidavit, for the removal of the cause for trial at the next Circuit Court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, &c., . . . it shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution. . . .. And copies being filed, as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process.'
Bigelow's petition for removal complied with the requisitions of this statute, respecting the form of procedure for removal.
The prayer of the petition was, however, denied, and, by agreement of the parties, the case already set forth, was stated in the nature of a special verdict, upon which the court gave judgment for the plaintiff. A petition was then presented to the District Court of Appeals praying for a writ of supersedeas to the judgment, and assigning as errors that the Circuit Court denied the motion to remove the cause into the Circuit Court of the United States upon the petition which had been filed for such removal, and also that the judgment was not warranted by the facts found in the agreement made in lieu of a special verdict, and that it was against the law and the evidence. The District Court of Appeals, however, being of opinion that no error had been committed in the cause by the Circuit Court of Fairfax County, refused the supersedeas. A petition was then presented by the defendant to the Supreme Court of Appeals of the State, complaining of the action of the District Court of Appeals, and praying for a writ of supersedeas to the judgment, assigning the same errors which he had assigned in his petition to the District Court. The application to the Supreme Court was unsuccessful. The supersedeas was denied, and thereupon the present writ of error was sued out. There were two questions, therefore, presented by the record:
1st. The question whether there was error in the refusal of the State Circuit Court to allow a removal of the cause into the Federal court; for if there was not, then obviously there was no ground for complaint that the Court of Appeals had refused a supersedeas to the judgment because such removal had not been allowed.
2d. The question whether there was error in the judgment of the court upon the merits of the case.
Messrs. Poland and Willoughby, for Bigelow, the plaintiff in error:
1. The court erred in denying the motion to remove the cause, for the action asserted a trespass or wrong to have been committed, and so fell within the act of March 3d, 1863.
The act on which the ejectment was founded was at least committed under color of an act of Congress, and also under color of an order given by authority of the President of the United States.
2. The decree of the District Court of the United States condemning and confiscating all the right, title, and interest of the original owner, under the act of July 17th, 1862, or Confiscation Act, is binding upon all but appellate courts. Such decree cannot be collaterally assailed, especially by a State court, except by showing that such District Court did not have jurisdiction.
It is agreed that the land was seized under the act. Proceedings were had 'in accordance with said act.' The act prescribes that the 'proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases.' Regularity in all that was done is of course to be inferred.
By the act all the property is to be seized. No other seizure would have been proper under the act. A life-estate could not have been seized, for the act did not direct it, nor did the owner have a life-estate. The officer could not make a seizure of separate interests. He is to take the property belonging to the person.
3. Douglass Forrest, plaintiff below, is admitted to have been, like his father was, one of the persons described in the fifth section of the Confiscation Act. The latter part of that section declares that '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.' No amount of argument could show more clearly that Douglass Forrest cannot maintain this action, than this statement in the law itself. It is decisive of this whole case.
4. The decree of the District Court, confiscating all the right, title, and interest of the original owner, was authorized by the law. This is not a proceeding in the nature of a bill of attainder. The clause of the Constitution concerning this subject had reference to bills of attainder which were common to the English Parliament, and had often been resorted to by several of the colonial legislatures during the revolution, by which it often happened that the estates of persons were confiscated after their death, and without conviction or trial, and often when such estates had passed into the hands of innocent holders. The true construction of this clause is that no attainder of treason should work a forfeiture except during the life of the person attainted; that is, that it should be done during his life. But this limitation upon bills of attainder does not apply to proceedings in courts, in individual cases, where there are regular trials and formal proceedings in which the individual has full opportunity to defend.
The last clause of the joint resolution, explanatory of the Confiscation Act, was passed out of superfluous caution to keep the act within the limits of the Constitution. It employs the very language of the Constitution, except in one word, which must have been inserted inadvertently in the hurry attending the passing of many resolutions with this, upon the last day of a long session. It was inserted because of the suggestion of the President, and because of his great desire to keep within the bounds of the Constitution. But neither the President nor Congress had fully considered the effect of the clause of the Constitution.
Any other construction of the real intention of Congress than that which we give it, would defeat the object of the bill, which was to raise money for the support of the army. The life of a traitor, liable to be executed for his crime, especially if the government could get him into custody, might be supposed to be very short. In any event the tenure of a mere life-estate would be so uncertain, that but very little money could be raised upon it. Such estates would not be improved, and instead of building up the country with loyal men upon these estates, as was contemplated, the tendency would be to destroy and impoverish it. Such a construction should not be given to an act of Congress if it is possible to give any other reasonable view of its intention.
Again, the act has at least equal force with the joint resolution. Both were approved by the President on the same day, and became a law at the same time. But the act says that all the property shall be seized, and the same shall be condemned. If the construction contended for by the defendant in error be allowed, then one exactly contradicts the other. If this be so we must give effect to that part of the bill which will be most consistent with its whole object. The word forfeiture is always spoken of as referring to all the interest a man has in property. It is one of the modes of absolute conveyance of real estate, and the word is never used in any other legal sense. 
If any other construction is given to the word forfeiture than that for which we contend, both in the Constitution and the act, and which is the universal legal construction of the word, we shall be led into difficulties which cannot be solved by any known rules of law. Can it be said to affect only the life-estate? But the interest of the owner is not that of a life-estate. He holds in fee. Can the legislature determine that an estate in fee shall be a life-estate, or that it can be divided into one estate for life and some other interest? If it does make this separation there must be a remainder. Who is the holder of this? not his heirs, for there can be no heirs of the living. Besides a remainder must pass from the grantor at the same time with the creation of the particular estate, and must be supported by such particular estate, and if this fails the remainder falls with it. Can there be any inheritance from the estate which is left in the original owner? What kind of an estate is it that he has left which can descend to heirs? What is there left upon which an inheritance can be built, and what would be the name of such estate? The first rule of inheritance is, that the inheritance must be from a person who dies seized of the estate.
Mr. Conway Robinson, contra.
Mr. Justice STRONG delivered the opinion of the court.
^1 12 Stat. at Large, 589.
^2 12 Stat. at Large, 627.
^3 Art. 3, § 3, clause 2.
^4 12 Stat. at Large, 755.
^5 2 Blackstone's Commentaries, 267.