In war the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. Usually the ultimate ownership of real property is settled by the treaty of peace, but so long as it is held and not surrendered by a treaty or otherwise it remains the property of the conqueror.
This well-settled principle in the law of war was recognized by this court in United States v. Huckabee, [1] as applicable to the late civil war. At the close of that war there was no treaty. When the insurrection was put down the government of the insurgents was broken up, and there was no power to treat with. Hence the title to all captured property of the Confederate government then became absolute in the United States.
Titus, however, claims as an informer under the act of 1861. This act provided, in substance, that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment, of the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such 'prizes and capture' might be seized, or into which they might be taken and proceedings first instituted. The Attorney-General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and, in such case, they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.
Clearly this act was intended for private, not public property-for such property of persons as required, under the laws of war, a judicial sentence of condemnation to divest the title of its owner,-not such property of a hostile government as had already been captured by an army and subjected to the complete and undisputed dominion and ownership of the conquering power. It applies, as will be seen, to all property, personal as well as real. Not only to a laboratory in which ammunition is prepared, but to the ammunition itself; not to armories simply, but to their product. If the laboratory, owned by the hostile government, when captured in the progress of the war and held by the army, can be informed against and condemned for the benefit of the informer and the United States, so also can the ammunition prepared therein and captured in battle. If the armory, then the gun. Once incorporate this statute, with such a construction, into the law of war, and the attention of the soldier in battle will be divided between the capture of arms, ammunition, and stores on the field, and the search for a district attorney with whom to lodge a statutory information, and demand, as a matter of right, a proceeding in the court for its condemnation on the joint account of himself and the government in whose service he is. We doubt if the counsel for the informer in this case, who has so earnestly and so ably advocated the cause of his client here, would be willing to enlist himself in behalf of such a claim, and yet it is difficult to see how, if he succeeds in this, he might not in that.
An informer, to entitle himself to the statutory reward for his service, must inform against property which is the subject of judicial condemnation. There can be nothing to divide if there is nothing to condemn. In this case the land, when informed against, was already the property of the United States. The title had passed by the completed conquest. There was nothing to reach by judicial process. Information, in the statutory sense, could do no good. The property had been devoted to the war and followed its fortunes. The capture was the result of many battles, but it was none the less, on that account, captured property, needing no judicial sentence of forfeiture to make it absolutely the property of the United States.
But it is claimed that the United States are estopped by the proceedings of condemnation instituted, as they were, in behalf of itself and an informant, from denying, as against the informer, that the property in question was the subject of forfeiture on joint account under the act. There is no pretence that there was any claim, adverse to the title of the United States as conqueror, that was, or could be, cut off by the judgment of the court. It will hardly be contended, we think, that if, after the close of the war, an information had been filed with the district attorney against the Charleston custom-house, and he had proceeded to have it condemned under the act, the United States would be estopped from objecting to the claim of an informer, for one-half its value, and yet the custom-house, although owned by the United States before the war, was no more its property at the close than was the laboratory informed against in this case, if the statements in the record are true. The very libel of information, filed by the district attorney, shows upon its face that the title of the United States was then complete, and the fair inference from the petition of Titus to be made a party to the cause is, that the case made by the libel is the same as that he presented to the attorney for proceedings. Certainly the United States are not prohibited from asserting, as against the informer, that the case he brought to its consideration, and upon which it acted, was not one in which he could be interested.
But it is further claimed that there is an estoppel in favor of this informer because the Commissioner of the Freedmen's Bureau omitted to appear and resist the judgment of condemnation, and, after the sale was made, applied for and received from the court one-half the proceeds.
The act of July 16th, 1866, gave the commissioner of that bureau the control and management of property of the character proceeded against, for certain purposes specified, but in this he was only the agent of the United States. His bureau was the department of the government authorized to manage the trust to which the property had been devoted. He is not estopped if the United States are not, and his neglect to appear and defend against the proceedings can certainly have no more effect against the United States than the institution of the original proceedings.
Neither was an estoppel created by the receipt of the purchase-money. The order in favor of the informer was made on the 8th April, 1868, and the property remained unsold until December 7th, 1869. On the 19th April, 1870, the commissioner made his application to the court for the money. One-half the proceeds was all he could ask for, so long as the judgment in favor of the informer remained in force. This he applied for and received, and on the 2d May the proceedings now under consideration were commenced to set aside that judgment. Certainly, under these circumstances, it cannot be said that, even if he had the power to do so, the commissioner has yielded the claim of the government to the money which had been adjudged to the informer.
Very different questions, and very different principles of estoppel, will have to be considered if the United States or the commissioner shall ever attempt to assert title against the purchasers at the sale. They claim under the sale, and have paid their money in consequence of the offer of the United States to sell in that way. The informer stands in no such position. He has parted with nothing he ever had. He stands upon the original title. If, when he informed, the United States had no title, and through his information one was acquired, he is entitled to the statutory reward for his service. But if the United States had then a perfect title and nothing could be added to it by reason of his information, he has done nothing for which the statute has provided a reward. Whether he should be paid for furnishing the government with information by which it has been able to make its conquest available, is a question we are not called upon to consider. We deal with him only as an informer under the statute, and as such he has no standing in court.
In the view we have taken of the case it is not necessary to consider whether the District Court erred in permitting Titus to become a party to the proceedings after the judgment of condemnation had been entered, and all chances of liability for costs had been resolved in his favor.
JUDGMENT AFFIRMED.
Notes edit
- ↑ 16 Wallace, 434.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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