Undoubtedly, though not an inferior court, the district court is one of limited jurisdiction, and that it has jurisdiction of the particular case which it attempts to adjudicate, must always appear. Undoubtedly, also, only such property as has been seized by executive order is within the power of that court for confiscation proceedings. Thus much is conceded. But it is a mistaken assertion that the record in this case does not show an executive seizure of the property condemned before the district court assumed any jurisdiction over it. The information avers that such a seizure was made on the 15th of August, 1863, by the marshal, under written authority given him by the district attorney, in compliance with instructions issued to him by the Attorney-General of the United States, by virtue of the Act of Congress of July 17, 1862 (the Confiscation Act); and to a citation or monition founded on the information, default was made. What the effect of this default was we do not propose now to discuss at length. We have gone over the ground recently in the case of Miller v. U. S. [supra], and to that case we refer. In view of what was there said and decided, and in view of the authorities cited, it must be held that the default established the truth of all the material averments in the information, and among others, that there had been an executive seizure before the information was filed. It was equivalent in effect to a confession. Now, while it is true a party cannot, by consent, confer jurisdiction where none would exist without it, it is equally true that when jurisdiction depends upon the existence of a fact, its existence may be shown as well by the confession of a party as by any other evidence.

said that in "admiralty proceedings a libel in | lots and ten squares of ground before the inforthe nature of an information does not require mation was filed, or, indeed, at any time. all the formality and technical precision of an indictment at common law. If the allegations are such as plainly and distinctly to mark the offense, it is all that is necessary. And where it is founded upon a statute, it is sufficient if it pursues the words of the law." Reference was then made with approbation to a note of Judge Story, in the beginning of 7th Cranch, to the case of The Caroline, p. 496, in which it was said the court did not mean to decide that stating the charge in the alternative would not have been sufficient if each alternative had consti tuted an offense for which the vessel would have been forfeited. The court then added these observations: "It is said this mode of alleging two separate and distinct offenses leaves it wholly uncertain to which of the accusations the defense is to be directed. This objection, if entitled to consideration, would apply equally to an information laying each offense in a separate count," and they concluded that the objection, if available at all, must go to the full length of limiting every information to a single offense, which they thought was not required by any principle of justice or sanctioned by any rule of practice applicable to admiralty proceed ings. The same doctrine was asserted by Chief Justice Marshall in Jacob v. U. S., 1 Brock., 520. So in Parsons on Shipping and Admiralty, vol. 2, p. 383, ed. of 1869, the author, in view of the authorities, gives his opinion that a libelant may state his case in the alternative. So in Cross v. U. S., 1 Gall., 31, Judge Story remarked that "in proceedings in admiralty the same strictness is not required as in proceedings in common law courts. And where the seizure is on land," said he, "although the proceedings would seem to be analogous to informations in the Exchequer, yet I do not know that in our courts the rigid principles of the common law applicable to such informations have been solemnly recognized." These considerations, in our opinion, justify us in ruling that the circuit court erred in deciding that the information is fatally defective because it does not aver distinctly and separately what John Slidell had done, but makes its allegations in the alterna

tive.

It is next contended that the court had no jurisdiction, even if the seizure alleged in the information was made, because it is not averred to have been made by order of the President of the United States. As we have seen, the libel sets forth a seizure made by the marshal, under authority given by the district attorney, in pursuance of instructions issued by the AttorneyGeneral of the United States, by virtue of the Act of Congress (viz.: the Confiscation Act). 12 Stat. at L., 589. It is said this exhibits no auNo other reason than this we have mentioned, thority given by the President for the seizure, and which we regard as insufficient, was as- and that the Attorney-General was not empowsigned by the circuit court for reversing the deered to direct it. But if the seizure was made cree of confiscation, and ordering the information to be dismissed. But during the argument in this court, other objections have been urged against the decree, which, if they are valid, would justify its reversal, though some of them would not warrant the dismissal of the libel. It, therefore, becomes necessary to examine and determine whether they exhibit error in the action of the district court.

The first of these objections, and the one most pressed, is, that the court was without jurisdiction of the case. It is said no other property than such as had, prior to the filing of the information, been seized by the direction of the President of the United States, was within the purview of the 7th section of the Confiscation Act and, therefore, within the limited jurisdiction of the district court; and it is insisted the record does not show there had been any executive seizure of the eight hundred and forty-four

by virtue of the Act of Congress, as the information avers it was, it was necessarily caused to be made by the President, for he only was empowered by the Act to cause it. Then the Attorney-General must have been the agent of the President to give instructions to the district attorney, and through him to the marshal. The language of the statute is, “It shall be the duty of the President to cause the seizure," etc. This implies that the seizure is to be made by the agents of the President. And a direction given by the Attorney-General to seize property liable to confiscation under the Act of Congress must be regarded as a direction given by the President. In Wilcox v. Jackson, 13 Pet., 498, it was ruled that the President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Therefore, where, by an Act of Congress, all lands reserved from sale by order of

the President were exempted from preemption, ready sufficiently answered this. So, too, the this court ruled that a request for a reservation absence of any averment that the causes of made by the Secretary of War for the use of the forfeiture were contrary to the form of the StatIndian Department, must be considered as made ute or Statutes of the United States in such case by the President within the meaning of the Act. provided, is no sufficient reason for reversing The same doctrine was asserted in Ü. S. v. Elia-the judgment of the district court. Such an son, 16 Pet., 291. It may, we think, be prop- averment is required by the 22d admiralty rule, erly applied to the present case. While it is true but even in admiralty a failure to make it canthe right of seizure and confiscation grows out not be taken advantage of in a court of errors. of a state of war, the means by which confisca- The Merino, 9 Wheat., 401. The defect is only tion is effected have a very appropriate relation formal. It is true the absence of such averment in to the duties of the Law Department of the Gov- indictments and criminal informations has been ernment. But whether this is so or not, it is held to be a fatal fault, but for reasons inapplisufficient that the information in this case avers cable to civil proceedings, and we need not rethe seizure was made by virtue of the Act of peat that the present is a civil case. Congress. It must, therefore, have been caused by the President.

Another objection urged against the proceedings in the district court is, that the warrant, citation and monition was not signed by the clerk of the court. It was attested by the judge, sealed with the seal of the court, and signed by the deputy-clerk. This was sufficient. An Act of Congress authorized the employment of the deputy, and in general, a deputy of a ministerial officer can do every act which his principal might do. Com. Dig. Officer, D., 3.

It is next objected that the suit was on the admiralty, and not on the law side of the district court. The 7th section of the Confiscation Act enacts that the proceedings shall conform as nearly as may be to the proceedings in admiral ty or revenue cases. Strict conformity is not required. No doubt in cases of seizure upon land, resort should be had to the common law side of the court, and such, in substance, was, A further objection urged against the adjudiwe think, the case here. Everything necessary cation of forfeiture made by the district court to a common law proceeding in rem is found in is, that it was made without any finding that the record. An information was filed (called a the property belonged to John Slidell, or any libel of information, it is true, but still an infor- person included in either of the classes desigmation), a citation as well as a monition was is-nated in the 5th and 6th sections of the Confissued, a default was taken, and, after consideration of the evidence, condemnation was adjudged. What was lacking in this to a common law proceeding in rem? The principal lack alleged is, that there was no jury trial. But in courts of common law no jury is called when there is no issue of fact to be tried. An inquest is sometimes employed to assess damages; but a jury to find facts is never required where there is no traverse of those alleged, and where a defendant has defaulted. What matters it then that the information was called a libel of information, or that the warrant and citation is called a monition? The substance and all the requisites of a common law proceeding are found in the record. Technical niceties are not required either in admiralty or revenue cases. The Samuel, 1 Wheat., 9; The Hoppet v. U. S., 7 Cranch, 389.

cation Act. This is a renewal of the complaint so earnestly pressed in Miller v. U. S., and which we held to be without foundation. It is said that, notwithstanding the default, it was the duty of the court to "proceed to hear and and determine the case according to law, as is directed by the 89th section of the Act of March 2, 1799, 1 Stat. at L., 696, respecting forfeitures incurred under that Act." But were this conceded, of what avail would it be in this case in support of the objection? The court did proceed to hear and determine the case after the default was entered. And it was not until after such hearing and consideration that the property was condemned. This appears by the record. Having heard and considered evidence, it must be presumed the court found that the property belonged to a person engaged in the rebellion, or one who had given aid or comfort thereto, as well as all other facts necessary to the rendition of the judgment. This is a presumption always made in support of judgments of courts after their jurisdiction is made to appear. No rule of law required the district court to state in detail in its record its findings of fact, and no such practice has prevailed in any court except some which are both of limited and inferior jurisdiction. Nor is it to be considered in a court of error whether the evidence was sufficient to warrant the findings presumed to have been

It is next objected there was no sufficient service of the process; but we think the return of the marshal shows exact compliance with the order of the court directing service, and the manner in which it should be made. The order was that notice be given in two ways to the owner or owners of the property, and all persons interested therein, requiring them to appear and answer the information. The first of these ways was by posting a copy of the order on the front door of the court-house, and the second was by publication, viz.: publication of the re-made, and without which the judgment could quirement to appear in the Era newspaper. In the execution of the order the marshal went beyond it. He posted copies of the information, of the warrant, and of the order of the judge, and he published the monition, which was a citation, as he was directed. The service was, therefore, sufficiently made.

It is further objected that the information was informal, in that it contained no charge against Slidell, the alleged owner, but that its averments were in the disjunctive. We have al

not have been given. A less degree of evidence is certainly needed after a default. Even in U. S. v. The Lion, 1 Spr., 399, so much relied upon, where a condemnation was sought under an Act of Congress which enacted that after the default the court should proceed to hear and determine the case according to law, Judge Sprague said, "To what extent there must be a hearing must depend on the circumstances of the case." " 'The court," said he, "will at least examine the allegations of the libel, to see if

they are sufficient in law, the return of the marshal, and such affidavit or affidavits as the district attorney shall submit." And he added that a willful omission by the owners to answer, might of itself satisfy the court that a forfeiture should be decreed. But without further consideration of this objection, we refer to the opinion delivered in Miller v. United States, to which we still adhere.

There remains but one other matter which re

quires notice. It is contended that the Proclamations of Amnesty in 1868 amounted in effect to a repeal of the Confiscation Act. To this we cannot assent. No power was ever vested in the President to repeal an Act of Congress. Moreover, the property condemned in this case became vested in the United States in 1865, by the judgment of forfeiture, and the sale under the venditioni exponas merely converted into money that which was the property of the government before. No subsequent proclamation of amnesty could have the effect of devesting vested rights. Even the express repeal of a statute does not take away rights of property which accrued under it while it was in force.

We have thus reviewed the whole record of the proceedings in the district court, and we have been able to discover nothing which justified a reversal of the decree of condemnation. The judgment of the Circuit Court is, therefore, reversed, and the cause is remanded with instructions to affirm the judgment of the District Court.

Mr. Justice Clifford, dissenting:

I dissent from the opinion of the court in this case because it is repugnant to the repeated decisions of this court, to the 89th section of the Collection Act, and to the 29th Admiralty Rule of this court, which was adopted as the rule of decision more than thirty years ago; and because it is opposed to the whole current of the decisions of the admiralty courts and to the rules laid down by the most approved writers upon admiralty law. U. S. v. The Vengeance, 3 Dall., 297; The Sarah, 8 Wheat., 394; 1 Stat. at L., 696; Admiralty Rules, No. 29; The David Pratt, Ware, 495; Clerke's Praxis, art. 35; U. S. v. The Lion, 1 Sprague, 400; 2 Conklin, Adm. (2d ed.), 178; Benedict, Adm., secs. 449, 452; 2 Browne, Civ. L., 401; Dunlap, Pr., 206; 2 Pars, Ship. & Adm., 400.

Apart from that, I also adhere upon the merits to the dissenting opinion in the case of Miller v. U. S., 11 Wall., 314 [78 U. S., XX., 147].

Mr. Justice Field, dissenting:

I dissent from the opinion and judgment of the court on the grounds stated in the dissenting opinions in the cases of Miller v. U. S. [supra], and Tyler v. Defrees, reported in 11 Wall., 331 [78 U. S., XX., 161], so far as they are applicable to the facts of this case; and on the further ground that the libel of information is fatally defective in charging no one offense positively, but several offenses in the alterna

tive.

DUNCAN F. KENNER

v.

UNITED STATES.

Confiscation Case.

the case of The U. S. v. Clarke, ante, 320, and that
All the points in this case have been considered in
case governs this. The judgment of condemnation
is, therefore, affirmed.
[No. 202.]

Argued Apr. 8, 9, 1874. Decided May 4, 1874.

ER

RROR to the Circuit Court for the District of Louisiana.

This case originated in the District Court of Louisiana by proceedings, under the Act of Congress of July 17, 1862, entitled "An Act to Suppress Insurrection, to Punish Treason and Rebellion, and for Other Purposes," to declare forfeited sixteen lots of ground, with the buildings on them, in the City of New Orleans, as the property of the plaintiff in error.

Decree of condemnation was rendered in the district court, and on writ of error to the circuit court, the decree of the district court was affirmed.

Messrs. C. Cushing, W. W. Boyce, C. M. Conrad & Son, W. D. Davidge and R. Fendall, for plaintiff in error:

1. Under the Act of July 17, 1862, it was essential that a preliminary seizure, under the authority of the President, should be made prior to the filing of the libel of information. Miller v. U. S., 11 Wall., 296 (78 U. S., XX., 141).

It is true that it is alleged in the libel of information, that the Marshal, under written authority emanating from the President, had seized the property; but this written authority does not appear in the transcript. To confer jurisdiction on the court, this authority to the Marshal to seize was essential; and if essential, it ought to appear in the proceedings. This authority does expressly appear in Miller v. U. S., 11 Wall., 268 (78 U. S., XX., 135).

The records of a court of limited jurisdiction must show that jurisdiction was rightfully exercised. Grignon v. Astor, 2 How., 319; Kemp v. Kennedy, Pet. (C. C.), 30.

To give jurisdiction in rem, there must be a valid seizure by the Marshal. Taylor v. Carryl, 20 How., 583 (61 U. S., XV., 1028).

Seizure, by the officer or person authorized to seize, must precede the commencement of the judicial proceedings; and such seizure, prior to the filing of the libel, must be alleged therein, and proved on the trial. The Fideliter, 1 Abb. (U. S.), 578.

(Circuit Court on appeal) for the first time.
The objection may be taken in this court

The seizure is a material jurisdictional fact.
The Fideliter (supra), and see, further, U. S.
v. New Bedford Bridge, 1 Wood. & M., 401; U.
S. v. Tawangaca, Hempst., 304.

pend upon its decision upon the merits of the The jurisdiction of the court can never decase brought before it, but upon its rights to hear and decide it at all.

Ex parte Watkins, 7 Pet., 572; Bobyshall v. Oppenheimer, 4 Wash. (C. C.), 482.

A decree without service of process, or a statutory substitution for it, is a nullity.

Hollingsworth v. Barbour, 4 Pet., 466; Walden v. Craig, 14 Pet., 147; Boswell v. Otis, 9 How., 336.

6. That the property libeled was not found to belong to a person engaged in the rebellion. This was expressly required by the Act of SIX LOTS OF GROUND, the Property of July 17, 1862, and it is difficult to see how a de

operations of the district court, forbids the idea TEN LOTS OF GROUND, the Property of

factory to the district court, that the property had belonged to some one in the classes of enemies of the United States described in the Act of June 17, a final judgment of condemnation was entered. This was a series of measures as closely resembling the ordinary proceedings in revenue and admiralty causes, as the requirements of the statute demanded.

Second. The libel of information is sufficient in form. It is directed against a thing and not against a person. As an enemy's ship taken on the high seas, though unarmed and proceeding from one neutral port to another, is condemned by reason of its relation to one who is hostile, so this real property here was guilty by fiction of law, because its owner was an enemy.

But it is said the libel does not sufficiently describe the owner as an enemy. It is not suggested that the property is not sufficiently described; its description is actually or impliedly admitted to be accurate. The defect urged is the want of proper description of the owner, as the libel of information describes him in the alternative as one or the other of certain classes of persons named in the Act.

This was no defect, which, had the owner appeared in the district court, could have availed him, because each alternative character in which the owner is described, if it stood alone, would make the property liable to condemnation.

The Caroline, 9 Wheat., 386; Jacob v. U. S., 1 Brock., 520; U. S. v. The Little Charles, 1 Brock., 347; 2 Pars. Ship. & Adm., 382, 388, Little & Brown, ed. of 1869.

To sum up the law of the foregoing authorities in support of our proposition: this proceed

less certainty is required than in the common law form.

The Palmyra, 12 Wheat., 1; Locke v. U. S., 7 Cranch, 339.

Sixth. The authorities already quoted show that the judgment of the circuit court was wrong in dismissing the libel and avoiding the judg ment of the district court; it follows, then, that there was error also in directing the net proceeds of the property to be paid to Conrad, although that order may be correct if the former part of the judgment of the circuit court was correct.

Messrs. C. M. Conrad & Son, for defendant in error.

Mr Justice Strong delivered the opinion of the court:

These cases are, in all essential particulars, like the case of The United States v. Eight Hundred and Forty-four Lots and Ten Squares of Ground, the Property of John Slidell [ante, 320]. What we have said in reference to that case is equally applicable to these.

In each case the judgment of the circuit court is reversed, and the cause is remanded, with instructions to affirm the judgment or decree of the district court.

Dissenting, Mr. Justice Davis.

Also dissenting, Mr. Justice Clifford and Mr. Justice Field, for reasons stated in U. S. v. Clarke [ante, 325].

Mr. Justice Bradley did not sit in this cause.

ing in rem is strictly a civil cause (3 Dall., 297) THE CITIZENS' BANK OF LOUISIANA,

Appt.,

v.

UNITED STATES. MERCHANTS' BANK OF NEW OR

LEANS, Appt.,

v.

UNITED STATES ET AL.

on the law side of the court, Ex parte Graham, 10 Wall., 541 (77 U. S., XIX., 981); but the pleadings must conform to those of admiralty or revenue cases (12 Stat. at L., 591), in which technical niceties are not required (Du THE pont v. Vance, 19 How., 162 (60 Ú. S., XV., 584) The Quickstep, 9 Wall., 670 (76 U. S., XIX., 769); Handlin v. Wickliffe, 12 Wall., 173, (79 U. S., XX., 365); May v. Le Clairé, 11' Wall., 226 (78 Ú. S. XX., 52), nor the precision of a common law indictment (9 Wheat., 381), or other proceedings in common law courts (Cross v. U. S., 1 Gall, 31); yet, that less certainty will sustain a degree of condemnation Wheat., 1); that alternative allegations are good THE MERCHANTS' BANK OF NEW ORwhen each alternative renders the res forfeitable (9 Wheat., 381; 1 Brock., 520, 1 Brock., 347; 1 Brock., 384; 7 Cranch, 339, etc.); and

(12

that the alternative form is sometimes preferable (2 Pars., 382).

Third. The defect, if such it be, was only one of form, and was cured by the judgment. Jacob v. U. S., 1 Brock., 520; Higgins v. Highfield, 13 East, 407; Act of 1789, sec. 32.

Fourth. The property seized being correctly described, the description of the owner is of secondary importance, and involves only the question of notice to him; he certainly could not have been deceived by it; and indeed notice is sufficiently given in proceedings in rem in admiralty and revenue cases by the seizure itself. Fifth. The proceeding was not one of a criminal character; the owner of the property was

CITIZENS' BANK OF LOUISIANA, Piff. in Err..

v.

UNITED STATES.

LEANS, Pl. in Err.,

v.

UNITED STATES AND WRIGHT R. FISH.
F. A. MARCUARD, Piff. in Err.,

V.

UNITED STATES. (See S. C., " Claims of Marcuard et al.," 20 Wall., 114, 115.

Lien holders-effect of confiscation proceedings.

1. Lien holders cannot intervene and take the pro

ceeds of the sale in confiscation proceedings.
in no degree disturbed their liens.

2. The sale under the judgment of condemnation
Nos. 239, 240, 241, 242, 243.]
Argued Apr. 9, 10, 1874. Decided May 4, 1874.

charged with no crime; he was referred to only APPEALS from and errors to the Circuit

as an enemy; and in proceedings in rem in similar cases, it has been repeatedly held that

Court for the District of Louisiana. Messrs. Thos. Allen Clarke and J. McConnell, for appellants and plaintiffs in error.