| Ind. | Nov 15, 1868
The second paragraph of the answer was not sworn to, and it can, therefore, only be sustained on the ground that it is in bar,and not in abatement. This paragraph is in bar of the action, by force of the act of Congress of July 17th, 1862. The fifth section thereof is as follows :—
“Sec. 5. And be it further enacted, 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, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States, that is to say: First. Of any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States. * * * * * Sixthly.' 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; and all sales, transfers, or conveyances of any such property shall be null and void; and 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.” 12 U. S. Stat. at Large, 589.
That the right of action may revive at the termination of the rebellion, is no objection to the rule that such pleas may be in bar of the action. In Bell v. Chapman, 10 Johns.
It is objected that this law is unconstitutional. It is argued that this act is an act for the punishment of treason, and that it deprives the person implicated of a trial before the punishment. But we apprehend that confiscation acts stand on a much broader basis. Congress has power to “provide for the common defense and general welfare of the United States;” * * * “ to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;-” * * * “and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” Const. U. S., art. 1, sec. 8. The act in question is clearly within the powers thus confei’red on Congress.
“A.civil war,” says Vattel, “breaks the bands of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate' bodies, two distinct.societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.”
There is no limit on the war power of the United States, except such only as is imposed by the law of nations. And in this respect there is no difference between a civil and a foreign war. Congress has as much-power to “suppress insurrections” as to “repel invasions.” Resort may be had to any means known and recognized by the laws of war.
Did the court err in sustaining the demurrer to the third paragraph of the answer? This turns upon the validity of the judgment of the District Court. In The Union Insurance Co. v. United States, 6 Wall. (S. C.) 759, the Supreme Court of the United States, in a proceeding “to confiscate property used for insurrectionary purposes,” under the act of August 6th, 1861, held that the Circuit Court had jurisdiction, under that act, of proceedings for the condemnation of real estate or property on land; and such proceedings might be shaped in general conformity to the practice in admiralty; that is to say, they may be in the form and modes analagous to those used in admiralty. But issues of fact, on the demand of either party, must be tried by jury; such cases differing from cases of seizure made on navigable waters, where the course of admiralty may be strictly observed.
The provisions of the act under which the property in question was sold are as follows:—
“ Sec. 7. And be it further enacted, That to secure the condemnation and sale of any of such property, after the same shall have been seized, so that it may be niade available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any district court thereof, or in any territorial court, or in the United States District Court for the District of Columbia, within which the property above described, or any part thereof, may he found, or into which the same, if movable, may first be brought, which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property, whether real or personal, shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condomed as enemies’ property, and become the property of the
“Sec. 8. And be it further enacted, 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 mai’shals 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.” * * * * * * *
The District Court had jurisdiction of the subject matter of the suit. The judgment is not void. The irregularities pointed out may be available on error, but do not sustain the objection to the validity of the judgment in a collatei’al proceeding.
The third paragraph of the answer is good, and the court erred in sustaining the demurrer thereto. The court also erred in sustaining the motion to strike out the interrogatories filed with the answer.
The judgment is reversed, with costs, and the cause remanded, with directions to overrule the motion to strike out the second, and to overrule the demurrer to the third paragraph of the answer, and also to overrule the motion to strike out the interrogatories filed with the answer, and for further proceedings.