220 



CONFISCATION. 



proceed in the proper court for the condemna- 

 tion of the property seized. 



In pursuance of these instructions, pro- 

 ceedings were commenced in several districts 

 to enforce the provisions of both laws. In 

 these proceedings the following questions 

 arose : 



(1st.) What is the legal statns of the inhabit- 

 ants of the Confederate States? (2d.) What 

 is the duration of the forfeiture? (3d.) Is real 

 estate included in the act of 1861 ? (4th.) Are 

 the acts of 1861 and 1862 constitutional ? 



The relation of residents of seceding States to 



the Government. In July, Judge Wylie of the 



' Supreme Court of the District of Columbia, in 



rendering his decision in the matter of the 



property of Dr. A. S. P. Garnett, said : 



The act of Congress did not, as was generally sup- 

 posed, treat the inhabitants of the so-called Confeder- 

 ate States as traitors, but as alien enemies, and in that 

 point of view, by the law of nations, their property of 

 every description is liable to absolute forfeiture and 

 alienation to the use of the Government. There is no 

 distinction between personal property and real estate, 

 nor did the Constitution, as was supposed, forbid the 

 absolute forfeiture of real estate. But the joint resolu- 

 tion passed by Congress on the same day as the con- 

 fiscation act, under the provision of which this prop- 

 erty is sought to be confiscated, was a declaration by 

 them that, in a spirit of kindness, they would confis- 

 cate the real estate of the rebel only during his life- 

 time. He was bound by that resolution, and would 

 therefore condemn the real estate during the lifetime 

 of the owner, and the personal property absolutely. 



Judge Wylie referred to a large number of author- 

 ities, among them acts of the Legislatures of Maryland 

 and Pennsylvania, confiscating absolutely the property 

 of Americans who remained loyal to the British crown 

 during the Revolution. 



July 25th, 1863, an information was filed in 

 tho U. S. District Court for the Southern Dis- 

 trict of New York, praying the seizure and con- 

 fiscation of a number of railroad shares, money, 

 &c., as being owned by Leroy M. Wiley, " be- 

 ing an alien enemy of the United States." A 

 paper subscribed by Bowdoin Larocque and 

 Barlow, proctors, and Jeremiah Larocque, ad- 

 vocate, verified by the oath of Barlow, and 

 purporting to be "the answer and claim of 

 Leroy M. Wiley, of Eufala in the State of Ala- 

 bama, to tho above libel of information" was 

 put on file in the case, proffering the averment 

 of matters in bar and avoidance of the allega- 

 tions contained in the information. A motion 

 was made to strike out this claim, founded on 

 an affidavit thatWiley had been since the break- 

 ing out of the existing rebellion absent from 

 the Southern District of New York, residing in 

 the State of Alabama. Judge Betts in tho 

 course of his decision of the motion says : 



It cannot be permitted that any party, without hav- 

 ing a lawful standing in court, shall intercept or meddle 

 with tlie orderly action of the law in its due process if 

 he be destitute of a capacity to act as a suitor before 

 the court. The present motion proceeds upon that 

 doctrine. The gist of the application by the hbellants 

 is that Leroy Wiley has no persona standi in a court 

 of the United States in respect to claims, property, in- 

 terests, or trusts of any description in suit or prosecu- 

 tion before that court, he being an alien enemy of the 

 United States, and thus disqualified from being a vol- 



unteer party in respect to civil suits before those trU 

 bunals resting upon contracts or legal liabilities, un- 

 less, perhaps, ransom bills of exchange for personal 

 substance drawn by prisoners of war and held by alien 

 enemies (1 Kent, 68. 2 Wildman, International Law, 

 274, 275) may be exceptions. No such privilege at- 

 tends the demapd of the claimant in this instance. 



Wiley, by intervening and attempting to enforce a 

 supposed title or lien in respect to the railroad shares 

 or dividends, would become a party actor in the suit 

 equally as if prominent in its inception. This, in a 

 judicial sense, is the legal relation of both parties to the 

 suit in actions in rem, as each side acts affirmatively in 

 carrying on the processes and remedies imparted to 

 them respectively by the action, and seeks positive ad- 

 judications in his favor in the disposal of effects and 

 interests within the jurisdiction of the court. 



The answer and claim interposed and placed on file 

 in this suit, declares upon its face that the claimant 

 " Leroy M. Wiley is of Eufala, in the State of Ala- 

 bama," and that fact is also asserted and attested to in 

 the test oath accompanying the claim when filed. 



Th.e court must take judicial notice that Alabama is 

 an insurrectionary State, having been at the com- 

 mencement of this suit and yet continuing in a con- 

 dition of rebellion and actual hostility to the United 

 States. 



That condition constitutes all the inhabitants of that 

 State alien enemies of this country. 



This is indisputably so on clear principles of inter- 

 national law in regarcf to residents in countries foreign 

 to each other (3 Phillimore, International Law, ch. 6, 

 82. Halleck, Nat. Law, ch. 29, 6. 1 Kent, 76). 



In Jecker vs. Montgomery (18 How. 112), the Su- 

 preme Court says : "In a state of war between two 

 nations, declared by the authority in whom the muni- 

 cipal institution vests the power of making war, the 

 two nations and all their citizens or subjects are en- 

 emies to each other." Still more emphatically and per- 

 tinently in respect to the existing rebellion in this 

 country, the same court declares that the residents of 

 the several States in war with the United States are 

 enemies to this- country, to the same effect as if citizens 

 or subjects of a foreign nation. (Crenshaw and others, 

 administrators. The United States Laws, March, 1863.) 



It is unimportant to determine in this matter whether 

 the right of Wiley, in the subject matter of the suit be- 

 fore the court, is determined definitely by the subsist- 

 ing state of hostilities between the place of his resi- 

 dence and the United States, or only suspended during 

 such war; this decision goes no further than to rule 

 that he is disqualified and inhibited becoming a party 

 to the pending action. I do not in this decision discuss 

 the regularity of practice pursued in making appear- 

 ance and answer for Wiley. I consider him effectively 

 barred by law of all power to intervene in court. 



The application of the libelants is therefore granted, 

 and it is ordered that the answer and claim interposed 

 in the suit on behalf of Leroy M. Wiley has been 

 regularly and improperly admitted on file in this cau 

 and that the same be stricken therefrom. 



In both these cases, residence in an insurr 

 tionary State, is held as conclusive proof tha 

 the party is an alien enemy. The decision 

 of Judge Betts occasioned comment, it being 

 urged that if the doctrine in the opinion was 

 correct, "the mere fact of the residence of Mr. 

 Wiley in a southern insurrectionary State pre- 

 cludes him from appearing and contesting tho 

 allegations of the information, that he has ren- 

 dered active aid to the rebellion. Congress 

 might as well have spared itself the trouble of 

 confining by such strict and guarded language 

 the liability to confiscation, to cases where such 

 aid has been rendered. Under such a practice, 

 every dollar of property owned by Southen 

 citizens in the North, no matter how loy; 



