The citation for this case is 78 US [11 Wallace] 268. This is a case involving property seizure based on the Confiscation Acts. The case involved Samuel Miller of Amherst County, Virginia, who had been an officer in both the confederate army and navy, a member of the confederate congress and a judge in Virginia under the confederacy as well as recruiting men to enlist in the confederate army. Miller owned shares in the Michigan Southern & Northern Indiana Railroad and the Detroit, Monroe & Toledo Railroad, both corporations being incorporated in Michigan. “Under the terms of the August 6, 1861 [12 US Stat. 319], and July 17, 1862 [12 US Stat. 589], confiscation acts, the attorneys acting on behalf of the United States in Michigan caused the seizure of Miller’s stock in the two railroad corporations, with the objective of confiscating them and selling them in a public sale.” [Robert Bruce Murray, Legal Cases of the Civil War, p. 205]
The Federal marshal served notice on the railroads and seized the stock. “A libel designed to confiscate the stock was filed in the United States District Court for the Eastern District of Michigan. At about the same time, an information was filed alleging that Miller was a public enemy and a Rebel citizen residing in the state of Virginia; that he was the owner of the stock named separately in the libel; that he employed and used this stock in the aid of the enemy; and that by owning this stock situated in a loyal state, he had assisted and given aid to the Rebellion against the government. A libel is in the nature of a complaint in a civil action. An information is the same as an indictment, except that it is issued by a governmental official, here the attorneys representing the government, rather than by a grand jury. The marshal then gave notice by publication to all persons who might have claimed an interest in the stock or claimed that the stock should not be confiscated. The publication notified these individuals that they could appear before the court at a designated hearing date and make their claims known. Miller did not appear at the designated time, and the court entered a default judgment against him and the stock. The court ordered the stock confiscated and sold.” [Ibid.]
After the war, Miller petitioned to get the judgment against him set aside. The Court refused. He appealed and the Appeals Court sided with the District Court against him. Miller died, and the executor of his will appealed to the Supreme Court. The case was argued on February 1 and 2, 1870. Justice Robert Grier had resigned on January 31, 1870 and Justice Samuel Nelson and Chief Justice Salmon Chase then fell ill. This caused a delay and backlog, and the case was reargued on February 10, 1871. The attorneys for Miller’s estate claimed stocks, being intangible assets, were not liable to seizure under the Confiscation Acts. Stock certificates weren’t actually the stocks themselves. They were evidence of ownership of shares. They also claimed the judgment was invalid because there wasn’t a hearing and proof presented to justify the seizure. “The only justification for the judgment against Miller, they maintained, could be found in the law of nations. That law might not be restricted by the numerous rights given a defendant by the Constitution. But, Miller’s attorneys added, though Congress was able to pass laws controlling the capture of property under the law of nations, once they passed penal or criminal statutes, as was done in the confiscation laws, these laws became part of the body of law of the sovereign government of the United States, and the rights to individuals guaranteed by the Constitution applied to them.” [Ibid., pp. 206-207] Arguing that the act applied to everyone in the United States and not just to rebels, the guarantees of the Constitution applied and Miller’s 5th and 6th Amendment rights were violated and the confiscation laws were unconstitutional.
Justice William Strong delivered the opinion of the court on April 3, 1871. Strong pointed out, “The marshal returned to the warrant that he had seized the property, and that he then held it subject to the further order of the court. Why is not this conclusive?” [78 US 268, 294] He says, “the burden of showing it is upon him who alleges error. The legal intendment is against him. This doctrine is abundantly sustained by the authorities. Thus, in Railroad Company v. Stimpson, which was a patent case, Judge Story said, ‘It is a presumption of law that all public officers perform their official duties until the contrary is proved. And when,’ said he, ‘an act is to be done, or patent granted, upon evidence and proofs to be laid before a public officer, upon which he is to decide, the fact that he has done the act or granted the patent, is prima facie evidence that the proofs have been regularly made and were satisfactory.’ ” [78 US 268, 300] He said, then, that because the marshal said he had seized the property, the property had been seized unless it could be proved it wasn’t seized.
Next, he considered the constitutionality of the Confiscation Acts. “It is also to be observed that when the acts of 1861 and 1862 were passed, there was a state of war existing between the United States and the rebellious portions of the country. Whether its beginning was on the 27th or the 30th of April, 1861, or whether it was not until the act of Congress of July 13th of that year, is unimportant to this case, for both acts were passed after the existence of the war was alike an actual and a recognized fact. War existing, the United States were invested with belligerent rights in addition to the sovereign powers previously held. Congress had then full power to provide for the seizure and confiscation of any property which the enemy or adherents of the enemy could use for the purpose of maintaining the war against the government. It is true the war was not between two independent nations. But because a civil war, the government was not shorn of any of those rights that belong to belligerency. Mr. Wheaton, in his work on international law, asserts the doctrine to be that ‘the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as it respects neutral nations.’ It would be absurd to hold that, while in a foreign war enemy’s property may be captured and confiscated as a means of bringing the struggle to a successful completion, in a civil war of equal dimensions, requiring quite as urgently the employment of all means to weaken the belligerent in arms against the government, the right to confiscate the property that may strengthen such belligerent does not exist. There is no such distinction to be made. Every reason for the allowance of a right to confiscate in case of foreign wars exists in full force when the war is domestic or civil.” [78 US 268, 306-307] He also wrote, “It has been argued, however, that the provisions of the act for confiscation are not confined in their operation to the property of enemies, but that they are applicable to the property of persons not enemies within the laws of nations. If by this is meant that they direct the seizure and confiscation of property not confiscable under the laws of war, we cannot yield to it our assent. It may be conceded that the laws of war do not justify the seizure and confiscation of any private property except that of enemies. But who are to be regarded as enemies in a domestic or civil war? In case of a foreign war, all who are inhabitants of the enemy’s country, with rare exceptions, are enemies whose property is subject to confiscation, and it seems to have been taken for granted in this case that only those who during the war were inhabitants of the Confederate States were liable to have their property confiscated. Such a proposition cannot be maintained. It is not true even in case of a foreign war. It is ever a presumption that inhabitants of an enemy’s territory are enemies, even though they are not participants in the war, though they are subjects of neutral states, or even subjects or citizens of the government prosecuting the war against the state within which they reside. But even in foreign wars, persons may be enemies who are not inhabitants of the enemy’s territory. The laws of nations nowhere declare the contrary. And it would be strange if they did, for those not inhabitants of a foreign state may be more potent and dangerous foes than if they were actually residents of that state. By uniting themselves to the cause of a foreign enemy, they cast in their lot with his, and they cannot be permitted to claim exemptions which the subjects of the enemy do not possess. Depriving them of their property is a blow against the hostile power quite as effective, and tending quite as directly to weaken the belligerent with whom they act, as would be confiscating the property of a noncombatant resident. Clearly, therefore, those must be considered as public enemies, and amenable to the laws of war as such, who, though subjects of a state in amity with the United States, are in the service of a state at war with them, and this not because they are inhabitants of such a state, but because of their hostile acts in the war. Even under municipal law this doctrine is recognized.” [78 US 268, 310-311] Continuing, Justice Strong wrote, “Still less is it true that the laws of nations have defined who, in the case of a civil war, are to be regarded and may be treated as enemies. Clearly, however, those must be considered such who, though subjects or citizens of the lawful government, are residents of the territory under the power or control of the party resisting that government. Thus much may be gathered from the Prize Cases. And why are not all who act with that party? Have they not voluntarily subjected themselves to that party; identified themselves with it? And is it not as important to take from them the sinews of war, their property, as it is to confiscate the property of rebel enemies resident within the rebel territory? It is hard to conceive of any reason for confiscating the property of one class that does not equally justify confiscating the property of the other. We have already said that no recognized usage of nations excludes from the category of enemies those who act with, or aid or abet and give comfort to enemies, whether foreign or domestic, though they may not be residents of enemy’s territory. It is not without weight that when the Constitution was formed its framers had fresh in view what had been done during the Revolutionary war. Similar statutes for the confiscation of property of domestic enemies, of those who adhered to the British government, though not residents of Great Britain, were enacted in many of the states, and they have been judicially determined to have been justified by the laws of war. They show what was then understood to be confiscable property, and who were public enemies. At least they show the general understanding that aiders and abettors of the public enemy were themselves enemies, and hence that their property might lawfully be confiscated.” [78 US 268, 311-312]
The Supreme Court upheld the constitutionality of the Confiscation Acts and affirmed the judgment.