Bigelow v. Forrest

The citation for this 1869 Supreme Court case is 76 US [9 Wallace] 339.

French Forrest was a confederate naval officer who lived in Virginia. Under the Confiscation Act his property was confiscated by the US Government. The property was sold to a man named Buntley, and his rights eventually became vested in a man named Bigelow. Forrest died and his heir, Douglass Forrest, sued for the property because the Constitution prohibits forfeiture after the life of the guilty party. Justice William Strong delivered the opinion of the Court. He wrote, “The Act of Congress of March 3, 1863, under which the right to remove the cause was claimed and under which the right existed if it existed at all, enacted in its fifth section that if any suit or prosecution, civil or criminal, had been or should be commenced in any state court against any officer, civil or military or against any other person for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done at any time during the then existing rebellion by virtue or under color of any authority derived from or exercised by or under the President of the United States or any act of Congress, the defendant might effect the removal of the cause into the circuit court of the United States holden in the district where the suit might be pending. The act prescribed the course to be pursued in order to stay the proceedings in the state court and transfer the cause into the federal tribunal. It must be conceded that the plaintiff in error complied with the requisitions of the statute and its supplements respecting the form of procedure for a removal of his cause. It remains, therefore, only to inquire whether the action was one which, under the act of Congress, could be removed.” [76 US 339, 347-348]

Justice Strong continues, ” In our opinion, the statute was not intended to apply to actions of ejectment. It is manifest to us that Congress had in view only personal actions for wrongs done under authority or color of authority of the President of the United States or of some act of Congress. The fourth section made any order of the President or under his authority a defense in all courts to any action, civil or criminal, pending or to be commenced for any search, seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done under and by virtue of such order or under color of any law of Congress. The description of the causes of action mentioned in the fifth section is slightly different, not quite so detailed and specific, but it is evident that they were intended to be the same in both sections, as well as in the seventh, which prescribed a statutory limitation to suits and prosecutions. The specification, which all of these sections contain, of arrests and imprisonments, or, as in the fourth section, of searches, seizures, arrests, and imprisonments, followed by more general words, justifies the inference that the other trespasses and wrongs mentioned are trespasses and wrongs ejusdem generis, or of the same nature as those which had been previously specified. This construction is fortified by the consideration that the mischief against which the statute was intended to guard was manifestly the excitement and prejudice so likely, in times of intense popular feeling, to attend suits in local courts for personal wrongs — excitement and prejudice which might render a fair trial difficult and which might indeed greatly embarrass the government. The same mischiefs, in the same degree, could hardly have been expected to attend the trial of possessory actions for real estate. The action of ejectment is not a personal action, and it appears to us not to be embraced in any of the classes mentioned in the fourth, fifth, and seventh sections of the act. It follows that there was no error in disallowing the removal of this case into the circuit court of the United States.” [76 US 339, 348-349]

He next considered the merits of the case: “The plaintiff below claimed the land as the sole heir of his father, French Forrest, who had been the owner down to September 1, 1863, and who died intestate on the 24th day of November, 1866. The defendant claimed as a purchaser under a decree of confiscation made by the District Court of the United States for the Eastern District of Virginia, on the 9th day of November, 1863. French Forrest, the father of the plaintiff, was an officer in the navy of the Confederate States from July 1, 1862, until April, 1865. In September, 1863, under the Act of Congress of July 17, 1862, known as the Confiscation Act, the land in controversy was seized as his property, libeled in the district court of the United States, and, on the 9th of November next following a decree of condemnation was entered and the land was ordered to be sold by the marshal. Whether there was a venditioni exponas issued, as was ordered by the court, does not appear from the case stated (to which alone we can look for the acts), except that the marshal’s deed recites its issue. We may assume that there was. The property was sold at the marshal’s sale, and a deed was made to the purchasers. Subsequently and before the institution of this suit, the entire interest acquired by the purchase became vested in Bigelow, the defendant. But what was that interest? The fifth section of the Confiscation Act of July 17, 1862, enacted that it should be the duty of the President of the United States to cause the seizure of all the estate and property, moneys, stocks, credit, and effects, of certain persons described in six classes, and to apply and use the same and the proceeds thereof for the support of the army. To one or more of these classes French Forrest belonged. That it was not intended the mere act of seizure should vest the property seized in the United States is plain from the provisions of the seventh section, which enacted that to secure the condemnation and sale of any such property, after the same shall have been seized, proceedings in rem should be instituted in a district court, and that if it should be found to have belonged to a person engaged in rebellion, or who had given aid or comfort thereto, it should be condemned as enemy’s property and become the property of the United States, and that it might be disposed of as the court might decree. Concurrently with the passage of this act, Congress also adopted a joint resolution explanatory of it whereby it was resolved that no punishment or proceedings under the act should be so construed as to work a forfeiture of the real estate of the offender beyond his natural life. It is a well known fact in our political history that this resolution was adopted in consequence of doubts which the President entertained respecting the power of Congress to prescribe a forfeiture of longer duration than the life of the offender. Be this as it may, the act and the resolution are to be construed together, and they admit of no doubt that all which could, under the law, become the property of the United States or could be sold by virtue of a decree of condemnation and order of sale was a right to the property seized terminating with the life of the person for whose act it had been seized. It follows, then, that the estate acquired by the purchaser at the marshal’s sale expired on the 24th day of November, 1866, when French Forrest died.” [76 US 339, 349-351]

In upholding the Confiscation Act and the decision of the lower court denying Bigelow’s appeal, Justice Strong concluded, “This is all that need be said of the case. It is enough to show that in our opinion none of the errors assigned have any real existence. We do not care to speculate upon the anomalies presented by the forfeiture of lands of which the offender was seized in fee, during his life and no longer, without any corruption of his heritable blood, or to inquire how in such a case descent can be cast upon his heir notwithstanding he had no seizin at his death. Such speculations may be curious, but they are not practical, and they can give no aid in ascertaining the meaning of the statute.” [76 US 339, 353]

This case is interesting for its view of how the confiscation acts worked and how some of those confederates whose treason in fighting for the confederacy were punished.



  1. Shoshana Bee · · Reply

    Okay. I have thoroughly tied myself up in a knot with this case. First query: Is the Article III, section 3 of the Constitution: that property confiscated in the lifetime of the person who commits treason reverts to heirs upon death, separate from the Confiscation Act of 1863? I believe so from this analysis and my own reading, but we must establish this fact straight away. Second query: Since there were no formal trials/conviction over treason, would that then shift all of the property confiscated during the Civil War under the Confiscation Act? Finally, I found no expiration under the Confiscation Act as there is in Article III, section 3, so that the property would not have to revert to the heir upon the death of the person convicted of treason. Please correct as needed 🙂

    1. Instead of vetoing the bill, Lincoln sent Congress a message with his objections to it. Congress then addressed his concerns and Lincoln signed it. One of his concerns was the Constitutional prohibition on corruption of blood, i.e., forfeiture beyond the life of the perpetrator. Go to the link for the entire case and you can see where this was addressed: “Congress, by an act commonly called the Confiscation Act, passed July 17, 1862, during the late rebellion, ‘to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,’ after enacting that treason should be punished with death, provides: ‘Section 5. 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 . . . of the persons hereinafter named and to apply and use the same, and the proceeds thereof, for the support of the army of the United States.’ This 5th section proceeded to name six classes of persons whose property should be liable to seizure, and first among them: ‘Any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United States.’ And the last clause of it, enacts that ‘It shall be a sufficient bar to any suit brought by such person for the possession or use of such property . . . to allege and prove that he is one of the persons described in this section.’ The act proceeds: ‘Section 7. That to secure the condemnation and sale of any such property after the same shall have been seized so that it shall be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any district court thereof or any territorial court within which the . . . property above described may be found, . . . which proceedings shall conform as nearly as may be to proceedings in admiralty or revenue cases, and if said property . . . shall be found to have belonged to a person engaged in rebellion, . . . the same shall be condemned as enemies’ property and become the property of the United States, and may be disposed of as the court shall decree, and the proceeds thereof paid into the Treasury of the United States for the purposes aforesaid.’ ‘Section 8. 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 marshals 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.’ ‘Section 14. That the courts of the United States shall have full power to institute proceedings, make orders, and do all other things necessary to carry this act into effect.’ By the latter clause of a ‘joint resolution explanatory‘ of this act, passed on the same day with it, it was resolved by Congress that no punishment or proceedings under the act should be ‘so construed as to work a forfeiture of the real estate of the offender beyond his natural life.’ It was a part of the history of this legislation of July 17, 1862, that the then President, Mr. Lincoln, immediately after the passage of the act by both houses of Congress, had prepared the draft of a message objecting to provisions that might result ‘in the divesting of title forever,’ and suggesting or showing that the bill, as Congress had passed it, was in conflict with that clause of the Constitution which ordains that ‘no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted;’ that before his message was presented to Congress, the joint resolution, above quoted, was passed to remove his objections; and that the President, in a message of July 17, 1862, mentioned that before he was informed of the resolution, he had prepared the draft of a message stating objections to the bill’s becoming a law, a copy of which draft he submitted, and also mentioned that, considering that act of Congress and the joint resolution explanatory thereof as substantially one, he approved and signed both.” [76 US 339, 339-341]

      1. Shoshana Bee · · Reply

        Thank you! I had left out the crucial information: That no punishment or proceedings under the act should be ‘so construed as to work a forfeiture of the real estate of the offender beyond his natural life.’ This changes everything 🙂

        Excellent case study that inspired me to read through the material three times, before I completely understood what had taken place.

        1. Glad you enjoyed it!

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