When, however, there is no enactment, and no attempt to enact, but a resolution adopted expressly for the sole purpose of saying how a certain statute "shall be construed," there would seem to be no justification for treating it as a statutory amendment.

§ 365. It Cannot be Invoked to Explain the Intentions of the Legislator when the Act was Passed. May not the "Joint Resolution Explanatory of 'An Act,"" etc., be invoked to ascertain the intention of the legislator?

No. It cannot, for the following reasons:

(1.) There is no ambiguity in the act to be explained; certainly none in the confiscation sections, as the Supreme Court have said.1

(2.) If there were ambiguity, we must look to the debates at the time of its passage; not to subsequent explanations by Congress. 2

(3.) Though contiguous legislation may be sometimes invoked to explain ambiguity, this "resolution explanatory" is not such legislation, since it is not legislation of any kind.

(4.) Subsequent legislation on the same subject matter as the act, and with direct reference to it,3 shows that Congress understood the four confiscation sections as expressed in the text of the statute.

Without comment upon these four suggestions, (which need none, it would seem,) it may be remarked, finally, that if the explanation were really an amendment were really a lawwere a proviso, (as it has been called,) it would still be without applicability to the confiscation sections, except in depriving confiscations under the third clause of the fifth section of their retroactive character under the general law of relation.4

1 "If, therefore, the question before us were to be answered in view of the proper construction of the act of July 17, 1862, alone, there could be no doubt that the seizure, condemnation and sale of Charles S. Wallach's estate in the lot in controversy, left in him no estate or interest." Wallach . Van Riswick, (2 Otto,) 92 U. S. 202.

2 Ante, § 359.

3 "Act to Protect Liens on Vessels and for other purposes," approved Mar. 3, 1863, 12 Stat. at L. 762, U. S. Rev. Stat., §5322; Freedmen's Bureau Act, approved Mar. 3, 1865, 13 Stat. at L. 507.

For inapplicability of the resolution to sales of condemned property, see post 429-436.

§ 366. Hostile With Guilty Property Confounded. In the construction of the confiscation sections of the act of 1862, by the court of highest resort, if there is found some conflict of opinion, it is perhaps assignable to the fact that the statute contains both a criminal law and a law for civil procedure against enemy property; and to the further fact that the distinction between guilty and hostile property seems to have been overlooked.

There can be no impropriety in setting forth cases, in the order of their deliverance, which bear upon the construction of the act and the legislative explanation of it.

First, it was held1 that land had been condemned and sold,

1 Bigelow v. Forrest, 9 Wall. 339: Strong, J.

under the act, for an offense committed by its enemy owner, though it had not been used as an instrument in the commission of the offense. While it was held that the proceedings had been in rem, against all the right, title and interest of French Forrest, who was the owner in fee; and that the land was found (by the court which had condemned it as enemy's property,) to have belonged to a person engaged in the rebellion, yet it was also held that the condemnation was not rightfully that of the res but only of the use of it while French Forrest might live. Though the United States District Court had had jurisdiction of the subject matter; though all persons had notice, and no one claimed and all were defaulted; though that court had found the necessary fact that the land, prior to seizure and condemnation, had belonged to one of that class of enemies whose property was rendered confiscable; yet the Supreme Court sustained the collateral attack made upon this decree by Douglass Forrest, son of the enemy, as his heir, after his death, because (they held) French Forrest was an "offender," not an enemy; his property guilty, not hostile; the proceedings under municipal law-not under the jus gentium; the object of the law, punishment not the weakening of the foe. All this is either expressed in the opinion or necessarily implied.1

§ 367.

The Res held Shorn by the Explanatory Resolution. They held that the explanation given of the whole act of 1862 by Congress in a resolution passed with it, was of the force of a proviso attached thereto, and that it limited this decree of the court below to the condemnation of the father's life estate in the res. Had the land been really condemned under some municipal law for guilty use by an offending owner, it would not have "worked" forfeiture, as the explanatory resolution

has it.

The provision of the act was that the proceedings should be in rem, and the property condemned as enemy's property, and sold; and complete title given to the purchaser.

The distinction drawn in the opinion, between the right, title and interest in land, and the land itself, ceases to exist the

'Ante, chap. ii., civil character of all proceedings in rem.

moment it is admitted that Forrest, the father, held by a fee simple title. The land was the subject of seizure; but had "the right, title and interest" been the subject of seizure, the condemnation would have carried the land, where the interest was the whole, and the title in fee. This principle is well

settled. 1

This decision tends to overturn the long established rules of notice, of claim and answer, of default, and of res judicata, in all suits in rem. Douglass Forrest had received notice by monition, but had made no claim, entered into no stipulation, filed no answer, suffered himself to be defaulted, allowed the final adjudication of the land, (which was binding on all the world,) to be consummated, stood by and let the land be sold in market overt, had seen it become the property of Bigelow, and then he brought an action of ejectment against Bigelow for the recovery of the land, and succeeded.

$368. Proceedings In Rem held Personal. It was pleaded in bar, (or agreed by counsel,) as authorized by the confiscation act, that Douglass Forrest himself had been such a confederate officer as is classified with those whose property was declared by the act to be confiscable as enemy property: yet the court said, "Was he therefore barred from maintaining the ejectment? The land was not seized or condemned for any act of his," implying that it was seized or condemned for some act, when it was for ownership by an enemy of a designated class, who never had used his farm in the perpetration of any act. "He had no interest in it when it was declared forfeited:" certainly a very good reason for not appearing, claiming, affirmatively prosecuting his rights, and defending for the defendant thing; certainly a very good reason for allowing himself to be defaulted along with all the rest of the world, and for letting the new title arise in the United States to be conveyed to the purchaser. could not have been heard in opposition to the decree of forfeiture:" certainly not, since he had no interest; and for the further reason, that an enemy has no standing in the courts of the opposite belligerent. "The proceeding was wholly inter

1 Chap. iv., §§ 40, 41.

"He

*

alias partes: " The United States was the libellant and the res was the defendant; and there were no other parties but "all the world," and all were defaulted. French Forrest was no more a party than Douglass was. "If, therefore," continue the court, speaking of Douglass," he is not at liberty to assert his claim "What claim? He had no interest. If he had had, he should have claimed in time-should have claimed before the only tribunal having jurisdiction over the subject matter, in response to the notice, anterior to the decree. "If, therefore, he is not at liberty to assert his claim, he is denied the right to his property without trial, without any procedure in due course of law, and the practical effect of the bar is to assure to the purchaser at the marshal's sale the enjoyment of the property after his right has expired;" * * which is to say that if a court having jurisdiction finds the res to be enemy property of the confiscable class, it is essential to find who the particular owner is, which would be going beyond the requirements of the law; that if such court has judicially found the hostile res of the proscribed class to have belonged to the enemy A., when in fact it belonged to the enemy B., the latter may stand silent, and then attack the decree collaterally after the war. Douglass Forrest was barred as all enemies, in all suits in rem against hostile property, are forever barred; the plea in bar, authorized by the act of 1862, § 6,1 makes no hardship, since it merely applies a principle long held just-a rule many hundreds of years old. If Douglass Forrest had an interest and could not claim it because he was an enemy without the entre of the courts, the confiscation of his property was no more "without due process of law" than is that of every enemy's property, be it prize ship or hostile land, which is condemned by suit in rem. Is the condemnation without trial? There was trial of the res; not personal trial. And such trial of the res is due process of

law. 2

Treated as a Trial for Treason.

§ 369. But the court means that if he is barred from bringing his action of ejectment

112 Stat. at L. 591.

Ante, §§ 22, 23.