Statement of the case. CONFISCATION CASES. 1. An informer, in prosecutions under the act of August 6th, 1861, which subjects to confiscation, upon libel filed, property whose owner used or consented to its use in aiding the rebellion, has no vested interest in the subject-matter of the suits; and this, notwithstanding that the act declares that where any person files an information with the Attorney of the United States (as the act allows any person to do), the proceedings shall be "for the use of such informer and the United States in equal parts." 2. Hence, the Attorney-General may properly, and against the interest and objection of the informer, ask a dismissal of an appeal to this court in cases where the decree below, having been against it, the government has appealed; and in the same way ask, upon agreement to that effect with the counsel of the claimants, for a reversal of a decree, where, on decree against them, the appeal has been by the other side, and for a remand of the cause to the court below, with directions to it to dismiss the libel. THE question in this case arose upon a motion of Mr. Evarts, Attorney-General, in fifteen appeals from the Eastern District of Louisiana, in which judgments had been given on libels for condemnation and forfeiture-as having been employed in aid of the rebellion, with the consent of the owners-against the Trent and five other vessels, from which judgments the owners of the vessels appealed; and given in favor of the Eleanor and eight other vessels, from which the United States appealed. Mr. Justice CLIFFORD stated the case more particularly, prior to delivering, as hereinafter, the opinion of the court. Property owned by any person who knowingly uses or employs the same, or who consents to the use or employment of the same in aiding, abetting, or promoting insurrection against the government of the United States, under the conditions specified in the first section of the act of the 6th of August, 1861, is declared by that act "to be lawful subject of prize and capture," and all property purchased, acquired, sold, or otherwise transferred, with intent that the same may be so used or employed, is also declared to be Statement of the case. subject to the same proceedings, and the provision is, that it shall be the duty of the President to cause the same to be seized, confiscated, and condemned.* Proceedings for the condemnation of such property may be instituted by the Attorney-General, or by any district attorney for the district in which the property is situated at the time the proceedings are commenced, and the third section provides, that in such cases "the proceedings are wholly for the benefit of the United States;" but the same section also provides, that "any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts." Pursuant to those provisions libels of information were filed in these cases by the district attorney of the United States for the Eastern District of Louisiana, in the Circuit Court of the United States for that district, in which it was alleged that the steamer Eleanor was seized on the 15th of June, 1865, and that the steamer Trent was seized on the 30th of June in the same year. Apart from the names of the vessels, and the time when the respective seizures were made, the allegations of the libels are similar in every respect material to this investigation. They were addressed to the judges of the Circuit Court for that district, and the introductory allegation in each states that the district attorney prosecutes for the United States, and in the name and behalf of the United States and Charles Black, informant, against the respective steamers, their tackle, apparel, and furniture, and the prayer of the respective libels is for process of monition, order of publication, and for a decree of condemnation to the use and ownership of the United States and of the informant. Both steamers were seized, and process was served in each case; but the steamers were afterwards released by the order of the court, made at the request of the claimants, who respectively gave bonds for their appraised value. Subsequent proceedings in the two cases were in all respects 12 Stat. at Large, 319. Opinion of the court. the same, except that the decree in the first case was for the claimants, and in the second for the United States, and the losing party in each case appealed to this court. Other appeals in like cases were entered in this court at the same term, and they have remained on the calendar to the present time. Early in the present term some of the cases were heard upon the merits; but these cases now come before the court on certain motions made in behalf of the United States by the Attorney-General. His motion in the first case is for leave to dismiss the libel of information; and in the second case, his proposition is to the effect that the decree of the Circuit Court, which was in favor of the United States, shall be reversed, and the cause remanded, with a view that the same may be dismissed in the court where the suit was instituted. When the motions were made they were taken under advisement; but the court subsequently decided that the motions ought to be granted, unless the informer desired to be heard in opposition to the discontinuance of the prosecutions. Since that time the informer has been heard,* and the court has come to the conclusion that the respective motions must be granted. Provision was made by the thirty-fifth section of the Judiciary Act for the appointment of an attorney of the United States in each district, and the same section makes it his duty to prosecute in such district all delinquents for crimes. and offences cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned, except before the Supreme Court, in the district in which that court shall be holden.† In the prosecution of suits in the name and for the benefit of the United States, the seventh section of the act of the 15th of May, 1820, provided that the district attorneys should conform to such directions and instructions as they * He was represented here by Messrs. C. Cushing and B. Butler.-REP. † 1 Stat. at Large, 92. Opinion of the court. should receive from the agent of the treasury; but the first section of the act of the 2d of August, 1861, devolves the general superintendence and direction of district attorneys, as to the manner of discharging their respective duties, upon the Attorney-General of the United States.* Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empanelled for the trial of the case, except in cases where it is otherwise provided in some act of Congress. Civil suits, in the name and for the benefit of the United States, are also instituted by the district attorney, and, in the absence of any directions from the Attorney-General, he controls the prosecution of the same in the district and circuit courts, and may, if he sees fit, allow the plaintiffs to become nonsuit, or consent to a discontinuance. Settled rule is that those courts will not recognize any suit, civil or criminal, as regularly before them, if prosecuted in the name and for the benefit of the United States, unless the same is represented by the district attorney, or some one designated by him to attend to such business, in his absence, as may appertain to the duties of his office.† Under the rules of the common law it must be conceded that the prosecuting party may relinquish his suit at any stage of it, and withdraw from court at his option, and without other liability to his adversary than the payment of taxable costs which have accrued up to the time when he withdraws his suit. Precisely the same rule prevails in the admiralty courts, and consequently the libellant has the right at any stage of * 3 Id. 596; 12 Id. 285. 11 Stat. at Large, 51; Levy Court v. Ringgold, 5 Peters, 454; United States v. Corrie, 23 Law Rep. 145; United States v. Stowell, 2 Curtis, 153; United States v. McAvoy, 4 Blatchford, 418; The Peterhoff, Blatch. Prize Cases, 463; The Anna, Ib. 337. 1 Tidd's Practice, 628. Opinion of the court. the cause voluntarily to discontinue the same, and the only penalty to which he can legally be subjected, in the absence of any statutory regulation, except, perhaps, in prize cases, is the payment of the costs of the proceedings.* Although the name of the informer in these cases is mentioned in the libel of information, still it is nevertheless true that the suit was instituted by the district attorney in the name and for the benefit of the United States. Control of these suits, therefore, while they were pending in the Circuit Court, belonged to the district attorney under the general superintendence and direction of the Attorney-General, and he might, if he had seen fit, have discontinued them at any stage of the proceedings prior to the appeals. Such control on the part of the district attorney ceases whenever such a suit, civil or criminal, is transferred to this court by writ of error, appeal, or certificate of division of opinion, as the thirtyfifth section of the Judiciary Act also provides, that it shall be the duty of the Attorney-General to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and such has been the unbroken practice of this court in such suits from the organization of the judicial system to the present time. Appointed, as the Attorney-General is, in pursuance of an act of Congress, to prosecute and conduct such suits, argument would seem to be unnecessary to prove his authority to dispose of these cases in the manner proposed in the respective motions under consideration, but if more be needed, it will be found in the case of The Gray Jacket,† in which this court decided that in such suits no counsel will be heard for the United States in opposition to the views of the Attorney-General, not even when employed in behalf of another of the execu tive departments of the government. Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are *The Oriole, Olcott, 67. 5 Wallace, 370. |