Lapeyre v. United States

delivered the judgment of the court.

The only inquiry presented for our consideration is, when the proclamation, which is the hinge .of the controversy, took effect. The question arises on the third finding of the Court of Claims, which is as follows: “The proclamation of the President of June 24th, 1865, was not published in the newspapers until the morning of the 27th of that mouth; nor was it published or promulgated anywhere, or in auy form, prior to said last-named day, unless its being sealed with the seal of the United States, in the Department of State, was a publication or promulgation thereof.”

There is no act of Congress, and nothing to be found in American jurisprudence, which bears very'directly on the subject. In the English law the instrument is thus defined: “Proclamation — proclaniatio—is a notice publicly given of anything whereof the king thinks fit to advertise his subjects. And so it is used, 7th Richard II, chap. 6.”^[12]

Proclamations for various purposes are mentioned in the English authorities, but it could serve no useful end partic

The act of Congress of July 27th, 1789, § 2, declares that whenever a bill, order, resolution, or vote of the Senate and House of Representatives has been signed by the President, or not having been returned by him with his objections, shall have become a law, it shall forthwith thereafter be received by the Secretary of State from the.President; and that whenever a bill, order, resolution, or’vote — having been returned by the President with his objections — shall have been approved by two-thirds of both houses of Congress, and become a law, it shall be received by the Secretary from the President of the Senate, or Speaker of the House of. Representatives, in whichsoever house it shall have been last approved; and it is made his duty carefully to preserve the originals. The first section of the act of April 20th, 1818, directs that the secretary shall publish all acts and resolutions currently as they are passed, in newspapers. The fourth section provides that he shall cause to be published at the close of every session of Congress copies of the acts of Congress at large, including all amendments to the Constitution adopted, and all public treaties ratified, since-the last publication of the laws.

Both those acts are silent as to proclamations, and we have been unable to find any provision in the laws of Congress touching the manner of their original promulgation or their subsequent printing and preservation. Numerous acts were passed during the late war authorizing proclamations to be issued, but they are silent upon these subjects.

We know that the established usage is to publish proclamations with the laws and resolutions of Congress currently in the newspapers, and in the same volume with th.ose laws and resolutions at the end of the session.

There' is no statute fixing the time when acts of Congress shall take effect, but it is settled that where no other time is prescribed, they take effect from their date.^[14] Where the language employed is “from aud after the passing of this act,” the same result follows. The act becomes effectual upon the day of its date. In such cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible. See Welman’s Case,^[15] where the subject is examined with learning and ability.

Publishing by outcry, in.the market-place and streets of towns, as suggested by Chi tty, has, we apprehend, fallen into disuse in England. It is certainly unknown in this country. While it is said the proclamation always .appears in the gazette, he does not say that it cannot become operative until promulgated in that way. As no mode of publication is prescribed, and those suggested will answer, we do not see why applying the seal and depositing the instrument

It would be unfit and unsafe to allow the commencement of the effect whenever the question, arises, whether at a near or a distant time, to depend upon the uncertainty of parol proof, or upon anything extrinsic to the instrument itself, as found in the archives of the nation.

Judgment reversed, and the ease'remanded with directions to enter a judgment

In eavor oe the appellant.

I concur in the judgment in this case.

(with whom concurred Justices MILLER, FIELD, and BRADLEY), dissenting :

The question presented is this: Does the fact that the document under consideration had on it the seal of the United States, and that it was in the Department of State, give to it the vitality of a proclamation ?

If it had vitality or existence on the 24th day of June, the government agent had no authority to retain the 119 bales of cotton by virtue of the law of 1864. If it had not existence on that day, he had authority, aud the present-claim is without foundation.

What is a proclamation? It is to cry aloud, publicly to make known. One may proclaim, as of old, by the sound of trumpet,'Or by voice, or by print, or by posting; but not by silence. A proclamation may be published.' in the newspapers, or scattered by writing, or in any demonstrative manner, but it cannot be published by a deposit in a place to which the public have no access.

The lexicographers agree in their definition of a proclamation. Webster gives' it thus: “1. A proclamation by authority; official notice given to the public. 2. In England a declaration of the king’s will openly published.” “ 3. The declaration of a supreme magistrate made publicly known.” In each of these definitions, it will be perceived that publicity is an important' ingredient. “Notice given to the public,” “openly published,” “made publicly known,” are significant expressions. They give it as an essential element of its character .that it should be openly and publicly made known. The expounders of the law use nearly the same language as the lexicographers. In Jacobs’s Law Dictionary is this language: “ Proclamation — a notice publicly given of anything- whereof the king thinks fit to advertise his subjects.” In Bacon’s Abridgment^[11] it is said.: “ The king, by his prerogative, may in certain cases and on, special occasions make and issue out proclamations for the prevention of offences, to ratify and confirm an ancient law,

After a careful examination of the law books — Allen on the Royal .Prerogative, Hearne on the Government of England, and several similar works — it is safe to say that no authority can be found contradicting this statement ofChitty.

It is assumed generally, as resting on the nature of the instrument and the general principles of law, that there must be a publication, and nowhere is an intimation to the con-' trary to be found. •

In the case before us no publicity was given to the paper. It was in no gazette, iu no market-place, nor in the street.'

Neither did the seal add to its character except to authenticate it. Comyn says that every proclamation ought to be “ sub magno sigillo Anglicce.”^[11] †‡Ás evidence' of its regularity and authenticity the seal is well,'but it adds nothing to its publicity. It conveys, notice to no one. It gives no public knowledge of its existence.

It is argued that a statute takes effect from the date of its approval, unless a-different time is fixed by law. As a general rule this is true. It is further said that, by relation, it covers the whole of the day of its approval. This also is generally true.' It has often been decided, however, that where justice requires it, the true time of its passage may be shown even to the hour of the day.^[12]

In the case of Welman,^[13] cited to sustain the general rule, the qualification here stated is recognized. The statement of Lord Mansfield is given,^[8] in which it is stated that, when necessary, the law does examine into fractions of a day. He says that “ he does not see why the very hour of its passage may not be shown when it is necessary and can be done.”

. This principle, however, does not aid in the present case. When a bill has .passed both houses and been signed by the President, and deposited in the proper place, the legislative and executive power is exhausted. • The last act of power has been exercised. The present is more like the case of a

It is said again that a proclamation is a record, and that its existence is to be determined upon the plea of mil tiel record. So is'a judgment a record. So is a statute; and the same may be said of a deed. The document itself must be proved by the production-of.the record; but in each of the cases mentioned the time at which it takes effect may be established by parol. In each ease its effect is presumptively of the day of its date, but the truth may be shown when the fact is otherwise, and even to fractions of a day when justice requires it.^[11]

It is said also that the introduction of extraneous evidence of the time, of publication would cause great confusion. The argument of inconvenience is never a satisfactory one. It is not perceived how it would produce more difficulty in this "case than in the case of statutes. A proclamation is usually issued iu fact at' its date. It is presumed to be so issued. The date may be erroneous. It may have been issued before it bears date. It may have been issued afterwards. The important rights of persons and of property affected by it cannot be allowed to be overborne by the argument of inconvenience. It would produce much greater inconvenience, as well as injustice, to public interests and to private rights that a rule of law or of property should be fixed as of a time which it should be b'eyond the power of-the most vigilant to ascertain. Proclamations by the king alone, or by the king by the authority of Parliament, or by the President by the authority of Congress, or as paro of the executive power, embrace an immense range of subjects. Knowledge of their contents, or the means of obtaining it, is of more importance, than the inconvenience that may be supposed to arise from leaving the time of publication to be ascertained by actual proof.

The want of applicability of this authority to the case before us is manifest. There the last authority of the President had been exercised. His power, was exhausted. Here he had not, on the. 24th of June, exercised the last act of authority, nor did he exercise it until the 27th of that month. It is not doubted that when he had- exercised it, and had published his proclamation, his power was at an end, the instrument was perfect, and the rights of all parties became fixed. But until he gave life to his proclamation, by some public or official notice of its existence, it was inchoate merely. The last act had not been performed.

The learned counsel who argued for the appellant did not deny that uutil publication had been made the proclamation was revocable by the President. ' If the view we take is correct, it certainly remained in his power and under his control for alteration dr revocation until publication-’was made. A revocable law is an anomaly. It is a solecism, an absurdity. If it is a law, it is not revocable. If it is revocable, it is not a law. The elements of change and of certainty cannot exist in the same thing at the same time. Until the 27th.of June the proclamation was not beyond the power of. change. Until that day, therefore, it could not be a lawn

An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or which imposes additional punishment to that then prescribed.^[11]

In Fletcher v. Peck,^[12] it was decided that an act of the legislature, by which a man’s estate shall be seized for a crime, which was not declared to be an offence by some previous law, was null and void.

In Cummings v. Missouri,^[13] it was held that although the prohibition of the Constitution against ex post facto laws is aimed against criminal cases, it cannot be evaded by giving a civil form to that which is in substance criminal. The passage of an act imposing a penalty upon a priest for the performance of an act, innocent by law at the time it was committed, was, therefore, held to be void.

The principle is so familiar that it is not necessary to accumulate authorities. The proposition we are discussing falls directly within the prohibition.

We are not called upon to decide ivhat would amount to a sufficient publication, or in what manner the required notice may be given. We are simply to decide whether, upon the facts before us, a legal publication of the proclamation had been made ou the 24th day of June, 1865.