1877. contrary to the first principles of the social compact January Term. and of the right administration of justice." Accordingly the judgment of the district court in that case Fairfax was reversed, and the cause remanded to the circuit City of court with directions to proceed in it in conformity to law. V. Alexan'ria In Underwood v. Mc Veigh, 23 Gratt. 409, it was unanimously held by this court, that even in a collateral proceeding between other parties the judgment of the district court referred to in McVeigh v. United States, supra, having been rendered in the absence of McVeigh, was a nullity, and the deed of the marshal passed no title to the purchaser. Judge Christian, in delivering the opinion of the court, said: "The sentence of condemnation and sale was a nullity-void in toto. It was rendered absolutely void by the act of the court in refusing to permit McVeigh to appear and be heard. The authorities on this point are overwhelming, and the decisions of all the tribunals of every country, where an enlightened jurisprudence prevails, are all one way. It lies at the very foundation of justice, that every person who is to be affected by an adjudication should have an opportunity of being heard in defence, both in repelling the allegations of fact and upon the matters of law; and no sentence of any court is entitled to the least respect in any other court, or elsewhere, when it has been pronounced ex parte and without opportunity of defence." "A tribunal which decides without hearing the defendant, or giving him an opportunity to be heard, cannot claim for its decrees the weight of a judicial sentence. See Smith's Leading Cases, vol. 1, part 2, ed. 1872, pp. 1118, 1119 and 1120, and the numerous cases there cited." Such is the settled law where the defendant's appearance and answer are stricken from the files, and the court then goes on to decide the case in the absence of the defendant, and without being willing to hear him. In that case the judgment is not only void, but may be reversed on error by an appellate court. 1877. January Term. Fairfax V. Alexan'ria But what difference can it make that the defendant's City of appearance and answer were first received and then stricken from the files if he was not permitted to appear? It may make this difference to be sure; that, in the latter case, the refusal of the court to permit him to appear, not being matter of record in the case, he can obtain no relief by writ of error to an appellate court. But that difference strengthens the reason for giving him relief in a collateral proceeding, which is his only remedy. Surely he is entitled to some remedy for the grievous wrong which is done him by not permitting him to appear and defend himself against a criminal charge which is made against him. It is not his fault that he has no remedy by writ of error. He had no power to appear against the rule of the court to the contrary. He could not therefore make the refusal of the court a matter of record in the case. The judgment is therefore absolutely null and void, and must be so regarded in a collateral proceeding. The defendant is in effect not a party to the proceeding, and a judgment cannot be conclusive against a person not a party. The defendant's right to appear and defend himself against the criminal charge made against him in the libel is manifest from the nature of the act of congress, and all the proceedings against him in the confiscation case. The act was not made for the confiscation of property, merely because it was enemy's property, but because the owner of it had been guilty of certain criminal acts defined in the law. His guilt of these criminal acts is the foundation of the judgment of con Fairfax V. Alexan'ria 1877. fiscation against him, and his right to defend himself January Term. against the charge of these acts is just as clear as would be his right to defend himself against a charge of murder or any other crime. Almost every step in City of the proceedings recognizes the right of the defendant to appear and make his defence. In the conclusion of the libel, prayer is made that process of monition may issue against the owner of the property therein described, and against all persons interested, or claiming an interest therein, warning them, at some early day to be therein named, to appear and answer this libel of information; and the owner of said property being absent and non-resident, prayer is further made for order of publication in the usual form, &c. And to the same effect are the subsequent proceedings in the case. As for instance, the order of court awarding. the monition, appointing a time and place for the trial of the cause, and directing notice of such time and place, and of the substance of the libel to be given by publication thereof in a newspaper published in the city of Alexandria, and also by posting up the same at the court-house door; and that proclamation of the pendency of the suit be made by the marshal at the court-house door twice weekly until the day of trial. All of these directions appear by the record to have been complied with. What a mockery, in the face of all these proceedings designed to notify the defendant of the charges made against him and to afford him an opportunity of appearing and making his defence, was the application to his case of the rule of the court to "allow no appearance for any 'rebel' or 'traitor!"" thus assuming his guilt of the crime charged against him, which charge he was summoned to answer. That he was prevented by this rule thus announced 1877. January Fairfax V. Alexan'ria from appearing and making his defence, is manifest. He had appeared and made his defence in several other confiscation cases against him tried just before the trial of this one, and his appearance and defence in those cases had been stricken from the file, under the City of operation of the rule which was then announced to his attorney. He had precisely the same reason for appearing and making his defence in this case as in those cases; and he would, no doubt, certainly have done so, but for the rule which barred the court against him. It was certainly not necessary for him to do so vain a thing as to knock at the door of the court after it was barred, and when he knew it would not be opened to him. It can hardly be necessary to cite authority in support of views which seem to be self-evident. The cases of Dean v. Nelson, 10 Wall. U. S. R. 158; Lasere v. Rochereau, 17 Id. 437; and Tacey v. Irwin, 18 Id. 549, strongly sustain them; but it is unnecessary to do more than refer to them. Upon the whole, the court is of opinion that the judgment of the circuit court is erroneous, and ought to be reversed and annulled; that the law, upon the facts stated in the case agreed, is for the plaintiff, and that judgment ought to be rendered accordingly. Since writing the foregoing opinion, we have received and read the opinion of the supreme court of the United States in the case of Windsor v. Mc Veigh, recently decided in that court and not yet reported. We entirely concur in that opinion, and think the principles established by it fully sustain the views expressed by us, in the latter branch of the foregoing opinion. That decision entirely accords with the decision of this court in Underwood v. Mc Veigh, 23 Gratt. 409; the facts of the two cases being precisely alike. 1877. January Term. Fairfax V. City of Alexan'ria We have endeavored to show in the foregoing opinion, The case was argued at the last term of the court, and before the election of Judge Burks; but he concurs in the opinion. |