Lapeyre v. United States/Dissent Hunt
Mr. Justice HUNT (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, and 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  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, or, as some books express it, 'quo ad terrorem populi,' to admonish them that they keep the law on pain of his displeasure.' And again:  'The king, by his proclamation, may enforce the execution of the laws, and, therefore, if the king, by proclamation, prohibits that which was before unlawful, the offence afterwards will be aggravated.' An unknown and secret act of the king could not legally add to the enormity of a public offence. In his 12th volume,  Coke gives a full statement of what the king may do by proclamation, and what he may not do. Chitty, on Prerogative, thus lays it down: 'A proclamation must be under the great seal, and if denied, is to be tried by the record thereof. It is, of course, necessary that it be published, in order that the people may be apprised of its existence and may be enabled to perform the injunctions it contains. In the absence of any express authorities on the point it should seem that if the proclamation be under the great seal, it need not be made by any particular class of individuals or in particular manner and place, and that it would suffice if made by any one under the king's authority, in the market-place or public streets of each large town. It always appears in the gazette.'  This authority clearly asserts the necessity of publication. It always appears, he says, in the gazette. It would suffice if made in the market-place or public streets.
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 of Chitty.
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 contrary to be found.
In the case before us no publicity was given to the paper. It was in no gazette, in no market-place, nor in the street. It was signed by the President and the Acting Secretary of State, and deposited in the Secretary's office. It does not appear that a single person besides the President and Secretary was aware of its existence. A deposit in the office of state is not notice or publicity. We are not to confound the solemnity or the security of a resting-place in the archives of the state with publicity. No doubt the place of deposit was suitable and appropriate, but if promulgation is founded upon public knowledge or notice, it is difficult to understand how it is furnished by this fact.
Neither did the seal add to its character except to authenticate it. Comyn says that every proclamation ought to be 'sub magno sigillo Anglicae.'  As 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. 
In the case of Welman,  cited to sustain the general rule, the qualification here stated is recognized. The statement of Lord Mansfield is given,  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 deed, which takes effect from its delivery. It may be signed, sealed, and acknowledged by the grantor, but, as a general rule, it has no effect while it remains in his possession; nor is the effect different, if it be left in the hands of the notary taking the acknowledgment.
It is said again that a proclamation is a record, and that its existence is to be determined upon the plea of nul 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 case 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. 
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 in 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 beyond 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 part 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.
It is suggested that the case of Marbury v. Madison  is in conflict with the conclusion stated. In that case Mr. Adams had appointed Mr. Marbury and others justices of the peace of the District of Columbia, but their commissions had not been delivered. Afterwards Mr. Madison, Secretary of State, refused to deliver them, and Mr. Marbury applied for a mandamus to compel such delivery. The nominations had been confirmed by the Senate, and the commissions had been signed by the President, and the seal of the United States affixed by the Secretary of State. The court held that when the last act of authority on the part of the Executive had been completed his power was at an end, and the right to the office was perfect. This last act was declared to be the signature of the commission.
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 until 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 or 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 law.
It has been suggested, although this proclamation did not come into existence until the 27th of June, that after it did take effect, it related back to the 24th of that month. Such a principle is unknown to our laws. It involves the essential effect of a retroactive law. That a man should, on the 24th of June, perform an act lawful and commendable, that by an official declaration on the 27th this lawful act should be rendered unlawful at the time it was performed, and punishable, is in violation of every idea of constitutional law and of common right. When applied to criminal law, such an act is ex post facto, and retroactive when applied to civil cases.
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. 
In Fletcher v. Peck,  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,  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 what 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 on the 24th day of June, 1865.
^22 20 Vermont, 653; see also Howe's Case, 21 Id. 619; The Ann, 1 Gallison, 62; Arnold v. The United States, 9 Cranch, 104; 1 Kent, 457.
^23 Prerogative 8.
^24 Prerogative 8.
^25 Page 76.
^26 Chitty on Prerogative, 106.
^27 Title Prerogative; D. E. 3.
^28 Brainard v. Bushnell, 11 Connecticut, 17; The People v. Clark, 1 California, 408; Gardner v. Collector, 6 Wallace, 499.
^29 20 Vermont, 653.
^30 Combe v. Pitt, 3 Burrow, 1434.
^31 Authorities supra.
^32 1 Cranch, 137.
^33 Carpenter v. Pennsylvania, 17 Howard, 456.
^34 6 Cranch, 87.
^35 4 Wallace, 277.