Opinion of the Chief Justice, and of Swayne, Clifford, and Strong, JJ. session, no matter how long the session or when the act was passed. This rule was applied to acts punishing offences of all grades, including those which were capital and even attaints. The authorities on the subject are learnedly collected by Mr. Justice Story in the case of The Brig Ann.* Such was the law in England until the passage of the 33d George III, chap. 13, which declared that the royal assent should be indorsed, and that the act should take effect only from that time. 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. * 1 Gallison, 64. Opinion of the Chief Justice, and of Swayne, Clifford, and Strong, JJ. In the act of July 10th, 1861, under which the proclamation here in question was issued, the language is-“it may and shall be lawful for the President by proclamation to declare," &c. In the act of June 22d, 1861, the language is—“the President shall from time to time issue his proclamation."† In the act of December 31st, 1862, the language is the same as in the act first referred to. In the act of March 3d, 1863, the language is "the President shall issue his proclamation declaring," &c.§ We have nowhere found in the legis lation of Congress any material departure from this formula, nor anything further in anywise affecting the question before us. 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 those 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. Where the language employed is "from and 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,¶ where the subject is examined with learning and ability. Publishing by outery, in the market-place and streets of towns, as suggested by Chitty, 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 * 12 Stat. at Large, 257. † Ib. 268. Matthews v. Zane, 7 Wheaton, 211. Ib. 633. Ib. 735. 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. Opinion of the Chief Justice, and of Swayne, Clifford, and Strong, JJ. in the office of the Secretary of State, may not be held to have the same effect. The President and Secretary have then completed their work. It is there amidst the archives of the nation. The laws of Congress are placed there. All persons desiring it can have access, and procure authenticated copies of both. The President signs and the Secretary of State seals and attests the proclamation. The President and Congress make the laws. Both are intended to be published in the newspapers and in book form. Acts take effect before they are printed or published. Why should not the same rule apply to proclamations? We see no solid reason for making a distinction. If it be objected that the proclamation may not then be known to many of those to be affected by it, the remark applies with equal force to statutes. The latter taking effect by relation from the beginning of the day of their date, may thus become operative from a period earlier than that of their approval by the President, and indeed earlier than that at which they received the requisite legislative sanction. The legislative action may all occur in the latter part of the day of their approval. The approval must necessarily be still later. It may be added, as to both statutes and proclamations, that even after publication in the newspapers, there are in our country large districts of territory where actual knowledge does not usually penetrate through that or any other channel of communication, until a considerably later period. It will hardly be contended that proclamations should take effect at different times, in different places, according to the speedier or less speedy means of knowledge in such places respectively. But the gravest objection to the test of publication contended for by the defendant in error remains to be considered. It would make the time of taking effect depend upon extraneous evidence, which might be conflicting, and might not be preserved. The date is an unvarying guide. If that be departed from, the subject may be one of indefinitely recurring litigation. The result in one case would be no bar in another if the parties were different. Upon whom Concurrence of Davis, J., in the judgment. would rest the burden of proof, the party alleging or the party denying the fact of publication? If, after a lapse of years, the proof were that a proclamation purporting to be published by authority, was seen at a specified time in a newspaper, but the paper were lost and its date could not be shown, would the proclamation be held to take effect only from the time it was so seen by the witness? Suppose in the distant future no proof of publication could be found, would all the rights which had grown up under it be lost unless protected by the rule of limitations? Would the instrument itself be a nullity? Would an exemplified copy from the proper office be an insufficient answer to the plea of nul tiel record? According to the views maintained by the counsel for the plaintiff in error all these questions must be answered in the affirmative. The only way to guard against these mischiefs is to apply the same rule of presumption to proclamations that is applied to statutes, that is, that they had a valid existence on the day of their date, and to permit no inquiry upon the subject. Conceding publication to be necessary, the officer upon whom rests the duty of making it should be conclusively presumed to have promptly and properly discharged that duty. If the proclamation here involved were a resolution or an act of Congress no such question could arise. That "a proclamation," "if denied, is to be tried by the record thereof," and that in such case the proper plea is nul tiel record, seems to be conclusive upon the subject. .. 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 case remanded with directions to enter a judgment IN FAVOR OF THE APPELLANT. DAVIS, Justice.-I concur in the judgment in this case. Opinion of Hunt, Miller, Field, and Bradley, JJ., dissenting. 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 expe anders 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 adver tise 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, * Prerogative 8. |