1. Cotton owned by a British subject, although he never came to
this country, was, if found during the rebellion within the
Confederate territory, a legitimate subject of capture by the
forces of the United States, and the title thereto was transferred
to the government as soon as the property was reduced to firm
possession.
2. Within two years after the rebellion closed, if he had given
no aid or comfort thereto, he could, under the Act of March 12,
1863, 12 Stat. 820, have maintained a suit in the Court of Claims
to recover the proceeds of his cotton so captured which were paid
into the treasury.
3. If he furnished munitions of war and supplies to the
Confederate government, or did any acts which would have rendered
him liable to punishment for treason had he owed allegiance to the
United States, he gave aid and comfort to the rebellion within the
meaning of that act, and was thereby excluded from the privileges
which it confers.
4. By giving such aid and comfort, he committed in a criminal
sense no offense against the United States, and he was therefore
not included in the pardon and amnesty granted by the proclamation
of the President of Dec. 25, 1888, 15 Stat. 711.
This suit arises under the Abandoned and Captured Property Act,
12 Stat. 820, and comes into this Court by appeal from the judgment
of the Court of Claims against John Young, trustee in bankruptcy of
Alexander Collie, upon the following finding of facts:
"I. Said Collie was a subject of the Queen of Great Britain and
Ireland at one time residing in Manchester, England, as a member of
the firm of Alexander Collie & Co., but in the years 1862,
1863, and 1864, residing and doing business, in his own name, in
London, England, and he has at no time been in the United
States."
"II. In the year 1862, the said Collie engaged in fitting out,
lading, and sending steamships to run the blockade of the ports
in
Page 97 U. S. 40
states which were then in rebellion against the United States,
and for about two years he continued engaged in that business,
sending a large number of such vessels for that purpose, which
succeeded many times in running the blockade, in and out, and
carried into some of those ports general merchandise, which was
there sold, and also munitions of war, to-wit, arms, gunpowder,
armor plates for war vessels, army clothing, cannon, shot,
ammunition, and quartermaster and medical stores, which were
purchased in England by said Collie, or by agents of the so called
Confederate States of America, to whom, in aid of such purchases,
the said Collie made large advances of money, and when said
munitions of war were run into said ports, they were delivered to
the government of said Confederate States. The vessels so engaged
in running the blockade took back from said ports, to said Collie,
large quantities of cotton, partly received from said government in
payment for the munitions of war, and other things received from
him, and partly bought for him by his agents in those states, with
moneys derived from the sales there of the cargoes of merchandise
taken into said ports by the ships of said Collie. The cotton, for
the recovery of the proceeds of which this suit was brought, was
purchased by said Collie's agent in the said Confederate States,
with moneys so derived."
"The said Collie, on the 1st of October, 1863, addressed the
following letter to John White, special commissioner for the state
of North Carolina, then in England:"
"No. 1] 22A AUSTIN FRIARS, LONDON"
" 1st October, 1863"
"JOHN WHITE, Esq.,"
"
Special Comm'r for North Carolina:"
" DEAR SIR -- Being desirous of aiding in any way in my power
the government of your state in its present struggle, it seems to
me that the time has come when this can be done very efficiently,
and, with this view, I now ask your careful consideration of the
following propositions:"
" From all I can learn, the chief requirement of your country at
the present moment, as far as concerns business here, is to receive
supplies of railway iron, rolling stock, and a few other articles,
with regularity, expedition, and economy. To effect this, I
propose:"
"
First, to furnish, with as little delay as possible,
four steamers of the most suitable description for blockade
running, of which your state will own one-fourth interest, the
other three-fourths being held by myself and friends. "
Page 97 U. S. 41
"
Second, to give up to the government of your state,
when required, the entire inward carrying power of said steamers
from the island to the Confederacy, at a moderate rate, to be fixed
hereafter."
"
Third, that the government of your state be entitled
to one-fourth space of the outward carrying power of each steamer
for cotton or other produce, and this arrangement will, I estimate,
yield to your state funds sufficient to pay cost and all charges on
inward cargo, cash of its share of outward cargo, and (if cotton of
good quality be sent out) a very large surplus will be left at the
credit of your state on each trip. If at any time there should be a
deficiency of cargo for government or other account, freight will
be taken, if procurable, from other parties and a due share of any
freight so carried will be credited to the state. In a business
such as that now sought to be inaugurated, it is manifestly
impossible to provide for all contingencies which may arise; all I
can at present do is to indicate the chief aims, objects, and
conditions. The rest must be left to the good faith and honorable
dealing of the government of your state on the one part and of
myself on the other. I need hardly add that any proposition from
your government for altering or amending any of the conditions you
and I may agree to will be met by me in the most liberal spirit,
and that I place the same implicit confidence in the good faith of
the governor and government of your state I ask them to place in
me."
" I remain, dear sir, yours faithfully,"
" (Signed) ALEX. COLLIE"
"On the 27th of October, 1863, the said Collie and the said
White entered into the following agreement:"
" With the view of carrying out efficiently the business
indicated in the preceding letter of 1st instant, it is hereby
agreed by Alexander Collie, for himself and friends, on one part,
and John White, of North Carolina, for the governor of that state,
on the other part, that Alexander Collie will furnish four steamers
of suitable construction and speed, as soon as practicable; that
one-fourth interest in each of these steamers will belong to the
government of North Carolina, three-fourths owned by Alexander
Collie and friends. The government will pay their share of the
costs and outfit of such steamers by cotton warrants (Manchester
issue) at par, and the working expenses of such steamers will be
paid by the respective owners in their due proportion; that is,
one-fourth of the working expenses will be paid by the government
of North Carolina, and
Page 97 U. S. 42
three-fourths by the other owners, and if from any sufficient
cause it should be deemed prudent to sell any of the steamers, the
net proceeds of such sale or any money earned in the shape of
freight will be duly credited in like proportion. Under this
contract the
Hansa and the
Don, both most
excellent boats, now running between Wilmington and the islands,
will, on next arriving at the islands, be made over to the state in
the proportion of one-fourth interest in each, and these steamers
will be charged �20,000 sterling for the
Hansa, and
20,000 sterling for the
Don, this being the estimated
total cost price of each at the islands, and considerably under the
estimated value. Another screw steamer, similar to the
Ceres, will be ready for sea in about four weeks, and in
about two months the fourth will be dispatched. By this arrangement
the chief objects sought to be obtained are:"
"
First, to supply railway iron and rolling stock, and
such other articles as may be needed by the state, at a moderate
rate of freight, and in regular quantities."
"
Second, to run out regularly a quantity of cotton for
the state, to enable it to benefit from the very high prices ruling
here."
"
Third, to reduce the risk of capture as much as
possible by dividing the interest of the government over four or
more steamers. In order to secure the greater economy and the more
efficient working facilities, the working management of the
steamers will rest in the hands of Alexander Collie & Co., who,
as representing the larger proportion, will appoint the captains
and officers, but no important steps, such as disposing of any of
the steamers or replacing any of them or adding to their number
will be undertaken without the full knowledge and consent of Mr.
White, the special commissioner here. Under this arrangement, the
parties interested will have the benefit of a well trained and
experienced staff of men at all points, and the government of the
state, on its part, will give all the aid in its power to the
efficient working of the business now inaugurated. It will give all
the aid it can do to get transportation of cotton from the interior
when required, and it will guarantee the undertaking from any
restrictions or impediments being thrown in the way of full cargoes
being obtained for each steamer of cotton or other produce with the
least possible delay. The inward carrying power of the steamer from
the islands will be at the service of the state, at the rate of
�5 per ton, payable at the islands, for railway iron and
rolling stock (one fourth of which will be duly credited to the
state as its interest), and arrangements will be made immediately
to lay down one thousand tons of railway iron at the
Page 97 U. S. 43
islands for this purpose. For fine goods, the rate will be
�30 per ton."
" The government of the state will be the owners of outward
cargo to the extent of one-fourth. Their cargoes will be purchased
by the agents of Alexander Collie & Co., subject to the
inspection of the government of the state, who will be debited for
one fourth of the amount, and on safe arrival in England one-fourth
of the proceeds will be duly credited to the state. The commission
chargeable on this business will be the usual one of two and a half
percent on purchases and realizing, and five percent on ships'
disbursements, in addition to the usual brokerage, and such charges
as incurred at the islands for transshipment and storing. The
government will of course have the option of putting on board their
own shares of the cotton, but for many reasons this is hardly
desirable. If they do so, however, the buying commission of two and
a half percent will be avoided. In cases when Alexander Collie
& Co. come under cash advances for account of the state (in
place of putting the cotton warrants in the market), Alexander
Collie & Co. will be entitled to a further commission of two
and a half percent for the amount of such advance -- interest at
the rate of five percent to be charged, and the same rate to be
allowed when there is cash in hand. This agreement to be in force
till the steamers are sold, captured, or destroyed."
" (Signed) ALEX. COLLIE"
" (Signed) JOHN WHITE"
"
Commissioner for the state of North Carolina"
"MANCHESTER, Oct. 27, 1863"
"In pursuance of this agreement, the said Collie sent out to
Wilmington, N.C., four steamers loaded with shoes, army clothing,
and other supplies which he bought for account of the state of
North Carolina, and he received back cotton from said state in
payment as well for the goods so sent as for the share of said
state in said steamers."
"In the year 1863, the said Collie sold in London for the State
of North Carolina obligations of that state delivered to him for
that purpose by the said John White, known as North Carolina cotton
warrants, which were obligations for the delivery of cotton at the
port of Wilmington or at other ports then in possession of the
Confederate States, and the said Collie disposed in England of
large amounts of said obligations, giving with them his agreement
to hold himself personally responsible to the parties to whom he
sold them for their payment by the state of North Carolina, and
Page 97 U. S. 44
he also took some of said obligations in payment for the goods
which he shipped to that state."
"On the 13th of June, 1864, the said Collie entered into the
following written contract with Colin J. McRae, agent of the
government of said Confederate States:"
"
Memorandum of agreement between Alexander Collie, of
London, on the one part, and Colin J. McRae, as representing the
government of the Confederate States of America, on the other
part."
" 1. Alexander Collie agrees to provide four large and powerful
new steamers, to carry out the following arrangements, with the
least possible delay."
" 2. Alexander Collie will at once cause to be purchased, under
Colin J. McRae's directions, quartermaster's stores to the value of
�150,000 sterling, and ordnance or medical stores to the
value of �50,000 sterling -- the one subject to the
inspection of Major J. B. Ferguson, the other to that of Major C.
Huse."
" 3. The delivery of such purchases to extend over a period of
about six months, in proportionate quantities, and shipment to be
made to the Confederate States with as little delay thereafter as
practicable."
" 4. Inland carriage and packing expenses to be charged in the
invoice, and two and a half percent commission to be chargeable
also."
" 5. Colin J. McRae, on behalf of his government, agrees that,
on arrival in the Confederacy of any goods purchased and shipped by
Alexander Collie under this agreement, such goods will be
immediately claimed and taken over by the government. Fifty percent
advance will be added to the English invoice, and Alexander Collie,
through his agent, will immediately receive in exchange cotton at
the rate of 6
d. (sixpence) sterling per pound."
" 6. Such cotton to class 'middling,' and to be delivered
alongside the steamers as required, compressed, packed, and in good
merchantable condition."
" 7. Full cargoes of cotton, received in exchange for goods
delivered under this agreement, may be shipped by Alexander Collie,
through his agent, free from any other charge or restriction
whatever beyond the now existing export tax of one eighth of a cent
per pound."
" 8. No steamers to have priority in any way over those employed
by Alexander Collie in this service, and more than the four
Page 97 U. S. 45
above mentioned may be used if Alexander Collie can arrange to
put them on."
" 9. Colin J. McRae further agrees that, to cover the expense of
Alexander Collie's agencies abroad, he (Alexander Collie) is to
have the privilege of providing and bringing out other cotton than
that received under this agreement, to the extent of one tenth part
of the cargo space of the respective steamers, and such cotton (or
tobacco) may be shipped on same terms as indicated for government
cotton,
viz., free from all other charges or restrictions
whatsoever excepting the before named export duty now
existing."
" 10. This agreement is to be construed by both parties in a
spirit of confidence and liberality. The one will purchase and send
forward the supplies indicated with the least possible delay, the
other will deliver cotton as required in the same way, and neither
party will withhold necessary supplies on account of any temporary
shortcomings on the part of the other."
" 11. Alexander Collie's agents, with the necessary staff for
attending to this business, are to be allowed the privilege of
residing in the Confederacy, free from liability to conscription,
and every reasonable facility is to be allowed them for effectually
carrying out the terms of this agreement."
" (Signed) ALEX. COLLIE"
" C. J. McRAE"
"
Agent C.S.A."
" LONDON, June 13, 1864"
"Under this contract, in the winter of 1863-64 and the spring
and summer of 1864, divers steamers were supplied, and importations
of supplies and munitions of war for the Confederate government
were run by them into Wilmington, and return cargoes of cotton, on
account of that government and of said Collie, were run by them out
of that port to England."
"In March, 1864, the said Collie sent, as a present to the
Confederate authorities at Wilmington, on one of his steamers
engaged in running the blockade into that port, a Whitworth gun for
field service, with carriage, caisson, limbers, and all other
customary appendages, together with a large quantity of shot of the
proper caliber for the gun, in regard to which he wrote to the
Governor of North Carolina as follows:"
" I have shipped on board the
Edith a new kind of gun
which is reported to be particularly destructive, and I have to ask
the authorities at Wilmington to accept it as a 'substitute'
for
Page 97 U. S. 46
some of our people who, but for our business, would have been
doing business in another capacity."
"This gun was received by the Confederate authorities in
Wilmington and used in defense of that port and in aiding the entry
into it of blockade running steamers by repelling the vessels of
the United States engaged in pursuing those steamers."
"In the year 1864, the said Collie sent on one of his blockade
running vessels to the government of said Confederate States as a
gift from himself two Whitworth guns, which were received by that
government and used in its service."
"In the same year, the said Collie made a donation to that
government of $30,000 to aid the needy and the suffering in the
insurgent states, and more particularly those who had been made so
through the war."
"III. In the years 1862, 1863, and 1864, the said Collie,
through an agent in the insurgent states sent out by him in 1862,
purchased, with money derived from sales of cargoes run through the
blockade into ports in those states in said Collie's steamers,
3,096 bales of upland cotton and 1,757 bales of sea island cotton,
all of which was stored in Savannah at the time of the capture of
that city by the military forces of the United States in December,
1864, and was there seized and taken by those forces, and thence
shipped to New York, where it was sold by an agent of the United
States, and the proceeds thereof, amounting to $950,076.71, were
paid into the Treasury of the United States. "
Page 97 U. S. 58
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
Beyond all doubt, the late rebellion against the government of
the United States was a sectional civil war, and all persons
interested in or affected by its operations are entitled to have
their rights determined by the laws applicable to such a condition
of affairs. It is equally beyond doubt that, during the war,
cotton, found within the Confederate territory, though the private
property of noncombatants, was a legitimate subject of capture by
the national forces. We have many times so decided, and always
without dissent.
Mrs. Alexander's
Cotton, 2 Wall. 404;
United
States v. Padelford, 9 Wall. 531;
Sprott v.
United States, 20 Wall. 459;
Haycraft v.
United States, 22 Wall. 81;
Lamar v.
Browne, 92 U. S. 187.
The authority for the capture was not derived from any
particular act of Congress, but from the character of the property
--
Page 97 U. S. 59
being "potentially an auxiliary" of the enemy and constituting a
means by which they hoped and expected to perpetuate their power.
As was well said by the late Chief Justice in
Mrs. Alexander's
Case, supra, where this question first arose:
"Being enemies' property, the cotton was liable to capture and
confiscation by the adverse party. It is true that this rule, as to
property on land, has received very important qualifications from
usage, from reasonings of enlightened publicists and from judicial
decisions. It may now be regarded as substantially restricted 'to
special cases, dictated by the necessary operation of the war,' and
as excluding, in general, 'the seizure of the private property of
pacific persons for the sake of gain.' The commanding general may
determine in what special cases its more stringent application is
required by military emergencies, while considerations of public
policy and positive provisions of law, and the general spirit of
legislation, must indicate the cases in which its application may
be properly denied to the property of non combatant enemies. In the
case before us, the capture seems to have been justified by the
peculiar character of the property and by legislation. It is well
known that cotton has constituted the chief reliance of the rebels
for means to purchase the munitions of war in Europe. It is a
matter of history that rather than permit it to come into the
possession of the national troops, the rebel government has
everywhere devoted it, however owned, to destruction. The value of
that destroyed at New Orleans just before its capture has been
estimated at $80,000,000. . . . The rebels regard it as one of
their main sinews of war, and no principle of equity or just policy
required, when the national occupation was itself precarious, that
it should be spared from capture and allowed to remain, in case of
the withdrawal of the Union troops, an element of strength to the
rebellion."
No better evidence can be found of the value of cotton as an
element of strength to the insurgents than is contained in this
record. It there appears that the "chief requirement" of the
Confederate government from abroad was warlike supplies, and that
an outward cargo of cotton of one-fourth the carrying capacity of a
vessel would pay for a full inward cargo of munitions
Page 97 U. S. 60
of war and leave a "very large surplus" to the credit of that
government.
As war is necessarily a trial of strength between the
belligerents, the ultimate object of each in every movement must be
to lessen the strength of his adversary or add to his own. As a
rule, whatever is necessary to accomplish this end is lawful, and,
as between the belligerents, each determines for himself what is
necessary. If in so doing he offends against the accepted laws of
nations, he must answer in his political capacity to other nations
for the wrong he does. If he oversteps the bounds which limit the
power of belligerents in legitimate warfare, as understood by
civilized nations, other nations may join his enemy and enter the
conflict against him. If, in the course of his operations, he
improperly interferes with the person or property of a noncombatant
subject of a neutral power, that power may redress the wrongs of
its subject. But an aggrieved enemy must look alone for his
indemnity to the terms upon which he agrees to close the
conflict.
All property within enemy territory is in law enemy property,
just as all persons in the same territory are enemies. A neutral
owning property within the enemy's lines holds it as enemy
property, subject to the laws of war, and, if it is hostile
property, subject to capture. It has never been doubted that arms
and munitions of war, however owned, may be seized by the
conquering belligerent upon conquered territory. The reason is that
if left, they may, upon a reverse of the fortunes of war, help to
strengthen the adversary. To cripple him, therefore, they may be
captured, if necessary, and whether necessary or not must be
determined by the commanding general unless restrained by the
orders of his government, which alone is his superior. The same
rule applies to all hostile property.
The rightful capture of movable property on land transfers the
title to the government of the captor as soon as the capture is
complete, and it is complete when reduced to "firm possession."
There is no necessity for judicial condemnation. In this respect,
captures on land differ from those at sea.
The government of the United States, in passing the Abandoned
and Captured Property Act, availed itself of its just
Page 97 U. S. 61
rights as a belligerent, and at the same time recognized to the
fullest extent its duties under the enlightened principles of
modern warfare. The capture of cotton and certain other products
peculiar to the soil of the Confederacy had become one of the
actual necessities of the war. In no other way could the resources
of the enemy be so effectually crippled. In fact, as was said in
Lamar v. Browne, supra,
"It is not too much to say that the life of the Confederacy
depended as much upon its cotton as it did upon its men. . . . It
[cotton] was the foundation upon which the hopes of the rebellion
were built."
Under such circumstances, it might have been destroyed, if
necessary, as it often was by the insurgents; but as the
destruction of property should always be avoided if possible,
Congress provided for its capture, preservation, and sale. In this
way, while kept out of the Confederate treasury, it was saved for
the purposes of trade and commerce. By this means, the national
government acted with double power upon the strength of the enemy:
first by depriving them of the means of supplying the demand for
their products, and second by lessening the demand. It was to avoid
this last effect of the capture that the insurgents preferred to
destroy property rather than permit it to fall into the hands of
the national forces.
While all residents within the Confederate territory were in law
enemies, some were in fact friends. In the indiscriminate seizure
of private property, it seemed to Congress that friends might
sometimes suffer. Therefore, to save them, it was provided that
property, when captured, should be sold and the proceeds paid into
the Treasury of the United States. That being done, any person
claiming to have been the owner might at any time within two years
after the close of the rebellion bring suit in the Court of Claims
for the proceeds, and on proof
"of his ownership of said property, of his right to the proceeds
thereof, and that he has (had) never given aid or comfort to the
present rebellion, . . . receive the residue of such proceeds,
after the deduction of any purchase money which may have been paid,
together with the expense of transportation and sale of said
property and any other lawful expenses attending the disposition
thereof."
12 Stat. 820. As to all persons within the privileges of the
act, the proceeds were held in trust, but
Page 97 U. S. 62
as to all others, the title of the United States as captor was
absolute. Whoever could bring himself within the terms of the trust
might sue the United States and recover, but no one else.
It has been decided that this right of suit was given to the
subjects of Great Britain whose property had been taken, as well as
to citizens of the United States.
United
States v. O'Keefe, 11 Wall. 178;
Carlisle
v. United States, 16 Wall. 147. The present
claimant was a British subject.
There can be no doubt that the words "aid or comfort" are used
in this statute in the same sense they are in the clause of the
Constitution defining treason, Art. III, Sec. 3 -- that is to say,
in their hostile sense. The acts of aid and comfort which will
defeat a suit must be of the same general character with those
necessary to convict of treason, where the offense consists in
giving aid and comfort to the enemies of the United States. But
there may be aid and comfort without treason, for "treason is a
breach of allegiance, and can be committed by him only who owes
allegiance, either perpetual or temporary."
United
States v. Wiltberger, 5 Wheat. 96. The benefits of
the statute are withheld not for treason only, but for giving aid
and comfort as well. A claimant, to be excluded, need not have been
a traitor; it is sufficient if he has done that which would have
made him a traitor if he had owed allegiance to the United
States.
This, we think, was the manifest intention of Congress. It must
be remembered that the statute was passed March 12, 1863, in the
dark hours of the national cause. The
Florida and the
Alabama, built in Great Britain, were then in the midst of
their successful cruises against the commerce of the United States.
Nassau, in the island of New Providence, was the principal port of
entry of the insurgents for blockade running purposes, and aid and
comfort from those who could not be guilty of treason were being
sent in every conceivable form into the confederacy through every
port not sealed against approach by an absolutely effective
blockade. The great object of all was to secure the enormous
profits to be realized by an exchange of the "chief requirement" of
the enemy for their great staple, cotton. For this, all risks of
capture and confiscation
Page 97 U. S. 63
were assumed and the arm of the rebellion upheld. That it was
the intention of Congress to permit foreign owners of cotton thus
acquired to sue the United States for its proceeds when captured
cannot for a moment be believed.
A nonresident alien need not expose himself or his property to
the dangers of a foreign war. He may trade with both belligerents
or with either. By so doing, he commits no crime. His acts are
lawful in the sense that they are not prohibited. So long as he
confines his trade to property not hostile or contraband and
violates no blockade, he is secure both in his person and his
property. If he is neutral in fact as well as in name, he runs no
risk. But so soon as he steps outside of actual neutrality and adds
materially to the warlike strength of one belligerent, he makes
himself correspondingly the enemy of the other. To the extent of
his acts of hostility and their legitimate consequences, he submits
himself to the risk of the war into whose presence he voluntarily
comes. If he breaks a blockade or engages in contraband trade, he
subjects himself to the chances of the capture and confiscation of
his offending property. If he thrusts himself inside the enemies'
lines, and for the sake of gain acquires title to hostile property,
he must take care that it is not lost to him by the fortune of war.
While he may not have committed a crime for which he can be
personally punished, his offending property may be treated by the
adverse belligerent as enemy property. He has the legal right to
carry, to sell, and to buy, but the conquering belligerent has a
corresponding right to capture and condemn. He enters into a race
of diligence with his adversary, and takes the chances of success.
The rights of the two are in law equal. The one may hold if he can,
and the other seize.
Collie, having been a nonresident alien, was not a traitor, but
in his foreign home he seems to have done as much as any one
private person could do to aid and assist the insurgents in their
struggle for supremacy. The case shows that, as early as October,
1863, he entered into a contract of copartnership with the
government of the State of North Carolina the sole object of which
was to provide the "country" with its "chief requirement" from
abroad of warlike supplies, "with regularity, expedition, and
economy," and to assist in running out regularly
Page 97 U. S. 64
through the blockade "a quantity of cotton for the state, to
enable it to benefit from the very high prices ruling" in Great
Britain. During the previous year, he was largely engaged in
running the blockade and supplying the government of the
Confederacy with all kinds of munitions of war. He also acted as
the agent of the State of North Carolina for the sale in England of
its "obligations for the delivery of cotton at the port of
Wilmington, or other ports in possession of the Confederate
States," sometimes guaranteeing payment. In the following year, he
entered into a contract with the government of the Confederate
States to cause to be purchased and delivered through the blockade
quartermaster's stores and ordnance and medical stores of the value
of �200,000, for which he was to be paid, on arrival "in the
Confederacy," in cotton at sixpence sterling per pound, adding
fifty percent to the English invoice. For this he was granted
special privileges. His cotton was to be shipped "free from any
charge or restrictions whatever beyond the . . . existing export
tax of one eighth of a cent per pound," and no steamers were to
have priority over his in that service. His
"agents, with the necessary staff for attending to his business,
are [were] to be allowed the privilege of residing in the
Confederacy free from liability to conscription, and every facility
is [was] to be allowed them for effectually carrying out the terms
of this [the] agreement."
During the same year, he sent through the blockade and presented
to the government of North Carolina "a new kind of gun, reported to
be peculiarly destructive," which he asked the authorities at
Wilmington to accept [using his language] "as a
substitute' for
some of our people, who but for our business would have been doing
business in another capacity." This gun was afterwards used by the
Confederate authorities, as it was clearly intended by him to be,
to aid the entry of blockade runners into the port of Wilmington by
repelling the pursuing vessels of the United States. At another
time he sent two Whitworth guns through the blockade as a gift from
himself, which were accepted by the government and used in its
service.
Had these things been done by a citizen of the United States, he
would have been guilty of treason, and, had they
Page 97 U. S. 65
been done by the government of which Collie was a subject, it
could justly be charged with having been an ally of the enemy.
Clearly Collie was in league with the Confederate government, and,
as was said by Mr. Chief Justice Marshall in
Ex Parte
Bollman and
Ex Parte
Swartwout, 4 Cranch 75,
"All those who perform any part, however minute or however
remote from the scene of action, and who are actually leagued in
general conspiracy, are to be considered as traitors."
In East's Pleas of the Crown, the same principle is thus
stated:
"Every species of aid or comfort, in the words of the act,
which, when given to a rebel within the realm, would make the
subject guilty of levying war if given to an enemy, whether within
or without the realm, would make the party guilty of adhering to
the King's enemies."
1 East P.C. 78. And Mr. Justice Foster, in his Discourse on
Treason, says: "Furnishing rebels or enemies with money, arms, or
ammunition or other necessaries will
prima facie make a
man a traitor." Foster's Crown Law 217. MR. JUSTICE FIELD, in
United States v. Greathouse, 4 Sawyer 472, states the same
doctrine in this language:
"Wherever overt acts are committed which in their natural
consequence, if successful, would encourage and advance the
interests of the rebellion, in judgment of law, aid and comfort are
given."
If, then, Collie had owed allegiance to the United States, it is
clear that, aside from all questions of pardon and amnesty, he
would have been excluded from the privileges of the statute under
which he claims. His acts were hostile acts, and as has already
been seen, the same rule of exclusion applies to him as an alien
that would if he had been a citizen.
This brings us to inquire as to the effect of the proclamation
of pardon and amnesty issued by the President Dec. 25, 1868. 15
Stat. 711. By that proclamation there was granted to every person
within the scope of the pardoning power of the President who
directly or indirectly participated in the rebellion
"full pardon and amnesty for the offense of treason against the
United States, or of adhering to their enemies during the late
civil war, with restoration of all rights, privileges, and
immunities under the Constitution and the laws . . . made in
pursuance thereof."
This was done to
"secure permanent
Page 97 U. S. 66
peace, order, and prosperity throughout the land and to renew
and fully restore confidence and fraternal feeling among the whole
people and their respect for and attachment to the national
government, designed by its patriotic founders for the general
good."
The President has the constitutional "power to grant reprieves
and pardons for offenses against the United States except in cases
of impeachment." Art. II, Sec. 2. The pardon is of the offense,
and, as between the offender and the offended government, shuts out
from sight the offending act. But if there is no offense against
the laws of the United States, there can be no pardon by the
President.
This Court has decided, in reference to the Abandoned and
Captured Property Act, that a pardon relieves the owner of captured
property from the necessity of proving he did not give aid and
comfort to the rebellion, because the pardon is equivalent to
actual proof of his unbroken loyalty. The language of the late
Chief Justice, speaking for the Court, in
United States v.
Padelford, supra, is, "The law makes the proof of pardon a
complete substitute for proof that he gave no aid or comfort to the
rebellion." This is now the settled rule of decision here, and is
not to be disturbed. As the United States were, during the war,
both belligerent and sovereign, they could act in either capacity
and with all the powers of both. A part of their citizens, assuming
that their allegiance to their states was superior to that which
they owed the United States, rebelled. The nation, as a nation,
protested against this assumption, and the two contending parties
appealed to arms. The result was in favor of the United States. In
a spirit of conciliation, the nation has pardoned those who, owing
it allegiance, have made war upon it and closed the eyes of the
government to their offending acts. It was a bounty extended to
them for their return to allegiance. Collie, though by reason of
his hostile acts an enemy, was not a traitor. He was no offender in
a criminal sense. He had committed no crime against the laws of the
United States or the laws of nations, and consequently he was not,
and could not be, included in the pardon granted by the President
in his proclamation. His offending acts therefore have not been
shut out, and he and his representatives
Page 97 U. S. 67
remain subject to all his original disabilities under the
statute.
Property captured during the war was not taken by way of
punishment for the treason of the owner, any more than the life of
a soldier slain in battle was taken to punish him. He was killed
because engaged in war and exposed to its dangers. So property was
captured because it had become involved in the war, and its removal
from the enemy was necessary in order to lessen their warlike
power. It was not taken because of its ownership, but because of
its character. But for the provisions of the Abandoned and Captured
Property Act, the title to and the proceeds of all captured
property would have passed absolutely to the United States. By that
act, however, the privilege of suing for the proceeds in the
Treasury was granted to such owners as could show they had not
given aid or comfort to the rebellion. This was a reward for
loyalty, not a punishment for disloyalty. Collie has been deprived
of no right he ever had. Neither he nor anyone similarly situated
has ever been permitted to sue the United States in their own
courts upon such a claim. What he asks is not a restoration to a
right which he once had, and by his misconduct has lost, but the
grant of a privilege which those who have never given aid or
comfort to the rebellion, or who, owing allegiance to the United
States, have been pardoned for their offense of disloyalty, now
possess. He labors under no disability in respect to any right he
ever had. What he wants is the grant of a new right.
If his property was captured by the United States under
circumstances which entitled him to require its restoration, the
law of nations gave him the right to prosecute his claim through
his own government for the loss he sustained. That right was not
taken from him by the Abandoned and Captured Property Act. It was
open to him from the first moment of the capture. All he had to do
was to induce his government to assume the responsibility of making
his claim, and then the matter would be
"prosecuted as one nation proceeds against another, not by suit
in the courts as matter of right, but by diplomatic
representations, or, if need be, by war."
In such cases,
"it rests with the sovereign against whom the demand is
Page 97 U. S. 68
made to determine for himself what he will do with it. He may
pay or reject it; he may submit to arbitration, open his own courts
to suit, or consent to be tried in the courts of another nation.
All depends upon himself."
United States v. Diekelman, 92 U. S.
520. This was the only right Collie had when his cotton
was taken, and the United States have never consented to grant him
any other. While the President, by his pardon, may restore lost
rights, it has never been supposed that in such a way he can grant
new ones.
It may be that foreigners who have given aid and comfort to the
enemies of the United States are in equity as much entitled to the
privileges of the act as the pardoned enemies themselves, but that
is for Congress to determine, and not for us. We have decided that
the pardon closes the eyes of the courts to the offending acts, or,
perhaps more properly, furnishes conclusive evidence that they
never existed as against the government. It is with the legislative
department of the government, not the judicial, to say whether the
same rule shall be applied in cases where there can be no pardon by
the President. A pardon of an offense removes the offending act out
of sight, but if there is no offense in the eye of the law, there
can be no pardon. Consequently, the acts which are not extinguished
by a pardon remain to confront the actor.
Judgment affirmed.
MR. JUSTICE FIELD dissented.
