Under this Act the whole power over this, Claims, preferred within two years after the subject was vested in the President. He might suppression of the rebellion. cause the proceeds of this enemies' property 12 Stat. at L., 820, sec. 3. paid into the Treasury to be libeled and condemned, and to be thus forfeited to the United States; or he could, on the other hand, grant the owners pardon and amnesty, with full restoration of the rights lost or forfeited by rebellion, and thus entitle them to the return of their property or its proceeds.

This restoration so determined on could only be made through the Court of Claims, whose jurisdiction was exclusive.

Mrs. Alexander's Cotton, 2 Wall., 404, 17 L. ed., 915, and other cases. Act, Mar. 12, 1863, 3, 12 Stat. at L., 820; Act, July 2, 1864, 13 Stat. at L., 375; Act, July 27, 1868, 15 Stat. at L., 243.

From this court, every person in any way implicated in the rebellion, was excluded by congressional prohibition until pardoned or amnestied.

In Mississippi, the war ceased Apr. 2, 1866. The Protector, 12 Wall., 700, 20 L. ed. 463. This claim was filed July 30, 1872, more than six years after the suppression.

The claimant seeks to avoid the effect of this statute by setting up his disability to sue until after the Proclamation of pardon, etc., of Dec. 25, 1868.

If Haycraft had chosen, he might have preferred his claim during the rebellion, at any time after the President's Proclamation of Dec. 8, 1863, 13 Stat. at L., 738, or upon the suppression of the rebellion, by that of May 29, 1865, 13 Stat. at L., 758.

After either date he might have freed himself from the status of disability in which the capture of this property in Apr., 1863, found him. His refusal to return to his duty is, when applied to the incident of his life before the On the 20th August, 1868, as the court de- court, a voluntary refusal to bring suit. Volenti cided in the case of U. S. v. Anderson, 9 Wall.,non fit injuria. He chose to be brought back 56, 19 L. ed., 615, the limitation in the 3d to loyalty upon the quasi compulsion of the section of the Act of Mar. 12, 1863, expired. Proclamation of Dec., 1868, or rather that of At that time Haycraft's disabilities contin- July, 1868, which operated irrespective of and ued. On Dec. 25 following, the President is sometimes in contradiction to the will of those sued an unconditional Proclamation of pardon benefited by it. and amnesty.

It puts the person pardoned, in all legal aspects and relations, in the same condition as if he had never transgressed. And this power is not subject to any limitation or restriction | other than that contained in the Constitution. The following cases fully sustain this power: Ex parte Garland, 4 Wall., 333, 18 L. ed. 366; Cummings v. Missouri, 4 Wall., 277, 18 L. ed. 356; Armstrong's Foundry, 6 Wall., 766, 18 L. ed. 882; St. Louis Street Foundry, 6 Wall., 770, 18 L. ed. 884; U. S. v. Wilson, 7 Pet., 150; Ex parte Wells, 18 How., 315, 15 L. ed. 425; 2, Sharsw. Bl., 402; Plowd., 401; Bish. Cr. L., § 713; Perkins v. Stevens, 24 Pick., 280; Cope v. Com., 28 Pa., 297; U. S. v. Padelford, 9 Wall., 531, 19 L. ed. 788; U. S. v. Klein, 13 Wall., 128, 20 L. ed. 519; Armstrong v. U. S., 13 Wall., 156, 20 L. ed. 615; Pargoud v. U. S., 13 Wall., 156, 20 L. ed. 646; Carroll v. U. S., 13 Wall., 151, 20 L. ed. 565; Carlisle v. U. S. 16 Wall., 147, 21 L. ed. 426.

In this case, the right accrues the same instant that the grasp of the law is released, to wit: on Dec. 25, 1868.

Prior to that, these proceeds in the hands of the United States are like a debt or legacy to fall to a person on a future contingency. The right to the one or the other accrues when the contingency happens and not until then.

Messrs. Geo. H. Willams, Atty. Gen., and S. F. Phillips, Solicitor Gen., for appellee:

1. The appellant has no standing in court under the Act of Mar. 12, 1863, to provide for the collection of abandoned property.

If so, the claimant could proceed only under the above mentioned Act of 1863. The remedy there given is exclusive.

The special method in the present case was by claim for the proceeds in the Court of

The statute makes no exception in favor of parties laboring under such status. We may think that there was a good reason why it should not. It is enough to know that it does not. Viewing this Act as one of limitation upon the right of claimant to sue, it is pertinent to remark that no exceptions can be made to it except those expressed therein.

Bank v. Dalton, 9 How., 522.

2. As regards the assumpsit suggested by the claimant.

If the proceeds of this cotton went into the Treasury of the United States, because of capture under the statute above mentioned, the two years' limitation meets the claimant, no matter what he may suggest to be the technical relation between the United States and himself.

Besides, this money was paid into the Treasury under express statutory provisions (12 Stat. at L., 820; 13 Stat. at L., 375), and no assumpsit can be implied against the United States under such circumstances.

Cary v. Curtis, 3 How., 236; Cross v. Harrison., 16 How., 164; Curtis v. Fiedler, 2 Black, 478, 18 L. ed. 276; U. S. v. Russell, 13 Wall., 623, 20 L. ed. 474.

*Mr. Chief Justice Waite delivered [*92 the opinion of the court:

The main question presented for our consideration in this case is, whether one who gave aid and comfort to the late rebellion can, after the expiration of two years from its suppression, commence and successfully maintain an action in the Court of Claims for the recovery of money in the Treasury arising from the sale of his cotton taken possession of by the United States, and sold under the provisions of the Captured and Abandoned Property Act, 12 Stat. at L., 820.

The case has been argued to some extent as though it involved the consideration of a Statute of Limitations. To our minds the question

is one of jurisdiction. A sovereign cannot be sued in his own courts except with his consent. This is an action against the United States in its own Court of Claims. The appellant must, therefore, show that consent has been given to its prosecution. That being done the juris-cording to the uniform decisions of this court, diction of the court is established and he may proceed. Otherwise, not.

It is conceded that the required consent is not contained in the Captured and Abandoned Property Act itself, for the only action there consented to is one to be commenced within 'two years after the suppression of the rebellion. But inasmuch as the United States has consented to be sued in the Court of Claims upon contracts, express or implied, it is contended that this action may be prosecuted on account of an implied promise by the United States to pay to every owner of captured and abandoned property, whether loyal or disloyal, the proceeds of his property taken and sold.

confined to private property of the enemy. Public property was expressly excluded. It embraced no private property except such as was abandoned by its owners or liable to capture. The property in this case was cotton, and, acthe subject of capture. Mrs. Alexander's Cotton, 2 Wall., 419, 17 L. ed. 919; U. S. v. Padelford, 9 Wall., 540, 19 L. ed. 791. As was said in Mrs. *Alexander's case, cotton was [*94 regarded by the insurgent government as one of its "main sinews of war." It was, in fact, the foundation upon which the financial system of the rebellion was built. It was a security the insurgents offered for the payment of their debts. Upon it they relied for their influence abroad. To obtain it, forced_contributions were exacted from its owners. From time to time, in the progress of the war, it was found upon the enemy's territory occupied by the military forces of the United States; while, when so As the taking was under the authority of an found, it might have been owned by non-comAct of Congress, we must look to the Act to batant enemies and, in that sense, private propsee if this promise has been made. It is not erty, it was in fact, under the circumstances, claimed that any exists if it is not to be found at least semi-public. If left undisturbed, and there. If it has been made at all, it was when the insurgents should repossess themselves of the property was taken, and is equivalent to an the territory, it would again be placed where undertaking by the United States at that time it might strengthen the rebellion. Its capture to receive and hold the property, or its pro- was, therefore, legitimate; not for booty, but ceeds if sold, in trust for the use and benefit to cripple the enemy. In that way it was kept of the owner, whoever he might be. The claim out of the insurgent treasury. It might have is, that the trust in favor of the owner having been destroyed, but the unnecessary destructhen been created, the remedy for its enforce- tion of property ought always to be discourment in the Court of Claims as a contract | aged. The Act of Congress looked to its pres93*] *was restored to the disloyal owner by ervation, but authorized its capture. In so the operation of the President's Proclamation doing, Congress acted within its constitutional of December 25, 1868. granting unconditional power to "make regulations concerning cappardon to all who participated in the rebellion. tures on land and water. Art. 1, sec. 8, par. The Act authorizes the Secretary of the 11. In the indiscriminate seizure which was Treasury, from time to time as he shall see likely to follow such an authority, it was anfit, to appoint special agents to receive and ticipated that friends as well as foes might collect all abandoned or captured property in suffer. Therefore, to save friends, it was prothe insurrectionary States, not including, how- vided that any person claiming to have been ever, any which had been used, or was intended the owner might, at any time within two years to be used, for waging or carrying on the war, after the suppression of the rebellion, prefer such as arms, ordnance, ships, munitions of his claim, and upon proof of his ownership and war, etc. Any part of the property collected loyalty, receive the money realized by the might be appropriated to public use, on due United States from the sale of his property. appraisement or certificate thereof, or forward- That expresses all there is of the trust or the ed to any place of sale in the loyal States, as remedy provided. the public interests might require. All sales were to be at public auction to the highest bidder, and the proceeds paid into the National Treasury. The Secretary of the Treasury was required to cause books of account to be kept. showing from whom the property was received, the cost of transportation and the proceeds of the sale. And any person claiming to have been the owner of such property was authorized, at any time within two years after the suppression of the rebellion, to prefer his claim to the proceeds in the Court of Claims and, on proof of his ownership, his right thereto, and that he had not given aid and comfort to the rebellion, receive the balance of the proceeds remaining in the Treasury, after deducting certain expenses.

Such was the power to take, given by the Act, and such the obligation assumed by the United States upon the taking, with the rem edy provided for its enforcement. It was evidently a war measure, and the statute is to be construed in the light of that fact. It was

In Klein's case, 13 Wall., 128, 20 L. ed. 519, the property collected under this Act was said to be of a "peculiar description, known only in the recent war, called captured and abandoned property," and that "the Government recongized to the fullest extent the humane maxims of the modern law of nations which exempts private property of non-combatant enemies from capture *as booty of war." [*95 "No similar legislation," it was also said, "is mentioned in history," and "the Government constituted itself the trustee for those who were by that Act declared entitled to the proceeds of captured and abandoned property, and for those whom it would thereafter recognize as entitled." And again (p. 139), that "The proceeds of the property have passed into the possession of the Government, and the restoration of the property is pledged to none except those who have continually adhered to the Government. Whether restoration will be made to others, or confiscation will be enforced, is left to be determined by consider

tions of public policy subsequently to be developed."

In the same case it was also held, p. 142, that "The restoration of the property became the absolute right of the persons pardoned on application within two years from the close of the war." Under this construction the effect of the Act was to provide a reward for submission to the Government and the acceptance of amnesty, as well as authority for the seizure of property, and it is thus made to operate | in two ways to weaken the insurgents; first, by depriving them of their property; and second, by inducing their adherents to submit to the authority of the United States as a means of regaining that which they had lost personally. In that view time is material. The length of a war depends largely upon the relative strength of the contending parties. As a rule, that belligerent is the first to surrender, other things being equal, who first loses the elements of warlike power. Especially is this true in a civil war. Strategy sometimes gives unnatural strength, and thus obtains success; but more commonly war resolves itself into a question of men and money-of strength and endurance.

According to the doctrine of Klein's case, if a suit was commenced within two years a pardoned enemy could recover as well as a loyal friend. But the commencement of the suit within the prescribed time was a condition precedent to the ultimate relief. The right of recovery was made to depend upon the em96*] ployment of the remedy provided by *the Act. There was no promise even under the rulings in that case, except to such as should commence the suit in time, and upon the trial be in a condition to bring themselves within the requirements of the Act. The promise, such as it is, was express. There is no room left for implication. Pardon and amnesty have no effect, except as to such as sue in time. In this, Klein's case but adopts the ruling in previous cases. Thus, in Mrs Anderson's Case, 9 Wall., 67, 19 L. ed. 618, the doctrine is stated in these words: "But by the Act in question, the Government yielded its right to seize and condemn the property which it took in the enemy's country, if it belonged to a faithful citizen, and substantially said to him: 'We are obliged to take the property of friend and foe alike, which we will sell and deposit the proceeds of in the Treasury; and if at any time within two years after the suppression of the rebellion you prove satisfactorily that, of the property thus taken, you owned a part, we will pay you the net amount received from its sale.'" And in Zellner's Case, 9 Wall., 248, 19 L. ed. 666, "Any person claiming to be the owner of abandoned and captured property, within the meaning of the Act, may, at any time with in two years after the suppression of the rebellion, present his claim to the Court of Claims," etc. And again; in Armstrong's case, decided at the same time with Klein's, this is the language of the court, speaking through | the late Chief Justice: "And that the person so pardoned is entitled to the restoration of the proceeds of captured and abandoned property if a suit be brought within two years after the suppression of the rebellion," the special provision as to the time being brought to the attention of the reader by the marks of quotation.

Provision might have been made for the institution of suits by loyal owners at any time, but it was not, and the reason may perhaps be found in Klein's case. According to that, an insurgent who accepted the offers of pardon which were from time to time extended to him, and became loyal in fact, received as one of the privileges and immunities to which he was restored, the right to recover the proceeds of the sale of his property taken under the [*97 Act, if he made his claim in time. To obtain a pardon before the war closed, an insurgent must withdraw himself from the enemy and become loyal. There could be no recovery even in a suit commenced until the pardon was obtained, and there could be as soon as it was. Hence the sooner the pardon, the sooner the money could be had. So, too, after the contest was over, an early submission by all to the authority of the Government was important. To this the Act, as construed, furnished an additional inducement by its promise of restoration if application therefor was made in time. Additional strength is given to this interpretation of the Act by what followed its enactment. On the 17th of July, 1862, the President was authorized by Congress to extend pardon and amnesty by Proclamation to persons engaged in the rebellion, with such exceptions and upon such conditions as he should deem expedient. 12 Stat. at L., 592. On the 8th December, 1863, nine months after the passage of the Captured and Abandoned Property Act, he issued his first Proclamation under this authority. 13 Stat. at L., 737. By this he offered full pardon and restoration of property to all insurgents, except a few designated classes, who would take a prescribed oath to the effect generally that they would thereafter abstain from the rebellion, and support the Government of the United States. On the 26th March, 1864, by a further Proclamation, 13 Stat. at L., 741, he excluded from the operation of the writ, prisoners of war and those confined for crime. Thus during the war actual withdrawal from the enemy and an oath of allegiance were made conditions precedent to amnesty; but on the 29th of May, 1865, and within three days after the surrender of the last organized army of the rebellion, another Proclamation was issued (13 Stat. at L., 758), offering pardon and restoration of property to all, with certain exceptions, who would take an oath of allegiance alone. On the 7th September, 1867, but still within two years after the suppression of the rebellion, as it has been determined, another was issued extending the operation of the last to all save three of the excepted classes of persons. 15 Stat. at L., 700. Thus, after the war, simple sub- [*98 mission by an insurgent to the authority of the Government was the only price to be paid for pardon and restoration to the right, according to Klein's case, of using the means provided by Congress for the recovery of the procecds of the sale of his captured or abandoned property. Pardon was, therefore, easy to be had, and the promise of a restoration of this class of property was tendered as a reward for its acceptance to such as would qualify themselves within the prescribed time to receive it.

This appellant, though one of those who might, did not accept these easy terms. He would not render even this small equivalent for the restoration of his property and, conse

4. If there were no net earnings earned in a par-ings" which impairs our argument, or presents ticular year. which could be properly applied in payment of preferred dividends, the company cannot be required to pay them. [No. 140.]