
    COLLIE’S CASE. Alexander Collie v. The United States.
    
      On the Proofs.
    
    
      During the rebellion a subject of Gh'eat Britain, resident i/n England, is engagedin „ running the blockade of the southern ports, by the importation and exportation of merchandise not material of war. Daring the rebellion he also purchases in the imswreationary district a large quantity of cotton. The purchases are made through an agent, acting under his orders, given in England i/n 1862, who ’ draws on the claimant for fmds. The cotton is captured, and the claimant brings suit for the proceeds.
    
    An alien, residing abroad, could acquire title to personal property in tbe in-surrectionary district, during tbe rebellion, by purchase through an agent there ; and he may maintain an action for the proceeds thereof under the Abandoned or captured property Act, notwithstanding that he was engaged in blockade-running.
    
      The Reporters’ statement of tbe case :
    The court found the facts to be:
    That the petitioner is a subject of the kingdom of .Great Britain, and was resident in England during all the time of the transactions hereinafter stated. That from some time in 1862 till December, 1864, the petitioner purchased in the Confederate States large amounts of cotton, througli the agency of Theodore Andrus, acting under orders given to him in 1862 in England, by the petitioner, to purchase cotton and draw on the petitioner for funds that might be required to complete said purchases. That in December, 1864, at the capture of Savannah, the petitioner owned and was possessed of 1,757 bales of sea-island cotton and 3,096 bales of upland cotton, stored in the city of Savannah, to be ready for shipment to New York or England at the termination of the war; and all of said cotton was seized and taken from the possession of the petitioner by the United States, who sold the same, and its net proceeds, amounting to the sum of $952,076.71, were paid into the Treasury. That during the late rebellion the petitioner was engaged in running the blockade of the southern ports by the importation and exportation of merchandise which was not “material of war.”
    
      Mr. G. F. PeeJc and Mr. W. W. McFarland for the claimant:
    This is an action brought under the Gaptured or abandoned property "Act to recover the proceeds of 4,936 bales of cotton, seized at Savannah, Ga., in January, 1865.
    The facts of the case are, briefly, that the claimant is a British subject, having his domicile in England; during the war of the rebellion he purchased this cotton, through his agent, in the State of Georgia, and stored it in the city of Savannah, for the purpose of shipping it to England when hostilities should cease. When General Sherman’s forces occupied Savannah the cotton was seized, shipped to New York, and there sold, and the proceeds, amounting to the sum of $950,000, have been paid into the Treasury of the United States.
    It further appears that the claimant, during the war, shipped certain goods, (not munitions of war,) which were sent through the blockade into the southern ports. No connection is shown between these blockade-running transactions and the purchase of the cotton in controversy; but it is claimed that these acts constituted aid and comfort to the rebellion within the meaning of the statute under which we sue, and therefore the claimant is barred of his remedy in this court.
    Wepropose to consider, first, whether the claimant is entitled to the money for which he sues; secondly, if the money is his, whether he can maintain this action for its recovery.
    I. The property was purchased by the claimant and paid for by him. It was not captured, so as to divest the owner’s title. The United States took possession of it under the Act March 12,1863, by which they acquired no title, but preserved the property for the true owner, becoming his trustees. (United States v. Padelford, 9 Wall., p. 537; United States v. Klein, 13 Wall., p. 136; United States v. Garlile et at., 16 Wall., p. 147.) The title of the owner could only be divested by judicial proceedings. No such proceedings could have been taken. There is no law of the United States under which this property could have been condemned.
    
      The following are the only acts of Congress which provide for the confiscation or condemnation of property in reference to the rebellion or which reach the case of property taken on land:
    The Act July 13, 1861, generally called the Won-intercourse Act, (12 Stat. L., p. 257;) the act entitled uAn act to confiscate property used for'insurrectionary purposes,” approved August C, 1861, (12 Stat. L., p. 319;) the Act July 17,1862, generally •known as the Confiscation Act (12 Stat. L., p. 589.) The Act March 12,1863, generally known as the Abandoned, or captured property Act, provides for the care, custody, and sale of property of the description involved in this suit, giving to claimants a right of action to recover the proceeds in this court upon proof of ownership and that they never gave aid or comfort to the rebellion. It further declares a forfeiture of any property coming from the disloyal into the loyal States in violation of its provisions. (12 Stat. L., p. 820.)
    The Act July 2,1864, in addition to and amendatory of the foregoing, provides for the custody and leasing of abandoned plantations.
    Property which could be placed in any one of these eleven classes might be proceeded against in the district or circuit courts of the United States, and judgment of condemnation procured. It is too evident for discussion that neither Mr. Collie nor his property fell within any of these descriptions. We conclude, therefore, that the United States acquired no title to this property, and that there was no method of proceeding under the laws of the United States, or known to the usages of any civilized country, by which such title could be acquired. The money now in the Treasury, being the proceeds of claimant’s cotton, belongs to him, and if it is withheld from him, that result is reached, not by the course of law, but as a mere act of spoliation.
    II. If the proceeds of the cotton in controversy belong to the claimant, can he maintain his suit in this court for their recovery?
    The Supreme Court holds that a person who has been pardoned of the crime of treason is relieved from the necessity of proving the requirement of the statute that he never gave aid or comfort to the rebellion. (Armstrong v. The United Statesf 13 Wall., pp. 155,156.) A corollary to this proposition is, that the acts which constitute aid and comfort to the rebellion, within the meaning of the Act March 12, 1863, are treasonable acts, which are condoned by a pardon for treason.
    The facts relied upon by the Government are, that the claimant was born and always resided in England, and that during the rebellion goods were received through the blockade by one Theodore Andree, at Wilmington, N. 0., for which goods he accounted to the claimant. From these facts the conclusion is drawn that the claimant sent goods and merchandise into the Southern States through the blockade. No attempt is made to assert any connection between the cotton in controversy and any blockade-running enterprise, but the claim is that this successful evading of the blockade is such aid and comfort to the rebellion as deprives the claimant of any standing in this court. This we deny, because we say the acts of the claimant in this matter were not treasonable or criminal in their character.
    Whether a particular act is lawful and excusable or not must depend upon the status of the person at the time. In examining this matter, we must remember that the claimant was an alien, a citizen of neutral territory, domiciled abroad. We wish, therefore, to limit the discussion to the particular case, and not to inquire what penalties could be inflicted upon a citizen or an alien domiciled here who should run the blockade. The prohibition of trade between the citizens of the two belligerent powers is not a more distinct principle of the public law than is the right to trade between the citizens of neutral powers and the citizens of each belligerent. (The Beterhoff, 5 Wall., p. 56; The Bermuda, 3 Wall., p. 551.) Our country has been prompt in .asserting the principle, that during a civil war the parent government has no right, by its municipal law, to forbid neutral trade with ports possessed and controlled by the insurgents, and that the rights of neutrals demanded that such a trade should be arrested only by an effective blockade. (See note of Mr. Monroe, Secretary of State, to the Spanish minister, March 20, 1816, American State Papers, vol. 4. pp. 156-158; Wheat Int. Law, 846, u. 241; Mr. Adams, Secretary of State, instructionsto Mr. Nelson, minister to Spain, April28,1823, Cong. Doc. accomp. President’s Message, Dec. 1824, pp. 269-285; Wheat Int.' Law, 847, n. 241; Lord John Russell in House of Commons, June 27,1861, in reference to New Granada, Wheat. Int. Law, p. 848, n. 241.) “ Nor does the law of blockade differ in civil war from whatitisin foreign war. Trade between foreigners and a port in the possession of one of the parties to the contest cannot be prevented by a municipal interdict of tlie other.” (Wheat. Int. Law, Lawrence’s note, p. 846, n. 241.)
    In this connection it will be observed that the fourth section of the Non-intercourse Act (12 Stat. L., p. 255) authorized the President to declare by proclamation any of the ports in the seceded States closed, when by reason of the insurrection it should become impossible to collect duties, &c. No attempt was ever made to execute this authority, and the governments of England and France informed Mr. Seward that they would consider such a decree null and void, and would not submit to measures taken on the high seas in pursuance of such a decree. (Parliamentary Papers, 1862, North America, No. 1, p. 72, Lord Lyons to Lord John Russell, August 12,1861, Wheat. Int. Law, 555, n. 175.) We therefore claim that the only method by which the United States could interdict neutral trade with our enemy was by an exercise of the right of blockade as recognized by the law of nations.
    “ That the law of nations constitutes a part of the laws of the land must be admitted. The laws of nations are expressly made laws of the land by the Constitution, when it says that ‘ Congress shall have power to define and punish piracies and felonies committed on the high seas and offenses against the laws of nations.’ To define is to give the limits or precise meaning of a word or thing in being; to make is to call into being. Congress has power to define, not to make the laws of nations; but Congress has the power to make rules for the government of the Army or Navy. From the very face of the Constitution, then, it is evident that the laws of nations do constitute a part of the laws of the land. But very soon after the organization of the Federal Government Mr. Randolph, then Attorney-General, said: ‘ The law of nations, although not specifically adopted by the Constitution, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modification on some points of indifference.’ (See Opins. Attorneys-General, vol. 1, p. 27.) The framers of the Constitution knew that a nation could not maintain an honorable place among the nations of the world that does not regard the great and essential principles of the laws of nations as a part of the law of the land. Hence Congress may define those laws, but cannot abrogate them, or, as Mr. Randolph says, may 1 modify on some points of indifference.’” (Opins.ofAttorneys-General,vol.ll,pp.299,300.) And to the same effect are lalbot v. Seaman, (1 Oraneh, p. 1;) Murray v. Charming Betsy, (2 Cranch, pp. 64, 118.) The established rule of international law is freedom of commerce between neutrals and each of the belligerents. There are two conspicuous exceptions to this rule ; one interdicts the carrying of contraband goods to an enemy, and the other permits the blockade of an enemy’s port. What is this right of blockade 1 First, we say it is the right bo prevent neutrals from trading with the blockaded port, not to forbid such trade. The international law under which neutrals concede the right to interrupt their trade, strictly defines the penalty. It would be palpable violation of this code to add another and different penalty. There is no authority in the public law, no clause in any known treaty, no statute of any civilized government, which has ever indicated that it is an offense to successfully evade a blockade. No law of the United States could make this a crime, because the criminal laws of a country can operate only within its territorial limits. To charge it as an offense by the person, and to annex a further penalty to it, would be introducing a new rule into the law of nations, for we confidently assert that no such rule can now be found. (Webster’s Works, vol. 6, p. 452; Lawrence’s Wheat. Int. Law, p. 813, n. 232; Speech of Layard, Sol. Gen., there cited; Opins. of Attorneys-Gcneral, vol. 1, p. 61.)
    This subject has been very carefully considered by the courts in England, in cases referring directly to our civil war, and the position we contend for was fully vindicated by reference to American authorities. In the case Bx-parte Chavasse re Qraze-broolc, the question arose as to the legality of a contract between two subjects of Great Britain, residing there, for the exportation of contraband of war to the so-called Confederate States. Lord Chancellor Westbury delivered the following opinion:
    “ In the view of international law the commerce of nations is perfectly free and unrestricted. The subjects of each nation have a right to interchange the products of labor with the inhabitants of every country. If hostilities occur between two nations, and they become belligerents, neither belligerent has a right to impose, or require a neutral government to impose, any restrictions on the commerce of its subjects. The belligerent power certainly acquires certain rights, which are given to it by international law. One of these is the right to arrest and capture, when found on the sea, the highroad of nations, auy munitions of war which are destined and in the act of being transported in a neutral ship to its enemy. This right, which the laws of war give to a belligerent for his protection, does not involve as a consequence that the act of "the neutral subject, in so transporting munitions of war to a belligerent country, is either a personal offense against the belligerent captor or an act which gives him any ground of complaint either against the neutral trader personally, or against the government of which he is a subject. The title of the belligerent is limited entirely to the right of seizing and condemning as lawful prize the contraband articles. He has no right to inflict any punishment on the neutral trader, or to make his act a representation or complaint against the neutral state of which he is a subject. In fact, the act of the neutral trader in transporting munitions of war to the belligerent country is quite lawful, and the act of the other belligerent in seizing and appropriating the contraband articles is equally lawful. Their conflicting rights are co-existent, and the right of the one party does not' render the act of the other party wrongful or illegal. *
    “ There is, however, much incorrectness of expression in some writers on the subject, who, in consequence of the right of the belligerent to seize in transitu munitions of war while being conveyed by a neutral to his enemy, speak of the act of transport by the neutral as unlawful and prohibited commerce. But this commerce, which was perfectly lawful for the neutral with either belligerent country before the war, is not made by the war unlawful, or capable of being prohibited by both or either of the belligerents ; and all that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the belligerent power for whose enemy the contraband is destined. That the act of the neutral merchant is in itself innocent is plain, from the circumstance that the belliger-. ent captor cannot visit it with any penal consequence beyond the j udicial condemnation of the ship and cargo, nor can he make it the subject of complaint. This is well explained by Yattel in the following passage. Speaking as a belligerent power, he says : £ When I have notified to them my declaration, of war against such or such a nation, if they will afterward expose themselves to risk in supplying' her with things which serve to carry on war, they will have no reason to complain if their goods fall into my possession; and I, on the other hand, do not declare war against them for having attempted to convey such goods. They suffer, indeed, by war in which they have no concern; but they suffer accidentally. I do not oppose their right, I only exert my own: and if our rights clash with and reciprocally injure each other, that circumstance is the effect of inevitable necessity. Such collisions daily happen in war.’
    “ Yattel must here be considered as speaking of the acts of the subjects of a neutral power, and not of the neutral'government itself; for the supplying of warlike stores to a belligerent by a neutral state would clearly be a breach of neutrality.
    “ The same doctrine as to the freedom of the commerce of the neutral subject is more explicitly stated by Mr. Chancellor Kent, in the first volume of his Commentaries, (p. 145, 8th ed.,) and was most distinctly affirmed in a celebrated decision of the Supreme Court of the United States. (The Santissima Trinidad.)
    
    
      “ The language of Chancellor Kent is clear and comprehensive : ‘ It is a general understanding, grounded' on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality on the neutral sovereign himself. It was contended on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers; but it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent purchaser or carry themselves to the belligerent powers contraband articles, subject to the right of seizure in transitu. This right has since' been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile-power to seize, are conflicting rights, and neither party can charge the other with a criminal act.’ (1 Kent’s Com., p. 145.)
    “The material passage of the judgment to which I have referred, as given in the 7th volume of Wheaton’s Keports, is the-following:
    
      15 There is nothing in our laws, or in the law of nations, that prohibits our citizens from sending armed vessels as well as munitions of war to foreign ports for sale. It is a commercial adventure, which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.’ (7 Wheat., p. 340.)
    ‘‘ I take this passage to be a very correct representation of the present state of the law of England also; for if a British ship-builder builds a vessel of war in an English port, and arms and equips her for war, bona fide, on his own account, as an article of merchandise, and not under or by virtue of any agreement, understanding, or concert with a belligerent power, he may lawfully, if acting bona fide, send the ship so armed and equipped for sale as merchandise in a belligerent country, and will not in so doing violate the provisions or incur the penalties of the foreign-enlistment act. It is true that, under the provisions of the act of the 16 and 17 Viet., c. 107, Her Majesty has power, by proclamation or order in council, to prohibit the exportation of certain goods, including, arms, ammunition, gunpowder, naval and military stores; but no order in council or proclamation was made in the terms or under the special authority of this statute. Great reliance, however, was placed by the counsel for the respondents on the Queen’s proclamation of the 13th May, 1861. Although it was admitted that it could not be treated as made under the authority of the last-mentioned statute, I need not observe that it is the object of a proclamation to make known the existing law, and that it can neither make nor unmake law; but, in truth, the proclamation of 1861 is directed, and very properly, to two objects — first, to declare that the provisions of the foreign-enlistment act would be strictly enforced; ad, secondly, not to prohibit the exportation of warlike stores, but to warn the subjects of the realm that if any subject carried contraband of war to either belligerent, he would incur the penal consequences of the law of nations, and would receive no protection or relief from those consequences (that is, from capture and condemnation) at the hands of Her Majesty. The proclamation has no effect whatever on the legality of this adventure.
    
      ‘‘ I am of the opinion, therefore, that the adventure between the bankrupt and the petitioner was a lawful contract, and that the ordinary rights of property result from it.” (The Jurist, vol. 11, pt. 1, 1865, p. 400.) Afterward the same question arose in the court of admiralty, and Dr. Lushington examined the question de novo, reaching the same conclusion as the Lord Chancellor. His opinion is as follows:
    “ This is a motion by the plaintiff to reject the fourth article of the defendant’s answer. The parties in this cause are John Andrews Wardell, formerly the master of The Helen, the plaintiff, and the Albion Trading Company, the owners of the ship, defendants. The master sues for wages (with certain premiums added) alleged to have been earned between July, 1864, and March, 1865. The answer states that, according to the agreement as set forth by the defendants, the plaintiff has been paid all. that was due to him. This part of the answer is not objected to. The fourth and last article is the one objected to. It alleges that the agreement was entered into for the purpose of breaking the blockade of the Southern States of America; that such an agreement is contrary to law, and cannot be enforced by this court. In the course of the argument the judgment in JSx parte Chevasse re Qrazébroolc (11 Jur., N. S., 400) was cited as governing the case; a judgment recently delivered by Lord 'Westbury while he was Lord Chancellor. The law there laid down is briefly stated, that a contract of partnership in blockade-running is not contrary to the municipal law of this country, and by the decree the partnership was declared valid, and the accounts ordered accordingly. It was admitted that this decision is directly applicable to the present case — a suit to recover wages according to a contract with respect to an intended adventure to break the blockade. That a decision of the Lord Chancellor is to be treated by this court with the greatest respect there can be no doubt, but is it absolutely binding? There are three tribunals whose decisions are absolutely binding upon the court of admiralty. First, the House of Lords ,• secondly, the privy council; and, thirdly, the courts of common law when deciding upon the construction of a statute. If a decision of any of these tribunals is cited, all that the court of admiralty can do is to inquire if the decision is applicable to the case. ' If so, then it is the duty of the court to obey, whatever may be its own judgment. No other decisions are, I believe, absolutely binding on the court. On the present occasion no decision has been cited from the House of Lords or privy council; whatever, therefore, may be the effect of decisions of other tribunals, I am not relieved from the duty of reconsidering tbe whole question.
    “ An intimation has been given that this case will be carried to the judicial committee ■, if so, I apprehend that tribunal might be inclined to consider me remiss in my duty if I had omitted to form an independent judgment on the case and to state it, with my reasons. It is, I conceive, admitted on all hands that the court must enforce the agreement with the master, unless it is satisfied that such an agreement is illegal by the municipal law of Great Britain. In order to prove this proposition, the defendants say that the agreement to break the blockade by a neutral ship is, on the part of all persons concerned, illegal according to the law of nations, and that the law of nations is a part of the municipal law of the land ; ergo, this contract was illegal by municipal law. Now, a good deal may depend on the sense in which the word “illegal” is used. I am strongly inclined to think that' the defendants attach to it a more extensive meaning than it can properly bear, or was intended to bear, by those who used it. The true meaning, I think, is that all such contracts are illegal, so far that if carried out they would lead to acts which might, under certain circumstances, expose the parties concerned to such penal consequences as are sanctioned by international law for breach of blockade or for the carrying of contraband; if so, the illegality is of a limited character. For instance, suppose a vessel, after breaking a blockade, completes her voyage home, and is afterward seized on another voyage, the original taint of illegality, whatever it may have been, is purged, and the ship cannot be condemned ; yet, if the voyage was ab initio wholly and absolutely illegal both by the law of nations and the municipal law, why should the successful termination purge the offense % Let me consider the relative situation of the parties. A neutral country has the right to trade with all other countries in time of peace. One of these countries becomes a belligerent and is blockaded. Why should the right of the neutral be affected by the acts of the other belligerent I The answer of the blockading power is, ‘Mine is a just and necessary war, (a matter which in ordinary cases the neutral cannot question ;) I must seize contraband, I must enforce blockade to carry on the war.’ In this state of things there has been a long and admitted usage on the part of all civilized states — a concession by both parties, tbe belligerent and tbe neutral; a universal usage wbieb constitutes tbe law of nations. It is only with reference to this usage than tbe belligerent can interfere with tbe neutral. Suppose no question of blockade or contraband, no belligerent could claim a right of seizure on tbe bigb seas of a neutral vessel going to tbe port of another belligerent, however essential to-bis interests it might be so to do. What is tbe usage as to blockade? There are several conditions to be observed, in order to justify tbe seizure of a ship for breach of blockade. The blockade must be effectual, and (save accidental interruption by weather) constantly enforced. Tbe neutral vessel must be taken in delicto. Tbe blockade must be enforced against all nations alike, including tbe belligerent one. When all tbe necessary conditions are satisfied, then, by tbe usage of nations, tbe belligerent is allowed to capture and condemn neutral vessels without remonstrance from tbe neutral state. It never has been a part of admitted common usage that such voyages should be deemed illegal by tbe neutral state; still less that tbe neutral state should be bound to prevent them.
    “ Tbe belligerent has not a shadow of right to require more than universal usage has given him, and has no pretense to say to tbe neutral, ‘you shall help me to enforce my belligerent right by curtailing your own freedom of commerce, and making that illegal by your own law which was not so before.’
    “ This doctrine is not inconsistent with tbe maxim, that tbe law of nations is part of tbe law of tbe land. The fact is, tbe law of nations has never declared that a neutral state is bound to impede or diminish its own trade by municipal restriction. Our own foreign-enlistment act is itself a proof that, to constitute transactions between British subjects, when neutral, and belligerents a municipal offense by tbe law of Great Britain, a statute was necessary. If the acts mentioned in that statute were in themselves a violation of municipal law, why any statute at all ? I am now speaking of fitting out ships of war, not of levying soldiers, which is altogether a different matter. Then, how stands the case upon authority ? I may here say that in principle there is no essential difference whether the question of breach of municipal law is raised with regard to contraband or breach of blockade. Mr. Duer is the only text-writer who maintains an opinion contrary to what I have stated to be thé law. He maintains it with much ability and acuteness, but be stands alone. He himself admits that an insurance of a contraband voyage is no offense against municipal law of a neutral country, according to a practice of all the principal states of continental Europe. (Duer on Marine Insurance, lect. vii.) In the American courts the question has been more than once agitated, but with the same result. In the case of The Santissima Trinidad, (7 Wheat., p. 340,) Mr. Justice Story says: ‘It is apparent that, though equipped as a vessel of war, she (the Independencia) was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating the laws of our national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as a good prize, and for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws or the law of nations that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure, which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation. * * * There is no pretense for saying that the original outfit on the voyage was. illegal.’ Again, in Richardson v. The MarineInsurcmee Company, (6 Mass., 112,) Parsons, G. J., observes : ‘ The last class we shall mention is the transportation by a neutral of goods contraband of war to the country of either of the belligerent powers. And here it is said that these voyages are prohibited by the law of nations which forms a part of the municipal law of every state, and, consequently, that an insurance on such voyages, made in a neutral state, is prohibited by the laws of that state, and therefore, as in the case of an insurance on interdicted commerce, is void. That there are certain laws which form a part of the municipal laws of all civilized states, regulating their mutual intercourse and duties, and thence called the law of nations, must be admitted; as, for instance, the law of nations affecting the rights and the security of embassadors.
    “ ‘ But we do not consider the law of nations, ascertaining what voyages or merchandise are contraband of war, as having the same extent and effect. It is agreed by every civilized state that if the subject of a neutral power shall attempt to furnish either of the belligerent sovereigns with goods contraband of war, the other may rightfully seize and condemn them as prize; but we do not know of any rule established by the law of nations that the neutral shipper of goods contraband of war is an offender against his own sovereign, and liable to be punished by the municipal laws of his own country. When a neutral sovereign is notified of a declaration of war, he may, and usually does, notify his subjects of it, with orders to decline all contraband trade with the nations at war, declaring that if they are taken in it he cannot protect them, but not announcing the trade as a violation of his own laws. Should the sovereign offer to protect them, his conduct would be incompatible with his neutrality; and as on the one hand he cannot complain of the confiscation of his subject’s goods, so, on the other, the power at war does not impute to him these practices of his subjects. A neutral merchant is not obliged to regard the state of war between other nations, but if he ships goods prohibited jure helli, they may be rightfully seized and condemned. It is one of the cases where two conflicting rights exist, which either party may exercise without charging the other with doing wrong. As the transportation is not prohibited by the laws of the neutral sovereign, his subject may lawfully be concerned in it, and as the right of war lawfully authorizes a belligerent power to seize and condemn the goods, he may lawfully do it.’ Lastly, in Seton, Maitland & Go. v. Low, (1 Johns. Gas., p. 5,) Mr. Justice Kent says: 11 am of the opinion that the contraband goods were lawful goods, and that whatever is not prohibited to be exported by the positive law of the country is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law contraband trade is prohibited to neutrals, and consequently unlawful. This reasoning is not destitute of force, but the fact is that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of contraband articles by the belligerent powers.’ Then, as to text-books, I need only give the reference to them, viz: Arnould Mar Ins., 763, 764,, 766, 773; 3 Kent’s Com., 367; Marsh Mar. Ins., 37; Maud & Pollock, 309; 2 Twiss, 297; 2 Parson’s Mar. Law, 95; Ph. Ins., c. 3, § 2, p. 163. (11 Jurist, p. 1025.)
    “A contract between two subjects of a neutral state to export contraband of war to a belligerent, it has been ruled in England, is not unlawful in the neutral state. Of course it is otherwise when the contract to transport such goods is with an enemy. The carrying on trade with a blockaded port is held in England not to be a breach of municipal law nor illegal, so as to prevent a court of the loci contratus from enforcing the contract of which it is the- subject.” (Whart. Oonfl. of Laws. 380.)
    By this suit the United States is placed in the position of being compelled to refund this money, or to furnish some legal excuse for retaining (i. e., confiscating) it. The excuse is that the claimant has committed the crime of aiding the rebellion, and as a penalty for his crime relief should be denied him. If the imputed offense be a violation of the law of nations'in running the blockade, we answer, that the same code which forbids the act fixes the penalty, and no further penalty can be added. If the imputed offense be alleged as a violation of the municipal law, we say: First. No municipal law can introduce a new rule into the law of nations. Secón d. Municipal enactments will never be construed to conflict with the public law, if such a construction can be avoided. (Talbot v. Seamon, 1 Craneh, p. 1; Murray v. The Charming Betsey, 2 Oranch, pp. 64,118.) Third. There is no municipal law which attempts to fix upon blockade-running any different character^fr om that given it under the law of nations. Fourth. The particular provision of the Act March 12, 1863, viz, that the claimant must prove that he never gave aid or comfort to the rebellion, must be construed to have no application to citizens of a neutral power residing in their own country.
    III. There is one other view of this case which removes all doubt. The claimant has been pardoned (if he hasjdone anything which requires a pardon) by the Proclamation of amnesty, issued on the 25th of December, 1868. The proclamation refers in the broadest terms to “ all persons who directly or indi-rictly participated in the late insurrection,” granting them a full pardon and amnesty for the offenses against the United States of treason and of adhering to their enemies during the late civil war. Here is a pardon for two offenses: first, treason; second, adhering to the enemies of the United States. The Constitution of the United States defines the crime of treason to be and consist “ only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Why was the expression “ adhering to their enemies,” in the proclamation, superadded to the word treason, when it would appear to be included ex m termini in the word treason? The very broad language indicating the persons to whom the procla-motion is to apply furnishes an answer to this, and shows that it is not mere tautology. So far as citizens of the United States and domiciled aliens were concerned, it was enough to pardon them for treason, because that included adherence to the enemies of the United States ; bub when we include all and every person who directly or indirectly participated in the late insurrection or rebellion, another class is brought in, whose offense would not be included in the term treason, who did not commit treason, but who had adhered to the enemies of the United States. These are aliens, and it was to reach them that this additional expression, pardoning those who had given their adherence to the enemies of the United States, was used. This proclamation, therefore, not only pardons all those who committed treason, under the technical definition of the term given in the Constitution, but goes further, and gives full pardon and amnesty to all who adhered to the enemies of the United States during the late civil war. This is the very offense which aliens committed. As the words would have no meaning when applied to citizens, we must give them this effect, or violate a fundamental principle of construction, by supposing that they are to have no effect.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney - General) for the defendants:
    The claimant is a British subject, and during the war of the rebellion resided in England. There can be no doubt, from the evidence, that during the war he shipped goods to States in rebellion through ports declared under blockade by proclamation of the President of the United States. This fact is so notorious that it may be considered as history. The question is, does this fact defeat the claim %
    
    The benefits of the Act March 12,1863, were limited to persons who had never given aid or comfort to the rebellion; and, unless this limitation has been removed from persons so offending, they cannot recover. If it has been removed, such removal must have been effected by proclamation of the President.
    That running the blockade, or even having voluntary connection with a violation of the blockade, constituted “ aid and comfort” to the rebellion there can be no doubt. (Bates’s Case, 4 0. 01s., p. 569.)
    
      Has tbe President power to pardon the claimant’s offense ? “A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual upon whom it is bestowed from the punishment the law inflicts for a crime he has committed.” (United States v. Wilson, 7 Pet., p. 150.) The offense of the claimant did not render him amenable to the laws of the United States. He did not stand in need of a pardon, and the President could not thrust a pardon on him.
    The proclamations of pardon and amnesty issued by the President did not repeal the provision of the Act March 12, above referred to. They only relieved the parties affected by them &om the operation of that provision of the act. Hence persons who have given aid and comfort to the rebellion, and are not affected by the proclamations, cannot recover under the act. (.Meldrim & Boyle's Case, 7 C. Ols. E., p. 595.) “The pardon and amnesty do not and cannot alter the actual fact that aid and comfort were given by the claimants, but they forever close the eyes of the court to the perception of that fact as an element in its judgment.” (Carlisle & Henderson’s Case, 8 C. Cls. E., p. 153.) This as to parties upon whom the proclamations of pardon and amnesty have taken effect. As to all others, the eyes of the court are not closed.
   Lobing, J.,

delivered the opinion of the court:

The statement of facts finds that the claimant, a subject of and resident in Great Britain, during the rebellion, imported goods not munitions of war into the ports of the confederacy. But this was not in him any offense against any law to which he was subject. He was a citizen of a neutral nation, and the law which made the rule and the rights between him and the United States was the law of nations; and under the law of nations, as contended by the claimant’s counsel and shown by the authorities he cited, a belligerent cannot prohibit neutrals from trading with its enemy; it can only prevent it; and the difference is very wide, for it involves the right of neutrals to trade with either belligerent, and that right is as clear and certain as it is important to the world’s commerce; and a belligerent can only prevent neutrals from trading with its eneiriy by a blockade efficient for prevention. That is the absolute condition annexed by the law of nations to the use of a blockade ; and by its careful discrimination between a paper-blockade, which it disclaims and denies, and an actual blockade, which it alone permits, the law-of nations says to the belligerent you may keep the neutral vessel out if you can, and it says to the neutral vessel you may get in without force if you can. It thus gives to-each a clear and definite right; and this petitioner, in import-in the exercise of his right under the law of nations as the ing his goods into the port of the confederates, was as much United States were in the exercise of their right in attempting to prevent it. And the fact that the petitioner succeeded in the importation of his goods is evidence that under the law of nations he had a right do so, because it is evidence of the fact, that the United States had not performed the condition on which only under the law of nations they had a right to blockade at all, i. e., by establishing a blockade efficient for prevention. The proposition of Lord Stowell as to the required completeness of a blockade is of universal admission, and he said as follows: “ The very nature of a complete blockade includes that the besieging force can apply its power to every point of the blockaded state. If it cannot, then there is no blockade of that part where its power cannot be brought to bear.’’ (1 Bob., 80 ; 4 Bob., 66; 1 Acton, 64.)

It is true that a neutral vessel, in attempting to enter a blockaded port, is liable to seizure, but that seizure is not made under the municipal laws of the blockading power, nor for any offense against them, but by its right as a belligerent and under the law of nations, which authorizes it to treat, not as a criminal, but as an enemy, those who come to the aid of its enemy.

We are, therefore, not dealing here with a criminal or an offender against our laws or any laws, but with one who has exercised his right as a neutral by importing merchandise, not munitions of war, into ports of the Confederacy, when and where he had the right of entry under the law of nations.

And those laws are a part of the laws of the land, and they involve its highest policy, that of maintaining its good faith and good repute among the nations. And the maintenance of these is the highest duty that can be committed to a judicial tribunal. And that duty belongs to legislatures as well$ and therefore a municipal law punishing, directly or indirectly, treasonable offenses as such, must, by construction, be confined in its apxili-cation to-our.own citizens or aliens resident here, wbo thereby owe allegiance here.

Nor can there be imputed to the claimant any intent of violating our municipal laws, or anything more than the fact of aiding the rebellion without that intent; for his intent in importing goods not munitions of war was his own gain in a trade lawful to him by the law of nations, and which trade is so made lawful to him because its intent is the. profits of trade, and not the assistance of one of two belligerents.

And the petitioner did not seek to avoid duties or the payment of any legal burdens on his traffic, and it cannot be assumed that he failed to comply with the existing requirements of the ports into which he entered; and if the authorities there were other than those of the United States, it was not his fault.

Neither is the petitioner at our bar by any grace, sufferance, or comity, but by his right, secured to him by our statute of July 28, I860, in exchange for the right 1ns sovereign gives to our citizens to sue him in his courts. And this right has been assured to him by our decisions, affirmed by the Supreme Court, under which our Government is held to be a trustee for aliens as well as for our own citizens.

It may be true that our Government did not, in matters between them and the citizens of the Confederacy, admit them in all respects to be belligerents. But it certainly is true that foreign nations, and England among them, both for their government and citizens, recognized the Confederates as belligerents, and established their relations with them accordingly; and if our Government objected to this diplomatically, it never practically enforced its objection; and it was, so far as Great Britain was concerned, definitively abandoned in final settlement by the treaty of Washington. And that during the rebellion the Confederates were belligerents cannot now be brought into question with the English government or an English subject.

Thus much for the status of the petitioner at our bar.

The facts in this case sever the crime of aiding the rebellion from the act of aiding it. They are entirely distinct things, and, as this case shows, have no necessary co-existence, and their difference and distinctness are recognized under all law and in all courts, civil and criminal. The law of nations recognizes the difference in holding that, where the citizen of a neutral nation gives aid and comfort to one of two belligerents, tlie other may treat him as its enemy under the laws of war, and not as a criminal under its municipal law. So all criminal courts distinguish between the act and the crime, which is only the moral and legal quality of the act, for in criminal courts pardon purges the crime, and absolves the criminal from its penal consequences; but it does not alter the act, for a thing done is unalterable, and no lfiw or court feigns imperception of that, or rests its action on the fiction of an impossibility. So all civil courts, in their administration of the law, distinguish between the act and the crime; for, if a man forges my name to a promissory note, and is pardoned for it, his crime is purged, and, as it is metaphorically said, thereafter no court can see it. But the court can and will thereafter see the act; for, if- the man sues me on the note, I may plead and prove the forgeiy, and certainly the replication of a pardon would be demurrable and bad in law.

And the language of all text-books and decisions distinguishes between the act and the crime, for they habitually and in the common accuracy of expression confine the absolving power of a pardon to the crime and its penal consequences. Thus Justice Blackstone (4 Black. Com., p. 402) says: “ Pardon makes the offender a new man, and acquits him of all corporal penalties attached to that offense for which he obtained pardon.” And offense, when used in reference to pardon, necessarily means crime. So Bacon’s Abridgment (v. 7, p. 416) says: “ Pardon removes not only punishment, but all the legal disabilities of crime.” And the language of decisions is as precise. In 7 Peters, page 150, Chief-Justice Marshall defined a pardon thus: “ A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual from the punishment the law inflicts for a crime he has committed.”

It would seem to be necessarily certain that the Supreme Court, in its decisions that the words in the Act 12th March, 1803, “ never given aid and comfort to the rebellion,” referred to the crime, did not, and could not, overlook a difference so manifestly existing in fact, and so clearly stated in elementary treatises and authorities, and so certain to occur in practice; and the cases that they have decided show that they did not.

Thus in the case Ex-parte Garland the Supreme Court said: “ A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is fall, it releases the punishment and blots out the existence of the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense.” And again they said, in the same case: “ The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offense of treason committed by participation in the rebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind.” It would be certainly difficult to select language which would more clearly distinguish between the crime pardon will legally purge and the act that is unalterable. The industry of the learned counsel for the defendants has found the only case in which the language of the court has not distinguished between the act and the crime; and in that case they co-existed, and there was no need of distinguishing between them. In Carlisle & Henderson, (16 Wall., p. 147,) the court said in one sentence thus : u The pardon and amnesty do not and cannot alter the fact that aid and comfort were given by the claimants, but they forever close the eyes of the court to the perception of that/aci as an element iu its judgment.” But all the language of the Supreme Court in that case must be .construed together. And in a subsequent part of the case, on the same page, the court refers to the effects of pardon as to which its members agree and to those as to which they differ, and the statement is as follows: “ There has been some difference of opinion among the members of the court as to cases covered by the pardon of the President, but there has been none as to the effect of and operation of a pardon in cases where it applies. All have agreed that the pardon not only releases the offender from the punishment prescribed for the offense, but that it obliterates, in-legal contemplation, the -offense itself..”

Now, in the sentence first cited from this case of Carlisle & Henderson, the Supreme Court says: “ The pardon and amnesty do not alter the actual fact,” and in the sentence secondly cited they say that the court all agree that pardon “ obliterates the offenseand we think that in this case cited, and all the like cases decided by the Supreme Court, their language shows that they distinguished between the act and the crime, and held that the third section of the statute referred to the crime and that only; for in every case in which, the Supreme Court has decided that a claimant, because of his pardon, was entitled to recover, the fact that he aided the rebellion was clear and unaltered, and yet by the decision formed no impediment to his recovery.

And in Pargoud’s Case, where pardon had obliterated the crime and the unalterable fact was all that remained, we held it was efficient per se to prevent a recovery, and the Supreme Court reversed our decision.

By the decision of the Supreme Court, pardon obliterates the crime and proves its non-existence, and thus supports the allegation a claimant is obliged to make in his petition and prove on trial, viz, that he “ never gave aid and comfort to the rebellion;” and that is all the pardon does. But pardon is only one way of proving the non-existence of crime, and another equally legal and efficient way is to prove by circumstances that the claimant could not have committed the crime; and that is done here, for it is shown that this claimant, at the time of his importations and since, was a subject of Great Britain and resident therein, and owed allegiance there, so that his act was not by our law treasonable, and under the law of nations was not criminal.

The argument for the defendants is that the third section of the Act March 12,1863, conditions a recovery under it on proof that a claimant never gave aid and comfort to the rebellion; that it is proved the claimant gave such aid and comfort, and that he had not been released of its consequences by any Executive pardon. As allegations of fact this is all true, but we think the defect of the proposition, as an argument, is that as such it rests on the literal meaning of the words “ never given aid and comfort to the rebellion,” instead of on their legal meaning and the legislative intent in their uses, and these are conclusively fixed for us by the decisions of the Supreme Court, by which the words cited are referred to the crime and not to the act of aiding the rebellion.

And the application of the argument of the defendants that we are called upon by them to make is, to refer the words of the statute, as to aid and comfort to the rebellion, in the cases of our own citizens and aliens resident here and owing allegiance here, exclusively to the crime and not at all to the act; and in the case of aliens, not resident here and not owing allegiance here, exclusively to the act and not at all to the crime. And certainly that is the only way of bringing this action within the bar set up for the defendants. But we think the rules of construction require us to construe the words of the statute in the same way as to all persons.

As suggested' at the bar, the original theory of this court was that the jurisidiction of the crime of aiding the rebellion was given to other courts of the United States of criminal jurisdiction, and under other statutes than that of 12th March, 1863, and that this court of civil jurisdiction had nothing to do under that act but to find a 'fact on which was conditioned the return of property, vested in the United States by capture jure belli, to its original owners. But this theory has been reversed in all its parts by the Supreme Court, which has decided that the Act 12th March, 1863, requires us to find the crime of aiding the rebellion. And we think this confines the application of the statute to those owing- allegiance here. And whether in the decisions of the Supreme Court the crime of aiding the rebellion has or has not been considered apart from the act, they must be considered apart here, for the facts so present them. And it being now the settled doctrine that the statute contemplated the crime aud barred recovery as a punishment for that, we think the reasonable inference is that Congress did not intend to punish for treason a foreign subject because he had used his right as a neutral under the law of nations.

Nott, J.,

dissenting:

I agree fully as to the general principles ably and elaborately discussed in the opinion of the court, and differ only as to its conclusion. The case before us, I think, is governed by the following propositions:

I. The amended Court of Claims Act (12 Stat. L., § 12, p. 765) provides “ That in order to authorise the said court to render a judgment in favor of any claimant,” it shall be set forth in the petition by the claimant, “ whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to the rebellion against the said Government, which allegations may be traversed by the Government, and if, on the trial, such issues shall be decided against the claimant, his petition shall be dismissed.”

II. The Supreme Court has decided that the abandoned and captured property cases are “ subjects of jurisdiction,” to be determined according to the provisions of this general act. (Zellner's Case, 7 C. Cls. R., p. 137.)

III. The General amnesty proclamation December 25th, 1868, (15 Stat. L., p. 711,) while it relieves a citizeii from making proof of his compliance with the provisions of the statute, (Mrs. Armstrong's Case, 7 C. Cls. R., p. 289,) and even from pleading his innocence according to its requirements, (Pargoud's Case, id., p. 289,) and extends to a resident alien who owes only a temporary allegiance, (Carlisle & Henderson's Case, 8 C. Cls. R., p. 153,) cannot be extended to the case of a non-resident alien, who owes no allegiance and can be guilty of no offense. The conclusion reached by the majority of the court, that blockade-running was not an offense against the laws of the United States, seems to me a conclusive reason that the pardoning power cannot help the suitor; for the power of the President to pardon is limited to “ offenses against the United States,” and offense” in law is nearly synonymous with “ crime,” comprising only those acts to which the law affixes a penalty or punishment. The President may remit a fine or a penalty, but he has no power to remit the forfeiture of a bail-bond. (4 Pet., p. 144.) With the obliteration of “ offenses ” known to the law, having attached to them the attribute of punishment, the pardoning power ends. The statute which has been quoted recognizes the difference between those who owe and those who do not owe “allegiance” to the Government. As to the former class, who have violated that allegiance, the Constitution efiables the President to restore them to the condition of legal innocence. As to the latter class, who, being beyond the pains and penalties of the law, are also beyond the pardoning power of the Executive, the Constitution does not authorize the President to re-open for them the courts of the United States which have been closed by express legislative enactment.

IY. The courts of the United States being closed to the claimant, his redress, if he be entitled to any, for “acts committed” against his property during the rebellion by the Government of the United States, should have been sought under Article XII of the treaty of Washington. The purpose of the Abandoned or captured property Act,(12 Stat. L.,p. 820,) as construed b3T the Supreme Court, was to create a trust for those citizens who faithfully adhered to the Government during the rebellion, and for those who, not adhering, should afterward be restored to their rights by the executive clemency. It could not have been the purpose of the statute to create a trust for the benefit of a foreigner then carrying on an illicit traffic with the armed enemies of thfe United States in violation of their blockade and against their declared public policy, nor to allow .him to come into a court of the United States, as a matter of right, and enforce the trust the moment the rebellion ended.

Y. Apart from the statutes, and apart from the aid and comfort given to the rebellion by blockade-running, it is a controlling principle that the courts of a country will not aid a foreigner to accomplish that which the laws of the country forbid to its own citizens. The title to this cotton was acquired by a nonresident alien, during the rebellion, in a blockaded port. The business was conducted through the instrumentality of blockade-runners and against the public policy of the United States. The claimant occupies the position of a smuggler. If he had acquired the fruit of his traffic, the courts of the United States would not disturb him iu his possession. Conversely, if the forbidden traffic failed to reach a result, he cannot ask the courts of the United States to aid him in acquiring this property against the declared policy of the United States.  