
    MILLS’ CASE. Thomas R. Mills et al. v. The United States.
    
      On the Proofs.
    
    
      The claimants offer m evidence as an incident, to establish their loyal adherence to the United States, their oath of allegiance taken immediately and voluntarily after the capture of Savannah. They do not insist on the legal effect of the oath under the Proclamation 8th December, 1883, in working their amnesty. The defendants object to the admission of the oaths for any purpose.
    
    The Court of Claims held in Pargoud’s Case, (4 C. Cls. R., p. 337,) that the Abandoned or captwed property act, (12 Stat. L., p. 820,) when requiring the claimant to prove that he never gave aid or comfort to the rebellion, contemplates the fact and not the crime; and hence that pardon and amnesty, which merely purge the crime, cannot alter or affect the fact. The Supreme Court, in Padelford’s Case, (9 Wal. R., p. 531,) reversed this doctrine, and held that the act contemplated the crime, and hence that a pardon was effectual proof, entitling the claimant to recover. The Act 12th July, 1870, (16 Stat. L., Chap. 251,) declares that a claimant’s oath of amnesty shall not be admissible “ to support any claim against the United States, or to establish the standing of any claimant,” but that his loyalty must loe proven “ irrespective of the effect of any executive proclamation, par Aon, amnesty, or other act of condonation.” The effect of the statute is to declare the intent of Congress to he as originally held hy the Court of Claims, nd to exclude such oaths as evidence.
    
      Messrs. Carlisle & MePherson for tbe claimants:
    This is a claim under tbe Act March 12,1863, for tbe proceeds of seven hundred and ñfty-one bales of cotton, captured by General Slier man at Savannah, Georgia, in December, 1864.
    Tbe claimants were merchants in Savannah, Georgia, at tbe outbreak of tbe rebellion, engaged in buying and shipping cotton. Being cut off from business, and compelled to sell their ships, one of which was in port, and the other abroad, they invested their means in cotton in 1861-’2. Early in 1863, they brought their cotton to Savannah. There they sold part, one hundred bales, and the residue, seven hundred and fifty-one bales, were on hand when the city was captured.
    The cotton was brought to Savannah early in 1863 — a portion of the railroad receipts are produced.
    It was stored, three hundred and three bales, in Wight’s press, and the residue, four hundred and forty-eight bales, in stores rented by the claimants, in Stoddart’s building. The claimant produces his cotton book with the original entries of marks and places of storage.
    On the capture of Savannah every possessor of cotton was required to report to the military authorities the quantity and place of storage. The claimants reported seven hundred and fifty-one bales of cotton stored as follows, to wit: three hundred and two bales in Wight’s press, and four hundred and forty-eight in Stoddart’s building. The actual number in Wight’s was three hundred and three, as. Wight proves and the original receipt shows. The report correctly returns seven hundred and fifty-one bales. The error is in lot marked “ G,” which in the return is stated to consist of one hundred bales, whereas it consisted of one hundred and one bales.
    The cotton was sent for by the military authorities. The claimants gave up to the United States agent the keys of the stores in Stoddart’s building, and saw the cotton then taken.
    The War Department return shows that seven hundred and fifty-one bales were reported to Colonel Bansom by these claimants as belonging to them, (four hundred and forty-eight stored in Stoddart’s building, and three hundred and three at Wight’s, press,) and the shipment of seven hundred and eighty-five bales, of which, however, thirty-seven bales were the separate property of J. G-. Mills, leaving only seven hundred and forty-eight bales to the credit of the claimants.
    As to the loyalty of the claimants, the testimony shows that-they were all strong Union men; at the outbreak of the rebellion they were published in hand-bills, calling upon the Rattlesnake Club to mob them'; none of them ever changed; J. R„ and J. Gr. Mills sent their sons abroad, (C. F. M. had no children ;) J. R. Mills said no son of his should ever enter the rebel service; J. G-. Mills had been a sailor, and said he knew no flag but the one that had protected him for thirty years, and would never raise his hand against it.
    With the single exception of subscribing $1,000 each to the Confederate loan by Thomas R. Mills and J. G-. Mills, neither of the claimants ever gave any aid or comfort to the rebellion. In making these subscriptions Thomas R. Mills acted under apprehension of danger and violence, reasonably calculated to excite apprehensions.
    Charles F. Mills was president of the Marine Bank, which bank, in two subscriptions, loaned $200,000 to the confederacy..
    The circumstances of the first loan, and the same under which so many citizens, and among them T. R. and J. G. Mills,, made small subscriptions, are detailed in the evidence. The captain of a British ship was taixed and feathered for favor shown to a negro man. A Yankee school-master was treated in the same way. Another man received one hundred or two. hundred lashes and was shipped North in almost a dying condition. Placards were posted pointing out the claimants and a few others as fit objects for similar treatment. The Rattlesnake Club was called on to mob them. When the Marine Bank held'back from subscribing, a threat was made by a 'gentleman that he would head a mob to tear it down. “ He was a prominent lawyer of standing in the community, a good speaker, and oould have raised a mob very easily.”
    This bank pursued a course diametrically opposite to that of the other Savannah banks. Those banks, by law, had the right to issue notes to thrice the amount of their capital; most of them did so, and loaned their notes to the confederacy, thus, helping the rebellion with all their credit. The Marine Bank,, on tbe contrary, did not expend one dollar, but steadily contracted, and purchased tbe bonds they were forced to take as far as they could and almost exclusively in confederate currency.
    As to tbe operation of tbe Act and Joint Resolution July 17, 1862, and tbe proclamation of tbe President of July 25,1862 : We purpose discussing tbe question whether if tbe claimants were guilty of aiding tbe rebellion in 1861, and ceased and desisted therefrom on and after 17th of July, 1862, and never after that date were guilty of any disloyal act, they are entitled to receive tbe proceeds of their property under tbe Act March 12th, 1863.
    Tbe seizure of enemies,’ property flagrante hello within the limits of tbe United States is unlawful, unless authorized by statute. (Brown v. United, States, 10 Or., 110.) Chancellor Kent says of this case of Brown v. The United States: u Though this dicision established tbe right [of confiscation,] contrary to much of modern authorities and practice, yet a great point was gained over tbe rigor and violence of tbe ancient doctrine, by making tbe exercise of tbe right depend upon a special act of Congress.” (Kent’s Com., 59, § 3.) Tbe law, which is firmly established by this case, has not only been recognized by tbe judiciary, but by Congress itself, in passing laws, authorities, and directing such seizures and prescribing tbe conditions and modes of proceeding therein.
    If such statutes are necessary in tbe case of alien enemies, it would seem that by much greater reason should they be required to justify tbe seizure of tbe property of our own citizens during insurrection, rebellion, or civil war.
    Congress accordingly passed tbe Acts July 13,1861, August 6, 1861, July 15,1862, declaring what property belonging to persons in tbe insurrectionary States should be-seized, and bow it should be proceeded against.
    In these proceedings after tbe seizure in fact, tbe United States were directed to become tbe actors and to sue for tbe condemnation of tbe property; but, says this court, by Mr. Chief Justice Casey: “ Experience proved that it was very difficult, if not entirely impossible under tbe circumstances, to carry ofit these provisions in a manner to do justice either to tbe owners or to tbe United States. Pending tbe war, amid tbe conflict of arms, it was bard to discriminate between tbe different residents of tbe rebel territory as to their sentiments or conduct by officers •of tlie United States, wlio in most cases were entire strangers to the persons and tlie vicinity. The owners could not always ascertain where their property had been taken for judicial proceedings. They could have rarely had notice of their pendency, and when they had, it was not often that they could either come through the military lines themselves, or bring the necessary witnesses and proofs before the court to establish the innocence of themselves or their property. Some property of course was seized that was not liable to forfeiture or confiscation, by reason of its having belonged to persons who had maintained their faith and allegiance to the United States. It was deemed a hardship to condemn and forfeit the property of such; and it was, moreover, contrary to the whole policy and intention of Congress as manifested in these enactments. The care and management of this property seriously interfered with the military duties of the officers of the army, and was calculated to introduce demoralization and corruption. Influenced by such views, and with a design to remedy the defects in the laws of 1861 and 1862, Congress passed the Act March 12, 1863. This latter act had three special objects in view:
    
      First. To relieve army officers from the duty of handling and selling this captured and abandoned property, and to transfer those duties to civilians under the Treasury Department, as part of the revenue system.
    
      Second. To enable a sale of the property to be made without any previous judicial order or decree-of condemnation.
    
      Third. To substitute the net proceeds for the property and the Court of Claims for the prize courts, giving the parties day in court after the suppression of the rebellion, when they could appear with their proofs. (Margaret Bond’s Case, 2 C. Cls. R., p. 230.)
    This was the unanimous judgment of this court, from which we are not aware the court has in any case departed.
    Applying these principles to the case at bar, the claimants upon this record stand free and clear of any imputation or suspicion of disloyalty in act, word, or sentiment.
    For by the sixth section of the Act July 17,1862, chapter 192, being the provision of law authorizing seizure in this ease, it is provided: “That if any person within any State or Territory of the United States, other than those' named aforesaid, after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not, within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, money, stocks, and credits of such person shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof. ” (12 Stat. L., 591.)
    This act can only be construed as authorizing an amnesty and complete oblivion as to all acts committed prior to the u passage of this act,” and giving as a locus penitentice a period of sixty days after the issuing of the proclamation thereby authorized, this period being added to enable all parties to have the benefit of the law, it being supposed that by that time it would become known throughout the insurrectionary States.
    Authorized by this law, and in execution of it, the President did, on the 25th of July, 1862, issue the proclamation of July 5, 1862. (12 Stat. L., p”. 1266.)
    Now upon this record the only acts of disloyalty or giving aid or comfort to the rebellion .were in the early part of the year 1861. These acts themselves, we have contended with entire confidence, were not done with any intent to aid the rebellion, and so constituted no otfence within the meaning-of the statute, but conceding, for the sake of argument, that they did, we contend that they are completely purged under the statute and proclamation, by the fact, which is apparent, upon the whole record, that the claimant did thereafter wholly .cease from aiding the rebellion and return to their allegiance to the United States.
    Neither the statute nor the proclamation either prescribed or contemplated any act whereby such return to allegiance should be evidenced, nor was it possible to prescribe any act ■ which could be performed, under the circumstances, by people in the insurrectionary States, unless, indeed, by stealth, or under cover of other motives.
    In this case all the .claimants clearly expressed their attachment to the Union; two of them sent their sons out of the country with the' avowed determination to keep them from serving against the United States, and the third went abroad-as soon as be could escape, and there, both by word and deed, upheld the cause of the Union.
    The Act March 12, 1803, has been termed by this court and by the Supreme Court of the United States a beneficent act: then certainly it does not put any owners of captured property in a worse position than if it had not been passed.
    Now, had the act of 1863 not been passed these claimants’ property would have been libelled in the District Court, and in that libel it would have necessarily averred that the claimants not only had aided the rebellion, but that they had not returned to their allegiance within sixty days after the proclamation, or at least a case must have been made under the statute by showing that the claimants were engaged in aiding the rebellion “ after the passage of this act,” and upon the proofs before the court in this case, the property certainly must have been restored to .the claimants.
    
      Mr. Joseph A. Ware (with whom was the Assistant Attorney General) for the defendants.
    The petition was filed 8th March, 1867. The depositions of the claimants, Thomas E. and Charles F. Mills, are put in evidence by the defendants as substitute for an examination under the statute, by stipulation and rule of court. In this cause only seven hundred and forty-eight bales seem to have been taken and shipped.
    As to the loyalty of the claimants, the testimony is all contained in the record. General sentiments of opposition to secession and to the rebellion on the part of all the claimants seem to be abundantly proved. But the acts proved upon each of them are, it is submitted, such as to debar them from a standing in this court.
    T. E. and J. G. Mills each subscribed $1,000 to the Confederate loan in 1861.
    Charles F. Mills was president of the Marine Bank of Georgia, which loaned to the rebel government $100,000 in June, 1861.
    That these were acts of aid and comfort to the rebellion will not be denied,- but the claimants seek to avoid their effect by claiming, first, that the acts were compulsory; and, second, that having been rendered before the statute of 15th July, 1862, and the proclamation of 25th July, 1862, they are thereby condoned and remitted, so as to constitute no bar to the claimants’ recovery in' this court.
    As to alleged compulsion, different witnesses for the claimants speak of the Millses and the Marine Bank as compelled to subscribe, &c., &c.; but to measure the extent of such pretended compulsion, it is certainly fair to take the testimony of the Millses themselves.
    Thomas B. Mills gives the full extent of this pretended compulsion. He says:
    “ I felt I was compelled to do it. We were annoyed very much by insinuations and things in the papers, pointing at whoever had held back and had not subscribed. About the same time there was a good deal of violence.” And then follow some narratives of the treatment of a British captain and others maltreated for various alleged offences against the rebel sentiments of the State, but having no relation to subscriptions or contributions for the Confederate cause. He admits that neither he nor his brother was ever threatened with danger to their property, even previous to the subscription; and it is to be noted that with all his alleged loyalty, Mr. Mills could find no higher ground of objection to this subscription than the pecuniary loss to himself. He says, “I felt .that I would just as soon have thrown the money into the fire,” and that he “ looked u-pon it as so much money thrown away.”
    The fact that it was to be used directly in sustaining a wicked war against the government to which he professed such loyal adherence seems not to have entered into his mind. He says, again, that in making these loans he was acting-under apprehension of danger, but the grounds of the apprehension and the nature of the danger are neither of them shown.
    Mr. Charles F. Mills, in his deposition, sums up the compulsion under which he acted, as well as his part in the transaction. He was present, as the leading officer of his bank, when the loan was made j did not vote against it; does not appear to have uttered one word in opposition to this appropriation of his own money, and of that of others for whom he was a trustee, in aid of the rebellion. He says: “ The pressure was great; the stockholders of the bank desired it; two of our directors were pressing upon me to do as other banks did, which gave hundreds of thousands, and even millions of dollars, saying we want to do as they do. No formal rote was taken, merely because we knew it was of no use; there were three parties decidedly opposed to it. The stockholders desired it; two of their directors desired it; public opinion desired it; the whole pressure was such that I felt it was irresistible. If we had refused it, they might have taken the whole bank, either by force of arms or by the prerogatives of the stockholders. • They would have voted me out,” &c. And in his comprehensive summing up, he says “ they wei’e compelled to yield both feeling and judgment to pressure from within, and without.”
    lie, too, seems to have observed nothing objectionable in the transaction, except as a question of pecuniary loss.
    It does not seem to have occurred to him that there might be a worse use of money than throwing it away. In neither of these cases is anything like compulsion, restraint, or force shown.
    As to the argument that these offences against the United States are condoned or taken out of the effect of the statute of 12th March, 1863, by force of the statute and proclamation of 1862, it has no possible force or application here.
    This court derives its sole jurisdiction for the trial of this cause from the Act 12th March, 1863.' Its jurisdiction is limited by the express provisions of the act. There is no room for implication or construction. And the act (section 3) requires that the claimant here shall establish “ that he has ‘ never’ given aid or comfort to the present rebellion.” And the statute of the 25th June, 1868, provides that the claimant shall prove that he “did, during said-rebellion, consistently adhere to the United States, and did give'no aid or comfort to persons engaged in said rebellion.” The statute is not that the claimant shall prove that he gave no aid or comfort to the rebellion after August, 1862, and the court cannot extend its jurisdiction by any assumption that the legislature ought to have so said. And this has been hitherto the uniform doctrine of this court. In the case of Margaret Bond, cited by the claimants’ counsel in support of his proposition that this act is- merely a substitute for that of July 17th, 1862, the court expressly said: u Ilis evidence to that effect must cover the entire period of the war, so that it shall appear that he never gave any aid or comfort to the rebellion.”
    It is undoubtedly true that this is a limitation and restraint upon the jurisdiction of this court as to claimants beyond that given by the act of July, 1862, as to defendants in proceedings for condemnation. But it does not follow that injustice, bad faith, or anything in the nature of an ex post facto law is implied by this restriction. In giving a new tribunal, before which claimants of property or its proceeds might go to press their claims against the government, Congress has the undoubted right to limit the persons to whom such tribunal shall be open as to them shall seem fit. And when the limitation is express and positive, no jurisdiction can, by implication or otherwise, be taken beyond it. If any person claims to have thereby suffered injustice under the statute and proclamation of 1862, the remedy is with Congress to provide another and sufficient remedy for him.
    The. Acts July 17th, 1862, and of March 12th, 1863, although claimed to be in pari materia, and perhaps in some sense so, have by no means the same scope, limitation, or effect. The former act is entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.” It contains variotfs provisions for the punishment of treason upon the person of the traitor, and by the seizure of all his estate and property ; for proceedings in the courts for the' condemnation and sale of such property; for the liberation and colonization of slaves, and for the granting of pmnesty and pardon by the President. The proceedings for the condemnation and sale of the property of rebels provided by this act are limited to the case of those who shall not within sixty days after proclamation, &c., cease to aid and abet the rebellion, and return to their allegiance.
    On the other hand, the Act March 12th, 1863, is entitled “An act to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States.” It provides for tbe appointment, by the Secretary of the Treasury, of special agents to receive and collect abandoned and captured property within the rebel States and Territories; for the disposition of such property, and for the reclamation of the proceeds thereof by such owm ers as shall prove that they have never given aid or comfort to the rebellion. It is evident that the two acts do not cover, and are not intended to cover, the same ground; though the latter is a substitute for the former as to the method of the disposition ■of property already seized or to be seized, it by no means follows that it must be equally applicable to all persons with the same limitations as the former act, and no others.
    There is nothing in the necessity of the case or in the rules of construction of statutes which requires that these two classes of persons are to be construed to bet, shall of necessity be, or of right ought to be, identical. The whole mode of proceeding in the two cases, respectively, is radically different. The* scope of the two acts, as regards the property to be affected, is different, and there may well be substantial and controlling reasons why a class of persons might be permitted, to allege condonation as a defence in the one court, and not to allege it as a ground of claim in the other.
    The claimant of the benefit of condonation, by returning to his.allegiance,.&c., under the act and the proclamation of 1862, must allege and prove, affirmatively, his return to allegiance, .and his abstaining from further aid, &c., under the act.
    No such averment is made in the petitions in this cause, and no such fact is proved, or pretended to be proved, by the evidence.
   Lqring-, J.,

delivered the opinion of the court:

The petitioners claim the net proceeds of seven hundred and fifty-one bales of cotton.

The effect of the circumstances relied on in this case to p>rove disloyalty, is substantially the same which was shown and considered in the case of Edward Padelford v. The United States, (4 C. Cls. R., 316.) And it was held in that case that they did not disprove loyalty or prove voluntary aid to the rebellion.

At the trial of this case the claimants, to prove their loyalty, -offered in evidence the oath taken in pursuance of the President’s proclamation of December 8,1863, providing pardon and amnesty for those who aided the rebellion. It was objected on the p>art of the defendants that the oath was not admissible here by the statute of 1870, chap). 251, and we are of that opinion.

The motion brings into consideration the pmrpwses of the third section of the Act V2,th March, 1863, and its auxiliary acts, and the issue they form for trial here; and it involves the construction of the act of 1870, so far as its provisions affect this -case. ■

The third section of the Act 12th March, 1863, required the claimant to prove that he had never given aid or comfort to the rebellion. The third section of the Act 2oth June, 1868, required the claimant to prove, affirmatively, that he did during the rebellion consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion. And in the case of The United States v. Padelford, (9 Wal., 531,) the Supreme Court said: “The particular description of proof required by the later act seems to be included in the more general description of the former.’7 And the practice of this court had been always in conformity with that decision before it was made. Under this construction of the Act 12th March, 1863, the claimant under it is to prove affirmatively that he never gave aid or comfort to the rebellion.

In the case of John F. Pargoud, (4 C. Cls. R., p. 337,) this court decided that the third section of the Act 12th March, 1863, in requiring the claimant to prove that he never aided the rebellion, contemplated the fact and not the crime of aiding the rebellion, and that pardon and amnesty, which can prove nothing affirmatively, but that they were granted according to their tenor, if they purged the crime, could not alter or affect the fact, and were therefore inefficient and inadmissible evidence for the claimant.

The difference between the fact and the crime is as practical as it is plain. The fact, or thing done, may affect third persons and be material to them; Avhile the crime, or legal quality of the thing done, is a matter merely between the criminal and the law, and affects nobody but himself. Thus in 1863, when the struggle of the civil Avar Avas at its height, the fact of aiding the rebellion directly affected and injured the United States as a belligerent; and it Avas their manifest and most essential policy to induce and confirm loyalty at the South by rewarding it; Avhile the crime of aiding the rebellion, as a mere offence against the law, Avas no more material to the United States than a burglaiy or arson in any northern city. In these circumstances the third section of the Act 12th March, 1863, was passed, and offered to those avIio neA'er gave aid or comfort to the rebellion the net proceeds of their captured property.

In the case of The United States v. Padelford, (9 Wal., 531,) the Supreme Court overruled the decision of this court, and decided that the third section of the act of 1863 contemplated. not the fact but tbe crime of aiding tlie rebellion, and therefore that pardon and amnesty, as they purged the' crime, were admissible and efficient evidence for the claimant, and entitled him to a recovery.

The decision of the Supreme Court declared conclusively the intent of the statute, but not-necessarily the intent of Congress in enacting it, for it might be that the statute, from the impor fection of its terms, referred to the crime of aiding the rebellion, while Congress in enacting it contemplated the fact of aiding the rebellion; and the statute of 1870 declares that such was the case, and it changes the law and enacts that disproof of the fact of aiding the rebellion is the matter to be required of a claimant here, for it declares that the loyalty required by the statutes shall be proved “irrespective of the effect of pardon and amnesty,” &c. And this can only be done by proof that the claimant never in fact aided the rebellion,’ and this makes the issue here on which the evidence of the oath is offered and in reference to which its admissibility, is to be considered.

The act of 1870, in changing the issue, changes the evidence; it excludes consideration of the crime and the evidence, which in contemplation of law is the badge of the crime; for the law tenders the oath only to those who have committed the crime, and the statute' of 1870 enacts that the oath shall not be u admissible” in evidence here “ to support any claim against the United States, or to establish the standing of any claimant in said court, or his right to bring or maintain any suit therein.” "We think this clear and express prohibition is what, and all that the statute applies to this case.

The argument for the claimant was that, while the statute prohibited the admission of the oath, it provided that loyalty should be proved, “irrespective of the effect of any executive . proclamation, pardon, amnesty, of other act of condonation and hence the inference arose, (taking the prohibition and the provision cited together,) that the intent of the statute was that the oath should not be used to prove a condonation, but might be used for any other purpose, such as the claimant’s loyalty or adherence to the United States. But we think the statute cannot be so construed, for it applies the prohibition as here cited, and the provision on which the inference is rested, to different classes of cases, and to the class to which this case belongs it applies only tlie prohibition. The statute divides ’ the cases into two classes: First, those in which the oath is first -offered in evidence, after the enactment of the statute; and second, those in which the oath had been offered and admitted in evidence before the enactment of the statute; and to-the first class it applies the prohibition without more.

The statute then turns to the other class of cases, where the oath had been, in the words of the statute, “heretofore offered or put in evidence,” so that before the enactment of the statute it was already in the case and made a part of its evidence for all its legal effects. And it declares as to this class of cases that the oath shall not be “used” or “considered” by the court, but that proof of loyalty shall be made by proof of the matters required by the statute, “irrespective of pardon, amnesty, &c., or other act of condonation.” And these words are to be construed in reference to the circumstances which had preceded and induced the statute. The decision of the Supreme Court had given a particular effect to the evidence in question, by deciding that the law made pardon and amnesty “a complete substitute for proof that he (the claimant) gave no aid or comfort to the rebellion,” and that the oath taken and'kept, of its own force pledged to rebels “the faith of the government” for the restoration of their captured property. And these effects had already, and before the enactment of the statute, attached in the cases in which the evidence had been offered and admitted, and to which the clause of the statute in question by its collocation refers, and we think its only purpose was to annul these effects in those cases, and not to provide for other cases, or to qualify the prohibition it had so distinctly made before.

And in this case the oath was offered in evidence to prove the claimant’s loyalty, or his adherence to the United States: it .was so stated at the trial, and it is so printed in the brief of counsel. And the statute declares in terms that the oath shall not be used for that purpose. It says it shall not be “admissible to establish the standing of any claimant in said court,” and that means loyalty or adherence to the United States. And we think it was the intent of the statute to exclude, in all cases subsequently for trial here, the admission or consideration of the oath to prove loyalty or the adherence of the claimant to the United States, and that this conforms to the spirit and purpose of the statute as shown by other clauses, for the last clause of the statute makes pardon, accepted without protest, proof of the fact that the claimant aided the rebellion, and the oath taken and kept is pardon, by force of the President’s proclamation.

And it is to be recollected that, under the construction which the act of 1870 makes of the third section of the Act 12th March, 1863, viz, that it contemplates the fact and not the crime of aiding the rebellion, the purpose of that section was to induce loyalty in those whom the government could not protect, by assuring to them-, on the condition that they never in fact aided the rebellion, the net proceeds of property captured from them jure belli, and thus, though without fault of their own, .absolutely divested from them and vested in the United States. And such restitution is as purely a mere bounty for steadfast loyalty as a pension .promised and paid from the Treasury would have been.

Óur government treated the struggle between the United States and the Confederate States both as a civil war and as a rebellion, and the people of the Confederate States both as belligerents and as criminals; ,and the practical and extended consequences of this distinction were carefully provided for by the tw.o different statutes, {17th July, 1862, and 12th March, 1863.) The former of these acts is entitled “An act to suppress insurrection, and to punish treason and rebellion; to seize and confiscate the property of rebels, and for other purposes.” And it provides for the punishment of rebels and the confiscation of their property on their trial and conviction. It is purely a ■criminal statute, and is committed to courts of criminal jurisdiction.

The Act 12th March, 1863, is entitled “An act to provide for ■the collection of abandoned property, and.for the prevention of fraxids in insurrectionary districts within the United States.” And, as its provisions show, its general purpose is to secure to the United States property abandoned by and captured from belligerents. *

Under the Act 17th July, 1862, the United States acquired title to the property of convicted criminals, by its confiscation for their crimes, upon a judgment of court, under the criminal law. And such title might be divested by pardon and amnesty, which are a part of that law. Under this statute the United States treated the confederates merely as rebels.

Under the Act 1211i March, 1863, the United States appropriated to themselves the property captured by their military forces in the Confederate States, and thus treated them as belligerents in a territorial Avar, in Avhich every citizen of the hostile territory, Avhether personally loyal or disloyal, Avas an enemy Avhose property Avas subject to capture according to the laws of war. And that this Avas rightfully done was decided by the Supreme Court in the prize cases, (2 Black, 2G5;) and in the cases of Mrs. Alexander’s cotton, (2 Wal., 404.,) and of The United States v. Anderson, (9 Wal., 56,) and of The United States v. Padelford, (9 Wal., 531.) And if such right of capture was the consequence of such territorial war, the right continued Avhjle the war continued; and this was until the 20th of August, 1866, by the decision of the Supreme Court in The United States v. Anderson.

And such capture made, and now makes, the only title of the United States to such property, and their only right to appropriate or use it. For it is not possible to hold judicially that the military seizure and the appropriation of such property by the government was, in any way or degree, a punishment for offences against the laws of the United States; for by those laws the property of a criminal cannot be confiscated for his crime, except by a judgment of a court of competent jurisdiction.

And enemy’s property captured in enemy’s territory belongs, by the laAvs of Avar, as absolutely to the captor as if he had purchased it; for it reimburses to him his losses and expenses by the Avar, and is his lawful means of weakening and subduing his enemy. And it is absolutely divested from the belligerent from AAdioin it is captured, and he has no claim, legal or moral, to its restitution. The United States therefore held the title of such property, and its whole title, legal aud equitable, in their own sole right, and were free to dispose of it as they pleased, and as their interests dictated. And by the third section of the Act 12th March, ÍS63, the United States, combining policy with justice and mercy, appropriated' it, after planing it in their Treasury, as a bounty for steadfast loyalty, as a reward for that course of conduct Avhich would secure an essential and immediate benefit to them, and which circumstances made difficult, perilous, and eminently meritorious in those maintaining it.

Ancl if sucli was tbe purpose of tbe third section of tbe Act 12th March, 1863, their the distribution of tbe property it provides for was, as .has been said, as purely a bounty to steadfast loyalty as would have been a pension promised and paid from tbe Treasury. And if it was a bounty in tbe disposition of their own property, then tbe United States might certainly condition it on what they pleased; and they might well, and in conformity to tbe spirit and purpose of tbe third section of tbe Act 12th March, 1863, confine it to those who never, in fact, aided tbe rebellion. And they might by statute prescribe such evidence for proof of that fact as is within tbe legislative power of Congress. And we understand that such was tbe purpose of tbe act of 1870, which provides only for proof of a fact on which bounty is conditioned, and acts in no way on the crime of aiding the rebellion or its punishment or pardon, or the effect of pardon on the crime. For these reasons we refuse to admit the evidence offered.

Subsequently the court found upon the merits for the claimants, and rendered judgment for $131,146 84.  