
    GREEN'S CASE.
    Alexander L. P. Green v. The United States.
    
      On the Proofs.
    
    
      In 1862, immediately before the capture of Nashville, the claimant, domiciled there, leaves the town and goes into the insurrectionary district, where he remains through the rebellion. The object of his going is to invest the Confederate money of a firm in which he is interested. While there he does not give aid or comfort to the rebellion. During his absence from Nashville a Treasury agent ■ seizes certain buildings of the claimant’s as abandoned property and rents them. At the time of seizure the claimant’s agent is in possession. More than two years after the suppression of the rebellion the claimant brings his action to Recover back the rents collected by the Treasury agent.
    
    
      I. All persons within, the military lines of the Confederate government during the rebellion, whether loyal or disloyal, must he regarded by the judiciary as having been public enemies in all cases affecting the rights of property, save one. That exception is the right given by the Abandoned or captured property Act (12 Stat. L., 820) to establish individual loyalty and recover the proceeds o'f captured property.
    II. The Government is not liable upon implied contract to any person, loyal or disloyal, for property taken by its agents, civil or military, during the rebellion, within the insurrectionary district; and the only redress given to any person for property captured or seized is that provided by the Abandoned or captured property Act and the acts amendatory thereof.
    
      The Reporters’ statement of tbe case :
    I. In February, 1862, the claimant, a citizen of the United States, was domiciled in Nashville, Tenn. At that time he was indorser upon the commercial paper of the firm of Fite, Shepard & Co., a house doing business in Nashville, and he was closely connected with individual members of the firm, one of them being his son. On the 16th February, 1862, before the capture of Nashville by the Army of the United States, but while its capture was imminent and expected, he, at the request of the firm, took a large amount of their money, consisting of Confederate and southern bank-notes, and went South into the interior of the insurrectionary district, where he remained during the remainder of the rebellion. The object of his going was to invest such moneys, and the purpose of the firm and of himself was to make safe investments of questionable funds for the future payment of their northern creditors, and the avails of the investments were ultimately thus applied. While absent from his residence, as before stated, he was not engaged in giving aid or encouragement to the rebellion, other than such as might arise from his voluntarily leaving his domicile and remaining within the Confederate lines and having commercial dealings with the people.
    II. At the time of the claimant’s leaving Nashville, he was possessed, as owner, of certain buildings there, which were occupied by his ten ants'and left in the charge of his agent. The agent'continued to act on behalf of the claimant, in caring for the buildings and collecting the rents, until the last of December, 1864. At that time the buildings were seized by the special supervising agent of the Treasury at Nashville as abandoned, property, and taken from the control of the claimant’s agent. The Treasury agent then leased the buildings and collected the rents thereof up to and including July 8, 1865, to the amount of $8,766.54. The rents thus collected were transferred and paid over to Brig. Gen. Clinton B. Fisk, assistant commissioner of the Freedmen’s Bureau.
    
      Mr. E. P. Norton for the claimant:
    The law empowering agents of the Treasury to occupy and lease abandoned lands and tenements is the Act July 2,1864, (13 Stat. L., 37.) The second section provides that—
    
      “ Property, real or personal, shall be regarded as abandoned, where the lawful owner thereof shall be voluntarily absent therefrom and engaged, either in arms or otherwise, in aiding or encouraging the rebellion.”
    The law contemplates not a mere passive condition of the mind, but that the owner shall be actually engaged in aiding or encouraging the rebellion. To be engaged in aiding the rebellion implies active participation in it, either in the military or civil service. This action is not brought under the Act March 12, 1863, nor does it come under the prohibition of the Act July 4,1864, as to appropriation of property made by the Army and Navy. The grounds upon which the right of action rests are stated in the opinion of Judge Nott, in the case of George W. Johnson v. United States, (4 0. Gis. R., 250.)
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney-General) for the defendants:
    The claimant’s property was taken possession of under the Act July 2, 1864, (13 Stat. L., 375.) He was “ voluntarily absent therefrom; ” and his taking with him into the insurgent district the funds of the firm of Fite, Shepard & Co. was clearly an act giving aid and encouragement to the rebellion. His voluntary stay within the Confederate lines, when his home was within the lines of the national forces, was an act which must be construed as giving aid and encouragement to the rebellion. In construing the act of 1864, this court, in Barringer’s Case, (3 0. Cls. R., 358,) held that, under the provisions of the third section of that act, an action would lie in this court, under the third section of the Act March 12,1863, to recover the proceeds of property seized (but not libeled or condemned) under the Act July 17, 1862. By parity of reasoning the same rule will apply to property seized under the act of 1864. The petition in this case was not filed till October 5,1870, more than two years after the time limited by the Act March 12, 1863. The court, therefore, has not jurisdiction of the case. If the suit is not (as the claimant insists) brought under the Act March 12, 1863, and if that act does not apply, then the claimant has no judicial remedy. The act of 1864 does not in itself provide a remedy. The seizure was under that act; and as the taking was under t-he authority of an act of Congress, we must look to the act to see if promise of restitution has been made or a remedy provided. {Haycrafts Case, decided at the present term of the Supreme Court.) The claimant has not shown that the rents realized from his property are in the Treasury, and is therefore not entitled to recover, whether the case comes within either of the statutes cited. This is not like Johnson?s' Case, cited by claimant. In that case the Government occupied the property, and had the benefit of such occupation. In this case it does not appear that the Government derived any benefit whatever from the rents of claimant’s property.
   Nott, J.,

delivered the opinion of the court:

This case presents, with unusual clearness, the question whether the Government is judicially liable for any of the war measures resorted to in the late rebellion other than the liability created by the Abandoned or captured property Act.

It may be conceded that the Government is liable, upon express contracts, to persons residing within the insurrectionary districts. Where the officers or agents of the Government entered into an agreement with a person who, for the time at least, wore the garb of a public enemy, and the Government reaped a positive benefit from the contract, while the contractor made a positive sacrifice on the faith of it; where, in short, there has been gain on the one side and loss on the other, and the gain has been acquired and the loss suffered on the faith of the agreement, such a contract has always been upheld. If the officers of the Quartermaster Department during the war with Mexico had entered into contracts in due form, and pursuant to'their legal authority, there is no reason for saying that those contracts would not be binding upon the Government. In other words, there is no reason for saying that the Government is debarred from acquiring supplies by contract from the inhabitants of an enemy’s country. A different doctrine would be mischievous, injurious to the Government, and abhorrent to the liberal spirit which pervades modern international law.

But the case before us presents no such question. It in effect goes upon a supposed liability of the Government under these conditions, viz: for the acts of its officers, done under color of its authority, within the insurrectionary district, where the party injured was loyal, and the circumstances were such as would give to a citizen in time of peace a right of action against the Government under the mandate of the Constitution, that private property shall not be taken for public use without just compensation.

Our conclusion is that no such liability exists, and that no such action can be maintained. The rebellion passed immediately from the confines of a riot or insurrection and assumed the magnitude of a civil war. It is not to be questioned at this day whether it was anything less than a war; and it has been again and again decided that the rules which are applied in ordinary warfare are to be applied to it. All persons on this side of the military lines, from the legal point of view, were the enemies of all persons on the other. Those within the Confederate lines who openly or secretly sympathized with the United States and regarded themselves as loyal citizens of the rightful Government, so far as their constitutional and civil rights were involved, were in no better plight than the disloyal, and must be regarded by courts as public enemies in all cases affecting rights of property save one. That exception is the right given by the Abandoned or captured property Act, which alone authorizes the judiciary to look behind the established legal presumption and view the reality of the individual citizen’s condition.

The rule is a harsh one; but such is the established doctrine declared by the Supreme Court in every conceivable case — in land-captures, in admiralty, in cases of commercial intercourse across the military lines, in cases within our military lines, in cases where an antecedent agency existed, in cases where the agency was established before. the Non-intercourse Act took effect, and in' cases where the agency was for the innocent purpose of shielding loyal property from Confederate confiscation. With regard to the last class, this court endeavored to establish a more lenient rule, based on the theory that before the rebellion one State was not a foreign country to the citizens of another State; or, in other words, that the citizen of the United States who dwelt in New York and dealt with the residents of Savannah was not bound to anticipate the contingency of a war, like the citizen who voluntarily goes into a foreign country to establish a business or a domicile. The rule which international law applies to ordinary wars between different' nations is that when a man goes into a foreign country to reside, or when he acquires property there, or holds commercial intercourse with its inhabitants, he is bound to contemplate the possibility of a war between that country and his own, and must so conduct his affairs as always to be ready for the consequences. The rule which this court endeavored to apply to the rebellion was that a loyal citizen of the North, acting in good faith and with no purpose to aid the rebellion, might simply save his property in the South by directing its investment there, provided that he sent nothing into the insurgent district and that he brought nothing out. It was thought in this case of civil war u that the law did not compel the loyal citizen, merely because he stood on loyal territory, to watch the ruin of his property within the rebel lines with folded hands, but that it allowed him to protect his own; always, however, with the proviso that he left the resources of the rebellion precisely as he found them.” (Sto (Mart’s Case, 6 C. Cls. B., 347.) But the Supreme Court thought otherwise, and through a long line of decisions has applied the rule of international warfare with all its rigors.

What, then, is the liability of the Government to one who, when his property was taken, occupied the place of a public enemy ?

In the prosecution of a war no government can be regarded as trespassing upon the property or infringing the legal rights of the enemy’s adherents. It is inevitable that a war must be prosecuted rigorously, and it is desirable that it be prosecuted as little to the injury of a government’s own citizens as possible. In the prosecution of a war the discretion of a government, so far as the enemy is concerned, takes the place of ordinary constitutional restrictions or statutory provisions. Ail of those measures which were resorted to during the rebellion for the purposes of war must be regarded by the judicial authority as measures founded upon the necessities of the public safety.

In tbis case the claimant avers that he was in fact a loyal citizen of the United States, who never gave aid or comfort to. tbe rebellion; and, apart from his voluntarily leaving his domicile to remain within the Confederate lines, this averment may be taken as true in fact. But in law he cannot be clothed with this twofold character; he cannot be regarded as a loyal citizen of the United States and as a public enemy. The criminal portion of his case we put entirely out of view, and regard him simply in his self-assumed character of a public enemy. The facts upon which his case must now be adjudged are strictly these: that he was domiciled within the insurrectionary district when the war began and that he voluntarily entered and remained within the enemy’s lines until it ended. The liability of the Government in such a case, even to one of its own citizens, has been singularly adjudicated in this court before the prejudices and feelings which the rebellion may be supposed to have created had arisen. We turn back to an early decision of this court, which impartially, so far as the present case is concerned, disposes of that question.

In Pailletfs Case, the claimant was a citizen of the United States, who had resided in Mexico prior to and during the war. He maintained his allegiance to the United States, and for refusing to pay a contribution levied by the Mexicans to carry on the war was banished from, his residence in Tobasco. The naval forces of the United States captured Tobasco, and occupied the claimant’s house by order of Oommodore Perry, the commanding officer. The claimant .brought his suit for the occupancy and for certain depredations. The court, through Mr. Justice Scarburgh, he being a citizen of Virginia, decided as follows:

“ Under such circumstances, it does not seem to us that the-petitioner can, upon any principle, have any just claim against the United States. Though he was a citizen of the United States, yet he was domiciled in Mexico, and, notwithstanding war had been raging for many months between his own country and Mexico, he still remained in Mexico, and. continued the-prosecution of bis trade and business there. He had been domiciled in that country for nearly twenty years. He had settled there and engaged in the trade of the country, and given such evidence, animi manendi, of an intention to remain as stamped him with the national character of the State in which he resided. He was not, strictly speaking, an enemy of the United States, yet he w7as such ip reference to the property connected with his trade and his residence. It was found adhering to the enemy, and he himself was adhering to the enemy, though not criminally so. He had taken no steps to throw off the national character which he had acquired by his residence in Mexico, and was therefore bound by all the consequences of it. He not 'Only had not returned to his native country or turned his back on Mexico on his way to another country, or commenced his removal bona fide without an intention of returning, but he had not even contemplated such a removal in any event. On the contrary, he continued to retain his domicile, and his property there belonged to him in his character of subject or citizen of Mexico, and consequently was subject to the laws of war and of reprisals, as if he had been actually an enemy.” (Wheat. Int. Law, book 4, chap. 1, § 16, p. 394 •, § 17, pp. 401-405; § 18, p. 407.)

It has been argued witb force that the liability of the Government in this case arose from the fact that the seizure was made by an officer of the Treasury. If it had been made by the Army or the Navy, it is conceded that the court would not have jurisdiction, and that no liability would have arisen. But this question depends upon the one which has previously been discussed. If the claimant was at the time a public enemy, it is not a matter for him to inquire by what agent of this Government was the injury inflicted or the property taken. •In the prosecution of a war it is immaterial whether it be carried on by those who are under the control of an executive department or under the control of a military commander. They are in both cases agents of the same belligerent power, and they are both operating to the same hostile end. What they do are simply the acts of their government; and its liabilities to those against whom it wars cannot be created or measured by the kind of agents which it employs.

The action of the Government here was a war measure. The seizure of the claimant’s property was not the taking of private property for public use, but was to all .intents and purposes a military measure, directed to the end of carrying on the war for suppressing the rebellion. The object of the statute under which this agent of the Treasury Department acted was twofold; partly to prevent the means of absent owners, engaged in hostilities against the United States, from finding their way to them across the military lines, and partly to save the proceeds of such abandoned property for those who might be found ultimately to have been loyal adherents of the Government. The right of action given to them was not a right ordinarily accruing to an enemy against a government, nor a right founded upon the constitutional obligations of this Government, but strictly an act of grace, created and regulated by the statute. If this claimant was entitled to the benefit of that exceptional law, it was for him to have pursued his remedy according to its terms. Failing in that, he has no other legal right to assert, and consequently no other j udicial remedy to invoke..

Our conclusion is that, the Government is not liable upon implied contract to any person, loyal or disloyal, for property taken by its agents, civil or military, during the rebellion, within the insurrectionary districts, and that the only redress given to any person for property captured or seized is that provided by the Abandoned or captured property Act and the acts amendatory thereof.

The judgment of the court is that the petition be dismissed.  