
    COLLIE’S CASE.
    John Young, assignee of Alexander Collie, v. The United States.
    
      On the Proofs.
    
    
      A non-resident alien, during tlte rebellion, runs the blockade, carrying merchandise and munitions of toar into southern ports, buying and bringing out cotton. He also sends presents of cannon and ammunition to the Confederate authorities, and a gift of $30,000 to aid those made needy and suffering through the war. A portion of the cotton purchased by his agents with funds derived from blockade-running remains in Savannah and is captured. He brings Ms suit for the proceeds.
    
    Where a non-resident alien engaged in blockade-running during the rebellion sent gifts of cannon and ammunition to the Confederate authorities, and of money for those made needy and suffering through the war, and bought cotton with money derived from blockade-ruuning which he left in the country till its capture, he cannot recover the proceeds thereof under the Abandoned or captured property Aot, (12 Stat. L., 820.)
    
      The Reporters’ statement of the case:
    This is the same case reported in 9 C. Gis. R., 431. Judgment was then rendered for the claimant. An appeal was taken by the defendants. While it was pending in the Supreme Court, they moved in this court for a new trial under the statute, (Rev. Stat., § 1088,) on the ground of newly-discovered evidence. The motion was granted, hut, no opinions having been delivered, it is not reported. The distinctive facts brought in by the second trial are understood by the Reporters to be: 1st, that the claimant sent in cannon and munitions of war in his blockade-running adventures, as well as goods not contraband of war$ and, 2d, that he made gifts of cannon, ammunition, and money to persons engaged in the rebellion. It will be observed that a majority of the court were not agreed upon the grounds of the decision, though concurring in the judgment. The following are the facts as found by the court:
    I. Alexander Collie, on whose behalf this suit was instituted, and in the name of whose trustee in bankruptcy the same is prosecuted, was a subject or the Queen of Great Britain and Ireland, at one time residing in Manchester, England, as a member of the firm of Alexander Collie & Co., but in the years 1862, 1863, and 1864 residing and doing business, in his own name, in London, England, and he has at no time been in the United States.
    II. In the year 1862 the said Collie engaged in fitting out, lading, and sending steamships to run the blockade of the ports in States which were then in rebellion against the United States, and for about two years he continued engaged in that business, sending a large number of such vessels for that purpose, which succeeded many times in running the blockade, in and out, and carried into some of those ports general merchandise which was there sold, and also munitions of war, to wit, arms, gunpowder, armor-plates for war-vessels, army clothing, cannon, shot, ammunition, and quartermaster and medical stores, which were purchased in England by said Collie, or by agents of the so-called Confederate States of America, to whom, in aid of such purchases, the said Collie made large advances of money, and when said munitions of warwere run into said ports they were delivered to the government of said Confederate States. The vessels so engaged in running the blockade took back from said ports to said Collie large quantities of cotton, partly received from said government in payment for the munitions of war and other things received from him, and partly bought for him by his agents in those States with moneys derived from the sales there of the cargoes of merchandise taken into said ports by the ships of said Collie. The cotton, for the recovery of the proceeds of which this suit was brought, was purchased by said Collie’s agent in the said Confederate States with moneys so derived.
    The said Collie on the 1st of October, 1863, addressed the following letter to John White, special commissioner for the State of North Carolina, then in England:
    “ No. 1.] 22a Austin Uriahs, London,
    
      “1st October, 1863.
    “John White, Esq.,
    “ Special Oom’r for North Carolina;
    
    “Dear Sir : Being desirous of aiding in any way in my power the government of your State in its present struggle, it seems to me that the time has come when this can be done very efficiently, and, with this view, I now ask your careful consideration of the following propositions:
    “ From all I can learn, the chief requirement of your country at the present moment, as far as concerns business here, is to receive supplies of railway-iron, rolling-stock, and a few other articles, with regularity, expedition, and economy. To effect this I propose—
    “First. To furnish, with as little delay as possible, four steamers, of the most suitable description for blockade-running, in each of which your State will own one-fourth interest, the other three-fourths being held by myself and friends.
    “Second. To give up to the government of your State, when required, the entire inward carrying-power of such steamers from the island to the Confederacy at a moderate rate, to be fixed hereafter.
    “Third. That the government of your State be entitled to one-fourth space of the outward carrying-power of each steamer, for cotton or other produce; and this arrangement will, I estimate, yield to your State funds sufficient to pay cost and all charges on inward cargo, cash of its share of outward cargo, and (if cotton of good quality be sent out) a very large surplus will be left at the credit of your State on each trip. If at any time there should be a deficiency of cargo for Government or other account, freight will be taken,'if procurable, from other parties, and a due share of any freight so carried will be credited to the State. In a business such as that now sought to be inaugurated, it is manifestly impossible to provide for all contingencies which may arise;
    
      all I can at present do is to indicate the chief aims, objects, and conditions. The rest must be left to the good faith and honorable dealing of the government of your State on the one part, and of myself on the other. I need hardly add that any propositions from your government for altering or amending any of the conditions you and I may agree to will be met by me in the most liberal spirit, and that I place the same implicit confidence in the good faith of the governor and government of your State I ask them to place in me.
    “I remain, dear sir, yours faithfully,
    (Signed) “ ALEX. COLLIE.”
    On the 27th of October, 1863, the said Collie and the said White entered into the following agreement:
    “ With the view of carrying out the business indicated in the • preceding letter of 1st instant, it is hereby agreed by Alex. Collie, for himself and friends, on one part, and John White, of North Carolina, for the governor of that State, on the other part, that Alex. Collie will furnish four steamers of suitable construction' and speed as soon as practicable; that one-fourth interest in each of these steamers will belong to the government of North Carolina, three-fourths owned by Alex. Collie and friends. The government will pay their share of the costs and outfit of such steamers by cotton-warrants (Manchester issue) at par, and the working expenses of such steamers will be paid by therespective owners, in their due proportion; that is, one-fourth of the working expenses will be paid by the government of North Carolina, and three-fourths by the other owners, and if from any sufficient cause it should be deemed prudent to sell any of the steamers, the net proceeds of such sale, or any money earned, in the shape of freight, will be duly credited in like proportion. Under this contract the Hansa and the Don, both most excellent boats, now running between Wilmington and the islands, will, on next arriving at the islands, be made over to the State, in’ the proportion of one-fourth interest in each, and these steamers will be charged, £20,000 sterling for the Hansa and £20,000 sterling for the Don, this being estimated total cost price of each at the islands, and considerably under the estimated value. Another screw-steamer, similar to the Ceres, will be ready for sea. in about four weeks, and in about two months the fourth ■will be dispatched. By this arrangement the chief objects sought to be obtained are—
    “First. To supply railway-iron and rolling-stock, and such other articles as may be needed by the State, at a moderate rate of freight, and in regular quantities.
    “ Second. To run out regularly a quantity of cotton for the State, to enable it to benefit from the very high prices ruling here.
    “Third. To reduce the risk of capture as much as possible by dividing the interest of the government over four or more steamers. In order to secure the greater economy, and the more efficient working facilities, the working management of the steamers will rest in the hands of Alex. Collie & Co., who, as representing the larger proportion, will appoint the captains, and officers; but no important steps, such as disposing of any of the steamers, or replacing any of them, or adding to their number will be undertaken without the full knowledge and consent of Mr. White, the special commissioner here. Under this arrangement the parties interested will have the benefit of a well-trained and experienced staff of men, at all points, and the government of the State on its part will give all the aid in its power to the efficient working of the business now inaugurated. It will give all the aid it can do to get transportation of cotton from the interior when required, and it will guarantee the undertaking from any restrictions or impediments being thrown in the way of full cargoes being obtained for each steamer of cotton or other produce with the least possible delay. The inward carrying-power of the steamers from the islands will be at the service of the State, at the rate of £5 per ton, payable at the islands, for railway-iron and rolling-stock, (one-fourth of which will be duly credited to the State as its interest,) and arrangements will be made immediately to lay down 1,000 tons of railway-iron at the islands for this purpose. For fine goods, the rate will be £30 per ton.
    “ The government of the State will be the owners of outward cargo to the extent of one-fourth. Their cargoes will be purchased by the agents of Alex. Collie & Co., subject to the inspection of the government of the State, who will be debited for one-fourth of the amount, and on safe arrival in England one-fourth of the proceeds will be duly credited tO\the State. The commission chargeable on this business will be the usual one of two and a half per cent, on purchases and realizing, and five per cent, on ships’ disbursements, in addition to the usual brokerage, and such charges as incurred at the islands for transshipment and storing. The government will of course have the option of putting on board their own shares of the cotton, but; for many reasons this is hardly desirable. If they do so, however, the buying commission of two and a half per cent, will be avoided. In cases when Alex. Collie & Co. come under cash advances for account of the State, (in place of putting the cotton-warrants in the market,) Alex. Collie & Co. will be entitled to a further commission of two and a half per cent, for the amount of such advance — interest at the rate of five per cent., to be charged, and the same rate to be allowed when there is cash in hand. This agreement to be in force till the steamers are sold, captured, or destroyed.
    (Signed) “ALEX. COLLIE.
    (Signed) “JOHN WHITE,
    “ Commissioner for the State of North Carolina.
    
    “ Manchester, 27th Oct, 1863.”
    In pursuance of this agreement the said Collie sent out to Wilmington, N. 0., four steamers loaded with shoes, army clothing, and other supplies, which he bought for account of the State of North Carolina; and he received back cotton from said State, in payment as well for the goods so sent as for the share of said State in said steamers.
    In the year 1863 the said Collie sold in London for the State of North Carolina obligations of that State, delivered to him for that purpose by the said John White, known as North Carolina cotton-warrants ; which were obligations for the delivery of cotton at the port of Wilmington, or at other ports then in possession of the Confederate States; and the said Collie disposed in England of large amounts of said obligations, giving with them his agreement to hold himself personally responsible to the parties to whom he sold them for their payment by the State of North Carolina; and he also took some of said obligations in payment for the goods which he shipped to that State.
    On the 13th of June, 1864, the said Collie entered into the following written contract with Colin J. McRae, agent of the government of said Confederate States:
    
      “ Memorandum of agreement between Alexander Collie, of London, on the one part, and Colin J. McRae, as representing the government of the Confederate States of America, on the other part.
    
      “ 1. Alexander Collie agrees to provide four large and powerful new steamers, to carry out the following arrangements, with the least possible delay.
    “ 2. Alexander Collie will at once cause to be purchased, under Colin J. McRae’s directions, quartermaster’s stores to the value of one hundred and fifty thousand pounds sterling, and ordnance or medical stores to the value of fifty thousand pounds sterling, the one subject to the inspection of Major J. B. Ferguson, the other to that of Major 0. Huse.
    “3. The delivery of such purchases to extend over a period of about six months, in proportionate quantities, and shipment to be made to the Confederate States with as little delay thereafter as practicable.
    
      “ 4. Inland carriage and packing expenses to be charged in the invoice, and 2J per cent, commission to be chargeable also.
    “ 5. Colin J. McRae on behalf of his government, agrees that on arrival in the Confederacy of any goods purchased and shipped by Alexander Collie, under this agreement, such goods will be immediately claimed and taken over by the government. Fifty per cent, advance will be added to the English invoice, and Alexander Collie, through his agent, will immediately receive in exchange cotton at the rate of 6d. (sixpence) sterling per pound.
    “ 6. Such cotton to class ‘ middling,’ and to be delivered alongside the steamers, as required, compressed, packed, and in good merchantable condition.
    “ 7. Full cargoes of cotton, received in exchange for goods delivered under this agreement, may be shipped by Alexander Collie, through his agent, free from any other charge or restriction whatever beyond the now-existing export-tax of £ of a cent per pound.
    “8. Eo steamers to have priority in any way over those employed by Alexander Collie, in this service, and more than the four above mentioned may be used, if Alexander Collie can arrange to put them on.
    “ 9. Colin J. McRae further agrees that, to cover the expense of Alexander Collie’s agencies abroad, he (Alexander Collie) is to have the privilege of providing and bringing out other cotton than that received under this agreement, to the extent of one-tenth part of the cargo-space of the respective steamers, and such cotton (or tobacco) may be shipped on same terms as indicated for government cotton, viz, free from all other charges or restrictions whatsoever, excepting the before-named export-duty now existing.
    
      “ 10. This agreement is to be construed by both parties in a spirit of confidence and liberality. The one will purchas ® and send forward the supplies indicated, with the least possible delay; the other will deliver cotton as required, in the same way; and neither party will withhold necessary supplies on account of any temporary shortcomings on th¿ part of the other.
    “11. Alexander Collie’s agents, with the necessary staff for attending to this business, are to be allowed the privilege of residing in the Confederacy, free from liability to conscription, and every reasonable facility is to be allowed them for effectually carrying out the terms of this agreement.
    (Signed) “ALEX. COLLIE.
    “O. J. McKAE,
    
      "Agent C. S. A.
    
    “ London, 13í/í. June, 1864.”
    Under this contract, in the winter of 1863-’64, and the spring and summer of 1864, divers steamers were supplied, and importations of supplies and munitions of war for the Confederate government were run by them into Wilmington, and return cargoes of cotton on account of that government and of said Collie were run by them out of that port to England.
    In March, 1864, the said Collie sent, as a present to the Confederate authorities at Wilmington, on one of his steamers engaged in running the blockade into that port, a Whitworth gun for field-service, with carriage, caisson, limbers, and all other customary appendages, together with a large quantity of shot of the proper caliber for the gun, in regard to which he wrote to the governor of North Carolina as follows:
    “I have shipped on board the Edith a new kind of gun which is reported to be particularly destructive, and I have to ask the authorities at Wilmington to accept it as a ‘ substitute’ for some of our people, who, but for our business, would have been doing business in another capacity.”
    
      This gun was received by the Confederate authorities in Wilmington and used in defense of that port, and in aiding the entry into it of blockade-running steamers, by repelling the vessels of the United States engaged in pursuing those steamers.
    In the year 1864, the said Collie sent on one of his blockade-running vessels to the government of said Confederate States, as a gift from himself, two Whitworth guns, which were received by that government and used in its service.
    In the same year the said Collie made a donation to that government of $30,000 to aid the needy and the suffering in the insurgent States, aud more particularly those who had been made so through the war.
    III. In the years 1862,1863, and 1864, the said Collie, through an agent in the insurgent States, sent out by him in 1862, purchased with money derived from sales of cargoes run through the blockade into ports in those States, in said Collie’s steamers, 3,096 bales of upland cotton and 1,757 bales of sea-island cotton ; all of which was stored in Savannah at the time of the capture of that city by the military forces of the United States in December, 1864, and was there seized and taken by those forces, and thence shipped to New York, where it was sold by an agent of the United States, and the proceeds thereof, amounting to $944,297, were paid into the Treasury of the United States.
    
      Mr. J. Hubley Ashton (with whom was Mr. W. W. McFarland) for the claimant:
    First. Before considering the particular questions of (1) the ownership of this cotton by Alexander Collie, the original claimant, and (2) his right to recover its proceeds under the Abandoned or captured property Act, it will be important to develop certain general doctrines of the public law, in the light of which those, questions must be determined by the court, which, in this case, is practically sitting as a court of the law of nations. (Lamar v. Brown, 2 Otto, 195; The Swedish Convoy, l Rob., 349.)
    1. The legal character of the late southern rebellion as a geographical or territorial civil war, as distinguished from a mere insurrection or unorganized war, possessing the characteristics and attended with tbe incidents and consequences of. a public war between independent nationalities, is a political and juridical fact, attested by tbe doctrine of international law, recognized formally, or otherwise, by all the great powers of the world and adjudged by every department — executive, legislative, judicial — of the Government of the United States. (Yattel, Bk. Ill, § 292,- Bello, Principios de Derecho. Internacional, cap. X, 267'; Hautefeuille, Droits et Devoirs de Nations Neutres, vol. 1, 237; Bluntsckli, Revue de Droit International, 1870, 455, 458, 461; Twiss, Law of Nations, War, 72; British Proclamation of Neutrality, May 14, 1861, and Letters of Historicus, 132; Woolsey, Int. Law, 459; The Prize Oases, 2 Black, 695, 670; Mauran v. Ins. Go., 6 Wall, 14; Thorington v. Smith, 8 id., 10; Hanger v. Abbott, 6 id., 532; Matthews v. MeStea, 1 Otto, 7; The Treaty of Washington: the Three Rules.)
    2. Such being the undisputed and indisputable character of that contest, under the public law, according to the practice of nations and the solemn and repeated declarations of the Government of the United States itself, it necessarily follows that the rights of trade and intercourse between neutral countries and the Confederate States were the same as subsist, under the law of nations, between neutral and belligerent cquntries inordinary international wars, and that such trade and intercourse were subject to be affected by the United States only in the exercise, and within the limits, of the rights which war, according to the lawnations, gives to public enemies against each other.
    This proposition embraces not only trade and intercourse between private individuals, being subjects or citizens of neutral countries, and inhabitants of the Confederate States, but also transactions between the former and the de facto government of tbe Confederate States; and it includes, also, as well, dealings between that government and the subjects or citizens of neutral countries in the implements and materials of war, and in money, and the representatives of money, as transactions in relation to other kinds of merchandise and property. (Hall, Rights and Duties of Neutrals, 15; Dana’s Wheaton, Note on Recognition of Belligerency, Wh., 37, 41; Letters of Historicus, 13; Opinion of Count Sclopis, Geneva Arbitration, vol. 4, 72.)
    3. This right of trade and intercourse, which neutral subjects are entitled to exercise and enjoy in a civil war to the same extent and upon the same footing as in international wars, in-eludes not only traffic iu articles of commerce of whatever kind (and whether with the citizeus or with the governments of both belligerents) within the neutral territory, but also the exportation and transportation of the implements and materials of war, as well as other merchandise and property, from the neutral territory to the territory of either of the belligerents, whether the same were sold in the neutral territory, or are carried from that territory for sale to, or for the use of, one of the belligerents, subject, of course, to the application upon the high seas to such property of the rights of war on the part of the other belligerent. (United States v. Bice, 4 Wb., 253; Fleming v. Page, 9 How., 614; Thorington v. Smith, 8 Wall., 10; Case of the Georgiana and IAz-zie Thompson, 9 Opinions, 140.)
    Iu view of these doctrines, the G-overnment never attempted, during the war, to affect commerce between foreign countries and the insurgent States by any municipal regulations; and it relied, as it was bound to do, exclusively upon its belligerent rights under the public law in regard to such commerce. Congress, by the act of July 13, 1861, purported to authorize the President to close any or all ports of entry in which duties could not be collected effectually by the means provided by law, and to declare any vessel forfeit which should attempt to enter such port after it should be so closed. The United States did not assume to put the act of 1861 iuto operation, but established and maintained a maritime blockade iu pursuance of the law of nations; and by the application of the established principles of internacional law in regard to such blockades, and by that means alone, was the general commerce of neutrals with the Southern States attempted to be interfered with during the period of hostilities.
    4. It is a necessary corollary of the foregoing propositions that the Government of the United States could have had no authority, under the law of nations, by legislation or otherwise, to change or modify the belligerent rights of that Government, as to neutral nations or their subjects, in the prosecution of hostilities against the Confederate States;”or to change or modify the international rights of neutral states, or their subjects, in regard to the belligerents, or either of them, in the civil war; or to prescribe or enforce any penalties whatever, iu addition to those provided by the law of nations for such acts ou the part of the subjects of a neutral state, as the United States were authorized to repress and prevent by the proper and legitimate exercise of their belligerent rights under the law of nations.
    It is necessary that this proposition should be stated firmly and clearly, and that it should be distinctly understood that, if by any possible construction of the acts of Congress in regard to captured and abandoned property it can be supposed that Congress intended to appropriate the property of neutral subjects, domiciled in their own country, found or captured on land in the enemy’s territory, for or on account of any acts done by such persons in the course of trade or intercourse with the Confederate States, such legislation must be held and deemed a direct and flagrant violation of the law of nations.
    We shall see, however, that it is not susceptible of any such construction. That Congress never intended by that legislation to violate the plain principles of the law of nations in this regard is manifest from the slightest examination of the history and language of the statute; but if there were, as there is not, a doubt as to the intention of Congress, such doubt would be judicially resolved in favor of an interpretation of the statute which would place it in harmony with the public law in regard to the relative rights of belligerents and neutrals; for the United States are to be presumed to have intended by every public act of their. Government to fulfill, and not to violate, their international obligations to friendly foreign nations and their subjects. (The Charming Betsy, 2 Cranch, 118.)
    5. The rights of trade and intercourse between neutrals and belligerents, in a civil war, being, therefore, identically the same as in international wars, we come now to consider the general principles of the law of nations relative to commercial intercourse on the part of the subjects of neutral states with the belligerents in an international war.
    And, first, in regard to commercial intercourse, on the part of neutrals, with the belligerent, within the territory of the belligerent, the rule of international law is absolute and universal, that while the state of war precludes commercial intercourse between members of the hostile communities as inconsistent with its very nature, the subjects of neutral states, having no jus belUcum themselves, are entitled to the continuance of their ordinary jus pads: with certain modifications, (relating chiefly to contraband of war and blockade,) which flow from the altered state of the general relations of countries in time of war. (Yattel, bk. Ill, oil. vii, §§ 110, 111; 3 Pliill., Int. Law, 202; Manning, Law of Nations, ed. 1875,255.)
    6. Snoli being the undoubted rule as to commercial transactions by neutrals within the territory of the Confederate States, whether with the defacto government or inhabitants, what are the doctrines of public law relative to trade with that belligerent, on the part of neutrals, within their own country, and trade carried on upon the high seas between the neutral country and the Confederate States ?
    In this case we have to consider the doctrines of the public law in regard to the sale and carriage of articles contraband of war and in regard to the carriage of goods to places under blockade.
    No American publicist, statesman, or jurist has ever denied the absolute right of neutral subjects to sell and deliver to a belligerent articles contraband of war within the neutral territory, or to export and transport such articles from the neutral territory to the belligerent territory for sale to, or for the use of, the belligerent, subject only, in the latter case, to the conflicting right of the other belligerent to capture the peccant property while in transitu on the high seas.
    The accepted doctrine of the law of nations is that laid down by Chancellor Kent, almost in the language of Vattel, that “ 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.” (Vattel, bk. Ill, chap, vii, § 103, et seq.;
    
    
      I Kent, 142; Dana’s Wheaton, § 444; Twiss, Law of Nations, War, 232; 3 Pliill.,' ed. 1870, 410; Seton v. Low, 1 Johns. Oases, 1; Richardson v. Marine Ins. Co., 6 Mass., 113; The San-tissima Trinidad, 7 Wh., 340; Éx parte Ghavasse v. Grazebroohe,
    
    II Jurist, N. S., pt. I, 400; The Helen, ib., 1025, S. C. L. R., 1 A. & E., 5; Am. L. E., Jany., 1871; 3 Jefferson’s Works, 557; 1 Am. State Papers, F. E., 100; 6 Webster’s Works, 452; Ex. Doc., 27th Cong., 1841-’42, vol. 5, Doc.266; Message of President Pierce, Dec., 1854; Mr. Seward to Mr. Romero, Dec. 15, 1862; Lord (-rfanville’s circular letter of Aug. 11, 1870; Noah Webster’s Writings, 42; Speech of Mr. Layard, solicitor-general of England, cited byMr. Lawrence, Lawrence’s Wheaton, 813.)
    As topecuniary transactions involving trade and money, between neutral subjects and a belligerent community, and other transactions involving services rendered by neutral subjects to the belligerents, the law of nations was distinctly stated by Mr. Webster during the civil war between Texas and Mexico, and by President Pierce during the war in the Crimea.
    In the former war Mr. Webster said :
    •‘As to advances, loans, or donations of money or goods made by individuals to the government of Texas, or its citizens, the Mexican government hardly ueeds to be informed that there is nothing unlawful in this so long as Texas is at peace with the United States, and that these are things which no government undertakes to restrain.” (Ex. Doc. 27th Cong., 184l-’42, vol. 5, 266.)
    President Pierce, in his message of December, 1854, affirmed the rights of neutrals iu these words:
    “ The laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, to take munitions of war or soldiers on board their private ships for transportation; and although, in so doing, the individual citizen exposes his property to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government. Thus, during the progress of the present war in Europe, our citizens have, without national responsibility therefor, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and France, in transporting troops, provisions, and munitions of war to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our mercantile marine is not interdicted either by the international or by our municipal law, and, therefore, does not compromise our neutral relations with Bus-sia.”
    7. If it should be conceded, however, that the supplying of articles of contraband of war by neutrals is inconsistent with the duty of neutrality, and, therefore, a breach of neutrality, and consequently an offense against the neutral sovereign, it would not follow that the belligerent injured thereby would have the right to punish or affect the ueutral subjects engaged in such transactions by the seizure and forfeiture of any property belonging to them that might be found within the jurisdiction of the belligerent or in the territory of its enemy.
    
      The principle is universal and without exception in the law of nations, that for any non-neutral act the only penalty that a belligerent has the right to inflict is the forfeiture of the pec-cant property involved in the particular transaction, if it should be captured on the high seas.
    The neutral cannot be visited by the belligerent with personal puuishment, nor can his other property, under the control of the belligerent, be seized, captured, or confiscated for his non-neutral acts. The neutral subject who commits a breach of neutrality, or a non-neutral act, violates the law of his own country, and he is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when he is liable to be dealt with according to the laws of war. (Hall on Rights and Duties of Neutrals, 26-, G-rotius, De J. B. et P., lib. iii, c. 1, § 6; Case of Analogues to Contraband, The Friendship, 6 Rob., 420; The Orozembo, ib., 430; The Atlanta, ib., 440; Dana’s Wheaton, note, 637.)
    As to the ownership of this cotton, in the light of the foregoing principles of the public law, a few observations only need be made. The cotton in question was purchased by Theodore Anderae, as the agent of Alexander Collie, a neutral subject, domiciled in his own country, for Collie, and on his account, and held subject to his order, and he was, therefore, the sole owner of the property. If it were true that the cotton was purchased by Anderae with funds received from the Confederate government for property, contraband or otherwise, sent into the Confederate States by Collie, and delivered by him to the Confederate government, through Anderae, the fact would not invalidate, or in any manner affect, the right and title of the petitioner to the cotton.
    Mr. Collie’s contracts with the Confederate government, with reference to the sale and transportation and delivery of arms and. munitions of war, were valid and unimpeachable transactions, under the law of England and the law of nations. He had a right to receive the stipulated price from that government, and to invest it, in any manner he saw fit, in cotton and other property in the territory of the Confederate States.
    The Supreme Court of the United States, in the great case of the Santissima Trinidad, (7 Wheat., 283,) affirmed the absolute right óf a neutral, who has safely transported over the high seas to an enemy’s country an armed' ship or other contraband, to sell the property to the belligerent; and the right and title of the neutral to the proceeds of the sale of the con-' traband property, and to any property into which such proceeds may have been converted, is as indefeasible as his ownership of any other property belonging to him in h;s own country or in the territory of either belligerent. The maxim of the public law is that, in contraband, the offense is deposited with the cargo.
    
    It is manifest that the existence of the blockade cannot invalidate or affect the title of Collie to this cotton. The question of his title and ownership is determinable solely by the application of the principles of the law of nations; and it has never yet been supposed that, under the public law, infra-territorial-transactions on the part of neutrals, in the blockaded territory, were invalidated or in any wise affected by the existence of a maritime blockade. The law of blockade confers upon the belligerent only the right to capture and conSscate neutral property taken on the high seas in the act of violating the blockade; and the law is settled that the effective blockade of a port is not violated even by shipments forwarded by inland navigation from that port to an unblockaded port. (The Stert, 4 Bob., 65.) This doctrine was applied by the Supreme Court, in the late war, in the case of British vessels captured in trade between London and Matamoras; and, following the-“lessons of the masters of international jurisprudence,” the court held that such trade, with intent to supply the markets of Texas, could not be declared unlawful. (The Peterhoff., 5 Wall., 57.)
    Commercial blockades are opposed to the general policy of the law of nations, and no court has the right to extend them by construction. (Westlake’s Commercial Blockades, 6; Mr. Cass to Mr. Mason, June 27,1859; President’s Message, 1859-60, 31.)
    To declare the title of this property invalid for any reason founded on the existence of a blockade of the southern ports would be, in effect, to revive the doctrines of the Berlin and Milan Decrees and the British Orders in Council, which have met the universal condemnation of all international jurists.
    The next question, as to petitioner’s right to recover the proceeds of this cotton, now in the Treasury, depends on the construction and effect to be given, in the light of the settled doctrines of public law, to the third section of the Abandoned, or captured property Act of March 12,1863.
    
      The terms of the third section of the act of 1803, “ has never given aid or comfort to the rebellion,” are words of technical signification in the jurisprudence of the United States, and import the political crime of treason, as known to the criminal law of the United States.
    Chief-Justice Marshall said, in Burr’s case : “ So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed mast be considered as employing them in that ascertained meauing, unless the contrary be proved by the context.” (2 Burr’s Trial, 401.) It was by this process that the Ohief-J ustiee ascertained the meaning of the terms “levying war,” in the Constitution of the United States, to be identical with their meaning in the statute of 25 Edward III. Thepvords in the third section of the act of 1863 are the same words as those employed in the second section of the Act July 17, 1862, which defines and punished the crime of giving aid or comfort to rebellion against the United States. They must be understood to be used in the Abandoned or captured property Act in the same sense in which they are employed in the Act July 17, 1862. They describe, in both statutes, criminal offenses, and offenses known as treason against the United States. As the mere act of “ giving aid or comfort” is not punishable under the statute of 1862, so the mere act of “giving aid or comfort” is not sufficient to prevent a recovery, or ,to work a forfeiture of the proceeds of captured property under the act of 1863.
    It is the offence of “ giving aid or comfort ” to the rebellion which must appear in order to authorize a conviction under the act of 1862, and to bar a recovery of the proceeds under the act of 1863.
    .We submit that, if anything is settled by the long line of adjudications of the Supreme Court, under the Abandoned or captured property Act, it is that the act was intended to preclude only those who had committed treason, or treasonable offenses, against the United States, during the rebellion, from a recovery of the proceeds of their property captured on land in the insurgent States. (Mrs. Alexander’s Case, 2 Wall., 422 ; PadeJford’s Case, 9 Wall., 537; Klein’s Case, 13 id., 136; Armstrong’s Case, ib., 155 ; Pargoud’s Case, ib., 128; Carlisle’s Case, 16 Wall.; 153; Kay craft’s Case, 22 id., 99.)
    The Supreme Court has said, in construing this statute, that “ all general terms in statutes should be limited in their application so as not to lead to injustice, oppression, or any unconstitutional operation, if that be possible. It will be presumed that «exceptions were intended which would avoid results of that nature.” (Carlisle's Oase, 16 Wall., 153.) ‘That court, speaking-through Chief-Justice Marshall, said also, at an early day, that “ an act of Congress ought never to be construed to violate the lato of nations, if any other possible construction remains.” (The Charming Betsy, 2 Or., 118; Talbot v. Seaman, 1 id., 43.) And, in the Piracy Cases, the same great judge declared that “ general words must not only be limited to cases within the jurisdiction of the State, but also to those objects to which the legislature intended to apply them.” (The United States v. Palmer, 3 Wh., 631; The United States v. Wiltberger, 5 id., 97.)
    If Congress has assumed by this statute to appropriate the private property of this neutral subject, captured on land in the enemy’s country, for or on account of any acts done by him during the war in the way of trade and intercourse with the Confederate States, the statute is a palpable and flagrant violation of the public law. The court, in giving construction to the statute, must therefore start with the presumption that Congress did not intend to withhold from him a remedy, but did intend to constitute the United States a trustee of the proceeds of this property. It has been already shown that while the law of nations gives a belligerent the right to arrest and capture, when found on the high seas, the high road of nations, munitions of war destined and in the act of being transported in a neutral ship to its enemy, this right, given by the law of nations 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 is a personal offense against the belligerent state, and that it has no right to constitute such act a ground of complaint against the neutral subject, or to inflict any punishment on him whatever, or to visit his act directly or indirectly with any penal consequences beyond the judicial condemnation of the property involved in the transaction. This is the settled doctrine of the international law of contraband; and no belligerent state could assume by its municipal regulations to change or modify that law, directly or indirectly, to the injury or disadvantage of neutral subjects, without violating its international obligations and rendering itself responsible to'the neutral state whose subjects might be affected by such legislation.
    
      The Supreme Court has construed the Abandoned or captured property Act as recognizing “ to the fullest extent the humane maxims ot the modern law of nations which exempt private property of non-combatant enemies on laud from capture as booty of war.” (Mrs. Alexander’s Case, 2 Wall., 419; Klein’s Case, 13 id.-, 137.) It cannot be supposed that Congress, in any legislation “concerning captures on laud,” intended to authorize the appropriation of the private property of a neutral subject, resident and carrying on trade in his own country, which could not be at all, under the public law, the lawful subject of capture and confiscation, or appropriation, on the part of the United States.
    If, however, any act of the petitioner during the war, in connection with the transactions in which he was engaged, and complained of by the Government, constitutes or could constitute an offense against the United States, or i’f Congress, in the statute of 1863, has taken cognizance of any act done by him, in the course of those transactions, as au offense against the ■ United States, (as it has done if this property cannot be restored under the statute of 1863,) then the petitioner is relieved by the President’s proclamation of amnesty and pardon of the 25th of December, 1868; and the proceeds of the property must be restored by the judgment of this court.
    It would shock the moral sense of all Christendom if it should be deterpnned that the proceeds of this neutral-owued private property cannot be restored, when the Government of the United States afforded its rebel enemies the means whereby they were enabled to recover the proceeds of all private property belonging to them captured on land during the late hostilities. The law of nations would tolerate uo such discrimination against the subjects of a neutral power; and it must be assumed that Congress intended by this legislation to place neutral subjects at least upon an equal footing with the rebel enemies of the United States, who by the operation of the statute and the amnesty have secured “restoration' of all rights of property.”
    
      Mr. Assistant Attorney-General Smith for the defendants:
    I. The cotton in question was a lawful capture, jure belli. Otherwise, its seizure would be a tort which would oust the jurisdiction of the court. (Gibbons’s Case, 7 O. Gis. R., 105.) If lawfully captured, the Abandoned or captured property Act prescribes the sole remedy. (Hay or afVs Case, 8 O. Cls. R., 483, and 10 id., 95.) ' The petition proceeds upon the assumption of a lawful capture. Private property may be liable to capture by its ownership, or nature, or use; and be so under ordinary rules of warfare, or by express legislation. It is authorized by our Constitution, (Art. 1, sec. 3, ch. 11,) and not opposed to international law. (No. Am. Rev. for April, 1872, page 399; Mrs. Alexander’s Cotton, 2 Wall., 420; Padelford’s Case, 7 G. Cls. R., 144; Miller v. The United Slates, 11 Wall., 305; Sprott’s Case, 10 O. Cls. R., 11; Lamar v. Brown, 92 U. S., 127.)
    II. The effect of such capture is to vest the whole title in the captor. (Brown v. The United States, 8 Or., 131; 92 U. S., 187; The Flsehe, 5 C. Rob., *181-2; The French Guiana, 2 Dodson, 151; Phillim. Int. Law, 2d Eng. ed., sec. cxxx.) Thus, Mr. Collie’s right and title as purchaser was extinguished by capture, though the Government has chosen to make the proof of original purchase one of the couditions-precedent to recovery, as it might annex any condition whatsoever that it pleased to the disposition of property which (by capture) had become its own. Klein’s Case, 7 C. Cls. R., 244, and the kindred decisions do not antagonize this position. A* careful examination and comparison of them shows that it is only after proof of all the facts, the establishment of which is required by statute, that any trusteeship in the United States arises. “That expresses all there is of the trust.” (iUayeraft’s Case, 10 O. Cls. R., 111.) Evidently, all captured cotton was not held in trffst; nor was every owner entitled to recognition ; but only a portion of the cotton, and some of its owners, were within the purview of the statute. Prima facie, all cotton taken belongs to the United States. The burden of proving the contrary rests on the claimant, and till such proof is made no trust arises.
    III. Proof that Collie did not render aid and comfort to the enemy is a condition-precedent to his recovery. (Rev. Stat., § 1074.) Congress had a right to impose this condition. (Ogden v. Saunders, 12 Wheat., 349; The Vrow Anna Gatharina, 5 C. Rob., 163; Carroll v. The United States, 13 Wall., 151, and other ■cases.) The question is one of jurisdiction. (Hayoraft’s Case, 10 C. Cls. R., 109.) Therefore, without such proof, this court can give no judgment in favor of the claimant. (Lopez v.Burslem, 
      4 Moore’s Priv. Co. Cas., 305.) Collie cauuot make it, because running the blockade is itself giving aid and comfort to the enemy. (Sprott’s Case, 10 O. 01s. R., 11,12.) But he also established an agency for trade in the Confederacy’after hostilities commenced, which would subject the property procured in such trade to capture. (Ann Green, 1 Gall., 287; Grossmeyer’s Case, 7 C. Cls. 11., 129; Mary Clinton, Blatchf. Pr. Gas., 509; San José Indians, 2 Gall., 290; 1 Duer on Ins., 527; Vroiv "Anna Catharina, 4 0. Rob., *119.) And was allowed to conduct a privileged trade, free from the. export duty to which all others were subjected. (Bendsborg, 4 C. Rob., *139.) He became a part owner of vessels which ran the blockade with supplies, jointly with the State of North Carolina and with the Confederacy, concealing their true character by false documents, &c. In addition to these acts of trade, he gave heavy guns to those governments and large sums of money expressly to relieve the distress caused by our blockade. Collie thereby became himself a belligerent. (1 Duer on Ins., 755, top; Levi’s Int. Law, Introd., xlv; Whiting’s War Powers Under Const, 337, § 1; Miller v. The United States, 11 Wall., 312; 2 Twiss’s Law of Nat., 435, § 215.)
    IY. Though we do not consider it pertinent to ásk whether or not the claimant thereby violated “public law,” yet, as his counsel do ,we observe that even running the blockade was such violation, for which that law prescribes the punishment of seizure. (1 Kent, *143; 3 Phillim. Int. Law, cclxxxv; Kerr’s Essay, in 2 Jurid. Soc. Papers, 635; 1 Duer on Ins., 750; Levi’s Int. Law, Introd., xlv.) This limitatiou of the right of seizure does not apply to property taken upon land in a hostile territory, over which the laws of the captor are entitled to be supreme, and become so by occupation of the territory, but only to a maritime capture upon the common highway of nations, outside our own peculiar jurisdiction.
    Y. It may be remarked,.ere passant, that Collie also violated the neutrality act of his own country by his connection with the vessels owned by the Confederacy and the State of North Carolina, they being “ transports,” mentioned in the seventh section of that act. (1 Phillim. Int. Law, 2d Eng. ed., 572, 573; id., Ap., 569; Santissima Trinidad, 7 Wheat., 283.)
    YI. A fortiori, has this country, against which these acts were directed, the right to capture and confiscate the property acquired here solely by means of such illegal action. The United States were both belligerent and sovereign. (Prise Oases, 2 Black,- 673; Miller v. The United States, 11 Wall., 308, and cases there cited; Lamar v. Brown, 92 U. S., 195; Hose v. Himsly, 4 Or., 272.) They had authority to declare and define by legislation the status of property throughout the extent of our territorial jurisdiction, and enforce such laws wherever our arms subjected insurgent localities and states to rightful sway.
    Whoever comes into this country, in time of peace, subjects himself,pro tem., to our municipal jurisdiction. {Exchange v. HcIPaddon, 7 Or., 144.) Whoever, in time of war, sends through our blockade munitions to be exchanged for cotton, and that cotton is stored in the blockaded port, within our territorial jurisdiction, though held temporarily by our domestic enemies, tabes the hazards and chances of war¿is to that property, and of losing it by its being captured by our forces, its capture being authorized by legislation entitled to obedience in those places where the cotton is so purchased and stored, and enforced pari passu with the advance of our army and the extension of our lines. (JheJcelman’s Case, 11 C. Ols. It., 438; Santissima, &c., 7 Wheat., 283 ; Westlake’s Essay, 1 Jurid. Soc. Pap., 184.) The principles-to be applied to property captured from the enemy within our own territorial limits are not identical with and hardly analogous to those which control the disposition of prizes made upon the ocean, outside our peculiar and exclusive jurisdiction. So far as this court is concerned, the sole rule of judicial actiou is the language of the statute. (Lopez f.Burlsem, 4 Moore’s P. 0., 305.) Prize, cases have only a remote (if any) bearing on this subject; yet our opponents cite no other iu support of their arguments, which are elaborate and masterly discussions of prize law', and of little else.
    VII. If not an enemy generally, Collie was so to be treated sub modo — i. e., as to this particular property — which is all that concerns us here. (1 Kent, *74, *80; Halleok’s Int. Law, 715, § 25, and 720, § 3; Whiting’s War Powers, &c., 346, 356, 357 ; Bentzon v. Boyle, 7 Or., 199; San Jose Indians, 2 Gall., 285-’7; The My. Clinton, Blatchf. Pr. Oas., 560; Phenix, 5 0. Rob., 21; Vroio Anna, id., 161; Jonge Klassina, id., 297; Vrendschap, 4 id., 166; Ann Oreen, 1 Gall., 286, and various other cases and authorities hereinbefore mentioned.) These citations and decisions refer to cargoes taken as prize at/sea; but if the produce of a hostile soil, though owned by a neutral, is there liable to seizure aud condemnation, after it has left the country of its production, a-fortiori must it be so liable when captured within the territory of a domestic enemy, especially where the product bears such a relation to the war as cotton did to the rebellion.
    VIII. Collie’s acts, by which he claims title, were against our publie policy. (1 Story on Con., §§ 674, et seq.; Totten v. The United States, 110. Cls. R., 182; Kenneit v. Chambers, 14 How., ; Ann Creen, 1 Gall., 287.) Therefore, he not only cannot recover through our courts, but he originally failed to acquire title under our laws. (Whitfield's Case, 11 0. 01s.'R., 460; Sprotfs Case, 10 id., 12; QrossmeyeSs Case, 7 id., 129; Querouzo’s Case, 7 id., 202; Desmare v. The United States, 93 U. S., 612.) Collie cannot claim to stand in any better position than our own citizens. (93 ü. S., 612.)
    IX. Amnesty proclamation did not reach non-resident aliens. It was issued as an act of sovereignty, addressed only to residents, and “ to recall revolted subjects to allegiance.” (92 U. S.r 195.) Collie never owed allegiance. The pardon was personal, granted only to those liable to be criminally prosecuted for “offenses against the United States.” The capture was as a belligerent; the amnesty was as a sovereign. Collie did array himself in belligerency with our enemies; he never subjected himself to our sovereignty.
    X. He cannot recover, because he has not truly stated his interest, since he had numerous associates whose legal interests were identiSal with his own. (Rev. Stat., § 1072.)
   Drake, Ch. J.,

delivered the following opinion:

This case was very ably argued on behalf of the claimant as if it were pending before an international tribunal, organized for its decision on the principles and by the rules of public law. \V ere this court vested with jurisdiction so to decide it, it would be difficult to resist, the force of the arguments presented by the claimant’s counsel. But, in any view I can take of the matter, the court is not authorized to base its decision for or against either party on those principles and rules. We have no jurisdiction except that conferred by statutes of the United States, and public law cannot be held to enlarge the powers so conferred, and much less can it operate to take them away, modify, or limit them.

This action was brought under the Abandoned or captured property Act of March 12, 1863, and by the terms of that act the claimant’s right of recovery must be decided. Aside from that act the claimant would have no possible right to sue in this court, though he could demonstrate that every principle of public law justified his right to seek through his own government the payment to him by the United States of the value of the cotton seized and taken by their military authorities.

The Abandon ed or captured property Act declared that “any person claiming to have been the owner of any such abandoned or captured property may at any time within two years after the suppression of the rebellion prefer his claim to the proceeds thereof in the Court of Claims; anil on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given • any' aid or comfort to the present rebellion, to receive the residue of said proceeds, after the deduction of any purchase-money which may have been paid, together with the expenses of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.”

Within those few lines the claimant must find his right to recover in this case, or not find it at all. If he finds it there he has no need to invoke aid from international law; if he cannot find it there that law cannot aid him.

The petition seeks redress under that act, and is framed to meet the requirements of the twelfth section of the Act March 3,1863, (12 Stat. L.,765,) which imposes the foliowinglimitation:

“Provided, however, That in order to authorize the said court to render a judgment in favor of any claimant, if a citizen of the United States, it shall be set forth in the petition that the claimant, and the original and every prior owner thereof where the claim has been assigned, has at all times borne true allegiance to the Government of the United States, and, whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government, which allegations may be traversed by the Government; and if on the ti ini such issue shall be decided against the claimant, his petition shall be dismissed.”

That prescribes a condition-precedent to the exercise by this court of its power to render a judgment in favor of any claimant. This court always, after the enactment of that proviso, enforced its requirement, until the Supreme Court, by its repeated decisions, compelled us to abandon it in every case where the claimant was either a citizen of the United States, or an alien resident within the United States. That court decided that either a special pardon, or the general amnesty of December 25, 1868, obliterated the offense of treason involved in giving aid and comfort to the rebellion, so far as persons of either of those descriptions were concerned; and that the. fact.oí their having given such aid and comfort was, after the pardon or amnesty, no longer an obstacle to their obtaining a judgment in this court. But to this day the question has never been submitted to that court whether an alien residing in a foreign-country, who gave aid and comfort to the rebellion, may prosecute a suit here for the proceeds of his property captured in the rebel States during the war.

The petition avers that Alexander Collie had not in any way • voluntarily aided, abetted, or given encouragement to rebellion against the Government of the United States; and the Government took issue upon the averment. The facts found show that he did voluntarily give very great and efficient aid to the rebellion, by running through the blockade into the ports of the rebel States large quantities of munitions of war, and running out from those ports to England large quantities of cotton, which, sold in England, furnished the rebel authorities large credits there; and also by sending presents from himself of cannon and ammunition to the rebel authorities; and also by a gift of $30,000 from, himself to those authorities to aid the needy and the suffering in those States, particularly those who had been made so through the war.

And now the question arising on these facts is not whether, under the principles of international law, he had a just claim against the United States for the value of his cotton captured in Savannah, but whether under the Act March 12, 1863, he is authorized to prefer his claim in this court for the proceeds of that cotton and obtain a judgment therefor.

It will be instantly observed that, by the principles of international law, he would be entitled to insist upon restitution of the full value of his cotton; while in this court he can recover only the net proceeds of the sale thereof, after deducting all expenses. If, therefore, he should recover here those proceeds, he might, through his government, still demand the difference between the proceeds and the value of the cotton, with interest on that value from the date of capture till that of the payment to him, under the judgment of this court, of the proceeds, and interest on the balance until paid. If, however, we deny his right to prefer his claim here, we do not thereby pass upon the merits of his claim, much less would that action operate a forfeiture or confiscation of his property, but it would simply withhold from him one of two modes of redress, leaving the other fully open to him. Most assuredly this Government is not bound by international law to furnish him a judicial remedy; and when it does provide, by statute, a court where claims for captured property can be preferred, neither he nor any other person can come into that court for that purpose on any other terms than thoes the statute prescribes.

The real question in the case, then, is, whether Alexander Collie, a non-resident alien, who voluntarily gave aid and comfort to the rebellion, is entitled to prefer his claim here for the proceeds of his cotton. Beyond doubt, the terms of the act exclude hi m, justas they did all men who had given aid and comfort to the rebellion, until the Supreme Court held that pardon or amnesty obliterated the act of treason as well as its guilt, and so the act could never be set up as a bar to recovery.

Beyond controversy, neither pardon nor amnesty applies to him who has not been guilty of a criminal offense against the sovereign or state.

Equally beyond controversy, Alexander Collie’s sending munitions of war from the country of his domicile to the rebel States was not an act which subjected him to punishment under the laws of the United States. The worst that could befall him was the capture in transitu of those munitions.

Hence it follows, as a clear, inevitable conclusion, that he was not the subject of amnesty, and therefore can claim nothing through it.

As the decisions of the' Supreme Court which dispensed with averment and proof of loyalty to the United States did not deny the constitutional right of Congress to require such averment and proof, but merely affirmed that the effect of pardon and amnesty was to do away with the necessity of them, and as Collie was not the subject of amnesty, it follows that there is nothing which does or could relieve him from the obligation to aver and prove, not his allegiance to the Government of the United States, which he never owed, but that he “ had not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government.” He so averred, but failed to sustain the averment by proof. On the contrary, the evidence most completely disproved the averment. Such being the case, no matter how valid and just a claim he may have, in the view of public law, he has no right to invoke the jurisdiction of this court, which can be exercised only in conformity with the statutes conferring its powers.

The claimant’s petition, therefore, should be dismissed.

Richabdson, J.,

concurring:

I concur in the opinion read by the Chief-Justice, and as I come to the same conclusion by a somewhat different course of reasoning, not presented in the argument, I will state my views.

The organic law establishing this court on its present basis and with its present jurisdiction, the Act March 3, 1863, provided “that in order to authorize the said court to render any judgment in favor of any claimant, if a citizen of the United States, it shall be set forth in the petition that the claimant and the original and every prior owner thereof, where the claim has been assigned, has at all times borne true allegiance to the Government of the United States, and, whether a citizen or not, that he has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said. Government, which allegation may be traversed by the Government; and if on trial such issue shall be decided against the claimant his petition shall be dismissed.” (12 Stat. L., 765; Rev. Stat., §§ 1072, 1073.)

And the Abandoned or captured property Act of March 12, 1863, in section 3, giving parties the right to maintain action in this court to recover the proceeds of captured property owned by them, expressly makes the right of recovery to depend, among other things, upon the claimant’s proving in each case “that he has never given aid or comfort to the present rebellion.” (12 Stat. L., 820; Rev. Stat., § 1059, clause 4, §§ 1072, 1073.)

These two acts were passed by the same Congress, were pending therein at the same time; both passed the Senate March2, and the former passed the House on that day and the latter the day following. Both must have been before the President about the same time, although the latter was signed nine days later and eight days after the expiration of that Congress, and it may be noticed in passing, as a historical fact, that it is the only instance found on record wherein the President has signed an act after the term of the Congress which passed it had come to an end.

In both acts the provisions which I have cited are substantially and practically the same. In the Abandoned or captured property Act, the requirement as to alleging and proving that the claimant had borne true allegiance, set forth in th¿ organic law, is not repeated, and the right therein given to parties to recover the proceeds of property captured is accorded to all who could prove that they had not given aid or comfort to the then present rebellion, instead of rebellion in general, as in the former act. This last difference was immaterial, because the Act March 12 was temporary and related only to mattres connected with the late rebellion, while that of March 3 was permanent and more general in its scope and provisions. The Supreme Court has decided that whatever new subjects of jurisdiction are conferred upon this court, the cases are to be heard and determined under the existing organization, and that the provisions of the Act March 3 apply to actions'brought under the Abandoned or captured property Act, even that giving a right of appeal to the Supreme Court, which is not specified in the latter act. (Zellner v. The United States, 9 Wall., 244; 7 C. Cls. R., 137.)

These two acts, thus passed at the same time, must be examined together when we come to consider the intention of Congress in enacting the provisions to which I have referred and which I have cited above.

These provisions relate exclusively to the proceedings to be had in this court, to the remedy given by statute; and it is laid down in Watlake on Private International Law, (art. 170, p. 168,) that “the laws which prescribe the modes of judicial procedure are commands, addressed not to the party, but to the judge; whence it follows that the latter is bound by those of the sovereign from whom he holds his commission, and that no circumstances can found for the parties a right to have the proceedings determined by any other will than the lex fori.” This principle of law is so familiar, that it needed no citation of authority to support ft, but, although universally acknowledged, it is so important not to lose sight of it in the consideration of this case, that it is thus referred to in the language of an English author.

The original claimant, Alexander Collie, now repi’esented here by his assignee in bankruptcy, sets forth in his petition “that he has at all times borne true allegiance to the Government of the United States, and that he has not, in any way, voluntarily aided, abetted, or given encouragement to the rebellion against the said Government,” adopting nearly the language of the organic Act March 3, 1863, and the petition was duly sworn to by his agent as true, according to his belief, as required by the terms of said act. This, among other allegations, was traversed by the defendants, aud issue was joined thereon.

The facts found by the court conclusively show that Mr. Collie did voluntarily aid, abet, aud give encouragement to the late rebellion against the Government of the United States, systematically, continually, and extensively during nearly the whole period of hostilities, and so much was he engaged in trading with the citizens of the revolted States and furnishing them with supplies, purchasing cotton in return, and transporting the one and the other to and from the hostile territory through the blockaded ports, that, as tfie claimant’s counsel stated in bis argument, aud as may readily be inferred from the facts found by the court, his name became synonymous with ‘-,blockade-runner,” and wherever that name occurred in any matter the Government officials always knew that the transaction was connected with blockade-running.

He did more; he entered into copartnership in some of his business with one of the revolted States and with the government of the Confederate States, and shipped through the blockaded ports muntions of war, arms, gunpowder, armor-plates, cannon, shot, aud other like articles; he made presents of three guns for field-service to that government, and otherwise aided, abetted, and encouraged the rebellion in the manner set forth in the findings.

The claimant’s counsel, while conceding that the acts done by Collie were such as would require the court to dismiss his petition if he were a citizen of the United States or resident alien unpardoned, maintain that as he was a non-resident alien, a subject of Great Britain, who had never been in this country and so owed to it no allegiance, all his acts were such as he had a.right to do by the law of nations, that he committed u$ offense and was liable to no punishment under the laws of the United States or G-reat Britain: and although his ease would seem to be within the strict language of the provisions of the acts which 1 have cited, it could never have been intended by Congress to exclude non-resident aliens, who had committed no crime or offense, from the privilege of bringing actions in this court for doing what by the law of nations they had a perfect right to do. And they seek to have the provisions referred to so construed as to include only such unlawful aid, comfort, and encouragement to rebellion as would amount to crimes and offenses puuishable under the laws of one country or the other. The case, then, turns upon the intention of Congress as expressed in these provisions.

We have listened to able, learned, exhaustive, and instructive arguments by the distinguished counsel who have presented the claimant’s case with great power, industry, and ingenuity to prove that the acts of Collie were not crimes or offenses, and were not forbidden by the rules of modern warfare nor by the law of nations.

If the acts of March, 1863, had beén passed in time of profound peace, aud Congress were then engaged in making comprehensive provisions for the determination and settlement of claims against the United States by aliens and others, or were enacting a code of punishments, penalties, and forfeitures for offenses against the State in time of war, the arguments, citar tions, and illustrations by claimant’s counsel would have a powerful application, and I cannot say that they would not conclusively prove the correctness of the position which has been taken by them.

But in passing the Act March 3, and in enacting the provisions in the Act March 12, 1863, authorizing suits to be brought in this court to recover the proceeds of captured and abandoned property paid into the public Treasury, Congress was dealing with privileges to be granted, and not with crimes and offenses to be punished. To allow suits to be brought and judgments obtained against the Government in any form, to any extent whatever, and by any parties, as a matter of right, was then an untried and novel undertaking.

Until the year 1855, no provisions had ever been made since .> the adoption of the Constitution for the investigation of claims against'the United States outside of Congress and the Departments. This court was then established with extremely limited powers. Parries might petition the court and have their claims examined and reported upon to Congress for its action thereon, and that was the extent of the privileges conferred by the Act February 24, 1855. (10 Stat. L., 612.)

That a State cannot be sued without its consent is a well-established'principle. In the case of De Groot v. The United States, (7 C. Cls. R., 2, 5 Wall., 431,) Mr. Justice Miller thus refers to that subject in connection with this court:

“The Government of the United States cannot be sued for a claim or demand against it without its conseut. This rule is carried so far by this court that it has been held that when the United States is plaintiff in one of the Federal courts, and the defendant has pleaded a set-off which the acts of Congress have authorized him to rely on, no judgment can be rendered against the Government, although it may be judicially ascertained that on striking a balance of just demands the Government is indebted to the defendant in an ascertained amount. And if the United States shall sue an individual in any of her courts, and fail to establish a claim, no judgment can be rendered for the costs expended by the defendant iu his defense. If, therefore, the Court of Claims has the right to entertain jurisdiction of eases in which the United States is defendant, and, to render judgment against the defendant, it is only by virtue of acts of Congress granting such jurisdiction, and it is limited precisely to such cases, both in regard to parties and to the cause of action, as Congress has prescribed.” ,

And in Ex parte Russell, (7 C. Cls. R., 268, 13 Wall., 668,) Mr. Justice Bradley says: ’‘The erection of the Court of Claims itself, and the giving to parties the privilege of suing the Government therein, though dictated by a sense of justice and good faith, were purely voluntary on the part of Congress; and it has the right to impose conditions and regulations iu reference to the proceedings in that court as it sees fit.”

By the two acts of March, 1863, Congress did grant its consent to have judgmeut rendered against it in this court, and, in language which seems clear enough when taken by itself, did describe the parties upon whom it conferred its privileges. If it did not mean what the full force of the'words imply, but intended to exclude from the privileges only those who had so aided the rebellion as to have committed crimes or offenses thereby, and did intend to grant the privilege of maintaining actions in this court to non-resident aliens, who, although they may have done 'the acts described, had committed no offense against the law of nations, that intention must be gathered from the acts themselves, read and construed by the light of the times and circumstances in which they were passed, the prevailing sentiment of Congress and of the country, as well .as the then existing condition and progress of that great rebellion, in the midst of which, with the future'all uncertain, the nation was struggling for self-preservation, and the efforts on the one side to suppress and on the other to maintain it. By such light only can we read the intention of Congress as expressed in its well-chosen words.

In the winter of 1862-’63, when Congress was considering the matters incorporated into the acts of March, 1863, the internal resources of the .seceded States had become greatly exhausted, and the hope of holding out until'the Union cause should be abandoned, and of the final success and triumph of their own cause, rested to a great extent, if not mainly, as perhaps it had from the beginning, upon their foreign commerce, by which their cotton, their principal reliance for obtaining means to carry on the war, was sent to market, through merchants at home and abroad, and supplies for their armies and their people procured in return. Emissaries and agents were dispatched to foreign countries, and «specially to England, to forward that object. The extensive commercial house of Trenholm & Go., of Charleston, S. 0., had established a branch house at Liverpool, and one of their members became a naturalized citizen of Great Britain, and Trenholm was made secretary of the treasury •of the Confederacy. This house in Liverpool was a depositary of the public money of the rebel organization, and through it, in the apt language of the presentation of the case of the United States before the Geneva commissioners, “There was early festab-lished in Great Britain a branch of the war department of the insurgents, a branch of their navy department, and a branch of their treasury, each with almost plenary powers.” By means •of foreign commerce and foreign loans this branch of their treasury was supplied with funds. Contracts were entered into in England for building steamers for the Confederate States,' .six iron-clads having been contracted for there in August, 1862, and other vessels were built for the insurgents at other times and places. Blockade-running by the subjects of Great Britain was encouraged and promoted, and a large commerce sprang up between England and the rebel States, carried on, to a great extent, by transshipments at Nassau, Bermuda, and other British ports, by means of which the power of the rebellion was increased, and the ability of the insurgents to carry on war was enlarged.

In August, 1862, there was established iu London a “ Confederate States Aid Association,” whose object was to appropriate all money received toward “purchasingand forwarding to the Confederate States of America the materials which, in the judgment of the association, shall be considered the best calculated to enable them to carry on the war, and to bring their present protracted struggle to a successful issue.” (Diplomatic Correspondence, 1863, Part 1, 19.)

In December, 1862, Mr. Adams, our minister to the court of Saint James, in one of his dispatches to the Secretary of State, after referring to the appearance of a softening in the tone of public sentiment toward the United States, adds:

“ The great obstacle in the way of the better understanding which would naturally follow from this state of things is to be found in the movements going on in this kingdom, under strong appeals making to the avarice of the commercial interest by the desperate insurgents. There is scarcely a limit to the extent of the offers to secure assistance. Much of the evidence upon which I make this statement has already beeu laid before you from other quarters. It appears that a loan, to a large amount, has been effected on the security of cotton, to be furnished at a price which would secure an enormous profit to the holders, and that a corresponding rate of gain has been held out for the delivery of goods, of which the rebels now stand in the most absolute need. This discovery furnishes at last an explanation of the sources of the large sums of money which have beeu lavished at a most reckless rate in the purchase and construction of steamers of all kinds and munitions of war, in the dispatch of military adventurers from the continent, and in the purchase of every variety of article that.is needed to supply existing domestic wants in those States. The ports of Liverpool and London are filled with vessels taking in commodities destined for the insurgents. At the same time, a strong interest is thus formed which must be brought to bear more or less forcibly on the policy of the government toward the United States.”. (Diplomatic Correspondence, 1863, Part 1,15.)
The efforts of the United States Government were pat forth in every possible direction within its power to cripple, curtail, or stop this material aid and comfort which the insurgents were receiving from abroad, and especially from England. The ports of the rebel States were blockaded, as far as the magnitude of the undertaking would admit, remonstrances were made'to the British government, and nothing was omitted to be done in that direction that could be made available for the purpose. Public feeling was excited, and it was at that time by no meaus certain that the foreign relations of the United States, through the very transactions in which the claimant was taking an active and important part, might not involve the country in a war with one or more of the foreign powers before the rebellion could be suppressed. It is not necessary to go further- into the history of those days, when the Union was in the midst of a great struggle to preserve its existence.
These events have thus been referred to to a very limited extent merely for the purpose of recalling to mind, in discussing the questions now under consideration, the sentiment which was prominent and, next to maintaining the armies in the field, predominant in Congress when the acts of March, 1863, were passed. Those events are of too recent date, and have been too extensively discussed in diplomatic correspondence, in Congress, and in the public press, to require more than a passing mention. They were then, and are still, as familiar almost as household words.
It will be seen and remembered, I think, that Congress was not in a condition of sentiment or disposition to accord to nonresident aliens who were engaged in giving aid, comfort, and encouragement to the rebellion any rights not guaranteed to them by the law of nations, nor to grant to them any new privileges from which it excluded our own citizens for doing the same kind of acts.
In my opinion, it vi^as the well-considered and well-understood intention, as it was the clearly expressed language and the undoubted right of Congress, not to confer the privilege of maintaining actions in this court upon unfriendly non-resident foreigners engaged in blockade-running, in building vessels for the rebel government, in furnishing money and means, by loan or otherwise, and generally in aiding, with material assistance, the insurgents to- continue active hostilities against the Uuited States and to prolong the rebellion, which had even then reached a great magnitude, endangered the Union, and subjected the country to immense losses iu human life and treasure.
And this was not because Congress desired or intended to confiscate any property of non-resident aliens, or to deny to them any reasonable and just rights and privileges, or to discriminate against them in an unfriendly spirit, but because the matters involved were connected with important diplomatic questions and with principles of international law'affecting our foreign relations, which-Congress was not at that time prepared to submit in whole or in part, directly or indirectly, to the determination of this or any other court of law, but which it chose to reserve for future arrangement and settlement in the usual manner, by treaty stipulations, which might at the same time cover all the controversies growing out of the then existing rebellion which had unhappily sprung up between this country and the European nation principally concerned therein, as it left the case of citizens and those owing allegiance, who had given aid and comfort to the enemy, to the future consideration and determination of the President, in the exercise of his constitutional power of pardon.
And most magnanimously and honorably have those powers been exercised since the termination of the rebellion; as to citizens, by the proclamation of pardon and amnesty, (15 Stat., h. 711,) and as to non-resident alieus, subjects of Great Britain, by the great treaty of Washington, entered into arid established as the basis of settlement of all the numerous controversies between the high contracting parties, (17 Stat. L., m63,) a treaty which will forever stand as a monument of the peaceful settlement of international controversies by arbitration to an extent never before attempted, reflecting credit upou both nations'as well as on all parties eugaged iu originating, framing, and executing it.
This treaty provided, in Article XIf, (lo Stat. L., 867,)'for the settlement of just such claims as that óf the present claimant, and he presented his case to the commissioners appointed under that article. By them his petition was dismissed because he had brought his action in this court and submitted the same claim to the jurisdiction of this tribunal, and it has been suggested as a hardship that he should be turned away from each tribunal on tbe ground that the other alone had jurisdiction of the case. I think the facts do not warrant the suggestion. Mr. Collie, at the close of the rebellion, when his occupation was gone, instead of waiting, as did others in like circumstances, for the Government of his own country to which he owed allegiance to enter into treaty arrangements for the settlement of such cases, made haste to avail himself of the limited privileges accorded by thejurisdiction of this court, and presented his case here with such allegations, under oath, as clearly brought him within the terms of that jurisdiction. Because he had submitted his claim to this court, the commissioners, under the twelfth article of the treaty, held him to his election and refused to take tbe case away from that tribunal of his first choice, (Robert S. Hale’s Report to Secretary of State, 47, 207 ;) and this court now dismisses his petition, not for want of jurisdiction, but because the issue is fouud against him on the facts- alleged by himself. Had he proved here the allegations of his petition he would have a good cause of action and would be entitled to judgment in his favor, and if he relied upon proving facts which his evidence would not support, this was his own fault or his misfortune.
I have said that Congress was not willing at the time of the passage of the Act March 3, 1863, to submit controversies and ■questions of international law in general to the determination of this or any other court of law, and that is apparent from the ninth section of the act, (now Rev. Stat., § 1066,) wherein it is provided “ that tbe jurisdiction of said court'shall not extend to or include any claim against the Government not pending in said court on the first day of December, 1862, growing out of or dependent on any treaty stipulation.entered into with foreign nations or with Indian tribes.” The settlement of that class of cases, as of this to which the claimant’s case belongs, Congress reserved for the diplomatic branch of the Government.

The claimant’s counsel rely much upon the decision and opinion of the Supreme Court in the case of Murry v. Schooner Charming Betsey, (2 Cranch, 64,) in which Chief-Justice Marshall recognized as a correct principle “that an act of Congress ought never to be coustrued to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.”

That case arose under the Act February 27, 1800, (2 Stat. L., 7,) "to suspend the commercial intercourse between the United States and France and the dependencies thereof,” and was for the condemnation of the schooner captured as a prize for violation of that act. The owner set up that he was a Danish subject and not a citizen of the United States, and claimed the protection due to him by the law of nations. It appeared that said owner, although born in the United States, had removed to the island of Saint Thomas while an infant; that he carried on trade, married a wife, and acquired real property on the island, and had taken the oath of allegiance to the crown of Denmark. The c“ourt held that he had made himself the subject of a foreign power, put himself out of the protection of the United States, and was not a citizen within the meaning of the act so as to subject his schooner to capture as a jjrize for violation of its provision.

But in the case now under consideration the present claimant does not set up any rights to which he is entitled by the law of nations; and the acts of March, 1863, construed as I interpret them, violate neither that law nor the rights of neutrals, nor interfere with nor affect neutral commerce in any particular. It was strictly within the right, as it was within the power, of Congress to grant or withhold the privilege of suing in any of the courts of its own creation to and from such persons and for such causes of action and upon such allegations and proofs as, in its wisdom, it saw fit to prescribe.

The claimant, instead of demanding rights under international law, comes here seeking privileges under the local laws of that country whose Government, policy, and efforts at self-preservation in time of peril, the facts show he did his utmost to cripple, injure, and destroy, and by that law his case must be tried and determined.

It has been strenuously maintained that there is a distinction, in the same case and as to the same party, in fact and in law, between the crime or offense and the act of aiding, abetting, and giving comfort or encouragement to rebelli <- which the Supreme Court has recognized, (Bond’s Case, 2 C. Cls. R.., 529; Pargoud’s Case, 4 id., 337; Witkowski’s Case, 7 id., 398; Green’s Case, 8 id., 420; Collie’s Case, 9 id., 431;) and that it having been decided by that court that pardon relieves citizens and subjects, including resident aliens owing a temporary alie-giance to the Government, from the disabilities imposed by the words to which I have referred to maintain actions in this court, (Klein’s Case, 7 C. Cls. R., 240, 13 Wall., 128; Armstrong’s Case, ib., 280, 13 Wall., 154; Carlisle’s Case, 8 id., 153, 16 Wall., 147; Pargoud’s Case, 7 C. Cls. R., 289; see also Ex parte Garland, 4 Wall., 333,) aud as pardon can afford relief only in cases of crimes and offenses, therefore it necessarily follows that-it was the crime or offense only of aiding and giving comfort to the rebellion that was referred to by Congress, and that it still farther follows that, as non-resident aliens cannot commit the crime or offense of treason against this Government, therefore they are not included within the class of persons to whom the words in question apply. It was upon this ground that the claimant recovered judgment in his favor upon h former trial of this case. (9 C. Cls. R., 431.)

I do not concur in the proposition that any such distinction between the act and the crime, when the act constitutes a crime, was intended by Congress in its statutes referred to, or exists in law; and, in m,v opinion, it is not supported by the decisions of the Supreme Court which have been relied od, nor by any language used by the judges in their opinions, and is not warranted by the words employed, as construed by the ordinary rules of construction or interpreted by the light of the times in which they were introduced into the statutes, as I have before pointed out, and therefore I cannot concur in the deductions and conclusions which have been drawn therefrom by counsel and others.

In my view it was because the Supreme Court found that there was no distinction between the act and the offense in the case of citizens and persons owing allegiance, temporary or otherwise, that it was held that pardon removed the disability. The words “aid aud comfort” aud “aided, abetted, or given encouragement” to rebellion, when applied to such persons, as clearly aud accurately describe a crime or offense as if the word “ treason had been used. The act is the offense. They are one aud inseparable, the same in law and in fact, and I think were so regarded by the Supreme Court when it was decided that when the crime was pardoned everything done, within any meaning of the words in question, was also pardoned, and all disabilities arising therefrom were blotted out.

Treason is defined by the Constitution to “ consist of levying war agaiust them [the United States] or in adhering to their enemies, giving them aid-or comfort,” and Congress is invested with the power to declare the punishment of treason, under certain limitations, (Constitution, Art. 3, § 3.) To the President is-given the power of pardon, (Constitution, Art. 2, § 2,) and that power is commensurate with the right in Congress to declare-punishments. By whatever words Congress describes treason or any other offense, and attaches thereto a punishment, in whatever form, either by imprisonment or fine, by political disabilities or civil disabilities of extensive application, or simply by disabilities to sue in this or any other court, the President’s power of pardou extends to and reaches it, and by his constitutional prerogative he may remove the same in any case according to his own will and pleasure,' and that prerogative cannot be avoided by any attempt to make a distinction- where none exists-in law, and to attach disabilities to the act and not to the offense. (Klein's Case, 13 Wall., 128.)

Congress thus having attached to the act of aiding, abetting,, or giving encouragement to rebellion a disability to maintain actions in this court, that disability, whenever it applies to a person owing allegiance to the Government, may be pardoned by the President, and such pardon obliterates the whole penalty,, whether for the act or the crime, for they cannot be separated. Congress in describing the act described the crime, and the President in pardoning the crime pardons all the legal consequences of the acts which constitute the crime.

Such, in my opinion, is the true meaning, force, and effect of the decisions of the Supreme Court.

To every human act consequences .are attached by the laws of nature which no executive pardon can reach and which no human power can obliterate, while to the same act the laws of man may decree other consequences, which, except where already accomplished, the power creating may destroy, obliterate, modify, and prevent, by pardon or otherwise; and in that sense, and no other, according to my view, can a distinction be drawn, as is attempted, between the act and the crime, when the act constitutes a crime.

When Congress created the disability in question as to per-, sons who.gave “aid and comfort to the rebellion,” or who had “voluntarily aided, abetted, or given encouragement to rebellion against the said Government,” it intended, in*my opinion, to use those words in their usual, natural, and x>lain signification, without exception and without the subtle distinction invented by the ingenuity of learned counsel, by which they would apply to the offense as distinguished from the act, aud that Congress did this with a full and clear understanding that parties could have such disability removed or modified, each according to his legal status, the citizen and resident alien by pardon, and the non-resident alien through his own government by treaty stipulations or diplomatic negotiations.

It seems tome tha t ongress introduced the words in the Act March 3, “ if a citizen,” of whom it was required that he should prove that he had “at all times borne true allegiance to the Government of the United States,” and the words “ whether a citizen or not” in the subsequent provision requiring such person to prove that “ he has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the said Government,” and carefully omitted the word “ treason ” from that act and the Abandoned or captured property Act for the very purpose of making sure, by words whose meaning could not be mistaken, of reaching persons whose acts would not be crimes punishable under any law whatever.

Disabilities to maintain actions in courts of law not arising from crimes or offenses are familiar to every lawyer. (Rev. Stat., § 1069.) Those aliens who are citizens or subjects of a government which accords to citizens of the United States the right to prosecute claims against such government in its own courts are the only aliens who, under any circumstances, have the privilege of prosecuting claims in this court. (Rev. Stat., § 1068; The United States v. O'Keefe, 11 Wall., 178.)

To exclude parties from the privilege of bringing actions in the courts of a State by reason of, and in matters connected with, acts done by them in other States, not in violation of any law to which they are amenable criminally, but which the State wherein-such courts are established deems injurious to its interests and against its determined policy, and which would be offenses if done in that State, is no novel proceeding, and has never been deemed a breach of that comity due from one State to another. Massachusetts long ago provided that “ no action of any kind shall be had or maintained in any court for the price of any liquor sold in any other State for the purpose of being brought into this Commonwealth to be kept or sold in violation of law under such circumstances that, the vendor would have reasonable cause to believe the purchaser entertained such illegal purpose.” (General Statutes of Mass., ch. 86, § 61.)

Maine enacted a similar law. (R. S. of Maine, p. 309, § 50; Meservey's Case, 55 Maine, 540.)

Even independently of statute prohibitions the courts of a State do not afford remedies to parties engaged in other States and countries in transactions legally carried on there with the intention and for the purpose of assisting in the violation of laws of the State in which the aid of the courts is invoked. (Webster v. Menger, 8 Gray, 587; Territt v. Bartlett, 21 Vermont, 184.) And I apprehend that, by the common law, no action could be maintained in this country for freight earned by neutral vessels in the transportation and delivery of goods to persons in the rebel States through the blockaded ports during the rebellion, under whatever flag and from whatever country such vessels sailed, nor for the price of goods so delivered. (Story on Conflict of Laws, § 259'N) These cases, I know, differ from this one now at bar, because Congress may authorize actions to be brought against individuals or against the Government in whatever cases it sees fit to grant the privilege; and we are now dealing with statute law, and the question here is whether or not the privilege has been granted to the claimant to maintain-this action under the statute which this court is administering. But they go far to show that to exclude aliens or nonresidents from our courts for engaging in transactions in other countries against the laws, contrary to the policy and detrimental to the safety and well-being of this country, especially in matters growing out of those very transactions, and in suits against the State itself, is no breach of international law or the comity of nations.

That the word “ citizen,” in the Act March 3, 1863, was intended to include resideut aliens is no longer an open question. We know that in popular language it is not always restricted in meaning to a subject of the nation owing full allegiance; and in Field v. Adren, (7 Md., 209,) it was held that “ a party may not be a citizen for political purposes, and yet may be a citizen for commercial or business purposes.” And Huberus lays it down as an axiom, that “ all persons found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof,” (Huberus, lib. 1, 'tit. 3, de conflictu leguni, 538, § 2; Story on Conflict of Laws, §§ 29, 541;) and in the same sense that they are subjects they are also citizens.

The Supreme Court has authoritatively decided that resident aliens in the territory of the insurgents committed an offense by giving aid and comfort to the rebellion, which could be pardoned by the President, and this could be so only by reason of their being in a restricted sense subjects and citizens. (Carlisle & Henderson's Case, 16 Wall., 147.)

That decision confirms my opinion that the Supreme Court did not recognize the distinction attempted to be maintained between the act and the crime, when the act constitutes the crime, nor hold that Congress intended to refer to the latter and not; to the former in denying the privileges of this court to certain parties for acts done by them, because if that had been the view of the judges they could much more readily and easily have disposed of Carlisle’s case, since the statute thus construed, if the claimants had committed n,o offense, did not apply to them, and if they had committed an offense the President’s pardon relieved them therefrom, and there would have been nothing in the case which required the learned opinion which was delivered, devoted, as it is, to showing that the claimants, resident aliens, committed an offense by giving aid and comfort to the rebellion, which was pardonable and pardoned, and for that reason that they were not barred from a right to recover judgement in this court. The implication is strong and clear that if the acts of aid and comfort given in their case had been held not to constitute an offense, by reason of the alienage of the claimants, judgment would have been rendered against them, and, that could have been only upon the ground that the statute of disability referred to the acts of giving aid and comfort to rebellion whether constituting an offense or not.

In the views which I have taken of the subject here discussed, the opinions of the Supreme Court are clear,- consistent, and harmonious, and unmistakably indicate the rules which ought to govern in the decision of the present case.

For these reasons I concur in the judgment dismissing the claimant’s petition.

Nott, J.,

delivered the following opinion :

The masterly arguments of the counsel for the claimant— arguments which, so far as my personal experience goes, have never been surpassed in this court in power and legal analysis and comprehensive learning — placed the right of the claimant to recover here upon his rights as a neutral subject standing upon the general principles of international law. I am aware that justice cannot be done to the legal positions of the argument when reducing them to a-single sentence, yet, for the purposes of this inquiry, I shall endeavor to state them as accurately as may be in the following propositions:

The right of the claimant as a foreign neutral to acquire this property, and the right of the United States to appropriate it by capture or confiscation, are questions of public and not of municipal law ; the purpose of the statute was to make all claims upon the fund a subject for judicial and not for diplomatic redress; and when the Government furnishes a judicial tribunal for claims growing out of its belligerent acts, the subject of another Government must exhaust the remedy thus afforded before he can ask the interposition of his own sovereign; and hence this statute becomes a matter of public law, and the case is to be adjudicated by the courts of the United States precisely as it would be by the courts of another country, the law to be administered being, in the words of Lord Stowell, “universal,” “ and the seat of judicial authority locally here.” (The Maria. 1 Rob. Ad. R, 350.)

This last proposition, I deem to be the key of the entire case; if the law to be administered here is to be administered precisely as it would be by the courts of another country, I am fully convinced that the claimant is entitled to judgment.

But let it be borne in mind that in the late civil war the United States possessed the dual character of a belligerent conceding belligerent rights, and of a sovereign striving to establish its own authority in its own insurgent territory, jealously reserving the right to punish the offenses against its sovereignty by penalties, forfeitures, and confiscations whenever its authority should be re-established, and publicly proclaiming its intent so to do by statutes and proclamations and in every conceivable manner. Let it also be borne in mind that this property of the claimant, lawfully purchased, as he asserts, was never carried through the blockade to neutral territory, but was allowed voluntarily, after purchase from insurgent citizens of the United States, to remain on American territory until the authority of the United States was re-established by force of arms.

Conceding that in a civil war a neutral may trade with either, that he may buy and carry away property which will be liable only to the risks of capture in passing through a blockade, does it follow that a neutral may come upon iusurgent territory and buy property liable to confiscation and evade the risks of carrying it away by leaving it in the insurgent territory until the termination of hostilities, and then set up his own title thus acquired, and insist as a neutral that, having had the right to trade by the law of nations, all property so acquired must remain exempt from forfeiture by operation of the municipal law after the municipal law has been re-established by the de jure government? Conceding that if a neutral bought and carried his purchase to neutral territory the legality of his title could not be questioned in the courts of the United States on the ground that it was acquired against their municipal law or their public policy, does it follow that a neutral could have goneinto our insurrectionary districts and bought property, real or personal, (liable in the hands of the vendor to ultimate confiscation,) and after its capture on land, or seizure for forfeiture at the termination of hostilities, that he could have come in through his own government and set up his title as neutral to defeat the lawful government’s right of confiscation? In a word, could non-resident aliens, owing no allegiance to this Government, by simply passiug through the blockade, have put themselves in a position where they could, have bought, without limit, property of the insurgents which the United States would otherwise have been authorized to capture or confiscate, but whieh they would be debarred from capturing or confiscating without compensation in the hands of a neutral who thus acquired it, because on well-settled principles of international law neutrals may trade with belligerents ? And if the United States had seized such property so acquired, by civil process, as they have here done by force of arms, would the government of the neutral be warranted in interposing and insisting on compensation for the property thus seized and forfeited f

In the cases of ordinary belligerency, where two independent nations are carrying on hostilities, it is manifestly immaterial whether property acquired through the blockade of the one be left on the territory of the. other, or carried to neutral territory; for, when peace returns, the purchaser will stand on'the same friendly territory that he stood upon when he acquired his title. But, in the case of civil wars, there is always behind the matter of neutrals’ right of traffic the offended majesty of the de jure government. No nation that I am aware of has ever conceded to aliens, in time of war or in time of peace, the right to evade its laws or civil policy, and no nation, I apprehend, consistently with the preservation of its own' integrity, can ever coucede to neutral powers its liability in such a case, or even surrender such liability to arbitration. The rule in cases of civil war, which will concede to neutrals their rights of belligerent traffic, and to governments their right of maintaining the integrity.of their nationality, will be found, I apprehend, to be this : If the property acquired through the blockade of the government de jure be carried successfully to neutral territory, it will cease to be delinquent, and the alien’s title thereto will be upheld in all courts, including those of the de jure government; but if, on the contrary, the property be left upon insurgent territory until the restoration of that government’s authority, it will be subject to its disposal to the same extent as the like property of its insurgent citizens, and may be administered according to the provisions of its municipal law.

I am therefore of the opinion that this court must deal with this case in its ordinary character of a court of the United States administering municipal law, as distinct from the assumed character of a prize court or international tribunal administering public law. In accordance with this conclusion, I now pro.ceed to examine the only matter which in my opinion can afford a ground of defense to the present suit.

. On the former trial of this case, I expressed the opinion that, apart from the terms of the statute, and apart from the aid or comfort given by the claimant to the rebellion, the title to this cotton having been acquired by a non-resident alien in a blockaded port against public policy, the claimant was in the plight of a smuggler; and that the forbidden traffic having failed to reach a result, courts, of the United States would not aid him to obtain the proceeds of property acquired against the declared and well-understood public policy of the United States, (9 0. Cls. R., 455.) At that time the subject was a new one, which bad nob been presented by the counsel for the Government; and two doubts arose in my mind respecting the applicability of the doctrine to the case. The rule in such cases is well settled that where the party has acquired the fruit of his forbidden traffic the courts of the country will not disturb him in his possession; and it was certainly a question where chattels personal had been bought and reduced to possession whether the eyes of the court would be open to see the illegal title by which they were acquired. But the Supreme Court subsequently, in Sporott's Case, (10 C. Cls. R., 1,) resolved this doubt by deciding in favor of the applicability of the doctrine, and still more pointedly in Whitfield's Case (11 C. Cls. R., 460) said that the courts of the United States will not assist a claimant to “enforce a right growing out of a contract” “ tainted with the vice of the rebellion.”

A second doubt has been revived by the able argument on the present trial concerning the rights and liabilities of neutrals, though not directed to the point now under consideration. It may be thought that the only effects of belligerent acts by a neutral are belligerent effects, and that the municipal law of the offended belligerent knows them not. And this is undoubtedly true so far as the person of the neutral is concerned. The municipal law cannot punish him. When the war ends he resumes all the international rights which he ever possessed, and is entitled to all the privileges and remedies which the municipal law or international comity or-treaty stipulations accord to those of his fellow-subjects who never violated the strictest obligations of neutrality. As was said by a late eminent and now lamented lawyer in his argument in the case of Carlisle & Henderson (8 C. Cls. R., 156) in the Supreme Court, “Peace is amnesty as to aliens.” A question therefore fairly arises whether the public policy of a country which its courts enforce against aliens exterritorially innocent of violating its municipal law embraces a belligerent policy of a past war, or whether such a policy dies with the war and becomes au exception to the general rule.

Therefore, since the argument, ! have given a careful, though brief, examination to the subject, and am satisfied, though I confess there is a singular dearth of authorities directly upon the point in the reports, that the war policy of a country, when properly declared by statutes and formal proclamations, is equally to be maintained by courts.

The maxim is, Ex turpi causa non oritur actio, and the principle is that the courts of a country will not aid a foreigner to accomplish that which the laws or policy of the country forbid to its own citizens. No nation is bound to recognize a contract which is injurious to its own interest. (Story, Conft. Laws, § 244.) And “the laws of every State affect and bind directly all property, whether real or personal, within its territory,” “and also all contracts made and acts done within it,” (id., § 18,) and every nation has an exclusive right to regulate things within its own territory according to its own public policy. (id., § 22.) Contracts which are in evasion of the laws of a country, or of the duties of its citizens, which are against public right or opposed to national policy, are to be deemed nullities in the country affected by these considerations, (id., §244.)

These general principles make no exception of the kind or nature of the policy which is to be respected or upheld by the courts of the country. Nor is it necessary that it should be a policy declared by positive law. .Statutes and proclamations are in this regard only indicative of national policy, and courts (as in Sprott’s Case) will declare and maintain a public policy, though there be no express statute covering an exceptional transaction. With regard to the war policy of a nation, the clearest declaration of it which I have been able to find is in a very learned and able, though little used, book, (1 Bell’s Commentaries on Laws Scotland, p. 31.) and is in these words:

Contracts against war policy. — The general principle which regulates this department of law is that war is the operation of the governing powers of the state, aiming at the attainment of national good or the avoidance of national evil; and by the infliction of such inconvenience and distress on the enemy as may induce them to grant the terms of peace for which it is thought expedient to insist. It implies that individuals (who are necessarily without the information which directs the policy of the state) shall not be permitted to interfere. And the rule is that there is not a war for arms and a peace for commerce. It is a necessary consequence of this, that no contract entered into against the war policy can receive effect in a court of law.”

Notwithstanding the notable rarity of cases where courts have asserted a war policy after a war has passed, there is one decision which I think directly in point, and invested with decisive authority in being a decision of the Supreme Court. The case is all the more authoritative as involving au exceedingly rigorous application of the war policy against an alien plaintiff who personally was innocent of an attempt to violate it; and the application, moreover, was against all moral considerations, and unhappily favorable to a party who on neither moral nor equitable grounds was entitled to favor or assistance from a court. This case is Hannay v. Eve, (3 Cr. R., 242,) and the facts were these:

During the war of the Revolution, Congress, by their Resolve 9th December, 1781, declared, in retaliation, that all British vessels which should be seized by their crews and brought into an American port “should be deemed and adjudged as lawful prize to the captors.” A British vessel bound to New York (then in possession of the King’s forces) being unable to make that port and in danger of foundering, the captain proposed to the crew that they should seize and carry her into au American port, it being first agreed between them that a large proportion of the prize-money should be awarded to him for the beuefit of the owners. This plan was carried through, the crew standing fast by their agreement, and the captain receiving a large proportion of the prize-money which would not otherwise have been awarded to him. After the war, the owners came to this country and filed a bill against the captain to compel restitution of the money so received. The case came to the Supreme Court, and Chief-Justice Marshall said of it: “The agreement to save the ship and cargo under the semblance of a condemnation was not an immoral act; it was, as has been truly said, a stratagem which the laws of war would authorize; bat it was certainly a fraud upon the resolution of Congress, and no principle can be more clear than that the courts of the United States can furnish no aid in giving efficacy to it.” * * * “It has been thought by some of the judges that, the contract being in itself compatible with the strictest rules of morality, and being opposed by only a temporary and war regulation which exists no longer, may now be enforced. But upon more mature consideration, the majority of the judges accede to the opinion that the contract being clearly in fraud of the law as existing at the time,” “its execution cannot be compelled by the courts of that country to evade whose laws it was made.”

Being satisfied on reason and authority that the war policy of a government should be respected and upheld by the courts of a country, even after the war has ended, I pass to the inquiry whether this war policy of our Government can be asserted against this claimant and concerning the present cause of action.

It has been said that in the case of a civil war an alien, residing in. his own neutral territory, may trade with insurgents who have been recognized as belligerents, and that, by a universal rule of public law, which has often been recognized and maintained by the United States, such traffic is lawful and to be upheld. Let it be conceded that such is the fact and the rule, and that the. courts of the United States cannot in good conscience deny the prosecution of this right which they would accord to one of our citizens were the parties aud conditions of the case reversed. Let it be conceded that all exterritorial transactions are to be maintained in our courts though their purpose and effect were to injure the Government and prolong the rebellion. Let it be conceded that if a citizen of the United States had gone from Bichraond to Liverpool, aud there bought arms' for the use of the Confederate troops, that fact appearing on the face of the contract, and he adding to it his personal guaranty, a suit might be maintained upon it in our courts, and no denial upon the ground of public policy be assorted. The question still remains whether the claimant’s purchases of cotton on insurgent territory during the war were exterritorial. “The laws of every state,” says Story, (supra,) and I may add, the public policy of every state, “ affect and bind directly all property, whether real or personal, within its territory,” “ and also all contracts made aud acts done within it.” The laws and public policy of the United States may not have extended to the person of the claimant; did they attach to these transactions and to this property ? In a word, were purchases by a non-resident alien within our insurgent territory, while it was held by the de facto government of the Confederate States— were they, so far as our laws aud public policy were involved, exterritorial ?

Before the decision of the Supreme Court in the case of Carlisle & Henderson (8 C. Cls. R., 153) I had been inclined to hold, with regard to aliens domiciled or temporarily residing in our insurrectionary district, that he who did nothing to violate the laws of the United States so long as they were paramount could not be lield to violate them after they had been, for the time, superseded by the laws of a government de facto. My impression, indeed, was that an alien owing a temporary allegiance to a government de facto, which affords him protection, cannot be held at the same time to owe a constructive local allegiance to a distant government de jure which affords him no protection. After foreign governments had recognized in the Confederacy a belligerent power I had supposed that they would not consent to their subjects in the South being held amenable to the laws of the United States until those laws were re-established by force of arms. I have since examined (Green's Case, 8 C. Cls. R., 412) every authority cited on the argument and in the decision of Carlisle & Henderson and find that they all treat the local allegiance which an alien temporarily owes to the government under which he voluntarily came as reciprocal for the protection which it affords to him. They hold, substantially, as set forth in the words of East, (Crown Law, chap, ii, § 4,) that. “ the local allegiance ” “ which is due from a foreigner “ is founded in the protection he enjoys for his own person, his family and effects, during the time of that residence.” Nevertheless the doubts which I entertained as to the existence of the rule where the reason of the rule had ceased do not prevent me from recognizing the conclusive character of that decision.

Its significance will be best gathered from its facts, which, as condensed in a former statement, (8 C. Cls. R., 419,) were these : Two Englishmen, resident within the insurrectionary States, were engaged in the manufacture of saltpeter there. They did nothing to bring about the rebellion, nor in any way violated the municipal law of the United States. After the authority of the United States had ceased to be paramount they did not take up arms or commit any overt act of hostility, but continued their business of making and selling saltpeter. In time the Confederate government came to them as a customer and they sold to it. By this court it was held that saltpeter is one of that class of articles which may or may not be contraband of war, and that amid the circumstances of this sale it was contraband, and the selling, as a matter of fact, aid and comfort to the rebellion. But this court never undertook to hold that the selling was a crime, a betraying, a treachery, or a breach of faith. The Supreme Court, on the contrary, held the selling to have been a crime against the laws of the United States, the claimants criminals, their offense treason, and that the territorial authority of the United States continued within the Confederate military lines, where the aliens were, so completely that the mere sale of this contraband article to the Confederate government, with knowledge that it was to be used for the prosecution of the war, made them “ participators in the treason of the Confederates equally as if they had been original conspirators with them.” That is to say, the Supreme Court determined, as I understand the decision, that the authority of the United States continued territorially throughout the rebellion as it existed before the rebellion, and that it attached to persons, property, and transactions, to citizens and to aliens, so completely that nothing which took place on Confederate soil can ever claim the immunity of being exterritorial.

I am, therefore, constrained to hold that when the claimant, in the person of his agent, entered the port of Savannah, he entered the territory of the United States, and left behind him his character of a foreign neutral; and that the property which forms the subject of the present suit was then and ever has been within the territory of the United States, subject to all the restrictions of their municipal law and national policy.

The war policy of the Government, from the beginning of the. rebellion to its close, was to cut off the insurrectionary districts from commercial intercourse with each other and with all the world. The purpose which I ascribe to the claimant in. the purchase of this cotton was twofold: to bring in supplies and carry out products against the public policy of the country, and to collude with revolting citizens, in fraud of our laws, to change the title of property which would otherwise have been subject to confiscation. Trade and traffic in the insurrectionary district necessary for the well-being of society have been upheld, but no transactions treasonable in their nature, or designed in fact or in contemplation of law to prolong the rebellion, have received the aid of our courts. The tests which I apply to the claimant’s transactions are these: If a citizen of the United States, domiciled during the war of the rebellion on loyal territory, say in New York, were to bring an action upon a contract for blockade-running, would a court of the United States give effect to it as a legally meritorious contract? If the responsible leaders of the insurrection had conveyed away their property to evade confiscation, could they resort to our courts to acquire the fruits of such transactions f Manifestly not; and the courts of a country will not aid a foreigner to accomplish that which the laws or policy of the country forbid to its own citizens. In my judgment, the claimant’s title to the property in suit, having been acquired through blockade-running and for the purposes of blockade-running, cannot be upheld in the courts of this country.

I place my decision entirely upon this ground of improperly-acquired title, but there are other questions in the case to which I deem it proper to advert.

On the former decision I was also of the opinion that as the Amended Court of Claims Act (12 Stat. L., 765, § 12) contemplates aid and comfort to rebellion by two classes of persons, viz, those who owe and those who do not owe allegiance to this Government, and closes the court equally to both, it would follow that; the claimant, who in fact rendered aid and comfort, though by means of a traffic lawful at public law, could not prosecute his suit, though guiltless of an offense against our municipal law. It is due to the able arguments of the present trial to say that they have demonstrated, in my maturer judgment, the error of that conclusion. When Congress prescribed in the Abandoned or captured property Act the terms and conditions on which owners of captured property may recover the proceeds thereof, a court, I now think, cannot import other terms and conditions from another statute, though it may refer, as the Supreme Court did in Zellner's Case, (C. Cls. R., 137,) new subjects of jurisdiction to the practice and remedial processes prescribed and granted by the former act. The “aid or comfort” which would form a bar to the claimant’s recovery is the “aid or comfort” defined and intended by the Abandoned or captured property Act; and that “ aid or comfort” the Supreme Court has interpreted in the case of aliens, as of citizens, to be the breach of allegiance constituting an offense of crime.

I am also of the opinion that the case is now in precisely the same plight that it was in when first tried. The defendants have gained no legal point by the new trial. Whether a foreign neutral sold goods contraband or not contraband to a belligerent, his traffic was legal at public law, and his act, aid or comfort to the insurgents as a matter of fact. The sending of cannon through the blockade was no more an offense against our municipal law or the public law than the sending of bread; and whatever difference there may be is one of degree, and not of kind. The giving of cannon to the Confederate cause was a mere incident of his commercial transactions; and if a foreign neutral may give to a belligerent things contraband of war for a consideration, it is altogether too refined an exception to say that it would be an offense for him to give them without a consideration. Neither the magnitude of the sale nor the nature of the thing sold nor the motive of the‘giver can make this intercourse a crime.

Nor can I agree that any act which is not an offense against the municipal law of the United States will impose upon the claimant a disability to prosecute his suit in this court for the proceeds of his captured property. Before the decision of the Supreme Court defined- the words “ aid or comfort to the present rebellion” in the Abandoned or captured property Act to import a crime and impose a personal disability to maintain a suit, this court had construed the statute as one enacted midway in the rebellion, prospective in its character and intent, whose controlling purpose was topreventindividuals from aiding the rebellion, and to that end assuring those who should continue .to refrain (and no others) of the restitution of their captured property. Pursuant to this supposed purpose of the statue, it had been held that the title passed by capture and vested absolutely in the United States; that the restitution of the proceeds to the loyal was founded on com'pact and in the nature of a reward for their meritorious conduct, and hence that abstaining from giving aid or comfort was a jurisdictional fact, irrespective of allegiance or felonious intent, and equally conditional upon all suitors, be they citizens or aliens, enemies or neutrals.In accordance with these general principles, it had been held in the cases of deceased owners that the right to recover depended upon the loyalty of him who had owned the property, and not upon that of the administrator or other representative who chanced to bring the suit; and, in the cases of persons who relied upon the pardon of the Executive, that pardon or amnesty, while it might obliterate an offense, could not restore the substantial compact which the party had broken, nor change the operation of a statute so as to relieve a party from making proof of a jurisdictional fact.

By the Supreme Court an utterly different interpretation was given to the statute; which interpretation was reiterated in such varied forms and manifold cases that no plausibility of statement or sophistry of reasoning can warp the meaning or undo the construction. (Klein’s Case, 7 C. Cls. R., 240; Carroll’s Case, ib., 255; Armstrong’s Case, ib., 280; Pargoud’s Case, ib., 289.) This construction, moreover, was intensified by the fact that each decision involved the reversal of a judgment and laid down a rule which authorized other recoveries in then existing suits, and shattered the supposed title of the Government to a fund in which its ultimate proprietary interest would have amounted, as was believed, to more than $20,000,000.

The court (Klein’s Case, 7 C. Cls. R., 240) classified all “property in the insurgent States” and designated the fourth class as of “a peculiar description, known only in the recent war, called captured and abandoned property.” Of this property the court held that the title did not pass by capture. The court, moreover, held that the title could not have been divested by any means except a judgment of confiscation after due legal proceedings. From these premises the court logically drew the deduction that the Government, having had no title or interest of its own in the captured property, was but the trustee of the fund, holding it for the use of those entitled to it by the express terms of the statute and for all others who might at any time be recognized as entitled to it on considerations of public policy; and that the criminal offense of giving aid or comfort was not a matter affecting a compact or going to the jurisdiction, but constituted a personal disability to maintain an action which, because it was criminal, could be removed by the pardon of the Executive.

If it now be conceded that the claimant in this suit became the owner of this cotton by a contract not repugnant to the laws or public policy of the United States, the Government stands before us as a suitor in the singular attitude of a trustee having in its possession a fund (the subject of this suit in equity) in which it has no proprietary interest, and which it holds for the use of a British subject in whom the property is, yet whose right to sue for this property it denies. For such a case it would seem to me paradoxical were I to hold that the United States are trustees for one whose property in their possession has not been divested by capture or confiscation and who has committed no offense against their municipal law, yet who, never th eless, can not pursue th e remedy provided by .statute for a cestui que trust in such cases because of a bar arising from a duplicity of construction that ascribes to the same words of the same statute an intent to make the crime, and not the act, a personal disability for one party, and the act without the crime a personal disability for another. I cannot approve of any such duplicity of construction as would attach the consequences of crime to acts wherein no crime existed. And if it be said that the generality of the terms used in the statute nevertheless includes the exterritorial acts of a foreign neutral, I must say, as Lord Stowell said of an English statute in the case of the Le Louis, (2 Dods. Ad. R., 239,) “ Neither the British act of Parliament, nor any commission founded on it, can affect the rights or interests of foreigners unless they are founded upon principles and impose regulations that are consistent with the law of nations. That is the only law which G-reat Britain can apply to them; and the generality of any terms employed in an act of Parliament must he narrowed in eonstruction by a religious adherence thereto.” 
      
      7 C. Cis. R., 240.
     
      
       7 C. Cls. R., 192.
      
     
      
       8 C. Cls. R., 153.
     
      
       James M. Carlisle, esq., who, long the leader of the Washington bar, died May 19, 1877.
     