
    CARLISLE AND HENDERSON’S CASE. Hugh Carlisle et al. v. The United States.
    
      On the Proofs.
    
    
      Aliens resident in Georgia begin the manufacture of saltpetre in December, 1861. In April, 1862, oiving to the approach of United States troops, they abandon the worh. Immediately after the withdrawal of the troops they return and resume the worh. In May, 1863, they sell their worlcs, and a quantity-of salt-petre and nitre manufactured, to the rebel government. In the bill of sale it is expressed that the nitre is for the manufacture of gunpoiuder. Otherwise it appears that they never gave aid or comfort to the rebellion.
    
    
      AVhere an alien residen-fe within the insurrectionary districts voluntarily engages in tlie manufacture of saltpetre after the war of the rehellion has begun, selling it to the rebel government, and the bills of sale expressing that it is for the manufacture of gunpowder, there, it will be regarded as coming within the second class of goods contraband, viz: “articles xohiclt may T>e and are used for purposes of war or peace, according to circumstancesand its voluntary manufacture, amid the circumstances, will be deemed aid and comfort to the rebellion.
    
      Messrs; Carlisle & McPherson for the claimants :
    In tbe brief on tbe part of tbe claimants tbe attention of tbe court is directed to tbe consideration of tbe following propositions, to wit:
    1. That these claimants Avere tbe owners- of tbe cotton tbe proceeds of wbicb they seek to recover.
    2. That tbe procéeds of said cotton paid into tbe Treasury of tbe United States is $43,180 33.
    3. That neither of these claimants gave any aid or comfort to tbe late rebellion.
    4. That although these claimants are subjects of Great Britain, they may maintain their action for tbe proceeds of said cotton in this court.
    
      The first and second are most conclusively established by tbe evidence adduced for that purpose, and the fourth of these has been decided and affirmed by this court at tbe present term, in tbe case of James O’Keeffe v. The United States.
    
    It is proposed to consider, tbe additional evidence submitted upon tbe proposition “that neither of these claimants gave any aid or comfort to tbe late rebellion.”
    Tbe testimony shows that these claimants were something more than mere neutrals. They were only required to maintain a passive indifference to tbe then existing rebellion, but they did more than this. In tbe language of tbe witnesses, “ they Avere opposed to tbe rebellion all tbe time, and truly loyal to the United States government all the time.” This was more than tbe law required of them. If they did nothing to strengthen tbe enemy or aid tbe rebellion, then they maintained that consistent neutrality wbicb entitles them to tbe provisions of tbe statute under wdiioh théy prefer their claim. This evidence shows that they 11 consistently adhered to tbe government of tbe United States during tbe late rebellion,” and they thus establish their claim in accordance with tbe exacting require-intents of tbe 3d section of tbe act of Congress approved June 25, 1868.
    Tbe case of these claimants may, therefore, be safely left here, unless tbe evidence taken on bebalf of the United States shows that these claimants did in fact do some act which resulted in aid and comfort to the late rebellion, or to persons engaged therein. If the evidence establishes any such fact, then, unless it is explained or excused, these claimants can gain no advantage from the conclusive evidence which they have submitted to prove that they did not give either aid or comfort to the late rebellion.
    It will doubtless be claimed by the astute special counsel of the Treasury Department that he has shown beyond controversy tioo very important facts, which must convince the court that these claimants were traitors at heart and guilty of giving aid and comfort to the late rebellion. He will poiut the court to the fact that these claimants made salt, and then, after giving as much aid and comfort to the rebellion as was-possible in that way, thej1, went to a saltpetre mine, and there dug from the earth one of the elements from which gunpowder is made, and then he will explain that because of these acts- “ these claimants can have no standing in this court.”
    It seems much like trifling with the good sense of the court-for us to discuss this evidence, for it proves none of those acts which courts of any ordinary intelligence must find, in order to convict these claimants of having given aid or comfort to the rebellion. They made salt and sold it to the people. Did they contribute a single pound of it to the rebel authorities?. The evidence does not show that they contributed salt or anything else to the rebel cause. Then it will be said they worked the mine where nitre or saltpetre was to be found. Was this a-crime, or an act of aid and comfort to the rebellion ? Is there, in. all this mass of evidence submitted to the United States to prove these insignificant facts, the slightest evidence that these claimants ever contributed or sold a single ounce of that article to be used by the rebel authorities ? The court and the learned counsel of' the Treasury Department will look in vain in this-record for any such evidence. We suppose it will be argued that, because saltpetre might be used in the manufacture of gunpowder, the claimants were guilty of giving aid and comfort to the rebellion, by engaging in its manufacture. It might with equal propriety be argued, that, because a. man mined and manufactured iron or brass, he ivas guilty of giving aid and comfort to the rebellion, because these articles might be used in the manufacture of cannon, or in the plating of vessels of war.
    It will be argued, too, that because the confederate government exacted a tax from those engaged in making salt, that those who engaged in that business gave aid and comfort to the rebellion. It might as well be argued that the man who raised cotton gave aid and comfort to the rebellion, because the rebel authorities exacted a certain portion of all the cotton raised in the rebel States. To hold any of these unwarrantable assumptions would amount to a decision that all manufactures upon which the rebel government exacted a tax must be discontinued, and thus all industries cease.
    It will also be argued that, because these claimants were exempted from military service by reason of the business they pursued, they, therefore, gave aid and comfort to the rebellion, by following those pursuits which exempted them from military service. By the rebel conscription act all shoemakers were exempt from military service. Will the court hold that every shoemaker in the rebel territory was guilty of giving aid and comfort to the rebellion merely because he could make boots and shoes 1
    
    
      Mr. J. A. Ware (with whom was the Assistant Attorney General) for the defendants :
    The alleged nationality of the claimants is not proved. There is nothing to show that they are not American, citizens, oioing allegiance to the United States.
    
    There is no proof of ownership, purchase, delivery, or bill of sale. In answer to the elaborate cross-interrogatory, which would have brought out all the facts, Spiller, one of the main witnesses for the claimants, says he knows nothing about the ownership.
    It is stated in claimants’ brief that Greenwood states, that he was present at the sale by W. T. Iteed of sixty-five bales of cotton to claimants. No such statement can be found. He only says he was present “ when the trade was consummated.” Greenwood does state, on cross-examination, that he was present when the trade was consummated, but he proves no delivery, and no bill of sale. He refers to a receipt of "w. t. Heed, but does not prove it nor its contents; and there is no pretence that such receipt is lost. It should be produced or accounted for. Furthermore, it abundantly appears, in this deposition that Greenwood was employed only to weigh the cotton.
    There is, therefore, no proof that the title to this cotton vested in the claimants, except that it was marked with their brand.
    The loyalty or neutrality of the claimants is proved very unsatisfactorily. It abundantly appears that they were engaged in manufacturing salt in Virginia and saltpetre in Alabama. As to the salt, no point is made, but it is -submitted that the claimants, by using their large capital in the manufacture of vast quantities of nitre and saltpetre, in a mine discovered only just at the beginning of the war, and the discovery of which was hailed with great rejoicing by the confederates, were giving aid and comfort to the rebellion. Very little saltpetre was required for domestic purposes. That and the nitre must have been used for the manufacture of gunpowder. The brier of the claimants virtually admits this. None could have been used for export, for its existence was not known until after the commencement of the war. No reasonable man can doubt that it was chiefly valuable to the confederacy. In fact, after Car-lisle & Henderson stopped their operations, they were immediately succeeded by a Confederate States .army officer at the very same mine.
    They took possession of this saltpetre cave in December, 1861, having bought out the lease of one Dunkelly. They left the mine on the arrival of General Mitchell, with the federal army. They returned in October, 18G2, after the retreat of the federal forces toward Louisville.
    From the testimony it inevitably follows that Carlisle & Henderson were employed in the manufacture of saltpetre, the most valuable of supplies to the confederacy: that they and their Avorkmen enjoyed immunities and the privilege of railroad passes, all granted by the Confederate States of. America because of the peculiar duties in which they were engaged, and it cannot be doubted that they sold the proceeds of their labor to the confederacy, for this cairn was never discoimred nor 
      worked until December, 1801, when the claimants first commenced operations. There could have been no local demand for nitre and saltpetre, and such articles would not have been allowed exportation. They were more valuable than gold and silver.
    This was in direct violation of the laws of the United Sates and the proclamation of the President. By purchasing slaves to manufacture salt in the confederacy, they made a double claim to having given, aid and comfort to the rebellion, for they bought property which had been declared to be not property, but human beings, and utilized their purchase by manufacturing salt, which was one of the vital necessities of the confederacy.
    The petition alleges the purchase of the cotton to have been in Avgust, 18C3, because the claimants could see no other way to invest their capital. This was after the stopping of their saltpetre and salt business. Therefore it follows that the very capital invested in this cotton was the profits arising from their business which gave positive “aid and comfort” to the rebellion. They now claim the ultimate proceeds of those profits from the Treasury of the United States. Such action on the part of British subjects it were base flattery to call neutral; it is double-faced and dishonorable, and does not entitle them to the benefits of the generous spirit of the law of March 3, 18G3.
    In the rebel archives are found—
    1. Oopy of a lease of Santa Cave, in which it is recited that the lease of the cave was derived from French, one of the witnesses for defence, and is sold to the Confederate States of America for $34,000; also inventory of tbe property.
    2. Original receipt for $34,000.
    3. Inventory of “ tools and materials used at Santa Cave,” dated March 4,1803.
    4. Original receipt of Carlisle & Henderson for $3,254 75, for 4,209 pounds of saltpetre, from Confederate States of America.
   Drake, Ch. J.,

delivered the ojúnion of the court:

The claimants sue for the proceeds of sixty-five bales of cotton, captured by Union forces in Marshall CouDty, Alabama, in the year 18G4. Their title thereto is made out, and the only-obstacle to their recovery grows out of the following facts:

The claimants are subjects of the Queen of Great Britain, and, at the breaking out of the rebellion, were residents of the State of Georgia, and they continued to reside within the bounds of the rebel confederacy during the whole period of the war.

From having, in 1860 anil 1861, been in business as railroad contractors, they, in December, 1861, began the manufacture of saltpetre at Santa Cave, in Jackson County, Alabama, and continued engaged therein until the following April, when, owing to the presence of the United States troops in the vicinity, they left the cave, and remained absent therefrom until the following October; -when, immediately after the evacuation of Huntsville, Alabama, by the United States forces, they resumed work in making saltpetre at said cave, and continued it about two months. Their right to make saltpetre there was under a contract of lease between the owners of the cave and other parties, which had been transferred to the claimants, by whom it was, in May, 1863, sold and transferred to the so-called “ Confederate States of America” for $34,600. On the 28th of March, 1862, the claimants sold to the said “Confederate States” 2,480 pounds of saltpetre, and received payment therefor'from a rebel officer, at Richmond, Virginia, on the 27th of June, 1862; and on the 30th of November, 1862, they sold to the said “ Confederate States” 4,209 pounds of nitre, and in the bill of the same, which they receipted, it was expressed that the said nitre was “for manufacture of gunpowder.” The amount of said bill was paid at Larkinsville, Jackson County, Alabama, on the 24th of December, 1862, by the rebel “ super- . intendent of nitre and mining district, No. 9. f and the claimants hired to said “Confederate States” wagons to transport the nitre from Santa Cave to Rome, Georgia.

Aside from these facts, we should be inclined to consider that the claimants had, during the rebellion, observed the obligation of neutrality which their alien character imposed on them, and abstained from giving aid or comfort to the rebellion; but in view of those facts we cannot so hold.

They engaged their capital, skill, and labor in manufacturing and selling to the rebel confederacy saltpetre — an article of X>rime necessity to that' usurping authority, and of which it stood in constant and urgent need. That this was done by them voluntarily there is no evidence to contradict. That it was done deliberately is implied in their purchase of a lease of the cave. That it was done with an eye to the consequences if the Union troops came upon, them, is evidenced by their stopping the work and leaving the cave when those troops came into the adjoining' county, and resuming if when they left there. That they knew the use that the rebels would make of the article is attested by their own signature to a bill, specifying that it was for use in the manufacture of gunpowder. All the circumstances show the act to have been voluntary, deliberate, and intelligent.

. In The Beterhoff,, (5 Wallace, 28,) the Supreme Court gives a classification of goods contraband and not contraband, which is best supported by American and English decisions, as follows:

“ Of these classes the first consists of articles manufactured, and primarily and ordinarily used for military purposes in time of war ; the second, of articles which may be and are used for purposes of war or peace, according to circumstances ; and the third, of articles exclusively used for peaceful purposes. Merchandise of the. first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation or violation of blockade or siege.”

That saltpetre is, under the second, if not the first, of those classifications, contraband of war, cannot be questioned. That the claimants not only sold, but voluntarily manufactured and sold this article to the rebel authorities, expressly to be used “ for manufacture of gunpowder,” and that they knew that the gunpowder, Avhen made, was to be used in slaying men in the armies of the Union, cannot for a moment be doubted.

If we hold, as we did in Bates’s Case, (4 C. Ols. K., p. 569,) that voluntary connection, during the rebellion, with the violation of the blockade laws of the United States, debarred a claimant from recovering in this court the proceeds of captured cotton, much more should we apply that rule to him who voluntarily engaged in producing and selling to the rebels an article contraband of war which, tended directly to support their military operations. The act was one of direct aid and comfort to them, and is a “flat bar” to this suit.

The petition of the claimants if dismissed.

Boring, J.,

dissenting:

Because I think the claimants had a right to sell the products of their business to the Confederate Government as well as to individuals in the Confederate States, and I do not think the evidence shows that they entered into the business of manufacturing saltpetre to furnish it specially to the Confederate Government.  