
    Benjamin B. Goodman v. The United States.
    
      After the capture of Beaufort, in 1861, the Secretaries of the Treasury and War Departments establish a system for the collection of abandoned or captured property. Large quantities of cotton are collected by their agents, shipped to New York, sold, and the proceeds paid into the Treasury. The Secretary of the Treasury ascribes his authority for these seizures to the Non-intercourse Act. Subsequently the proceeds are treated by Congress and the Treasury as a partpf the abandoned and captured property fu/nd. Among them are theproceeds of the claimant’s cotton, captured'near Hilton Head in 1861. He brings his suit under the Abandoned or captured property Act, and the defendants object that the statute was not passed till 1863, and is not retroactive.
    
    I. An executive system for tlie collection of abandoned or captured property, established by tlie War and Treasury Departments conjointly, existed in 1861, under which large quantities of cotton were seized, sold, and the proceeds paid into the Treasury, and treated as a part of the abandoned or captured property fund.
    
      II.The Secretary of the Treasury having ascribed his authority to seize and sell abandoned and captured property anterior to the statute of that name (tie Act 12th March, 1863) to the Non-intercourse Act (12 Stat. L., 255, § 5), the property must be regarded as seized under color of that statute, though the statute uiaynot have authorized the seizure.
    III. It was the purpose of the Act in addition, fc., 2 d July, 1864 (12 Stat. L., 375) to dispose of all funds derived from captured property by bringing them within the operation of the Abandoned or cairtured property Act, and thereby obviate the necessity of judicial proceedings under the Confiscation or the Non-intercourse Act. The peculiar and limited phraseology of the statute is due to the fact that all known funds were supposed to have been derived from property seized under one or the other of those acts.
    IV. The funds in the Treasury derived from property captured anterior to the Abandoned or captured property Act have never been treated as booty coming within the rule of international warfare by either the executive or the legislative branches of the government.
    V.The proclamation of General T. W. Sherman, issued in November, 1861, assuring the inhabitants aroundPort Eoyal of safety in person and property, was as effective as the similar proclamations which the Supreme Court recognized in the cases of the Venice (2 Wall., 259) and Padelford (9 id., 531).
    
      The Reporters’ statement of the case: _
    The following are the facts as found by the court:
    I. In December, 18G1, the claimant was owner of eighteen bales of sea-island cotton, raised on his plantation on the island of Saint Helena, Beaufort District, South Carolina, during the summer of 1861.
    II. Upon the conquest of the adjacent country, after the capture of Port Boyal, in 1861, all the cotton in the neighborhood of Hilton Head and Beaufort was seized and taken possession of by officers of the Army and Treasury of the United States, sent to New York, sold by the Treasury agent, and the net proceeds turned into the Treasury of the United States, in bulk, to the credit of the captured and abandoned property fund, to the amount of $480,310.85, without segregation or separation of the specific lots owned by different individuals. The average of the net proceeds of the cotton which contributed to this fund is $161.25 per bale, and the amount which represents the claimant’s eighteen bales is $2,902.50.
    III. In December, 1861, the claimant’s cotton, being unginned and in tbe seed, was seized by agents or employés of tbe Treasury and placed on tbe steamboat May Flower, a vessel in tbe employment and under tbe control of tbe agent charged witb tbe collection of cotton in tbat vicinity. It appears tbat un-ginned cotton in tbe seed was received by officers or agents of tbe Treasury and formed a part of tbe mass shipped from Hilton Head and Beaufort, referred to in Finding II. Tbe claimant’s cotton is not specifically traced to tbe official custody of tbe Treasury agent at those places, and from tbe circumstances attending its seizure it cannot be so traced. But tbe Treasury agent, about tbe same time, received large quantities of cotton from unknown sources belonging to unknown persons and from various places of capture and shipment, and this cotton of tbe claimant might, and amid tbe circumstances of tbe case naturally would, have gone into tbe mass at Hilton Head and Beaufort, and constitute a part of tbe cotton received by tbe Treasury agent at those places; and neither its loss nor its shipment to any other point is shown by tbe evidence. The court, upon these facts and tbe presumptions therefrom arising, finds, though without there being direct proof of tbe ultimate fact, tbat tbe cotton owned by tbe claimant constituted a part of tbe mass received by tbe Treasury agent'and contributed to tbe fund set forth in Finding II.
    IV. On tbe 27th of November, 1861, tbe Adjutant-General issued to tbe commanding officer at Hilton Head tbe following order, under and by authority of which tbe commanding general proceeded to seize and collect cotton and other property in tbe district under bis command, and to appoint agents and enter into contracts for tbat purpose:
    “HEADQUARTERS OB TOTE ARMY,
    “ADJUTANT-GENERAL’S Obbioe,
    “ Washington, Nov. 27,1861.
    “Sir: Tbe General-in-Obief desires you, through yóur quartermaster, to seize all cotton and other public property which may be used to our prejudice. Tbe cotton, and such other articles as may not be required for tbe use of your command, will be shipped by return transports to tbe quartermaster in New York, there to be sold on public accoixnt. Tbe services of negroes will be used in picking, collecting, and packing cotton, as well as in constructing defensive works, &c. Private property of individuals should not be interfered witb, unless it be of military utility under tbe circumstances you mention; and you will be justified in taking measures to prevent pillage or any outrage, so far as the exigencies of the service will permit, no matter what relations the persons or property may bear to the U. S. Government.
    “I am, sir, very respectfully, y’r ob’t serv’t,
    “L. THOMAS, “Adjutant- General.
    
    “To Brig. General T. W. Sherman,
    “ U. S. A., Port Boyal, 8. 0.”
    “A. G. Oeeice, Nov. 30,1861.
    “ Official copy respectfully furnished for the information of the Secretary of the Treasury.
    “E. D. TOWNSEND,
    
      “Ass’t Adft GerdlP
    
    
      Y. On the 30th November, 1861, the Secretary of the Treasury prepared and had printed the following general regulations relative to captured property, and the following form of appointment of agents to take charge of cotton, rice, and other property found or brought within the territory occupied by the Army, and the following form of appointment of agents to receive and take charge and sell consignments of such captured property. But it does not appear that such regulations and form of appointment were issued further than is subsequently set forth in the correspondence of the Secretary of the Treasury and the instructions of the Adjutant-General:
    “ General regulations relative to securing and disusing of the property found or brought within the territory now or hereafter occupied by the United States forces in the disloyal States.
    
    “Treasury Department, November, 1861.
    “In order to the security and proper disposition of the productions of the soil and of all other property found within the limits of States or parts of States declared to be in insurrection against the United States, and now occupied or to be hereafter occupied by the troops and authorities of the Union, the following regulations are established:
    “There shall be appointed by the Secretary of the Treasury, with the approbation of the President, agents to reside at such ports or jilaces as are or may be occupied by the forces of the United States, whose duties shall be to secure and prepare for market the cotton and such other products and property as may be found or brought within the lines of the Army or under the control of the Federal authorities.
    
      “To enable sucli agents to fulfil tlie deutis devolved upon them, tbe military and naval authorities, under proper instructions, will render such military protection and aid as may be required to carry out tbe intentions of tbis department.
    “All persons held to service for life under State laws, wbo may be found within such limits, may be employed by tbe agent, wbo will prepare lists embracing the names, sex, and condition of such persons, and, as near as may be, tlieir respective ages, together with the name of any person claiming their services, which lists shall be in triplicate, one for the military commandant, one for the files of the agent, and one to be immediately forwarded to the Secretary of the Treasury.
    “ The persons so listed will be organized for systematic labor in securing and preparing for market the cotton, rice, and other products found within the territory brought under Federal control. Pay-rolls will be prepared, and a strict account of the labor daily performed by each person entered thereon, for which a proper compensation shall be ado wed and paid to the laborers. The amount of such compensation will be fixed, in proportion to the service rendered, by the agent and approved by rhe military commandant and by the Secretary of the Treasury.
    “An inventory of all horses, mules, and other stock, vehicles of transportation, and other property, will be carefully made, and a copy transmitted to the Secretary of the Treasury, signed by such agent.
    “A record of all products taken possession of will be made, and those of each plantation kept distinct. When prepared for shipment, the packages from the several plantations will be plainly marked and numbered, so as to be easily distinguished.
    “An account of all provisions, of whatsoever character, found on each plantation will be taken, and such provisions will be used, so far as may be necessary, for the sustenance of the laborers thereon. Any deficiencies of subsistence will be supplied by the United States commissary, upon the requisition of the agent, to whom they will be charged, and for which he will account.
    “The cotton and other articles, when prepared for market, shall be shipped to New York, and, so far as practicable, by the returning government transports$ and all shipments shall be consigned to the designated agent at New York, unless otherwise specially directed by the Secretary of the Treasury.
    “A carefully detailed account will be kept by the agent of all supplies furnished by the government and of all expenditures made.
    “ Each agent will transmit a weekly report of his proceedings to the Secretary of the Treasury, and render his accounts in duplicate monthly for settlement.
    “All requisitions, bills of lading, and invoices will be countersigned by the military commander or by such officer as he may designate for the purpose.
    
      “Each agent will so transact bis business and keep bis accounts that as little injury as possible may accrue to private citizens wlio now maintain or may witbin reasonable time resume tbe character of loyal citizens of tbe United States.
    “ Secretary of the Treaswry?
    
    “ Treasury Department, November 30,1861.
    “Sir: With tbe approbation of tbe President of tbe United States and by virtue of tbe authority vested in tbe Secretary of tbe Treasury by tbe act of July 13,1861, I hereby appoint you a special agent, to proceed to--, to receive and take charge of all cotton, rice, or other products of tbe soil and of all other property found or brought witbin tbe territory now or hereafter occupied by tbe United States forces in the State of
    “ For tbe purposes of this appointment and to carry out tbe views of tbe government, tbe chief military and naval commandants at-will receive tbe necessary instructions from tbe
    Secretary of War and Secretary of tbe Navy to afford you proper military protection, and to detail such aid as may be requisite in tbe fulfilment of these instructions not incompatible with their military duties.
    “You will, on your arrival, forthwith make lists of all persons held to service for life within the military lines, or avIio may from time to time claim tbe protection of our forces, noting their names and sex, and as near as may be their respective ages, and tbe names of tbe persons to-whom their services are alleged to have been due.
    “You Avill organize tbe persons thus listed, as may be found most comenient, for Avork in picking cotton, com^eying it to tbe gin-houses, ginning, baling, and otherwise preparing it for market. If any rice plantations fall within your supervision, you will take the necessary steps to gather into tbe storehouses all unhoused crops, and, if tbe proper machinery is at hand, haA’e tbe rice bulled and prepared for market. If machinery and coin’eniences for preparing either product for market are not accessible, you will take proper measures to have it shipped in its rough state to New York. Tbe length and character of the voyage would seem to require tbe shipment of rice in bags rather than in bulk.
    “You will also take an account of all other produce, whether native or foreign, and ship to New York such as is not perishable and not Avanted for the troops. Whatever may be required for the , troops you will deliver to the officer authorized to receive it, taking therefor his receipt, setting forth the quantity, character, and estimated Aalue of the article so delivered.
    “You Avill cause complete pay-rolls to be prepared, on which you Avill enter the names of all the persons employed under your direction, and you will determine tbe compensation proper to be allowed, if approved by tbe commanding officer, and inform tbe laborers tbat tbe sum allowed will be paid to them as compensation for their own use and support.
    “ It is presumed tbat tbe provisions upon tbe respective plantations, of which you will make an inventory (as also of all stock, plantation tools, Ambicies of transportation, horses, mules, &c.), Avill be sufficient for tbe sustenance of tbe laborers and employés. For any deficiency you will make your requisitions at stated periods upon tbe government commissary, keeping a distinct account thereof, and charging, so far as practicable, to tbe product of each plantation whateAmr expenditure is incurred in securing, preparing, and shipping such product to market.
    “When such product is ready for shipment you Avill affix such shipping marks as may be necessary for identification, adopting tbe same mark for tbe whole production of a plantation, and varying tbe marks to accord Avith tbe various plantations or reputed owners.
    “ Shipments must be made as rapidly as tbe cotton or other articles can be prepared and means of transportation afforded; and you Avill give such advices of each shipment to tbe agent in New York as Avill enable him to keep bis accounts of adAmuces and sales, AAith each mark or with each plantation, distinct from tbe others. You will be supplied from time to time Avith tbe necessary bagging and bale-rope for tbe cotton and bags for other shipment upon your requisition on tbe agent in New York. All such bags, bagging, rope, or other articles required you will be careful to count, measure, or weigh when received, and charge to each shipment tbe quantity delivered and used for tbe products shipped.
    “For all shipments you Avill make out invoices and bills of lading in triplicate, forwarding one of each to the consignee, one to the Secretary of the Treasury, and retain one subject to the disposition of the military commandant of the port. All requisitions, bills of lading, and invoices must be countersigned by the commandant in chief, or such officer as he may detail for the purpose.
    “In order to economize freights, you will give preference in shipments to returning transports.
    “ It is presumed that all clerical force required can be furnished by the military commandant, by detailing persons competent to perform such seivice, and you will procure, so far as the military commandant shall not be able to supply you, necessary stationery, blank-books, &c.
    “You will keep a record of all your proceedings, and report to this department weekly as much in detail as practicable,' and Avill send duplicates of your requisitions to the Secretary of Treasury.
    “With these general instructions I confide in your activity, integrity, and practical knowledge of tbe duties assigned to you to carry out tbe views of this department with tbe utmost economy and vigor. Your first care should be to secure tbe maturing crop, which, being sea-island cotton, must be picked as fast as the bolls open, otherwise it will fall and become damaged, if not entirely ruined; and in all your action you will endeavor so to transact your business and keep your accounts that no unnecessary injury may accrue to private citizens who now maintain or may within a reasonable time resume the character of loyal citizens of the United States.
    “.With great respect,
    “ Secretary of the TreasuryP
    
    “Treasury Department, November 30,1861.
    “Sir: With the approbatian of the President of the United States, and by virtue of the authority vested in the Secretary of the Treasury by the act of July 13,1861,1 do hereby appoint you agent of this department to receive, on account of the United States, and take charge of all consignments of cotton or other articles shipped to you by direction of this department. Until otherwise directed, you will be governed in the disposition of such cotton or other articles by these general instructions. You will keep an accurate account, by names and numbers and such other distinctive marks as may be forwarded to you by the respective agents and shippers, of each consignment received, debiting such consignment with whatever expenses may be paid by you on its account, whether of freight, labor, storage, or commissions, and credit such consignment with the gross proceeds of sales when realized, and so keep your accounts that the net receipts arising from each shipment may be at once known, and thereby the aggregate net receipts arising from the products of each plantation and owner be distinctly set forth.
    “ You are hereby authorized and directed to sell the cotton or other productions received by you at public auction, after due notice of time and plaef3 being given in two newspapers in Boston, three in New York, and two in Philadelphia, at least ten days prior to the sale, unless from the perishable nature of the article it is deemed expedient to dispose of it immediately after its receipt, in which case you will pursue such course as you deem best for the interest of all concerned.
    “It is suggested that large lots of cotton, if from the same plantation, bring in the foreign markets enhanced prices over small or promiscuous lots, and therefore the entire crop of a plantation should, in the absence of reasons to the contrary, be so offered.
    “ You are expected to procure upon the most economical terms, and forward to the respective agents upon their requisitions, proper bags, bagging, bale-rope, twine, needles, or other arti-eles required for the preparation of the cotton, rice, or other productions for market, and also blank bills of lading, blank-books, and other stationery in reasonable and proper quantities for their use, and you will advise them from time to time of any deficiencies in making up the bales or other packages, or in their marks and numbers, or in the invoices sent, and offer such suggestions as in your opinion will tend to increase the market value of the articles to be forwarded and give effect to the wishes and intentions of the government.
    “ You will make a special deposit with the assistant treasurer at New York, to the credit of the Treasurer of the United States, of the gross proceeds of all sales, taking duplicate receipts therefor, which you will retain as your voucher for such payment. Your accounts must be rendered monthly, in duplicate, and transmitted to the Secretary of the Treasury.
    “ You will report weekly of your general transactions tinder this appointment, specifying any receipts or sales of articles and the receipt and filling of any requisitions made upon you by the agents of the department.
    “A copy of the instructions to the agents is inclosed for your further information.
    “Before entering on the duties of your office, you will execute an official bond to the United States in the sum of $50,000, agreeably to the form accompanying these instructions, and take the oath of office and allegiance prescribed therein, following the directions as to the execution of the bond and other requisite acts noted at the foot of the form.
    “ You will be allowed a compensation at the rate of twenty-five hundred dollars pea annum.
    “ Respectfully, yours,
    
      “Secretary of the TreasuryP
    
    YI. On or about the 4th December, 1861, Lieutenant Colonel Reynolds was ordered by the Adjutant-General to report to the Secretary of the Treasury for special duty, and by the Secretary of the Treasury was appointed agent to collect cotton, rice, and other property at and in the vicinity of -Hilton Head and Beaufort. There is no record in the Treasury of the form of his appointment or of the instructions given him by the Secretary. Pursuant to the order of the Adjutant-General and the instructions of the Secretary-of the Treasury, Colonel Reynolds immediately took charge of the collection of such property, and acted at Hilton Head and Beaufort as Treasury agent; and on the 4th December, 1861, the Adjutant-General issued to the commanding officer at Hilton Head the following instructions, and on tbe 24th December, 1861, tbe commanding officer, in pursuance of sucli instructions, issued tbe following order:
    '“Headquarters oe the Army,
    “Adjutant-General’s Oeeice,
    Washington, Dedr 4,1861.
    “ Sir : I transmit enclosed a copy of instructions to Lieut. Ool. W. H. Reynolds, Rhode Island Artillery, from tbe Secretary of tbe Treasury, to whom Lieut. Colonel Reynolds was ordered to report for special duty.
    “ Tbe General-in-Chief directs that you be governed accordingly, turning over to bim tbe property and persons referred to in tbe letter of instructions enclosed.
    “ You will render him such assistance as be may require, not inconsistent with your military duties, and co-operate with bim in the manner pointed out in» tbe instructions and regulations herein.
    “I am, sir, very resp’y, your ob’t servant,
    C-L. THOMAS, “Adjutant-General.
    
    “Brig. Gen’l T. W. SherMAN, U. S. A.,
    
      “Com? dig Port Boyal, 8. OP
    
    “A. G. 'Oeeice, Dee. 9,1861.
    “ Official copy respectfully furnished for tbe information of tbe Secretary of tbe Treasury.
    “ E. D. TOWNSEND, “Ass’t AdjH General.”
    “[General Orders, No. 42.]
    “ Headquarters Hilton Head, S. 0.,
    
      “December 2i, 1861.
    “I. To most effectually carry out tbe views and instructions of tbe government, as announced in General Orders, No. 41, current series, it is hereby ordered that all quartermasters and public agents who have property in their bands, collected on territory in the occupancy of this command, turn tbe same over to Lieut. Col. Reynolds, general agent of the United States, with invoices describing its quantity and condition.
    “ It is to be particularly understood that no property whatever in tbe above-mentioned category is to be excluded from this transfer, and this transfer is to be made as promptly as possible.
    “ II. Any property now or hereafter collected on territory in tbe occupancy of this command, and considered necessary for tbe troops or for tbe use of the Army, will be obtained on requisitions made by tbe staff officers concerned, approved by tbe post or brigade commander, and sent to these headquarters for the approval of tbe commanding general.
    
      “ When property is thus received from the U. S. agent, it will be accompanied with duplicate invoices, and the receiving officer will return duplicate receipts, and take up the property on his quarterly returns.
    “ III. All proper military protection and aid will be rendered to the U. S. agent by the commanding officers of posts, so that the property above mentioned can be collected and secured to the benefit of the United States in the least possible time.
    “ By order of Brig. Genii T. W. Sherman.
    “L. W. PELOUZE,
    
      uOapt. 15th Infantry, Act. Assistant Adft Q-enV
    
    VII. After the appointment of Colonel Reynolds, the following letters and orders were issued by the Secretary of the Treasury, and the agency was discontinued as therein stated:
    “ Treasury Department,
    “ 31sí Dee’r, 1861.
    “ Sir : I enclose herein copy of letter of this date, addressed to Lt. Col. Win H. Reynolds, to whom has been assigned the duty of gathering, receiving, and shipping to your port the crops and other property coming under the control of the U. S. forces on our Southern coast.
    “ On that letter you will perceive that directions have been given to consign to you all cotton or other property shipped to your port.
    “ You are hereby directed to receive all such property, have it properly stored, and to take such steps as you may deem necessary to secure to the Treasury with as little cost as possible the proceeds of any sales you may make.
    “Enclosed are .copies of Lt. Col. Reynolds’ instructions, the general regulations relating to this subject, and the printed letter of appointment and instructions prepared for the agents resident in the Northern ports (should such be appointed).
    “ It is believed that these embrace all the directions necessary, and you will be governed thereby until other or further instructions shall be issued.
    “Very respectfully,
    “S. P. CHASE, Secretary of the Treasury.
    
    “ Hiram Barney, Esq., OolVr, Hew YorlcP
    
    “Treasury Department,“January 6th, 1862.
    • “ Sir : The cotton sent by the military authorities at Port Royal to the quartermaster at New York will be disposed of by him under the direction of the Quartermaster-General, unless the Quartermaster-General expresses a different wish. At present, after consultation, we have botli agreed to this course. Cotton forwarded by the agent of the department will be received by you and disposed of in accordance with instructions heretofore sent.
    “ I am advised by letter from the agent that he will send a considerable quantity of cotton by the Vanderbilt; part will probably be ginned and part unginned. It will be directed to Quartermaster Tomkins, who will be instructed to turn it over to you; that is'to say, it will be so directed, unless Col. Bey-nolds shall first receive notice of your agency.
    “ Col. Beynolds writes that large quantities are found on most of the islands, but means of transportation are limited, and some time and much labor will be required in getting it forward ; and that he has put in operation all the gins he could find and make available.
    “He appears to have gone judiciously and energetically to work, and I hope for good results from his labors and yours.
    “ With great respect,
    “S. P. CHASE,
    “ Secretary of the Treaswy.
    
    “ Hiram Barney, Esq.”
    “Treasury Department,
    
      11 February 19i7q 1862.
    “Sir: Your report, as special agent, dated on the 3rd, of the condition of the abandoned plantations and the laborers upon them, within the Port Boyal district, is received, and it gives me great pleasure to express my entire approval of your action in the discharge of the important duties devolved upon you.
    “ The whole authority of this department over the subjects of your report is derived from the 5th section of the ‘Act to provide for the collection of duties and for other purposes,’ approved July 13th 1861, by which the President is authorized to permit commercial intercourse with any part of the country declared to be in a state of incurrection, under such rules and regulations as may be prescribed by the Secretary of the Treasury, who is himself authorized to appoint the officers needed to carry into effect such permits, rules, and regulations. As incidental to this authority alone have I any power bo sanction any measures for the culture of the abandoned estates in the Port Boyal or any other district. It is, indeed, in the highest degree essential to commercial intercourse with that portion of the country that the abandoned estates be cultivated and the laborers upon them employed. I do not hesitate, therefore, to continue your agency, with a view to the general superintendence and direction of such persons as may be engaged in such cultivation and employment.
    “ It is understood that an association of judicious and humane citizens has been formed inJBoston, which may act in concert or be consolidated with a similar association in New York and other cities, and that through the agency of these associations, or one of them, persons may be employed to proceed, with the sanction of the government, to take charge of the abandoned plantations under the general plan suggested by yourself, and which is fully approved by this department.
    “Ton will herewith receive copies of orders addressed to the quartermaster at New York and the general commanding at Port Boyal, directing that transportation and subsistence, with all other proper facilities, be afforded to the persons thus engaged. You will therefore receive applications for the employments indicated, and will select and appoint such applicants as you think best fitted, and assign each to his respective duty, it being understood that compensation for services to be rendered will be made by the association, while subsistence, quarters, and transportation only will be furnished by the government, unless Congress shall otherwise provide. All engagements made by you will, of course, be subject to be terminated by the government whenever any public exigency shall require. As agent of this department you will also give all suitable support and aid to any persons commissioned or employed by the associations for the religious instruction, ordinary education, or general employment of the laboring population. It is my wish to prevent the deterioration of the estates, to secure their best ■possible cultivation under the circumstances and the greatest practicable benefit to the laborers upon them, and by these general purposes your own action will be guided.
    “ Deposing great trust in your intelligence, discretion, a,nd benevolence, the department confides this important mission to you with confident expectation of beneficent results.
    “With great respect,
    “ S. P. CHASE,
    “ Secretary of the Treasury.
    
    “ Edward L. Pierce, Esq.,
    “ Special Agent.”
    
    “Treasury Department,
    “ June 18i7t, 1862.
    “Sir: The Secretary of War has assumed the control and direction of abandoned plantations and property within the lines of our Army in the States declared by the President under in-surrectionary control, and has assigned Brig. Gend It. Saxton, charged with that special duty, to the district in which you have been acting as agent of this department for the collection of cotton and other property.
    “ Your appointment as special agent to this department necessarily ceases, therefore, and you will deliver to General Sax-ton all the property taken from the abandoned plantations remaining in your possession or under your control, taking receipts in detail, and forwarding them, with your accounts to the close of yuur commission, to the Secretary of the Treasury.
    “ Tours, truly,
    “S. P. CHASE, “Secretary of the Treasury.
    
    “ Lt. Col. Wi. H. Reynolds,
    
      “ Sp. Agt., <&e.”
    
    “Treasury Department,
    “ June 18th, 1862.
    “ Sie : The Secretary of War has assumed the control and direction of abandoned plantations and property within the lines of our Army in the States declared by the President to be under insurrectionary co’trol.
    “The connection of the Treasury Department, through its officers and agents, with that work necessarily ceases.
    “You will therefore settle, from the proceeds of the sales of cotton and other property forwarded to you from abandoned plantations, the authorized accounts of the special agents of this department, and all other expenses incurred by you in connection with such property, and will hold the balance in your hands, after such settlement, subject to the order of Brig. Gen’1 Rufus Saxton.
    “ With great respect, “ S. P. CHASE,
    “ Secretary of the Treasury.
    
    “ H. Barney, Esq.,
    > “ GolVr, New Yorlc.”
    
    VIII. The proceeds of the cotton sold by Hiram Barney, esq., collector of the port of New York, derived from Hilton Head and Beaufort, remained in his official custody until November 16, 1864, when they were transferred to the Treasury, and ultimately carried to the credit of the account for moneys derived from captured and abandoned property, and amounted, as reported by the Secretary of the Treasury to Congress (House Ex. Doc. 97, 39th Cong., 2d sess., Feb. 19,1867; Senate Ex. Doc. 56, 40th Cong., 2d sess., May 11,1856), to the sum of $1,417,821.65.
    IX. On landing at Port Royal, in November, 1861, General Sherman, the commanding officer, issued a proclamation, which contained the following assurance, to the inhabitants:
    “ To the People of South Carolina:
    
    “ In obedience to the orders of the President of these United States of America, I have landed on your shores with a small force of national troops. The dictates of a duty which, under the Constitution, I owe to a great sovereign State and to a proud and hospitable people, among whom I have passed some of the pleasantest days of my life, prompt me to proclaim tüat we have come among you with no feelings of personal animosity; no desire to barm your citizens, destroy your property, or interfere witb any of your lawful laws, rights, or your social and local institutions, beyond what the causes herein briefly alluded to may render unavoidable.
    “ Citizens of South Carolina: The civilized world stands appalled at the course you are pursuing! — appalled at the crime you are committing against your own mother; the best, the most enlightened, and heretofore the most prosperous of nations. You are in a state of active rebellion against the laws of your country. You have lawlessly seized upon the forts, arsenals, and other property belonging to our common country and within your borders; with this property you are in arms and waging a ruthless Avar against your constitutional government, and thus threatening the existence of a government which you are bound by the terms of the solemn compact to live under and faithfully support. In doing this, you are not only undermining and preparing the way for totally ignoring your own political and social existence, but you are threatening the civilized world with the odious sentiment that self-government is impossible with civilized men.
    “ Fellow-citizens: I implore you to pause and reflect upon the tenor and consequences of your acts. If the awful sacrifices made by the devastation of our property, the shedding of fraternal blood in battle, the mourning and wailing of widows and - orphans throughout our land, are insufficient to deter you from further pursuing this unholy war, then ponder, I beseech you, upon the ultimate but not less certain results which its further progress must necessarily and naturally entail upon your once happy and prosperous State. Indeed, can you pursue this fratricidal war, and continue to imbrue your hands in the loyal blood of your countrymen, your friends, your kinsmen, for no other object than to unlawfully disrupt the confederacy of a great people, a confederacy established by your own hands, in order to set up, were it possible, an independent government, under which you can never live in peace, prosperity, or quietness ?
    “Carolinians: We have come among you as loyal men, fully impressed with our constitutional obligations to the citizens of your State; those.obligations shall be performed as far as in our power; but be not deceived; the obligation of suppressing armed combinations against the constitutional authorities is paramount to all others. If, in the performance of this duty, other minor but important obligations should be in any way neglected, it must be attributed to the necessities of the case, because rights dependent on the laws of the State must be necessarily subordinate to military exigencies created by insurrection and rebellion.
    “T. W. SHERMAN,
    
      uBrig. Gen., Oommcmding.
    “ HEADQUARTERS, POUT ROYAL, S. O.,
    
      u November 8, 1861.”'
    
      X. At tbe beginning of tbe war of tbe rebellion, tbe claimant was a planter, residing on tbe island of Saint Helena. After tbe breaking out of hostilities he abandoned bis plantation, including tbe cotton in suit, and passed within the United States lines, where be enlisted in tbe Twentieth Pennsylvania Volunteers, and served as a soldier of the United States from May 5,1861, to June 28, 1865.
    
      Mr. Thomas Wilson for tbe claimant.
    Tbe act of March 12, 1863, Avas a remedial statute. It was intended by Congress to perfect and carry out a policy which bad theretofore been acted upon and adopted by tbe United States in its dealings Avith loyal residents in States in insurrection. Tbe act of July 2, 1864, AAas part of tbe same plan, and gave a retroactive effect to tbe act of 1863, so as to include tbe acts of 1861 and 1862. They are also remedial statutes so far as the question noAv before tbe court is concerned, and are therefore entitled to a liberal and beneficial construction* and one which will tend to the advancement of tbe remedy provided. "(Cooley on Const. Luav; Sedg. on Const. Law; DAvarris on Stats.; Title, Remedial Stats.; Dis. Opin. Loring, J., in Moore?s Case, 10 C. Cls. R., 3S4.)
    
      Mr. Assistant Attorney-General Simons for tbe defendants:
    The court has no jurisdiction of this claim. Tbe evidence ■shows that if any cotton produced on tbe plantation alleged to belong to claimant avrs taken by any agent of defendants, it AAas taken and removed in December, 1861; and in Moore’s Gase (10 O. Cls. R., 375) this court held that no jurisdiction was conferred upon it by tbe'captured and abandoned property acts of a capture prior to July 17, 1862.
   Nott, J.,

delivered tbe opinion of tbe court:

‘The single question presented by this case is Avhether tbe proceeds, now in tbe Treasury, of cotton Avhich Avas captured anterior to tbe Abandoned or captured property Act (12 Stat. L'., 820) can be recovered under the provisions of that statute.

To some extent this question has been answered by former decisions, Avberein it has been held that tbe Act in-addition, áse., 2d July, 1864 (12 Stat. L., 375), carried, back tbe abandoned or captured property act, and gave to it, to- a certain extent, a retroactive effect. But tlie act in addition does not in terms make the abandoned or captured property act retroactive, and shadows of doubt have tallen upon all of the decisions. It purposes merely to extend the authority of the Treasury agents to seize, collect, and receive certain property liable to seizure under the Non-intercourse Act 13th July, 1861 (12 Stat. L., 255, § 5), or liable to confiscation under the Confiscation Act 11th July, 1862 (12 id., 589, § 5).

Hitherto it has seemed inexplicable that Congress apparently extended themereiful and benignant provisions of the abandoned or captured property act to property which, to borrow a phrase from the prize courts, might be termed “delinquent”; that is to say, property which was being carried from one part of the country to another in violation of the non-intercourse act, or property which, belonging to certain designated classes of persons engaged in the rebellion, was liable to confiscation by judicial proceedings under the confiscation act. And it has seemed equally inexplicable that no express provision should have been made for innocent property previously captured; that is to say, for the property of loyal persons which had been seized by the land or naval forces engaged in the suppression of the rebellion. Besearch.es which have been made in the present case and in the recent case of Winchester, however, enable us to clear up this obscurity, and explain satisfactorily the apparent inconsistency of this remedial legislation.

It now appears that an executive system for the collection of abandoned or captured property existed long anterior to the statute of that name (Act 12th March, 1863), and, indeed, began soon after the beginning of the war. This executive system was called into being by the manifest necessity for saving the large quantity of cotton which fell into the hands of the government immediately after the capture of Beaufort in the autumn of 1861. It seems to have been a system devised by the War and Treasury Departments conjointly, and its operation was intrusted jointly to the officers of the one and the agents of the other. The first utterance of the government came from the War Department on the 27th November, 1861, in the form of an order of the Adjutant-Genera! issued to General T. W. Sherman, the commanding officer of the military district around Port Boyal, directing tbe seizure of cotton and other property which might be used by the enemy and its shipment to the quartermaster in New York.

On the 30th November, 1861, a copy of this order was “furnished for the information of the Secretary of the Treasury; ” and on the same day the Secretary prepared “ General regulations relative to securing and disposing of the property found or brought loithin the territory noiv or hereafter occupied by the United States forces in the disloyal StatesAt the same time, and of the same date, he prepared forms for the appointment of Treasury agents to proceed to different places in the South “ to receive and take charge of cotton, rice,” &c.; and also forms for the appointment of agents in Northern ports to receive and take charge of consignments of cotton and other property as it might be forwarded from the South. Those general regulations and forms of appointment were printed by the department and kept ready for use, and it is probable that in one instance at least the regulations were issued to an agent; but it is proper to add that they do not seem to have been issued generally during the year .1861, and perhaps were not issued afterward.

Early in December, 1861, Lieutenant-Colonel Reynolds, an officer of the Army, was ordered by the Adjutant-General to report to the Secretary of the Treasury for special duty, and by the Secretary was appointed agent of the Treasury to collect cotton, rice, and other property in the vicinity of Hilton Head. Instructions were given to him by the Secretary, which were probably the printed regulations and appointment before referred'to, and a copy of these instructions, whatever they were, was transmitted by the Adjutant-General to General Sherman, and he was ordered to turn over property to the agent, and to govern his actions in relation to the collection of abandoned property by the instructions. Pursuant to this order, General Sherman issued directions to the quarter masters to turn over all such property in their custody to the Treasuay agent, and he proceeded to collect and ship it to New York.

On the 31st December, 1861, the Secretary of the Treasury directed Mr. Hiram Barney, the collector of the port of New York, to receive all of the property that might be shipped by Colonel Reynolds. Mr. Barney did so, and acted as the agent of the government in disposing of the property and receiving the proceeds.

Without entering further into the details of this S3stem established by executive authority, it is sufficient to say that it was substantially the same system afterward ascribed to the legislative authority of the abandoned or captured property act; that the officers of the Army turned over captured property to the Treasury agents under military instruction as they afterward did under the requirements of the statute; that the system was maintained in the Port Royal district until June, 1862, during which a large quantity of cotton was seized; and that the net proceeds, amounting to $1,417,821.65, remained in the custody of Collector Barney until after the enactment of the act in addition, 2d July, 1864, and were in November, 1864, and January, 1865, transferred to the Treasury, and in June, 1866, formally “ covered into ” the Treasury.

The authority which the Secretary of the Treasury exercised in establishing this system and collecting this property' he ascribed to the Non-intercourse Act 13th July^ 1861 (12 Stat., L., 255, § 5). In his printed form for the appointment of special agents to collect this property he says: “ With the approbation of the President of the United States and by virtue of the authority vested in the Secretary of the Treasitry by the act 13th July, 1861, 1 hereby appoint you a special agent,” &c.; in his form for the appointment of agents to receive consignments of cotton lie repeated the same preamble; and in an official communication of February 19, 1862, to Mr. Edward L. Pierce, another of these special agents, he said:

“ The whole authority* of this department over the subjects of your report is derived from the 5th section of the ‘Act to provide for the collection of duties, and for other purposes, approved July 13th, 1861, by which the President is authorized to permit commercial intercourse with any part of the country declared to be in a state of insurrection, under such rules and regulations as may be prescribed by the Secretary of the Treasury, who is himself authorized to appoint the officers needed to cany into effect such permits, rules, and regulations. As incidental to this authority alone have I any power to sanction any measures for the culture of the abandoned estates in the Port Royal or any other district. It is, indeed, in the highest degree essential to commercial intercourse with that portion of the country that the abandoned estates be cultivated and the laborers upon them employed. I do not hesitate, therefore, to continue your agency with a view to the general superintendence and direction of such persons as may be engaged in such cultivation and employment.”

It is not our purpose to decide tbat the uon-intercourse act contains the statutory authority which the Secretary of the Treasury ascribed to it; and, on the contrary, we are of the opinion that its provisions were not really applicable to property seized or captured like that around Port Boyal; but, nevertheless, it is clear that the Secretary ascribed his authority to that act, and that the property was as a matter of fact held under color of the act, and so came to be regarded as property seized by virtue and under authority of the statute.

Thus, in 18(54, when the act in addition was passed, there were in the hands of various officers of the government the proceeds of three distinct classes of captured property, viz: property seized nominally under the non-intercourse act, property seized nominally under the confiscation act, and property taken by military capture or collected as abandoned and ascribed.to the authority of the abandoned or captured property act. If the status of the first two classes was kept unchanged, it would sooner or later be necessary to institute judicial proceedings against the property in the one class or against the owners in the other; for confessedly the title of neither had passed to the government by the mere act of seizure under those statutes. Accordingly, the act in addition, dealing with the facts as they were supposed to exist, extended the provisions of'the abandoned or captnred property act to cotton seized under the two pre-existing statutes, and directed, though in a loose and ambiguous manner, that “all moneys” derived from captnred property, after deducting the necessary expenses, “ be paid into the Treasury

In the month of November following the passage of that act, and apparently in obedience to it, the collector of New York paid into the Treasury the money in his hands derived from this Port Boyal and Beaufort cotton. On the part of the Treasury, it was carried to the account of abandoned and captured property; it was twice reported by the Secretary to Congress as forming a portion of the abandoned and captured property fund (House Ex. Doc. No. 97, 39th Cong., 2d sess., 9, 89; Senate Ex. Doc. No. 56, 40th Cong., 2d sess., 10), and it was covered into the Treasury as money derived from abandoned or captured property. On the part of Congress, with the most specific information twice placed before them in response to their inquiries, no new disposition of the fund was made, no new statute in regard to it framed, and no statutory directions given requiring judicial proceedings to be instituted against it. And when Congress passed tbe Joint resolution 30th May, 186S (15 Stat., L., 251), directing tbat tbe proceeds of captured property be covered into tbe Treasury, and tbe Acts 2oth June, 1868, 27th July, 1868 (id., 75, 8; 243, § 1, 3), ratifying the acts of officers “ done during tbe rebellion” under color of office, and making exclusive tbe remedy in this court in favor of tbe owners of captured property, no discrimination was made against this particular fund. On tbe part of this court, it was held in Jenkins’s Case (8 0. Cls. R., 464), in 1873, tbat this identical money formed a part of the general fund and tbat tbe owner was on titled to relief under the statute; and tbe government left tbe decision unquestioned by an appeal. Thus tbe three branches of the government from tbe first believed and assumed tbat it was tbe purpose of the act in addition, 2d July, 1864, to gather up all outlying captures of property which had not then passed to judicial condemnation and place them within the operation of tbe abandoned or captured property act as completely as if tbat act bad been enacted on tbe 13th July, 1861, instead of on the 12th March, 1863. At this day, when nearly every claim upon tbe fund has been disposed of, it seems altogether too late to examine the question as res novo, and tbe recent decision of tbe Supreme Court in tbe cases of Pugh and Winchester (present term) authoritatively hold that a construction which has been so long acted upon and acquiesced in should not now be disturbed.

. The only perceptible ground on which to escape from the foregoing conclusion is tbat taken by the Assistant Attorney - G-eneral upon tbe argument, viz, that this property, which came to the possession of the government in 1861, was neither forfeit-able within tbe meaning of the one statute (1861) nor held for the benefit of loyal owners within tbe meaning of tbe other (1863), and that it must be regarded as booty within the rule of international warfare. • It would seem a sufficient answer to the proposition that the government most cabefully refrained from exercising that rigorous prerogative of a belligerent during the late civil war. But be that as it may, it appears in this case that the commanding officer, who represented the government, ■when he took possession of the district of country around Port Royal, prior to the capture of the claimant’s cotton, issued a proclamation, in which he assured to tbe inhabitants safety in person ancl property. We regard tbe proclamation of General Sbermau as decisive of the claimant’s right of property, and we give to it the same effect which the Supreme Court gave to the proclamation of General Butler in the case of The Venice (2 Wall, 259), or which the same tribunal gave to the proclama-lamation of the President in the case of Padelford (9 Wall., 531).

Finally, in neither the action of the government, nor in the legislation of Congress, nor in the decisions of the judiciary do we find a reason for saying that there is now a large nondescript fund in the Treasury which is neither the fruit of judicial forfeiture and condemnation nor the proceeds of abandoned and captured property as known to the statute. Whatever doubts once existed in the mind of the court, recent investigation has set at rest. We are now fully satisfied that Congress intended by the act in addition, 2d July, 1864, to bring all funds derived from abandoned or captured property not disposed of by judicial proceedings under other statutes within the operation of the abandonded or captured property act.

The judgment of the court is that the claimant recover the proceeds in the Treasury of eighteen bales of cotton, at $161.25 per bale,- amounting in the aggregate to $2,902.50.

Draice, Oh. J., was absent when this case was heard, and took no part in the decision.  