
    HAYCRAFT’S CASE.
    (8 Court of Claims R., 453
    ; — Wallace R., —.)
    William A. Haycraft, appellant v. The United States, appellees.
    
      On the claimant’s Appeal.
    
    
      Nearly four years after the expiration of the period allowed for bringing suits under the Abandoned or captured property Act, the owner of such property brings his action to recover, not the proceeds which- went into the Treasury, but the value of the property at the time and place of capture on an implied contract. JTe renounces any right of action under the act, and assigns as the reason that he was a rebel and had no right to sue until pardoned in Deoem-Uer, 1868, when the period for bringing suits under the act had expired. The Government pleads to the jurisdiction, and the claimant demurs to the plea. The court below decides that the owner of captured property has no remedy against the Government save that given by the act. Judgment for the defendants. The claimant appeals.
    
    I. The Abandoned or captured property Act' (12 Stat. L., 820) was a war measure, and is to be construed in the light of that fact. It looked to the preservation of enemy’s property, but authorized its capture.
    II. In the enactment of the Abandoned or captured property Act, (12 Stat. L., 820,) Congress acted within its constitutional power to “ malee regulations concerning captures on land and water.” (Art. I, 5 8, par. 11.)
    III. The Abandoned or captured property Act (12 Stat. L., 820) created the only right which any one could have to the proceeds of such property, and provided the only remedy. Where the disloyal owner neglected to obtain a pardon and failed to bring his suit within the period prescribed by the act, he is without remedy. The provision in the act requiring suits to be brought within two years after the suppression of the rebellion is not in the nature of a statute of limitations, but is jurisdictional. If it be not complied with, the judiciary is without power to give redress, and no suit can be maintained on an implied contract arising from the taking of the property or the withholding of the proceeds.
    IV. The title of the United States to the proceeds of captured property (whatever may be the rights it carries with it) is by authorized capture or appropriation of enemy’s property on land. Therefore there can be no question of confiscation in the case of proceeds still remaining in the Treasury which the owner cannot reach because of his former inability to maintain a suit by reason of his own disloyalty.
    
      
      The Reporters’ statement of the ease :
    The following are the material averments of the petition presenting the grounds of the claimant’s case:
    Petitioner avers that he is unable to state the precise amount for which said cotton was sold, or the expenses attending the seizure, transportation, shipment, and sale thereof, but he states on information and belief that the said cotton netted $27,000, and perhaps more, and that at least that amount, as the net proceeds of the sale of said cotton, was paid into the Treasury of the United States, and is now held by the United States in trust and for the use and benefit of your petitioner as the owner of said cotton.
    Petitioner also states that at the time said cotton was so seized and taken as aforesaid, the said place from which it was taken, and the country around and adjacent thereto, including said county, were under the control and within the lines of the Army of the United States, and that there was no lawful and valid capture in war of said cotton.
    And petitioner avers that he never abandoned or forfeited his right to said cotton; that no confiscation or forfeiture of the same has ever been adjudged; and that no proceedings for that purpose are now pending or have ever been instituted.
    That during the late rebellion against the United States, the voluntary residence of your petitioner was in said county of Washington, and State of Mississippi, where, for some time during said residence, the rebel force or organization held sway; and although he was not in arms against-the United'States, he did not at all times, during said rebellion, consistently adhere to the United States, but did at times, to some extent, give aid and comfort to persons engaged in said rebellion, and was therefore precluded from redress in the Federal courts, and especially from the remedy afforded to claimants under the provisions of the act of Congress, approved March 12, 1863 entitled u An act to provide for the collection of abandoned property, and for the prevention of frauds in the insurrectionary districts in the United States.”
    
    But petitioner further avers that he is entitled to and has received the benefit of the full pardon and amnesty duly granted by the authority of the United States on the 25th day of December, A. D. 1868, whereby his civil disabilities were removed and his right of redress by suit in the United States courts was restored, together “ with restoration of all his rights, privileges, and immunities under the Constitution and laws of the^ United States.’’
    Tour petitioner further states that his property aforesaid having been taken possession of by the United States Government and appropriated by it, and the money arising from the sale of said property being now held by the Government, an implied contract has arisen on its behalf to make petitioner just compensation therefor, according to what it was reasonably and fairly worth at the time and place at which it was so taken from him as aforesaid, and accordingly to pay over to him the net proceeds of the sale of said cotton.
    And petitioner avers that the said cotton, at the time and place of its seizure as aforesaid, was reasonably worth the amount of $27,000, being4the amount of the net proceeds of the sale thereof, which amount, under the implied contract aforesaid, claimant is entitled to receive from the United States. Wherefore petitioner prays judgment for the said amount of $27,000.
    
      Mr. T. IF. Bartley and Mr. Joseph Gasey for the claimant, appellant :
    The Court of Claims erred in holding that the only right of action for proceeds of the cotton was exclusively under the Act March 12,1863; also in holding that that court had not jurisdiction, because the suit had not been brought within two years after the suppression of the rebellion; that this limitation was available to defeat the claimant’s action, though he was debarred by an act of Congress from bringing or maintaining such an action.
    Was the right of suit for these proceeds exclusively under the Act March 12,1863 ? The provisions of that act that bear upon this question are :
    “ And 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, and, on proof to the satisfaction of said court of his ownership of said property .of bis right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive the residue of snch proceeds,” &c.
    The radical error of the Court of Claims consists in supposing that the jurisdiction to hear and decide these cases is a special and exceptional one at all. What is this special jurisdiction set up here f The act provides that where a loyal man’s property has been taken and sold by the United States, he may, within two years after the war, bring suit to recover the proceeds; that is, the United States have taken his property, which they had no right to take at all, and have converted it into money, and they hold it as a trustee for him, as the Supreme Court has declared in the Padelford, Klein, and other cases.
    Then he brings an action for money had and received to his use on the implied promise; and that is the whole of this action. It is in fact and in substance that and nothing else. Governments are not liable in torts,) They do not commit legal and technical wrongs. What would be such in an individual is an implied promise to indemnify in the State.
    This is the very essence of the act above quoted.
    Of all such actions the Court of Claims has had jurisdiction ever since the Act February 24, 1855, (10 Stat. L., 612.)
    “ The said court shall hear and determine all claims founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United States.”
    This same jurisdiction is reeonferred in the Act March 3,1863, reorganizing the Court of Claims, (12 Stat. L., 765.) The Abandoned or captured property Act remitted claimants to that court, under the general powers and faculties of the' court as theretofore confirmed and defined by law.
    Such has been the construction uniformly given to this act by this court.
    In United States v. Anderson, (9 Wall., 56,) the counsel for the United States contended that the powers of the Court of Claims in these cases were defined and limited exclusively by the Act March 12,1863, and that the court could not render a judgment for a specific sum, because the act did not provide for that. But this courtrejected this narrow and technical view, and held that the authority conferred by this special Act March 12, 1863, was to be exercised by the court under the general powers of the court.
    So in the case of United States v. Padelford, (9 Wall., 531,) the same strict and narrow construction was again urged upon the court by the counsel for the United States; and that actual, personal, and continued loyalty was a jurisdictional prerequisite to enable the Court of Claims to entertain the suit at all. But says this court
    “ The suggestion is ingenious, but we do not think it sound. The sufficient answer to it is that after the pardon no offense connected with the rebellion can be imputed to him. Under the proclamation and the act the Government is a trustee, holding the proceeds of petitioner’s property for his benefit, and, having been reimbursed for all expenses incurred in that character, loses nothing by the judgment, which simply awards to the petitioner what is his own.” .
    So in the Zelner Case, (9 Wall., 244,) where the Court of Claims had decided that the Act March 12,1863, did not give the right of appeal, and Congress, recognizing the same view, passed the Act June 25,1868, (15 Stat. L., 75,) to confer that right on the United States; but your honors held that the claimant could appeal under the general provisions contained in the Act March, 3, 1863, § 5, (12 Stat. L., 765.)
    The court, by Mr. Justice Nelson, says:
    “This court (the Court of Claims) was organized as a special judicial tribunal to hear and render judgment in cases between the citizen and the Government. The subjects of its jurisdiction icere defined in the act, and generally the mode of conducting its proceedings, subject of course to such alterations and changes as Congress, from time to time, might see fit to make. The subject of its jurisdiction might be enlarged or diminished, '.but this would not disturb or in any way affect the general flan or system of its organization. ' * * * As it respects the act of Congress in question, (i. e., the Act March 12,1863,) no special proceedings are prescribed to the Court of Claims or to the claimant. Any person claiming to be the owner of abandoned or captured property, within the meaning of the act, may, at any time within two years after the suppression of the rebellion, present his claim for the proceeds to the Court of Claims, and they are to proceed in the usual way to hear and adjudicate upon the question of ownership and right to theproceeds, accordingto the proofs and law of the case. * * * Thejudgmenfchas not been rendered by the court under any special power conferred, and it is not pretended that the effect of it is to take away the right of the claimant to appeal from a judgment under the general jurisdiction of the court.”
    These citations, I think, fully justify me in contending, as I do here, that whatever powers were conferred by the Act March 12, 1863, on the Court of Claims, were to be exercised through its general organization and faculties and by its designated means. The difference in legal status affected differently, too, the property and its proceeds of loyal and disloyal persons seized under the Abandoned or captured property Acts. There was no legislation of Congress that authorized any officer of the United States, civil or military, to seize and sell the property of a loyal man. But knowing that mistakes as to the true status of persons had and would be made, Congress provided for loyal men in this act. As to the proceeds of the disloyal person’s property, it remained in the Treasury subject to the policy which the Government should adopt; not its disposal by a subsequent act of Congress, as the Court of Claims, in its opinion in this case, erroneously assumes, but the rightful disposition of these proceeds, either by Congress or by some other branch of the Government, under the Constitution and existing laws of the United States. This subject was amply provided for in the first eight sections of the Act July 17, 1802, (12 Stat. L., 589, 590, 591.) Opinion of Chief-Justice Chase in the United States v. Klein, (13 Wall., 139 :)
    “The Act March 12, 1863, provided for the sale of enemies’ property collected under the act, and payment of the proceeds into the Treasury, and left them there subject to such action as the President might take under the (Confiscation) Act of July 17th, 1862.”
    Under this act the whole power over this subject was vested in the President. He might cause the proceeds of this enemies’ property paid into the Treasury to be libeled and condemned, and to be thus forfeited to the United States, or he could, on the other hand, grant the owners pardon and amnesty, with full restoration of the rights lost or forfeited by rebellion, and thus entitle them to the return of their property or its proceeds. This latter policy he adopted. His right and power to do so, unrestrained by any other than the constitutional limits, have been abundantly sustained and vindicated .by the rulings of this court in the cases referred to and others. This finally settled the question that these proceeds were to be restored to the owners of the property out of which they had accrued. This restoration, so determined on, could only be made through the Court of Claims, whose jurisdiction was exclusive. (Mrs. Alexander's Cotton, 2 Wall., 404, and other cases; Act March 12,1863, § 3,12 Stat. L., 820; Act July 2,1864,13 Stat. L., 375; Act July 27, 1868, 15 Stat. L., 243.) From this court every person in any way implicated in the rebellion was excluded by congressional prohibition until pardoned or amnestied. By the third section of Act March 12, 1863, the claimant was required-to prove “ that he has never given aid or comfort to the present rebellion.”
    In the Act March 3, 1863, § 12, it was enacted—
    “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 theUnited 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 upon the trial such issue shall be found against the claimant, his petition shall be dismissed.” The Act July 2,1864, enacted that property should “ be regarded as abandoned when the lawful owner .thereof shall be voluntarily absent therefrom and engaged, either in arms or otherwise, in aiding or encouraging the rebellion.”
    So too the Act June 25, 1868, (15 Stat. L., 75,) intensified and extended the force and scope of these provisions by enacting—
    “ That whenever it shall be material, in any suit or claim before any court, to ascertain whether any person did not give any aid or comfort to the late rebellion, the claimant or party asserting the loyalty of any such person to the United States during such rebellion shall be required to prove affirmatively that such person did, during said rebellion, consistently adhere to the United States, and did give no aid or comfort to persons engaged in said rebellion; and the voluntary residence of any such person in any place where, at any time during snob residence, the rebel force or organization held sway, shall be prima facie evidence that such person did give aid and comfort to said rebellion and to the persons engaged therein.”
    The third section of the Act July 27, 1868, also provided—
    “ That the remedy given in cases of seizure made under said act, by preferring claim in the Court of Claims, should be exclusive, precluding the owner of any property taken by the agents of the Treasury Department as abandoned or captured property in virtue or under color of said act from suit at common law, or any other mode of redress whatever, before any court or tribunal other than said Court of. Claims.”
    Thus your honors will see, in the light of this legislation, the exact status of this claimant, and the predicament of the proceeds of his property prior to and up to December 25, 1868. As I read these acts, it was this :
    Having aided the rebellion, his property was rightfully seized and sold under the Acts July 17, 1862, and March 12, 1863, to be held by the United States until they should determine, as a matter of public policy, whether it should be restored to the owner by pardon of his crime or condemned and confiscated by judicial proceedings. Till then his right to it was suspended. The jurisdiction of the Court of Claims being exclusive to recover these proceeds, the legislation of Congress prohibited him from suing there at all. So that not only his right to these proceeds, but the capacity to sue for them, was taken away by the capture, sale, and legislation of Congress.
    While this condition of things continued he could not sue, and consequently could not be barred by neglecting to do that which the law prohibited him from doing. No judicial condemnation having been decreed, and his offense having been pardoned, both his right to the property and his capacity to sue for it were restored by that act of pardon and from its date. On the 20th August, 1868, as this court decided in the case of Anderson v. The United States, (9 Wall., 56,) the limitation in the third section of the Act March 12, 1863, expired. At that time Haycraftfs disabilities continued. On the 25th December following the President issued an unconditional proclamation of pardon and amnesty. It contains this important clause:
    
      “ I proclaim and declare, unconditionally and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies, during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution, and the laws which have been made in pursuance thereof. ”
    The sweeping effectof this pardon has been so often declared by the Supreme Court that it is no longer a subject of discussion here. It puts the person pardoned, in all legal aspects and relations, in the same condition as if he had never transgressed, And this power is not subject to any limitation or restriction other than that contained in the Constitution.
    The folio wing cases fully sustain this power: Ex parte Garland, 4Wall.,333; Cummings v. Missouri, áib., 277; Armstrong's Founder y, 6 ib., 776; Saint Louis Street Foundery, 6 ib., 770; United States v. Wilson, 7 Pet., 150; Ex parte Wells, 18 How., 315; 2 S bars wood’s Blackstone, 402; Plowd., 401; Bishop’s Criminal Law, § 713; Perkins v. Stevens, 24 Pick., 280; Gopev. The Commomoealth, 4 Cas., 297; United States v. Padelford, 9 Wall., 531; United States v. Klein, 13 ib., 128; Armstrong v. The United States, 13 ib., 154; Pargoud v. The United States, 13 ib., 156 ; Carroll v. The United States, 13 ib., 351; Carlisle v. The United States, 16 ib., 147.
    The condition or predicament of these proceeds, the owner being disloyal, is similar to that of an outlaw’s property in England seized into the hands of the Queen’s officer. Both his right to his property and the right to sue in the courts of the realm are taken away. B ut when the outlawry is reversed or the offense pardoned, both are restored. The writ of supersedeas releases his person if in confinement, and the writ of amoveas manus restores his goods and his lands. (1 Tidd’s Prac., Am. ed., 143; 5 Bac, Abr., 241.)
    It is also very similar to property seized under our customs, or revenue, or neutrality laws. In either case the property, under certain conditions and limitations, may be sold. In such case, when is the owner entitled to demand the proceeds of his property ? Can it be doubted in such cases, where the litigation for forfeiture or non-forfeiture is undetermined, and the offense unpardoned, or the forfeiture not remitted, that he has no right to the proceeds and could not maintain a suit for them ? His right to them accrues and his ability to maintain a suit for them commences at the moment of remission of the offense for which they are held or final judgment of non-forfeiture in bis favor. Will any statute of limitations run against bim before tbis time % I should be deemed absurd and preposterous if I attempted to maintain sucb a proposition. Yet my learned brothers will pardon me for saying that I cannot distinguish in principle between the supposed cases and the case at bar.
    This court has decided, in Ranger v. Abbott, (5 Wall., 532;} The Protector, (12 Wall., 700;) Insurance Company v. Kauffman, (18 Wall., 151,) and many other cases, that the war, irrespective of the statute of 1864, suspended the running of the statute of limitations between private persons living in the loyal and insurrectionary States. But here, by the statutes of the United States, there was neither right to the money nor capacity to sue for it until December 25,1868. The same act that released the right of the United States restored his and also gave him ability to sue. From that time, therefore, the limitation commences to run against him. What limitation? Not that of the Act March 12,1863, because that had already passed; but, if any, the only other one in existence, that of the tenth section of the Act March 3, 1863. • This provides:
    
      u That every claim against the United States, cognisable by the Court of Claims, shall be forever barred unless the petition, setting forth a statement of the claim, be filed in the court or transmitted to it, under the provisions of this act, within six years after the claim first accrues A
    
    Another instance would arise under the Act of Congress of July 4,1864, (13 Stat. L., 381.) That act takes away the jurisdiction of the Court of Claims, “ if any claim against the United States, growing out of the destruction or appropriation of or damage to property by the Army or Navy, or any part of the Army or Navy, engaged in the suppression of the rebellion, from the commencement to the close thereof.”
    Suppose this act were now repealed, would any person contend that, on suit brought for such a claim in the Court of Claims, the statute of limitations would run against it only from and after the repeal, or, in the language of the Act March 3,1863, from the time the case became cognizable by the Court of Claims ?
    The third section of the Act July 2, 1864, (13 Stat. L., 375,) expressly provides that the property and its proceeds seized under the Act July 17, 1862, as well as that taken under the 
      Non-inter course Act, July 13, 1861, (12 Stat. L., 255,) shall be subject to the Act March 12, 1863, in regard to the sale of such property and the disposition of its proceeds. The main question, therefore, in this case is, When did claimant’s right to these proceeds accrue ?
    Congress had the undisputed right to pass the Acts July 17,1862, and March 12,1863. They had the power to enact that the property of rebels should be seized and sold and the proceeds paid into the Treasury of the United States ; that these proceeds should be there held to abide the public policy that the Government should deem necessary to sustain its own dignity, honor, or interest; to be confiscated or restored, as public exigency or expediency should dictate or require. Until this policy was determined, the right and power of the Government to have possession of and hold these proceeds were incontrovertible. It had the same right that the Queen has to hold the unpardoned outlaw’s lands and goods, or the United States officers to hold the ship or cargo seized for violating the revenue or neutrality laws, till released by judicial fiat or executive pardon. In this case the right accrues at the same instant that the grasp of the' law is released, to wit, on December 25,1868. Prior to that these proceeds in the hands of the United States are like a debt or legacy to fall to a person on a future contingency. The right to the one or the other accrues when the contingency happens, and not till then. The point made in the opinion of the Court of Claims, that the claimant is barred because he could, within the limitation of the Act March 12, 1863, have accepted of the conditional amnesty and pardon, and have thus been enabled to sue within two years after the suppression of the rebellion, does not appear to us well taken. This means, of course, that the legal effect and operation of a free and full pardon is nullified and destroyed by proof of the extrinsic fact that the offender could have been pardoned before if he had asked for it and complied with the conditions. If there be any principle or authority in the law which gives the slightest color or support to such a postulate, it is unknown to us. We think it utterly baseless.
    The same is true of the.argument that it puts rebels in better condition than loyal men. This, in the first place, is not true, and is unsound if it were. The loyal man’s right accrued so soon as his property was sold and the money paid to the United States officers, from the year 1861 till 1865, and that right continued till 20th August, 1868. All this time the disloyal was debarred: 1st, for lack of right to the possession of the proceeds ; '2d, for want of capacity to sue; 3d, because of actual legislative prohibition of the court to entertain his suit or render a judgment in his favor. In the next place, whatever benefit accrues to the former disloyalist is an incident rather than the object of the policy of reconciliation and reconstruction adopted for their own benefit by the United States:
    In every point of view in which we have been able to look at the questions involved we think the claimant’s action ought to be sustained. The United States took Mr. Haycraft’s property and sold it, charged him with all the expenses, and paid the balance into the Treasury. They might have libeled, condemned, and confiscated it, and have made it the property of the United States. But they said, not so; the future interests and dignity of this great nation require that we pardon his offense and restore his property. And now, when he applies to the designated tribunal to take his proofs and give him the remnant of the proceeds of his property that your honors have decided that they hold as mere trustees for him, they interpose the plea of the statute of limitations. How this promise of restoration, how the fiduciary obligations of trustee can be thus fulfilled and discharged are to us inexplicable enigmas. How the United States can fully and freely pardon our client’s offense and still punish it by this confiscation of his property; how they can legally restore his property and still actually keep it; how they can be faithful trustees and yet withhold what belongs to their cestui que trust, are the flaring contradictions that confront us in this case. We cannot believe that Congress or the President, in forming and shaping this policy, ever dreamed of its being wrested to any such purpose. Nor will we believe that this court will sustain views which so seriously reflect upon the good faith and honor of this great nation; that in the dispensation of its mercy and beneficence it mingled trickery and falsehood ; that it deceived and deluded even its erring citizens with faithless promises and false hopes.
    
      Mr. Attorney-General Williams and Mr. Solicitor-General Phillips for the United States, appellees:
    The appellant has no standing in court under the Act March 12,1863, to provide for the collection of abandoned property. (12 Stat. L., 820.) He denies that the cotton was abandoned, but not that it was captured, although he says “ that there was no lawful or valid capture.” He seems to disclaim any right under the above act, and to put himself upon common-law principles as applied to the act which established the Court of Claims and gave it jurisdiction over ‘‘any contract, express or implied, with the Government of the United States.” (10 Stat. L., 612.) It sufficiently appears, however, by the petition that the .cotton was captured, whether lawfully or not. If so, the claimant could proceed only under the above-mentioned act of 1863. The remedy there given is exclusive. It can scarcely be doubtful that where the United States seizes and holds certain property, and at the same time provides for a special method by which those from whom it was taken may review its action and in some cases regain the property, such special method is an exclusive method. The special method in the present case was by claim for the proceeds in the Court of Claims, preferred within two years after the suppression of the rebellion. • (12 Stat. L., p. 820, § 3.) In Mississippi the war ceased April 2,1866. (The Protector, 12 Wall., 700.) This claim was filed July 30, 1872, more than six years after the suppression. The claimant seeks to avoid the effect of this statute by setting up his disability to sue until after the proclamation of pardon, &c., of December 25, 1868.
    He says, in effect, that, as to the class of which he was one, Congress intended that there should be no limitation. For loyal citizens and for citizens who repented early there was to be a brief period for action assigned, while for those who did not repent the period was to be unlimited. We need not say how much a statute meaning this would have shocked public opinion in 1863, or to what extent it would have countermined those proclamations of the President which appealed to Hay-craft and others of his class to return to their duty by considerations growing out of their pecuniary interest so to do. If Haycraft had chosen, he might have preferred his claim during the rebellion at any time after the Presidents proclamation of December 8, 1863, (13 Stat. L., 738,) or upon the suppression of the rebellion by that of May 29, 1865. (Ibid., 758.)
    After either date he might have freed himself from the status of disability in which the capture of this property in April, 1863, found him. His refusal to return to his duty is, when applied to tbe incident of Ms life before the court, a voluntary refusal to bring suit. Volenti non fit injuria. He chose to be brought back to loyalty upon the quasi compulsion of the proclamation of December, 1868, or rather of that of July, 1868, which operated irrespective of and sometimes in contradiction to the will of those benefited by it. It is a rather peculiar circumstance that, with all this upon his memory, Haycraft should have instructed his counsel to insist that he could not have brought suit within two years after the u suppression,” &c.
    It seems unnecessary to say more; yet it is equally clear that if there had been no proclamation until that of December, 1868, this claim must fail. It is material to observe that the statute makes no exception in favor of parties laboring under such status. We may think that there was a good reason why it should not. It is enough to know that it does not. Viewing this act as one of limitation upon the right of claimants to sue, it is pertinent to remark that no exceptions can be made to it except those expressed therein. (Barilc v. Dalton, 9 How., 522.)
    As regards the assumpsit suggested by the claimant: If the proceeds of this cotton went into the Treasury of the United States because of capture, under the statute above mentioned, the two years’ limitation meets the claimant, no matter what he may suggest to be the technical relation between the United States and himself. Besides, this money was paid into the Treasury under express statutory provisions, (12 Stat. L., 820; 13 Stat. L., 375,) and no assumpsit can be implied against the United States under such circumstances. (Carey v. Curtis, 3 How., 236; Cross v. Harrison, 16 How., 164; Curtis v. Fielder, 2 Black, 478; United States v. Bussell, 13 Wall., 623.)
   Mr. Chief-Justice Waite

delivered the opinion of the court:

The main question presented for our consideration in this case is whether one who gave aid and comfort to the late rebellion can, after the expiration of two years from its suppression, commence and successfully maintain an action in the Court of Claims for the recovery of money in the Treasury arising from the sale of his cotton taken possession of by the United States and sold under the provisions of the Abandoned or captured property Act, (12 Stat. L., 820.)

The case has been argued, to some extent, as though it involved tbe consideration of a statute of limitations. To our minds tbe question is one of jurisdiction. A sovereign cannot be sued in bis own courts except witb bis consent. This is an action against tbe United States in its own Court of Claims. The appellant must therefore show that consent has been given to its prosecution. That being done, the jurisdiction of tbe court is established, and he may proceed; otherwise, not.

It is conceded that tbe required consent is not contained in the Abandoned or captured property Act itself, for the only-action there consented to is one to be commenced within two years after the suppression of the rebellion. But inasmuch as the United States has consented to be sued in the Court of Claims upon contracts, express or implied, it is contended that this action may be prosecuted on account of an implied promise by the United States to pay to every owner of captured and abandoned property, whether loyal or disloyal, the proceeds of his property taken and sold.

As the taking was under the authority of an act of Congress, we must look to the act to see if this promise has been made. It is not claimed that any exists if it is not to be found there. If it has been made at all, it was when the property was taken, and is equivalent to an undertaking by the United States at that time to receive and hold the property, or its proceeds if sold, in trust for the use and benefit of the owner whoever he might be. The claim is that the trust in favor of the owner having then been created, the remedy for its enforcement in the Court of Claims as a contract was restored to the disloyal owner by the operation of the President’s proclamation December 25, 1868, granting unconditional pardon to all who participated in the rebellion.

The act authorizes the Secretary of the Treasury, from time to time as he shall see fit, to appoint special agents to receive and collect all abandoned or captured property in the insurrec-tionary States, not including, however, any which had been used or was intended to be used for waging or carrying on the war, such as arms, ordnance, ships, munitions of war, &c. Any part of the property collected might be appropriated to public use on due appraisement or certificate thereof, or forwarded to any place of sale in the loyal States, as the public interests might require. All sales were to be at public auction to the highest bidder, and the proceeds paid into the National Treasury. Tbe Secretary of tbe Treasury was required to cause books of account to be kept, showing from whom the property was received, tbe cost of transportation, and tbe proceeds of tbe sale. And any person claiming to have been tbe owner of such property was authorized, at any time within two years after tbe suppression of tbe rebellion, to prefer bis claim to tbe proceeds in tbe Court of Claims, and, on proof of bis ownership, his right thereto, and that be bad not given aid and comfort to tbe rebellion, receive tbe balance of tbe proceeds remaining in the Treasury, after deducting certain expenses.

Such was tbe power to take given by the act, and such tbe obligation assumed by tbe United States upon tbe taking, with the remedy provided for its enforcement. It was evidently a war measure, and tbe statute is to be construed in the light of that fact. It -was confined to private property of the enemy. Public property was expressly excluded. It embraced no private property except such as was abandoned by its owners or liable to capture. The property in this case was cotton, and, according to tbe uniform decisions of this court, tbe subject of capture. (Mrs. Alexanders Cotton, 2 Wall., 419; I'adelford’s Case, 9 ib., 540.) As was said in Mrs. Alexanders Case, cotton was regarded by tbe insurgent government as one of its “ main sinews of war.” It was in fact tbe foundation upon which tbe financial system of tbe rebellion was built. It was a security tbe insurgents offered for tbe payment of their debts. Upon it they relied for their influence abroad. To obtain it, forced contributions were exacted from its owners. From time to time in tbe progress of the war it was found upon tbe enemy’s territory occupied by tbe military forces .of tbe United States. While, when so found, it might have been owned by non-combatant enemies, and in that sense private property, it was in fact, under the circumstances, at least semi-public. If left undisturbed, and the insurgents should repossess themselves of the territory, it would again be placed where it might strengthen tbe rebellion. Its capture was therefore legitimate, not for booty, but to cripple tbe enemyi In that way it was kept out of tbe insurgent treasury. It might have been destroyed, but tbe unnecessary destruction of property ought always to be discouraged. Tbe act of Congress looked to its preservation, but authorized its capture. In so doing Congress acted within its constitutional power to “ make regulatiotis concerning captures on land and water.’’ (Art. I., sec. 8, par. 11.)

In the indiscriminate seizure which was likely to follow such an authority, it was anticipated that friends as well as foes might suffer. Therefore, to save friends, it was provided thac any person claiming to have been the owner might, at any time within two years after the suppression of the rebellion, prefer his claim, and, upon proof of his ownership and loyalty, receive the money realized by the United States from the sale of his property. That expresses all there is of the trust or the remedy ■provided.

In Klein’s Gase, (13 Wall., 136,) the property collected under this act was said to be of “ a peculiar description, known only in the recent war, called captured and abandoned property,” and that “ the Government recognized to the fullest extent the humane maxims of the modern law of nations which exempts private property of non-combatant enemies from capture as booty of war.” “ No similar legislation,” it was also said, “ is mentioned in history,” and “the Government constituted itself the trustee for those who were hy that act declared entitled to the proceeds of captured and abandoned property, and for those whom it would thereafter recognize as entitled.” And again, (p. 139,) that “ the proceeds of the property have passed into the possession of the Government, and the restoration of the property is pledged to none except those who have continually adhered to the Government. Whether restoration will be made to others, or confiscation will be enforced, is left to be determined by considerations of public policy subsequently to be developed.”

In the same case it was also held (p. 142) that “the restoration of the property became the absolute right of the persons pardoned on application within two years from the close of the war.” Under this construction the effect of the act was to provide a reward for submission to the Government and the acceptance of amnesty, as well as authority for the seizure of property, and it is thus made to operate in two ways to weaken the insurgents: first, by depriving them of their property; and, second, by inducing their adherents to submit to the authority of the United States as a means of regaining that which they had lost personally. In that view time is material. The length of war depends largely upon the relative strength of the contending parties. As a rule, that belligerent is the first to surrender, other things being equal, who first loses the elements of warlike power. Especially is this true in a civil war. Strategy sometimes gives unnatural strength, and thus obtains success, but more commonly war resolves itself into a question of men and money, of strength and endurance.'

According to the doctrine of Klein’s Case, if a suit was commenced within two years, a pardoned enemy could recover as well as a loyal friend. But the commencement of the suit within the prescribed time was a condition-precedent to the ultimate relief. The right of recovery was made to depend upon the employment of the remedy provided by the act. There was no promise even under the rulings in that case, except to such as should commence the suit in time, and upon the trial be in a condition to bring themselves within the requirements of the act. The promise, such as it is, was express. There is no room left for implication. Pardon and amnesty have no effect except as to such as sue in time. In this, Kleins Case but adopts the ruling in previous cases. Thus in Anderson's Vase (9 Wall., 67) the doctrine is stated in these words: “ But by the act in question the Government yielded its right to seize and condemn the property which it took in the enemy’s country, if it belonged to a faithful citizen, and substantially said to him, 1 We are obliged to take the property of friend and foe alike, which we will sell and deposit the proceeds of in the Treasury; and if, at any time within two years after the suppression of the rebellion, you prove satisfactorily that of the property thus taken you owned a part, we will pay you the net amount received from its sale.’” And in Zellner’s Vase, (9 Wall., 24-8:) “Any person claiming to be the owner of abandoned and captured property, within the meaning of the act, may, at any time within two years after the suppression of the rebellion, present his claim to the Court of Claims,” &c. And again, in Armstrong’s Vase, decided at the same time with Klein’s, this is the language of the court, speaking through the late Chief-Justice : “And that the' person so pardoned is entitled to the restoration of the proceeds of captured and abandoned property if a suit be brought within 1 two years after the suppression of the rebellion;’” the special provision as to the time being brought to the attention of the reader by the marks of quotation.

Provisiou might have been made for the institution of suits by loyal owners at any time, but it was not, and the reason may perhaps be found in Klein’s Case. According to that, an insurgent who accepted the offers of pardon which were from time to time extended to him, and became loyal in fact, received, as one of the privileges and immunities to which he was restored, the right to recover the proceeds of the sale of his property taken under the act, if he made his claim in time. To obtain a pardon before the war closed, an insurgent must withdraw himself from the enemy and become loyal. There could be no recovery, even in a suit commenced, until the pardon was obtained, and there could be as soon as it was. Hence the sooner the pardon the sooner the money could be had. So, too, after the contest was over, an early submission by all to the authority of the Government was important. To this the act, as construed, furnished an additional inducement by its promise of restoration if application therefor was made in time.

Additional strength is given to this interpretation of the act by what followed its enactment. On the 17th of July, 1862, the President was authorized by Congress to extend pardon and amnesty by proclamation to persons engaged in the rebellion, with such exceptions and upon such conditions as he should deem expedient. (12 Stat. L., 592.) On the 8th December, 1863, nine months after the passage of the Abandoned or captured property Act, he issued his first proclamation under this authority. (13 Stat. L., 737.) By this he offered full pardon and restoration of property to all insurgents, except a few designated classes, who would take a prescribed oath to the effect generally that they would thereafter abstain from the rebellion and support the Government of the United States. On the 26th March, 1864, by a further proclamation, (13 Stat. L., 741,) he excluded from the operation of the writ prisoners of war and those confined for crime. Thus during the war actual withdrawal from the enemy and an oath of allegiance were made conditions-precedent to amnesty; but on the 29th of May,' 1865, and within three days after the surrender of the last organized army of the rebellion, another proclamation was issued, (13 Stat. L., 758,) offering pardon and restoration of property to all, with certain exceptions, who would take an oath of allegiance alone. On the 7th' September, 1867, but still within two years after the suppression of the rebellion, as it has been determined, another was issued extending the operation of the last to all save three of the excepted classes of persons. (15 Stat. L., 700.). Thus, after the war, simple submission by an insurgent to the authority of the Government was the only price to be paid for pardon and restoration to the right, according to Klein's Case,. of using the means provided by Congress for the recovery of the proceeds of the sale of his captured or abandoned property. Pardon was therefore easy to be had, and the promise of a restoration of this class of property was tendered as a reward for its acceptance to such as would qualify themselves within the prescribed time' to receive it.

This appellant, though one of those who might, did not accept these easy terms. He would not render even this small equivalent for the restoration of his property, and consequently he has not availed himself of the only promise the United States has as yet offered to make looking to that end. The Court of Claims may act upon promises made, but cannot make them.

There is here no question of confiscation. The title of the United States, whatever may be the rights it carries with it, is by authorized capture or appropriation of enemy’s property on land. But the same statute which authorized the capture gave a right to certain persons to demand and receive a restoration of their property taken. Coupled with the right to demand was a provision for the remedy by which it was to be enforced. Both the right and the remedy are, therefore, created by the same statute, and in such cases the remedy provided is exclusive of all others. The demandant in this case neglected to. avail himself of the remedy provided, and consequently he is now without any. That remedy was the only one of which the Court of Claims or any other court has been authorized to take jurisdiction. It is for Congress, not the courts, to determine whether this jurisdiction shall be extended and other remedies provided.

The judgment is affirmed.  