
    LANES'S CASE.George W. Lane v. The United States.
    
      On the proofs.
    
    
      The claimant is authorized, to bring out cotton from the insurrectionary States, which the government agrees to purchase on its arrival at Norfolk, During the voyage from the Chowan river to Norfolk his vessel is seized by a naval officer, but after examination is released. Under a misapprehension as to this fact, Admiral Porte)' order's that she be turned over to the Treasury Department. She is again seized, and the cotton is delivered to a treasury agent as property captured on inland waters. The claimant exhibits his license and demands that the cotton be sent to the treasury agent at Norfolk. The Treasury Department retains the cotton as captured property, but orders an investigation. Before this is concluded the war of the rebellion ends, and the price of cotton falls. Subsequently all of the cotton is restored to the claimant. He brings his action on the ground that the facts were equivalent to a full performance on his part; and also on the ground that they constituted a breach of the contract by the defendant.
    
    I. The appointment of a supercargo by the government to receive cotton on board of a vessel licensed to bring out products from the insurrectionary States, does not change the place of delivery, as specified in the license, and required by act 2d July, 1864 — 13 Stat. L., p. 377.
    II. A cargo of cotton wrongfully seized by the navy and turned over to a treasury agent as property captured upon inland waters, under the act I2th March, 1863 — 12 Stat. L., p. 820— cannot be regarded as delivered to the Treasury Department under a license for bringing out products from the insurrectionary States, pursuant to the act of 13th July, 1861 — 12 Stat. L., p. 255; aud 2d July, 1864 — 13 Stat. L., p. 377. o
    III. The license to bring out products from the insurrectionary States, of which the government is to become the purchaser at three-fourths of the market value on their arrival, (pursuant to act 2d July, 1864 — 13 Stat. L., p. 377,) is a contract; and the detention of a cargo of cotton by the Treasury Department, as property captured by the navy upon inland waters, after the fact is disclosed that at the time of capture it was in transitu under a proper treasury license, is a breach of contract for which the claimant may recover.
    Mr. T. J. D. FdllER for the claimant:
    The petitioner, Lane, made a contract for the sale of cotton to the United States and the delivery of it at a certain place, and at.a certain price, within a reasonable time.
    The United States, the opposite contracting party, prevented Lane from completing his contract by seizing the cotton, taking it into its possession, diverting it from its place of delivery, and thence shipping it to New York, and there storing it and detaining it for several months, and finally restoring it to Lane upon entirely new terms, exacting expenses of transportation and storage, revenue, excise tax, &e., &c., and in a changed and greatly depreciated condition in value.
    If the United States had been a third party and a stranger to the contract, the act for which compensation is demanded being tortuous in its character, exemplary damages could be properly claimed, but, proceeding under the contract and against the defaulting party, the actual damage is only demanded.
    This loss has been incurred or fallen upon Lane by the interference of the United States in violation of the contract. As between private individuals, a similar interference or hindrance would subject the opposite party to a legal liability.
    1. There is but one United States. A contract made by a duly authorized agent of the United States binds all parts of the United States, and all its agents.
    It matters not whether the contract was violated by the agent who made it, or any other agent acting for and in behalf of the United States.
    2. Whatever the naval authorities did, whether authorized or not, the cotton was by them turned over to the treasury agents, and by them accepted and shipped to New York. They did not repudiate the wrongful acts of the navy agents by restoring the cotton to Lane, when it came into their possession. By receiving the cotton and shipping it to New York, the Secretary of the Treasury ratified the acts of the naval authorities.
    The case may he viewed, at the time the cotton was taken from the possession of its authorized custodians, in two aspects:
    
      1. As an executory contract; and
    2. As a contract executed.
    According to tbe original terms of tbe contract, Lane was to deliver tbe cotton at Norfolk, Virginia. If be bad done so, witbin a reasonable time, it would have become a contract executed, and be would have been entitled to bis money.
    It was not taken from him by a stranger. But it was taken from him by one (in the privity of the United States, by an agent of the United States) for whose acts tbe United States are holden. Furthermore, the acts of that agent were confirmed and ratified by the very agent of tbe United States who made tbe contract. It was therefore taken by the United States.
    Being taken from him by tbe United States, Lane was prevented from delivering tbe cotton at Norfolk, Virginia, by the other party to the contract.
    “ The law considers an offer to perform, and a discharge or hindrance of performance by tbe opposite party, equivalent to a performance.” — (Chitty on Contracts, p. 274; 1 Term Kep., p. 638; 8 East. Rep., p. 443 ; 1 Wilson’s Rep., p. 115.)
    Lane may therefore elect to treat tbe cotton as delivered at Norfolk, and tbe contract executed, according to its terms, in tbe eye of tbe law.
    Tbe United States must be holden to the same legal rule of responsibility, in tbe execution of its contracts, that any other private contracting party is.
    Tbe distinction taken by this court in tbe case of Jones et al. vs. United States, (1 C. 0. R., p. 383,) between tbe United States as a contracting party and its capacity of sovereignty in what may pertain to tbe functions of a government, do not apply in this case.
    The acts of public enemies, or a state of public war, do not relieve contractors from tbe responsibility of their contracts, for it is their own folly, or want of tbe exercise of proper precaution, that they do not protect themselves by stipulations against it in tbe contract. Chitty on Contracts, p. 274, and note M, and authorities cited.
    3. Lane could not maintain trespass against Admiral Porter for seizing the cotton, bis acts being ratified by tbe Secretary of tbe Treasury. — (2d vol. Exchequer Rep., p. 267.)
    4. Where tbe party, by his own contract, creates a duty or imposes an obligation upon himself, be is bound to make it good notwithstanding any accident or inevitable necessity, because he might have protected himself in bis contract. Milldam, Company vs. Hovey, 21 Pick., 441.
    
      5. The United States were in possession of the cotton by its own appointed lawful agents so soon as it was placed on hoard the steamer Philadelphia.
    6. Hence the repeated protests of that agent against the cotton being diverted from its lawful destination.
    
      7. It was not a question of prize or no prize :
    1st. Because it was not taken by the captors before a court of competent jurisdiction.
    2d. It was turned over to the civil department by the seizing officer.
    3d. The law forbade the seizure of cotton, as prize, in inland waters where this was taken. — (Sec. 7, chap. 225,1st session 38th Congress.)
    8. In the absence of the provisions of the statute of frauds, as between the parties, the title passes by the agreement of sale.
    9. The property may be regarded as fully vested in the United States from the moment the 257 bales were separated from the mass of cotton belonging to the plaintiff, weighed, and placed on board the steamer. The duty of Lane after that was that of a mere carrier for hire.
    10. The United States, at law, was the only lawful purchaser. It owned one-fourth at all events, and was to pay Lane the value of the remaining three-fourths.
    The Assistant Solicitor for the defendants:
    The legal questions presented by the facts are embraced within very narrow limits. The United States will endeavor to maintain, and will rely upon, the following propositions :
    1st. That the seizure and detention of the claimant’s steamer and cargo was unauthorized, unjustifiable, and unlawful. It was simply a trespass committed by one of the agents of the United States, for which the agent, and not the defendant, is liable.
    2d. The defendant has done no act ratifying the acts of its agents in making said seizure, and cannot, therefore, be considered to have adopted the consequences' of the wrongful acts of its agents, or released them from legal liability therefor.
    3d. Neither of the executive departments of the government can rightfully ratify or adopt the wrongful acts of any agent of the United States. The power to do this, if it exists anywhere, belongs exclusively to Congress.
    4th. The claimant has no remedy upon his contract, because he had not executed it by delivering or offering to deliver the cotton which the agent had agreed to purchase. The agent could incur no liability against the United States beyond the amount of the funds at his disposal, or the quantity of cotton actually delivered to him by the claimant.
    The claimant had a license or permit to trade. What that is, and the measure of authority it carried with it, is well stated in .Halleck’s International Law, page 685.
    The act of "Congress, approved July 2, 1864, chapter 225, page 3?5, authorized the issuing of these permits, and made provisions for the purchase of the products of insurrectionary States, and gave to the persons receiving them all necessary legal protection.
    Again, the orders of the President and Secretary of the Navy had enjoined a strict observance of these permits, or contracts, when properly issued, by the duly authorized agents of the Treasury Department.
    Thus, it will he observed, that from three different sources the claimant might rightfully claim protection in the use of the authority which he received from the agents of the Treasury Department:
    1st. From the law of nations.
    2d. From the act of Congress authorizing commercial intercourse with States previously declared in insurrection.
    3d. From the orders of the President of the United States enjoining upon all officers in the military or naval service a strict observance of these permits, and declaring any officer neglecting to do so guilty of a military offence.
    Commander Macomb, in seizing and detaining the claimant’s .vessel and cargo, violated all these. He had no justification, either in law or fact, for the seizure, and was, therefore, a trespasser.
    There is not sufficient evidence from which the court may infer that there has been a ratification or approval of the act of Commander Macomb, by the proper authorities of the government; and even if there had been, the claimant’s case would not be aided by it; because no executive department of the government has power to impose upon it any liability for illegal or unauthorized acts. It is only for the authorized and lawful acts of its agents that the government is liable.
    The claimant’s contract was not executed so as to give him a right of action upon it. The cotton has never been delivered at the place, or to the agent, specified in the contract.
    A delivery at any other place will not answer the requirements of the law or the contract. The facts set up by the claimant in this proceeding would be a sufficient justification for non-performance of bis contract within the time specified, but do not show such facts as amount to a legal performance.
    The regulations under which the treasury agent acted in making this contract, and by which he was limited and controlled, provided that there should he no liability resting upon the government on account of any agreement to purchase the products of the insurrection-ary States, until the actual delivery of such products.
    
    The claimant’s action upon this contract cannot be maintained. His action is for damages consequent upon the unlawful and unauthorized interference with him in pursuing a lawful enterprise. This court has no jurisdiction to afford the claimant any relief for the wrongs of which ho complains. Congress alone has the power to ratify the wrongful acts of the public agents, and to grant relief to the citizen who has sustained injury in consequence of them..
    Mr. E. P. NORTON, United States Solicitor, closed the argument for the defendants.
   Casey, C. J.,

delivered the opinion of the court:

This is an action brought to recover $150,000 damages for the alleged violation, by the defendants, of a contract for the purchase by them of one thousand bales of cotton, the property of the claimant. The facts and circumstances out of which the claim arises are as follows :

During the late war of the rebellion it was the settled policy of the United States to interdict and prevent all commercial intercourse and traffic with the inhabitants of the rebellious States. But by the acts of 13th July, 1861, (12 Stat. L., p. 255,) and 2d July, 1864, (13 Stat. L., p. 377,) an exception to this policy was established, inasmuch as the President was authorized to permit “ commercial intercourse in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interests.” These acts of Congress authorized the appointment of agents by the Secretary of the Treasury “ to purchase, for the United States, any products of States declared in insurrection, at such places therein as shall be designated by him, at such prices as shall be agreed on with the seller, not exceeding the market value thereof at the place of delivery, nor exceeding three-fourths of the market value in the city of New York, at the latest quotations known to the agent;” and it was specially provided that “ no part of the purchase money for any products so purchased shall be paid, or agreed to be paid, out of any other fund than that arising from property sold as captured, or abandoned, or purchased, and sold under the provisions of this act.” — (§ 8, Act 1864.) They also provided that “ such intercourse should be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury,” “ with the approval of the President.” — (12 Stat. L., p. 257, § 5; 13 Id., p. 376, § 11.)

Under these statutes and regulations the claimant, on the 20th-De-cember, 1864, entered into an agreement with one of the purchasing agents of the United States, which was set forth in the following certificate :

“ I, H. A. Risley, agent for the purchase of products of insurrec-tionary States, on behalf of the government of the United States, at Norfolk, do hereby certify that I have agreed to purchase from G. W. Lane, of Norfolk, Virginia, one thousand bales of cotton, which products it is represented are, or will be, at Chowan river, in the State of North Carolina, on the 1st day of January, 1865, and which he stipulates shall be delivered to me, unless prevented from so doing by the authority of the United States.

“ I therefore request safe conduct for the said G. W. Lane and his means of transportation and said products from Chowan river to Norfolk, Virginia, where the products so transported are to be sold and delivered to me under the stipulation referred to above, and pursuant to regulations prescribed by the Secretary of the Treasury:

“ H. A. RISLEY, Purchasing Agent.

“ D. W. C. FARRINGTON, Deputy.”

Upon the presentation of this certificate to the officer then in command at Norfolk, he issued the following safe conduct:

“ Headquarters DistRict of Eastern Virginia,

Norfolk, Va., December 20, 1864.

“ In accordance with the executive order relative to the purchase of products of insurrectionary States, permission is hereby granted to G. W. Lane to bring from Chowan river to Norfolk, Virginia, by route of Chesapeake and Albemarle canal, one thousand bales of .cotton.

“ The condition of this permit is, that the said products shall be delivered in Norfolk within three months from the date of this instrument, and be immediately on its arrival delivered and sold to the purchasing agent of the United States treasury, according to the executive order aforesaid, and subject to all regulations which do or may exist in regard to said. pnrcbase; and said products sball have safe conduct and shall not be subject to detention, seizure, or forfeiture while being transported from the place and by the route aforesaid to Norfolk, Virginia.

“G. F. SHEPLET,

“Brigadier General Commanding.”

At the same time, and as a part of the same agreement, a sub-agent was appointed, whose authority and duty were defined by the following letter :

“Seventh Agency, TreasuryDepaRtment,

“Norfolk, Va., December 19, 1864.

“ Sir : You are hereby appointed an agent of the purchasing agency of the United States Treasury Department for the purpose and duties hereinafter designated, viz: You will proceed on hoard the steamer Philadelphia, now lying in this port, and in the capacity of supercargo proceed up the Chowan river, in North Carolina, to such points as are designated by Mr. G. W. Lane. On arriving at the said point of destination you will deliver the cargo (a schedule of which is hereto attached) to Mr. G. W. Lane, or order, provided and upon the condition that the said Lane shall deliver to you on board the said steamer three times the value of said cargo in cotton, which you will continue to hold in your possession until the same is delivered to me in Norfolk, Virginia. And all permits granted to Mr. G. W. Lane for the bringing in cotton and taking out supplies you will hold until the aforesaid cotton is safely within the military lines of the United States.

“ By order of

“ H. A. RISLEY, Purchasing Agent.

“D. W. 0. FARRINGTON, Deputy.

“ Thomas Upton, Esq.”

There was also a similar agreement between the parties, bearing date December 19, 1864, for the sale and purchase of one hundred bales of cotton. Under this certificate, a similar safe conduct had been granted by General Shepley, with the addition that it allowed the claimant to take to the Chowan river the goods described in an annexed schedule. This schedule was not signed or certified in any way ; its aggregate value was $10,442 86 ; and-among its items were ninety pairs common boots at $5, and five hundred and five pairs shoes at $1.”

The claimant and the supercargo proceeded accordingly to the Chowan river, where the Philadelphia discharged her cargo, and took on hoard two hundred and fifty-seven hales of cotton. On the 10th January, 1865, as she was leaving Chowan river to go to Norfolk, she was seized by the United States steamer Yalley City, under orders issued by Commander Macomb, commanding the sounds of North Carolina, for carrying goods contraband of war. About this time a letter was received by Commander Macomb, from Rear-Admiral Porter, commanding the North Atlantic squadron, written, however, in ignorance of the seizure of the Philadelphia, which directed that where parties held permits from generals commanding adjoining districts, they should be allowed to go. Commander Macomb therefore, after General Shepley’s approval of the schedule had been obtained, allowed the Philadelphia to depart.

Before the Philadelphia arrived at Norfolk the report of her seizure reached Admiral Porter. A previous report, dated January 4, 1865, also had been made by Commander Macomb, which stated that on her way up the Chowan “ a guard of rebel soldiers was placed on board her to take her up in safety.” Accordingly, when the admiral became thus informed, he ordered that she be sent, with all the evidence against her, to New York.” She was, therefore, reseized, (February 1, 1865,) by the gunboat Ceres, and, being in a disabled condition, was sent, not to New York, but to Roanoke island.

The remaining events of the transaction will be best appreciated ,by being stated in their chronological order : On the 20th February, 1865, Admiral Porter ordered that the Philadelphia be turned over to “ some proper treasury agent.” On the 26th February the claimant addressed a communication to the Secretary of the Treasury, asking that his steamboat, named the Philadelphia, with her cargo of cotton, may be ordered to Norfolk, Virginia, in order that her cargo may be turned over to the agent of the Treasury Department for the purchase of cotton at that place;” and on the same day the supercargo, Upton, protested against the “ vessel being taken, with the cargo, to any other port than Norfolk.” On the 3d of March the Philadelphia reached Newbern, North Carolina, and was formally turned over by the navy to D. Heaton, supervising special agent of the Treasury Department for the sixth district, “ as captured property.” — (Heaton’s report.) “ Receipts were given in accordance with the treasury regulations, and measures taken to have the cotton put in proper order for shipment to the New York market.” On the same day the supercargo, Upton, again protested against being removed from the Philadelphia. On the 15th March the Secretary of the Treasury, pursuant to the request of the claimant, wrote to Mr. Heaton : “ You are hereby directed, if the property has been turned over with charges of the nature above described, [‘ actual or intended violation of the acts of Congress, or the regulations of the Treasury Department,’] to cause it to be taken to some port within a district where an information may he .filed, and the rights of all parties may be decided by a court having legal jurisdiction.” On the 16th March the supercargo, Upton, pro-' tested against the removal of the cotton from the Philadelphia, as the cargo already belongs to the seventh agency, with headquarters at Norfolk, and of which I am in charge as special agent on board the said steamer.” On the 23d March the special agent, Heaton, wrote to the seventh agency, and on the' 28th March to the Secretary of the Treasury, that, in consequence of the unseaworthiness of the Philadelphia, the cotton had been in part shipped to New York, where “the rights of the government in the case and that of the claimants can be fully tried.”

On the 30th April two hundred and thirty-five bales of the cotton arrived in New York, and on the 27th April the balance.

On 'the 25th May the Philadelphia was libelled on the information of the United States in the United States district court for the District of Columbia. On the 11th J uly the Secretary of the Treasury, upon the application of the claimant, ordered the agents of the government in New York to deliver to the claimant “ the said cotton on the payment by him of all lawful and proper expenses incurred in handling, transportation, and care of the same, and on the execution by him of a paper which will protect you and all officers of the government from any legal action for the part taken in the premises.” On the 22d July the claimant received from Murray & Nephew, the agents of the government in New York, two hundred and fifty-two bales of cotton, weighing 114,381 pounds, and gave to them the following receipt:

“ Messrs. Murray & Nephew, of New York, in pursuance of the letter of the Secretary of the Treasury addressed to them, dated J uly 11, 1865, of which the foregoing is a true copy, having delivered to me the two hundred and fifty-seven (257) bales of cotton (121,640 pounds) referred to in said letter, I hereby release the said Murray & Nephew, and all officers of the government, from any legal action for the part taken by them, respectively, in relation to said cotton.

“ GEORGE W. LANE.

“ New YoRK, July 22, 1865.”

At tbis time the cotton was wortb but forty-six cents per pound, and the claimant, when he gaye the receipt, notified the agents that he should pursue his remedy for the difference between the value of the cotton at the time of its seizure and at the time of its redelivery to him, in the Court of Claims or before Congress, and he never would be satisfied until he obtained his rights.”

The claimant’s steamer Philadelphia was sent by Heaton to Washington, D. 0., where she was libelled in the supreme court of the District of Columbia, sitting in admiralty. And on the final hearing of the cause, on the 13th December, 1865, the libel was dismissed, with costs, and the vessel and her papers ordered to be delivered to the claimant.

The claimant contends that if his voyage had not been interfered with aDd broken up by the seizures and detentions detailed in this statement of facts, he would have arrived at Norfolk about the 12th January, 1865, and have delivered the cotton on board to Mr. Bisley, the treasury agent, and, in accordance with his contract, received for it one dollar and eighteen cents per pound, the j>rice at that date in New York, less one-fourth, to be deducted for the use of the United States. That his cotton was unlawfully and oppressively detained from him until the 20th July, 1865, when it had fallen to forty-six cents per pound. The difference between what he would have received if he had been permitted to complete his voyage and deliver the cotton to Bisley, at Norfolk, and the price at the date of redelivery to him in New York, constitutes the claim in this case.

He bases his right to recover on three grounds:

1st. That the appointment of Upton as agent on board, or supercargo of the vessel, and the delivery of the cotton to him on board at the Chowan river, was a delivery to the United States under the contract, and entitled him to be paid the stipulated price.

2d. That the delivery over of the cotton by the naval officers to Heaton, a purchasing agent of the Treasury Department, aud his shipment of it to New York on behalf of the United States, may be taken and regarded as a delivery under the contract, as at the port of Norfolk.

3d. That the recognition and adoption of the acts of the naval commanders by the United States, and through which he was prevented from fulfilling the contract, entitles him to be compensated in damages for the loss sustained. Prevention, in that case, standing for performance.

I. The appointment of Upton to accompany the vessel on her voyage may have been a wise and proper precaution to enforce a due observance of the law and regulations on the subject of this intercourse. But it did not change the place of delivery mentioned or implied in .the contract. Nor, indeed, could Risley have made au agreement which could have fixed the place of delivery on the Chowan river, within the rebel lines,'or at any other than a place designated by the Secretary of the Treasury, under the provisions of section 8, act 2d July, 1864. — (13 Stat., 377.)

II. The delivery to Heaton was not in pursuance of the contract, but in hostility to and repudiation of-jts terms.' It was delivered by the naval officers to him, under act 12th March, 1863, as captured and abandoned property, and so held and treated by him. Nor was it so regarded by the claimant himself. His efforts and applications to the higher authorities of the United States were all based on the idea that his property was unjustly and improperly held and detained ; not for payment of an agreed price, as upon an executed sale and delivery, but for its release as unlawfully withheld from his possession. In this he finally succeeded ; both parties concurring in the same view. It is now too late to say that it was a sale and delivery.

III. If the plaintiff has any cause, it must rest upon the breach and not upon the fulfilment of the contract. Against the liability of the United States for the damages resulting to the claimant, the solicitors interpose the objection that such injury resulted from the unlawful and unauthorized acts of the naval commanders. That for such acts the officers themselves are personally responsible, but for which the government is in no way amenable. They rely on the ruling of the Supreme Court of the United States in the case of Mitchell v. Harmony, 13 Howard, 115. It is true that where a public officer, while engaged in the public service, by an unauthorized and unlawful act does an injury to a citizen, the government is not responsible, hut where the government afterwards adopts and ratifies the acts it is equivalent to a precedent authority. And such ratification and adoption not only make the government liable, but discharge the officer. This question was much discussed in the case of Buron v. Denman, 2 Exch. Rep., 167; -and decided in accordance with the principle just stated. The plaintiff in that case was a Spaniard, who carried on the slave trade at the G-allinas, on the western coast of Africa. He had barracoons or slave marts along the coast. The defendant was a commander in the royal navy. In carrying out some instructions of his superior officer in relation to the liberation of a woman and her child, British subjects held in that country, he destroyed tbe plaintiff's barracoons, and released a large number of slaves held there by the plaintiff. Upon report made to the government, the conduct'and action taken by Commander Denman in the premises was distinctly approved, and his conduct commended, by the ministers of state and the lords of the admiralty. And though the court held that his conduct was unlawful and unauthorized, yet the act being approved and adopted by the government afterwards, made it an act of state, for which the government was alone responsible. The same doctrine is maintained in the case of the Rolla, 0 Rob., 364. In that case Lord Stowell says : “ However irregularly he may have acted towards his own government, the subsequent conduct of government in adopting that enterprise by directing a further extension of that ■conquest, will have the effect of legitimating the acts done by him." Every ratification has relation back to the time of the act done. (Best on Pres., 28; notes to Potter v. North, 1 Saund,, 347 c.; Elphinstone v. Bedrechund, 1 Knapp, 316. Story on Ag., § 244.)

Were the acts of Admiral Porter and Commander Rowan in seizing this vessel and cargo ratified and adopted by the United States ? We think they were. The matter of the seizure was reported to the Secretary of the Navy, who took no action or gave no response to the report. But these officers, instead of retaining the vessel and cargo in their own possession, or in that of the Navy Department, or subject to its orders, delivered both over into the hands of the agent of the Treasury Department. This officer reported the fact promptly to the Secretary of the Treasury, who, acting for the President in that regard, recognized the seizure, and directed such disposition of ■the property as was incompatible with any other view of the case than a clear and distinct affirmance of what had been done by these naval officers. Two courses were open to the executive department of the government — eithér to adopt the acts of seizure by retaining the property, or to restore it to the claimant. The United States through its highest executive authority, expressly authorized by law of Congress to deal with the question, determined the matter. They made their election, and on that the relative rights of the government and claimant must rest. To make this adoption and ratification clear and explicit beyond all denial or controversy, under the same authority the vessel is libelled in a court of the United States and the suit prosecuted in the name and on behalf of the United States by her own officers and agents, duly constituted for that purpose. So that in every way there appears to have been the fullest and clearest recognition of the acts which are the source and ground of the injury to the claimant.

Taking this view of the case it is unnecessary for us to inquire into the views and motives which influenced the conduct of the naval authorities. We should be unwilling, except upon the clearest and most convincing proofs, to believe that gentlemen so distinguished in the service of their country could he influenced by any but the highest and best of considerations. The evidence, we think, discloses nothing to their discredit in any respect, except a superabundant zeal to guard against any illicit’ trading or communication with the public enemy, coupled with a misapprehension of the rights of a party situated as was the claimant in this ease. It was in our judgment, therefore, highly proper that the government should step in and assume the responsibility and relieve those whose only fault was an excess of zeal in the cause of the country.

The suggestions that the outward cargo contained articles contraband of war, and that a file of rebel soldiers were taken on board after the vessel had passed the Union lines, deserve only a passing-notice. It -was the business and duty of the revenue officers or treasury agents to supervise the trade authorized to be permitted by license from the President, with the approval of the military commander of the district. This was strictly complied with in this case. The schedule or invoice of the articles was attached to the order or permit of G-eneral Shepley. The order was signed. It was not necessary that the schedule should be signed, for it constituted a part of the order as much as if it had been incorporated in it. The other suggestion, of having taken rebel soldiers on board, is made in forgetfulness of the facts that the contract, license, permits, and whole object of the arrangement was to obtain products of the insurrection-ary States, situated outside of the Union lines and from within the territory held by hostile forces. The object of the law of Congress and of the contract was to legalize .a certain traffic with the enemy. That could not be carried on without communicating with them to some extent. And no citizen would undertake any such traffic without some assurance beforehand that his person' and property should be inviolate while within the hostile lines. This he would stipulate for beforehand. And the guard of rebel soldiers within the rebel lines was a necessary "incident to the trade which Congress had authorized. But it is unnecessary to argue these questions or attempt to show that the voyage was conducted in a proper and legal manner. That question is not an open one. It has passed beyond the reach of controversy by the decision of the supreme court of the District of Columbia, sitting in admiralty, in the case of the claimant’s vessel, the Philadelphia. It was the- judgment of a court of competent jurisdiction on the same subject-matter, between the same parties, and is therefore as a plea a bar, and as evidence conclusive of the same matter coming in question in this court. It has passed in rem judieatum, and must therefore be considered as finally and definitively settled.

Between individuals the law of this case Vould be clear. Prevention is equivalent to performance as against the party in the wrong. Why should another or different rule be applied when one of the parties is a sovereign State ? When the existence of a contract with the public and the authority to make it are undisputed, the same rules of interpretation and construction that obtain in other cases are applied. The same terms in an agreement with the government impose the same obligations as if both were individuals. The principles of justice, and the rules of right, by which such contracts are defined and their obligations measured, ought to be exemplified in the conduct, as well as enforced by the authority, of every just government. Hence we cannot concur in imputing to the United States the double character of a contracting party and a sovereign in reference to the same transaction, whereby they may assume the obligation in the one capacity, and repudiate and annul it in the other. This would be glaringly unjust. The case of Jones and Brown, 1 0. C. B.., p. 383, does not sustain such a doctrine. That decision only holds that the measures of government unconnected with the subject-matter of the contract, and which had the incidental effect to make it more difficult of performance, and less profitable to the contractor, was not a ground of relief; but if the military authorities of the United States in that case had actually interfered, and by force prevented the completion of the work, and the United States had approved and adopted such acts, the cases would have been parallel, and I may venture to suggest that the case cited might probably have been decided differently. Besides, here the acts were not, as there, in pursuance of any general authorized public policy of the United States, but in direct opposition to and disobedience of both the measures of Congress and the mandates of the Executive.

A majority of the court therefore are of opinion that the claimant ought to recover from the United States the difference between what his cotton was worth when redelivered to him on the 22d July, 1865, and what he would have received under the contract with Risley if the voyage had not been interfered with. In making this estimate we allow to the government and her officers a reasonable time to overhaul the vessel and assure themselves of the character of the vessel, the innocence of the voyage, and the regularity and genuineness of the papers. Taking the time and' place, and circumstances of the seizure, we should say ten days would be sufficient to make every necessary inquiry, and gain all requisite information. The seizure was made on the 10th January, 1865, and this allowance carries it to the twentieth day of the same month. The average price of cotton on that day, in New York, was ninety-six cents; this is therefore the price at which it should be valued, deducting one-fourth to which the United States were entitled under the contract. From the other three-fourths is to be deducted the value of the cotton when it was delivered up to him in New York, in July, 1865, which the evidence shows was forty-six cents; and the balance will constitute the amount to which the claimant is entitled.

The calculation stands thus:

121,640 pounds cotton, at 96 cents. $116, 774 40

Deduct one-fourth for United States. 29,193 60

Net proceeds to claimant at Norfolk. 87, 580 80

Deduct price of cotton when received by claimant in New York, 121,640 pounds, at 46 cents. 55, 954 40

Balance due claimant. 31,626 40

We therefore find in favor of the claimant, and assess his damages at the sum of thirty-one thousand six hundred and twenty-six dollars and forty cents, ($31,626 40.)

Nott, J.,

dissenting:

It is evident that this action can only he sustained upon contract, express or implied. The acts of the government are never torts, and for the torts of its officers the government is never liable. It is determined also by the decisions of this court (Jones and Broum’s Case, 1 C. Cls. R., p. 383) that the government in its character of contractor is not liable for its general and public acts done in its character of sovereign. These principles, clear and simple in themselves, are not always easy of application; and it is advisable, therefore, in the present involved case to ascertain precisely what it was for which the government is supposed to be liable under its contract.

The right to trade with the insurrectionary districts was not a free or general right open to all citizens. On the contrary, it was a privilege granted by the government, and the license constituted of itself a consideration. There was also a number of conditions imposed upon the traffic. A party was not free to dispose of its products. The government was to be the exclusive purchaser at a price less than the market value, determinable at the time of delivery. Congress also had enacted that the liability arising upon such sales should not constitute a general indebtedness of the United States. “No part of the purchase money” (is the language of the act) “shall be paid, or agreed to be-laid, out of any other fund than that arising from property sold as captured or abandoned.” — (Act 2d July, 1864, § 8, 13 Stat. L., 375.) The President, in his general orders of 24th September, 1864, carefully guarded against a trade in 11 articles contraband of war,” or “prohibited by the order of theWar Department.” The regulations of the treasury provided expressly that “no liability of any character shall be authorized or assumed by any agent for or on account of government previous to the actual delivery of the produets, other than a stipulation in the form hereinafter prescribed, to purchase products owned or controlled by applicants at a price to he agreed upon, at the flotee and date of delivery”

All of these regulations bound the claimant and limited any agreement into which the agents of the government might enter.

The “general regulations” of the Treasury Department also provided that—

“VIII. Whenever any person shallmahe application to the purchasing agent in writing, setting forth that he owns or controls products, stating the kind, quantity, and location thereof, or the date at which they will be delivered at some specified location accessible to transportation, the purchasing agent, if authorized by special instructions to purchase such products, shall give a certificate that such application has been made, and request safe conduct for such party, with the necessary transportation, to the locations specified, and for himself and products in transitu from the points named to such purchasing agent.”

And the certificate given by the purchasing agent to the claimant said:

“I have agreed to purchase from G. W. Lane, of Norfolk, Virginia, one thousand bales of cotton, which products it is represented are, or will be, at Chowan river, in the State of North Carolina, on the first day of January, 1865, and which he stipulates shall be delivered tome, unless prevented from so doing by the authority of the United States. I therefore request safe conduct for the said G. W. Lane, and his means of transportation of said products.”

The regulation of the treasury did not contemplate an agreement, but rather indicates that a certificate was to be given, showing that an application had been received, and requesting that a safe conduct should be granted. The certificate given slightly exceeds these very plain and simple hounds in saying, “I have agreed to purchase,” but it does not say “I have purchased;” neither does it express a consideration, nor profess to hind the government in anything; but, on the contrary, after requesting- a safe conduct from the Chowan river to Norfolk, adds, “where the products so transported are to be sold and delivered to me under the stipulation referred to above, and pursuant to regulations prescribed by the Secretary of the Treasury.”

There would seem to be, therefore, on the part of the government, nothing given except a naked grant or permit allowing the claimant to go to a certain place and bring out a certain product; or, at most, an agreement to purchase the product if the claimant should succeed in bringing it out. On the part of the claimant there would seem to be an express agreement in consideration of the permit to go to the place named and bring out the product designated, “unless prevented from so doing by the authority of the United States.”

It might be claimed by the defendants that this exception recognized an authority in the United States to prevent him from performing his agreement. Such a clause was not necessary, unless that authority existed. It was an acknowledgment that the government had authority to revoke the permit, and that it was to be subservient to the military events which were transpiring in the country. If there had been any express or implied warranty on the part of the government, any agreement that the claimant should proceed unmolested, such a provision would have been wholly needless. But without going so far, the excepting clause aids us to construe the contract. It shows that the government assumed nothing. The right to purchase the cotton at three-fourths of its actual value, from the nature of things, was a privilege reserved, and not an obligation assumed. Care and caution of no ordinary degree seem to have been exercised by both the legislative and executive branches of the government to avoid involving the defendants in any possible liability growing out of this insurrectionary traffic. The privileges granted were few, the profits accruing were great; the parties seeking them assumed the risks and chances of the adventure; the government assumed nothing; or at most assumed an obligation to purchase at less than the market value when the successful trader should have brought the products of the trade into the appointed mart.

The agreement has been considered thus far without reference to the appointment of Upton or the safe conduct of General Shepley. As to the former, its terms and directions, its authority to receive and its direction to hold the cotton, were neither required by the regulations of treasury nor authorized by law. Neither does it appear that this appointment of a supercargo was ever shown to the claimant, nor that the instructions were made a part of the agreement, though it does appear that he accompanied the vessel, and that his authority was recognized by the claimant. His appointment must, therefore, he regarded as an additional limitation imposed on the claimant, and the character in which he went that of an inspector or police agent, rather than that of a supercargo or commercial representative. The object in sending him seems to have been to guard against any abuse of the safe conduct by the claimant, and so far was commendable. As to the safe conduct of General Shepley, it did not emanate from a commercial or financial officer of the government; and a military order of this nature could not have bound the government, financially, by any terms which the officer issuing it chose to employ. Neither were its terms in any way incorporated into or made a part of the original agreement. Both the regulations of the treasury and the certificate given to the claimant allude to the safe conduct as a thing to be “requested,” and neither recognizes it as a thing for which the government had contracted, or by which it would he bound.

The position taken during the argument which received the chief attention of the counsel, and, indeed, furnished the principal question discussed, related to the action of the navy in seizing the vessel, and therein, to the violation of a contract by the government, which, it was assumed, did exist. The counsel for the claimant maintained that the act of a high officer, invested with great discretionary powers, as was Admiral Porter, was in legal effect the act of the government, and he cited the case of Buron v. Denman, in 2 Excheq. B.., p. 167. The Assistant Solicitor for the United States, on the contrary, maintained that the case in 2 Exchequer does not apply, because there the action of the officer was sanctioned by his government, and in pursuance of its policy; while here, the action of the navy was in defiance of the orders of the government and contrary to its policy. In short, the broad ground was taken by the Assistant Solicitor that the acts of the naval officers were illegal.

I do not think so. The final seizure and detention of the vessel was by tbe order of Admiral Porter, and tbe question consequently is, “upon wbat information or state of facts did be decide?” It is immaterial bow tbe facts appear to us; tbe question is, bow did they appear to bim ?

Tbe record in tbe case shows that tbe steamer was first reported as having run up tbe Chowan river in tbe night, and that ‘‘ on Tier way up a guard of rebel soldiers was placed on board Tier to take her wp in safety.” This of itself, as it appeared in the report, was good ground for capture, for neither her permit, nor tbe general order of tbe President, nor the acts of Congress excused or sanctioned breaches of military law. She was next reported as having passes and certificates in accordance with tbe general order regulating tbe traffic, and as having “ violated that order by having on board as part of her cargo hoots, shoes, and supplies of all lands, all of which are,” says Commander Macomb, “in my opinion, contraband of war!’

By these reports, whether true or false, tbe duty of tbe admiral, I think, was analogous to that of a civil magistrate, who, on a complaint which confers jurisdiction, commits an innocent person for trial. However false may be the complaint, or however erroneous may be tbe judicial discretion of the officer, so long as tbe papers make out a prima facie case of tbe crime for which the prisoner is held, so long tbe officer is protected in tbe exercise of bis discretion by tbe law. Neither is it within tbe province of the committing magistrate to reconsider bis decision. When tbe commitment is made the case passes out of bis jurisdiction, and tbe prisoner’s innocence must be determined by another tribunal. Precisely thus was the duty of tbe admiral. When be bad determined on tbe evidence before bim that tbe vessel was liable to seizure, it became bis duty to turn her over to tbe Treasury Department for further investigation or final adjudication, and this be did.

With regard to Commander Macomb, bis reports appear to have been erroneous, but not wilfully false. Tbe Philadelphia appeared to bim to have “ eluded the fleet while they were up the Roanoke,” and to have “slipped up Chowan river” during their absence. She then appeared to be bolding direct treasonable communication with tbe armed forces of tbe enemy, and finally was captured bearing tbe evidence, as be thought, of having carried contraband goods directly to that enemy. His good faith is evidenced by tbe fact that be allowed tbe Philadelphia to proceed without waiting for a positive order to that effect, so soon as tbe unverified schedule, which be deemed a suspicious paper, was signed and approved by General Sbepley. Therefore, I think, the good faith of both Admiral Porter and Commander Macomb should not be called in question, and that however innocent the claimant may now appear to us, there did appear to them probable cause for holding him and his property for further examination.

But a majority of my brethren think differently. They believe these acts were unwarrantable, not malicious, but prompted by mistaken zeal; and it is said, “ Two courses were open to the executive department of the government — either to adopt the acts of seizure by retaining the property, or to restore it to the claimant.”

The second course thus indicated, in my understanding of the facts, was precisely that which the government did pursue. It did give up the cotton, and it gave it up in the precise manner pointed out and required by law.

The Treasury Department was charged by law with the custody of property liable to confiscation captured on inland waters. It was also the department that had contracted with the claimant. Therefore it rested with the Treasury Department to ratify the acts of the naval officers and deny to the claimant any further interest in his property, or to restore that property to him. But before restoring it some investigation was necessary. The claimant might be absolutely innocent, but his innocence could not be positively known to the Treasury Department. He stood charged with the commission of a crime, and if he were guilty, his cotton was legally captured property. It was therefore clearly the duty of the Secretary, on the one hand, to avoid treating this cotton as property delivered under the claimant’s contract, and, on the other hand, to investigate the facts of the case and redress, so far as possible, the claimant’s wrongs if he were innocent. Now what did the Secretary do ?

On the 3d or 4th of March the cotton “ was regularly turned, over” to the agent of the sixth agency “ as captured property by Commander Macomb,” On the 15th of March, the Secretary of the Treasury wrote to the agent that if the vessel had been placed in his possession “ charged with actual or intended violation of the acts of Congress or the regulations of the Treasury Department,” “ to cause it to be taken to some port within a district where an information may be filed and the rights of .all parties may be decided by a court having legal jurisdiction.” Considering the many affairs of a great government always pressing upon the Secretary of the Treasury, considering that this was in the last and most trying financial year of the waf, this letter shows a prompt and commendable desire to save and secure the legal rights of the claimant. Before the letter reached the agent, he had unloaded the cotton on account of the leaky and unseaworthy condition of the Philadelphia, and a part of it had been already shipped to New York. He therefore determined to ship the balance to New York, “ where the rights of the government and of all claimants,” as he said, “ may he fully tried,” and to send the vessel to Norfolk.

Under the circumstances, I do not perceive that a wiser or more judicious course could have been adopted. When the vessel came within the jurisdiction of the district court for the District of Columbia, she appears to have been promptly libelled. It was hardly necessary to commence a second suit against the cotton; for the decision made with regard to the vessel would determine all questions with regard to the cargo. The Secretary might now have waited for the decision of the district court before taking further action in the claimant’s case. But instead of so waiting, he ordered, June 24, an investigation to be made by one of his agents. Thd report of the agent bears date the 10th July, and on the 11th the Secretary ordered that all of the cotton be given up to the claimant.

Up to this time it seems to have been understood by the agents of the government that no liability had been incurred by the defendants, and, on the contrary, that they might still exact from the claimant a compliance with the letter of his stipulation. The agent accordingly in this report recommends : “As Mr. Lane was prevented without any apparent fault from delivering it, until restrictions are removed, and as he is already a great sufferer by the fall in cotton while detained by the agents of the government, it would he unjust torequire him to carry o%it the stipulations under which he was transporting it at the time of seizure, and Irespectfully recommend that Messrs. Murray and Nephew he directed to deliver him the cotton on payment of all charges for transportation.” And the Secretary upon this report and recommendation decides : “After a full consideration of the case I have decided to grant the prayer of the petitioner; and yoir are therefore hereby authorized and directed to deliver to Mr. Lane, or his duly empowered attorney, the said cotton on the payment by him of all lawful and ■proper expenses incurred in handling, transportation, and care of the same, and on the execution hy him of a payer which will protect you and all officers of the government from any legal action for the part taken in the premises.”

I am satisfied that from whatever side we approach this case, no cause of action can be found against the defendants. The evidence discloses no intent on the part of the government, or its officers, to violate any contract into which .it had entered. The acts complained of were not designed to be an evasion of the contract, but were an exercise of those sovereign powers with which all governments are invested and to which all citizens are liable. The claimant’s case is a hard one, hut it is simply the case of an innocent citizen, charged with a criminal act by a mistaken witness, committed for trial by a magistrate, indicted by a grand jury, and finally honorably acquitted by the proper tribunal. For such misfortunes the law gives no redress, and this case gains nothing because it was the property and not the person that was seized. When such wrongs are committed without malice they must be borne by those upon whom they fall.

Finally, I think that no attempt can be imputed here, either to the government or its agents, to impair or destroy the claimant’s rights. The officers of the Treasury Department, in each instance, avowed a desire to secure to the claimant his legal rights, and proceeded to have them adjudicated in the precise manner pointed out by law. The real grievance of the claimant lies in the fact that between the 3d day of March, when the cotton came into the possession of the Treasury Department, and the 27th day of April, when it arrived at New York, the great war of the rebellion had ceased, and the value of the cotton had irretrievably fallen.

Loring, J., concurred in the conclusion that the defendants are entitled to judgment.  