
    GEORGE T. VANCE ET AL., EXECUTORS, v. THE UNITED STATES.
    [Congressional, 9008.
    Decided April 1, 1895.]
    
      On the claimants’ Motion.
    
    The case is submitted upon the proofs and the facts are found by the court. The claimants then move to amend the findings by inserting various things established, or believed to be established, by the evidence.
    I.The findings of fact in appealable cases are simply to present to the appellate court questions of law.
    II.The findings in Congressional cases are to inform the legislative authority of those things which are necessary for the convenient exercise of the legislative intelligence. They are not intended to present to Congress legal questions for judical determination.-
    III. It is the duty of the court to so frame its findings that they shall give rise to no misunderstanding in Congress as to the legal or equitable conditions of a case.
    IV. The purpose of the Bowman Act is expressed in its title “To afford assistance and relief to Congress ; ” not that the court shall assist claimants to present only their side of a case or present it through the disturbing medium of an erroneous legal theory.
    V. It is the duty of the court to refrain from finding facts which imply that a legal right was impaired when, in the opinion of the court, no such legal right existed.
    VI.While it is not the object of the findings to present questions of law, they may show, for the convenience of Congress, the relations of the facts to the law and advert to the law which will be applicable to the facts.
    VII.The determination of what are the facts relative to the asserted rights of the claimant will involve the exercise of the judical function, as does the determination of what is or what is not competent evidence; and to this extent Congress have made this court, in this class of cases, a court of last resort.
    VIII.So soon as cotton situated in Mississippi passed into the possession of the Government by lawful capture, the only legal right which the owners jmssessed was that of having it disposed of according to the provisions of the abandoned or captured property act. When it was turned over by the officers in charge to third persons the owners were deprived of a legal right, and their indemnification for that deprivation is a proper subject for legislative discretion.
    IX.The proceedings of a military board bind neither party and are not competent evidence to establish the facts in a civil case.
    
      X. The order of a commanding general designating a strip of country in Mississippi as within his military lines and assuring citizens that their rights to property should he protected could not change the legal character of the territory. It continued hostile, and property therein continued to he enemy's.
    XI. The Treasury permits to bring in cotton gave an assurance that it should he exempt from seizure when brought in as when in transitu, hut did not impress upon the property a new character or exempt it from capture before the owner should move it.
    
      The Reporters'’ statement of the case:
    The claim in this case was transmitted to the court by the following resolution of the Senate:
    “ In the Senate oe the United States,
    
      u April 21,1892.
    
    
      “ Resolved, That the claim of George T. Yance and Guy P. Yance, executors of the estate of William L. Yance, deceased, late of Memphis, Tennessee, represented by Senate bill numbered forty, be, and the same is hereby, referred to the Court of Claims, with all the papers in the case, under the provisions of the act of March third, eighteen hundred and eighty-three, commonly known as the ‘ Bowman Act,’ as amended by the act of March third, eighteen hundred and eighty-seven, commonly known as the ‘Tucker Act,’ to find the facts, for the information of Congress.”
    The following is a copy of the bill above referred to:
    “A BILL for the relief of George T. Vance aud Guy P. Vauce, executors of the estate of William L. Vance, deceased, late of Memphis, Tennessee.
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    The following is a copy of claimant’s petition before Congress :
    “ To the Senate and House of Representatives of the United States of America in Congress assembled:
    
    “ The petition of George T. Yance and Guy P. Yance, executors of the estate of William L. Yance, late of Memphis, Tenn., and surviving partner of Topp and Y anee, respectfully represents that they have a claim against the United States for the proceeds of one hundred and seventy bales of cotton, belonging to Topp and Yance, of Memphis, Tenn., which was taken from them on the Yazoo Eiver, in Mississippi, in February, 1864, and taken to Yicksburg and turned over by the military-authorities to one Nolan, with other cotton, to reimburse him for 600 bales of cotton that had been taken from him (Nolan) to case the gunboats in running the blockades at Yicksburg. Robertson Topp and William L. Yance were merchants, doing business under the style and name of ‘ Topp and Yance,’ and were loyal to the Government of the United States throughout the war of the rebellion, and never gave any aid or comfort to the rebellion.
    “That in April, 1864, said Topp and Yance, by their agents, proved that the cotton belonged to them before a military board convened for that purpose, and said board found that said Topp and Yance were the owners of said cotton, and ordered the same to be turned over to them; but before the order was executed the cotton was turned over to Nolan as aforesaid, and shipped to New Orleans and sold on his account.
    “ Subsequently Topp and Yance petitioned Congress, and finally, after the passage of the act of March 3,1883, the War Claims Committee of the House of Representatives referred the claim to the Court of Claims to find the facts under the provisions of said act. Here all the testimony ivas taken and filed and printed, fully showing all the facts in the case and proving the loyalty of Topp and Yance throughout the war, and the value of the cotton, and that it was absolutely taken and used to pay a debt in kind due by the United States to Nolan.
    “On the trial the court wrongfully dismissed the petition on the ground that it had no jurisdiction to find the facts as requested by the claimant. Knowing the error and injustice of the decision, and there being no appeal therefrom, your petitioners now come to Congress and respectfully request Congress to refer the case again to tbe Court of Claims, under tbe provisions of tbe act of March 3,1883, as amended by tbe act of March 3, 1887, commonly called tbe ‘ Tucker Act,; in order that tbe facts may be found for tbe information of Congress, and as in duty bound.”
    Tbe petition in this court contains among others the follow- ' ing allegations:
    “ That George T. Vance and Guy P. Vance represent that they are tbe executors of tbe estate of William L. Vance, who was tbe surviving partner of tbe firm of Eobertson Topp and William L. Vance, trading under tbe name of Topp & Vance, late of Memphis, Tenn.; that they have a claim against the United States for tbe value of one hundred and seventy (170) bales of cotton, which were seized in tbe month of February, 1864, by tbe military forces of tbe United States from tbe decedents, Eobertson Topp and William L. Vance, from tbe plantation of Mrs. Mary A. Butler, at Frencbs Bend, on tbe Yazoo Eiver, in Sunflower County, Mississippi.
    “ That said cotton was transferred from Frencbs Bend, on tbe Yazoo Eiver, to Vicksburg, Miss., and turned over to tbe quartermaster of tbe U. S. at that place; that subsequently Topp and Vance applied for tbe return of their 170 bales of cotton to tbe military board which bad been convened by order of tbe major-gen’l commanding for tbe purpose of bearing and adjudicating all claims of loyal citizens residing, on tbe Miss. Eiver within tne limits of tbe military district for damages sustained to their property, &c., special reference being bad to tbe seizure or destruction of cotton.
    “That said cotton was not turned over to Topp & Vance, or their agents, or any part thereof; but that said cotton was turned over and' delivered with other cotton, in all 600 bales, to W. L. Grant, tbe authorized agent of Joseph Nolan, being-in full for tbe claim of said Joseph Nolan against tbe U. S. for cotton alleged to have been furnished by him in 1863 above Vicksburg for military and naval purposes, to be used on tbe gunboats and other boats running tbe blockade at Vicksburg previous to its fall.
    “Value of tbe cotton is alleged to have been $136,000, less $7,139.50 for transportation and expenses from tbe place of capture to Vicksburg and for estimated expenses from Vicksburg to New Orleans, and for internal-revenue tax, leaving an alleged balance due to tbe claimants of $128,860.50.
    “That tbe cotton, when it was seized, was within tbe military lines of tbe United States, and under their protection within tbe meaning of General Orders, No. 50, issued by General Grant, August 1, 1863.”
    
      The court upon the evidence found the following facts for • the consideration of Congress:
    I. The decedents, .Robertson Topp and William L. Vance, trading under the name of Topp & Vance, were loyal citizens of the United States, and never gave any aid or comfort to the rebellion; and the present claimants are the executors of the estate of William L. Vance, the surviving partner of the firm.
    II. The cotton which is the subject of the present proceedings was captured by a military expedition, under the command of Col. J. H. Coates, about the 20th of February, 1864, on the farm of Mrs. Mary A. Butler, in Sunflower County, Miss. The place of capture was at the time in the military possession of the Confederate forces, and was enemy’s territory. The cotton was not taken for the use of the Army, and was not used as stores and supplies. The capture was authorized by the laws of the United States, and was in pursuance of the military policy which declared cotton to be one of the sinews of war. After the capture the cotton was transported to Vicksburg and turned over to the military officers in charge of captured property.
    III. After the cotton reached Vicksburg, General Sherman, on the 13th of March, 1864, ordered that 1,000 bales of cotton captured by the Coates expedition “be turned over to the Treasury Department,” and that “ the balance can be disbursed under direction of the board established by General McPherson, at Vicksburg.” This board examined witnesses produced on behalf of various claimants, and reported among other things that the firm of Topp & Vance had purchased 170 bales from Mrs. Butler, and were the owners thereof, and recommended that this cotton be turned over to them upon payment of a reasonable sum for freight and storage. On the 6th June, 1864, General Sherman disapproved the recommendation of the board and decided that the property was vested by capture in the United States absolutely. The cotton claimed by Topp & Vance, therefore, continued to be held at Vicksburg as captured property.
    IV. On the 8th August, 1864, General Slocum, commanding the District of Vicksburg, ordered the officer in charge of captured cotton “to deliver to W. L. Grant, the authorized agent for James Nolan, 600 bales of cotton from any Government cotton in his possession, the same being in full for the claim of James Nolan against the United States for cotton seized and used for military and naval purposes.” In the execution of that order the officer having charge of captured cotton at Vicksburg turned over to Nolan the 170 bales alleged to belong to Topp & Vance. The cotton bore marks rendering it capable of identification and was at the time identified as that claimed by Topp & Vance, and the transfer was made against the protest of their agent. The action of the officer was without authority of law and contrary to the statute and the orders of the War Department, and was destructive of the legal rights of loyal owners to recover the proceeds of their captured property under the abandoned and captured property act. The transfer of the cotton to Nolan conveyed no title in the property to him; but the alleged owners, Topp & Vance, being then domiciled within the Confederate States, could not follow the cotton and institute legal proceedings to recover it in courts of the United States.
    V. It has not been shown by competent evidence in this court that Topp & Vance purchased the cotton of Mrs. Mary A. Butler, on whose plantation it was found and séized. The military board above referred to found that they were the owners, on an ex parte affidavit of Mrs. Butler, stating that she had sold it to them, and on the further fact that she sought to recover for herself only the remainder of the cotton captured on her premises. But there is competent evidence to show, and the court so finds, that Mrs. Butler, in whose possession the cotton was when captured, and who was prima facie its owner, renounced any right of property in it amid circumstances that would estop her from asserting that it was not the property of Topp & Vance.
    VI. The place where the cotton was seized in February, 1864, was within the geographical limits of the territory designated as “ west of the Mississippi Central Railroad,” by the orders of General Grant, No. 50, issued at Vicksburg August 1,1863; but the place of capture nevertheless continued to be enemy’s territory, and was such at the time of the seizure, as decided by the Supreme Court in the case of Hamilton v. Dillin (21 Walk R., 73), and the adjacent country was then under the control of the Confederate military forces.
    VII. What the net proceeds of the cotton would have been if it had been sold with the other cotton captured at the same time and the net proceeds bad been paid into tbe Treasury, in compliance with the provisions of the abandoned or captured property act, has not been shown.
    The price of similar cotton in New Orleans in the summer of 1864 would have amounted, for 170 bales, to $51,000, and the probable cost of transportation from the place of seizure to Vicksburg, and from Vicksburg to New Orleans, together with commissions, storage, the license fee for bringing in cotton at that time, and all proper incidental expenses, would have been $7,139.50, leaving as the net price, if the owners could have securely and actually transported the cotton to New Orleans, the balance of $43,860.50.
    The market value of the cotton at Vicksburg at the same time would have been about 5 per cent less than that in New Orleans, to wit, $41,667.
    
      Mr. P. JE. Bye for the claimants submitted after the filing of the findings of fact the following motion to amend and change them:
    Finding II. The cotton which is the subject of the present proceeding was taken by a military expedition under the command of Col. J. H. Coates, about the 20th of February, 1864, from the farm of Mrs. Mary A. Butler, in Sunflower County, Miss.
    The expedition was directed by General Sherman “To produce a diversion; punish certain parties who were hostile, and bring out cotton to indemnify the Government and certain friendly parties on the Mississippi River, who had been robbed by the Confederate authority.”
    The place from which the cotton was taken was within the limits described in General Orders, No. 50, of General Grant, dated August 1,1863, wherein if is directed, viz:
    “The citizens of Mississippi within the limits above described are called upon to pursue their peaceful avocations in obedience to laws of the United States.
    “Whilst doing so in good faith, all United States forces are prohibited from molesting them in any way.”
    The cotton was transported to Vicksburg and kept in military possession.
    
      Reasons for amendments as above. — The cotton taken was not captured within the meaning of the captured and abandoned property act.
    Whether the taking of the cotton was authorized, and in pursuance of military policy, is a question of law.
    
      It is a fact that the place from, which the cotton was taken was within the limits described in General Orders, No. 50, and there is no evidence that Mrs. Butler’s place was enemies’ territory.
    Finding III. That finding iii be amended to read as follows:
    On or about March 13,1864, after the cotton seized on said expedition reached Yicksburg, General Sherman made the following orders, which were indorsed upon the report of the cotton taken on the Yazoo River expedition:
    “Referred to Gen. Hurlbut. Turn over to the Treasury Department 1,000 bales, and the balance can be disbursed under direction of the board established by Gen. McPherson at Yicksburg.
    “ W. T. SherMAN, Maj. Gen. Com’d’g.”
    
    “Headquarters 16th Army Corps,
    “ Memphis, Term., April 2,1864.
    
    “ Respectfully referred to Brig. Gen. John McArthur, commanding dist. of Yicksburg, for compliance with the orders of the Maj. Gen. commanding Mil. Div. Miss.
    “By order of Maj. Gen. S. A. Hurlbut:
    “T. H. Harris, Asst. Adjt. Gen.”
    
    The claim of Topp & Y anee was presented to the military board, who, after examination of witnesses, reported as follows:
    “ The board, having duly examined and considered the case of Topp & Yance, find as follows:
    “ That Messrs. Topp & Yance are loyal citizens of the U. S.; that said Topp & Yance, through their agent, did buy and pay for one hundred and seventy (170) bales of cotton belonging to Mrs. Mary A. Butler.
    “ That said' cotton was undoubtedly taken by Col. J. H. Coates on or about the 20th of February, 1864, from the plantation of Mrs. Mary A. Butler, on the Yazoo River.
    “ The board therefore respectfully recommend that the said (170) one hundred and seventy bales of cotton be turned over to Messrs. Topp & Yance, or their agent, or the same number of bales from any cotton that may have been confiscated and kept for the benefit of the Government, upon payment to proper authority of a reasonable sum for freight and storage.
    “And that the case be dismissed.
    “ F. A. Starring-,
    
      “Ool. 52 U. S. III. Infty., President Mil. Board.
    
    “ George C. McKee,
    “Jifa?. 11th III. Infantry.
    
    “Henry Beard,
    “ Lieut. 30 Mo. Infty., and Recorder Mil. Board.”
    
    
      Tbe proceedings of tbe board upon tbe claim of Topp & Y anee were approved by Major-General McPherson, as follows:
    “ B. No. 9,1864. Col. F. A. Starring, 72 Ill. Yols.:
    “Indorsements on proceedings of a board of officers convened at Yicksburg, Miss., by S. O. No. 67, dated headquarters 17tb A. 0., Yicksburg, Miss., March 11,1864, to bear and adjudicate all claims of loyal citizens residing on tbe Mississippi River, within tbe limits of tbe district; of which Col. Starring, 72 Ill. Yols., is president, in tbe case of Topp & Yance, citizens-. Not entered.
    “ Hdqrs. Dept. AND Army' oe the TeNN.,
    “ Aclvworih, Ga., June 7, 1864.
    
    “ Proceedings of tbe board approved and tbe case will be disposed of in accordance with tbe endorsements of Gen. Sherman, herewith enclosed.
    “By order of Maj. Gen. McPherson:
    “Wi. T. CLARK, A. A. Gen.”
    
    On tbe 6th day of June, 1864, Major-General Sherman made official declaration as follows:
    “Hdqrs. Mil. Div. Miss.,
    “ Aohworth, Ga., June 6, 1864.
    
    “ Tbe general subject of reclamation of cotton or other property within tbe lines of tbe public enemy having been referred to me, my decision is:
    “That all property in cotton, mules, horses, or any movable things within the lines of the public enemy is lost as much as in case of shipwreck or conflagration or other cause beyond the control of the Governnient.
    “Any private individual recovering and rescuing such property is clearly entitled to salvage in proportion to the danger or risk in such rescue.
    “When the army, at the cost of the United States, rescues such property, it is as much prize as if taken on a blockade runner on the high seas. The army not being entitled to salvage, the property is vested in the United States, absolutely, nor is there any hardship, for on the Yazoo River the cotton is lost to the owner, and its rescue gives absolute title to the United States.
    “With my consent no property thus recovered from the enemy shall ever be restored to the reputed owner, especially as in this case, the reputed owners have made no effort to recover when it was in the enemies’ hands, and has not even taken up arms to assist the U. S. in establishing an authority sufficient to revive property in the hostile country.
    “W. T. SHERMAN,
    
      11 Maj. Gen. Commanding.”
    
    
      
      Reasons. — The above amendments to finding in are asked as showing more clearly what was done by the military board; by General McPherson, General Hurlbut, and General Sherman.
    IY. Amend finding iv to read as follows: •
    On the 8th of August, 1864, General Slocum, commanding the district of Yicksburg, ordered:
    “ Lieut. D. 0. Steiner, depot quartermaster, will deliver to W. L. Grant, the authorized agent for Jas. Nolan, sis hundred (600) bales of cotton from any Government cotton in his possession, the same being in full for the claim of Jas. Nolan against the United States for cotton seized and used for military and naval purposes.”
    In the execution of said order, Lieutenant Steiner turned over to Joseph Nolan said 170 bales of cotton claimed by Topp & Yance.
    Said cotton bore marks rendering it capable of identification, and was at the time identified as that claimed by Topp & Yance, and the transfer was made against the protest of their agent.
    The following is a copy of the receipt from W. L. Grant to the department quartermaster for said 600 bales of cotton, which included the 170 bales claimed by Topp & Yance:
    “YiOKSBUEG-, August, 1864.
    
    “Received of D. O. Steiner, dept, quartermaster, six hundred (600) bales of cotton in accordance with the annexed order.
    “ Joseph Nolan.
    “ By W. L. Grant, Agent.”
    
    Nolan, or his agent, W. L. Grant, forthwith shipped said cotton directly to New Orleans.
    
      Reasons for above amendments. — Whether the order of General Sherman was without authority and contrary to the law and statutes of the United States and destructive of the legal rights of loyal owners; whether the transfer to Nolan was illegal, and whether Nolan acquired title or not are not properly facts to be found by the court.
    Y.. That finding v be amended as follows:
    The military board mentioned in finding in had before them when they found that Topp & Yance purchased said 170 bales of cotton, claimed by them, from Mrs. Mary A. Butler, the following facts, among other things: First, the affidavits of E. O. Ames, A. F. Kelsey, Mary A. Butler (who testified that on or before the 15th day of August, 1863, date not exactly remembered, sbe sold to Robertson Topp and William L. Vance, of Memphis,Tenn., 170 bales of cotton, marked “D. C. McLeod,” then stored on her place in Sunflower County, Miss., she agreeing to store it until the delivery to Topp & Vance, and that said cotton was raised on her own plantation, no one having any interest whatever in said cotton but herself; and that said 170 bales and also 72 bales, her own individual property, having an additional mark, were seized February 20,1864, by a Federal expedition up the Yazoo River, Col. James H. Coates commanding), and James C. Harris; and that Mary A. Butler claimed for herself only 72 bales of cotton of the 242 bales seized at her place, as shown by the Record of Seizure, page 15; that she produced at the time of seizure, in evidence of her supreme ownership thereof, the will of her late husband, “who gave her the land and stock and the then (1859) crops,” and that she also produced oath of allegiance taken by herself at Memphis, January, 1862; that an order was issued by the commanding officer, and the 72 bales were seized as the property of Butler; the balance of the lot (170 bales) was seized, “said to be owned by cotton speculators at Memphis.”
    And also the further facts that October 31,1863, Robertson Topp had applied to the assistant special agent, Treasury Department, for permission to take out his cotton in the following words, and received permission as follows:
    “ Memphis, Oct. 31,1863.
    
    “Mr. Thomas Yeatman,
    
      “Asst. Special Agent, Trs. Dept.
    
    “Sir: Whilst General Orders, No. 57, and the Treasury orders in relation thereto were in force, for myself and numerous planters on and near the Miss, River I applied to Gen. Hurlbut for the necessary papers to procure boats and bring up our cotton. In pursuance of the understanding with Gen. Hurlbut, I procured four boats, to wit: The Allen Collier, with a large barge to accompany it; steamer Belfast, with a tug, State Bank; steamer Dove, with a tug, and steamer EmmaNo.2, for the purpose of bringing up my cotton and those associated with me. The cotton lies on and near the river in the counties below here, in Miss., in an exposed condition and hable to be burned or destroyed.
    “ I apply for permission to take these steamers down, put our cotton on board, and to remove it to a place of safety, within the limits of Miss., until I can procure the necessary permits to bring the same to Memphis.
    “ Very respectfully,
    “Robertson Topp.”
    
      [Indorsements.]
    “ Permission is granted to move tbe cotton, as per written request, and officers of gunboats are requested to give all protection necessary and consistent.
    “T. H. Yeatman,
    
      “Asst. Special Agent, Ir’y Dept.
    
    “Memphis, Oct. 31,1863.”
    
      “ Headquarters, 16th Army Corps.
    
    “Tbe boats witbin named will be permitted to proceed down tbe river for tbe purposes 'named, reporting to tbe naval officers, and to bring tbeir cotton when obtained under tbe care of tbe gunboats at tbe moutb of tbe White River. ■ No landing to be made except at a military post or under actual convoy of a gunboat, under forfeiture of boat and cargo. These boats will not be cleared except upon certificate in writing from Capt. J. V. Lewis, A. Q. M., that they are not required for Government use.
    “ S. A. Htjrlbut, Maj. Gen.”
    
    “Asst. Quartermaster Office,
    “ Memphis, 31 Oet., 1863.
    
    “ I have no need for tbe boats and barges named witbin, with tbe exception of Emma No. 2, she having been ordered into service on tbe 30th inst.
    “ J. V. Lewis, Capt. and A. Q. M.”
    
    And tbe further fact that Topp & Vance also received permission to bring out tbeir cotton under tbe Treasury permit issued to I. W. McCown, dated Memphis, January 4,1864, in tbe following words:
    “Memphis, Jan. 4,1864.
    
    “ Two permits have this day been issued to me. from tbe Treasury Department, at Memphis, as follows: One for tbe purchase and shipment of 1,000 bales of cotton from Bolivar and Coahoma counties, Miss.; one for tbe purchase and shipment of 2,000 bales from tbe counties of Yazoo, Holmes, and Carroll counties, Miss.
    “As Robertson Topp is operating for himself and myself jointly, be is authorized to bring out cotton under said permits, either in my name or in our joint names, or else in bis own name under said permits, or also any that said Topp & Vance may have.
    “ Witness my band and seal.
    “ I. W. McCown.” [seal.]
    Tbe record also shows that in January or early in February, 1864, Robertson Topp, through L. O. Mitchell, applied to tbe military authorities at Vicksburg for permission to carry a boat up the Yazoo River with Coates’s expedition, but was refused on the ground that said expedition was said to be purely military.
    On March, 1864, Mary A. Butler applied to said military board for her 72 bales of cotton, and the board found as follows :
    That she was a loyal citizen of the United States; that she was the owner in her own right of the 72 bales of cotton claimed by her, and recommended that the same be returned to her.
    The findings of the board were approved by Major-General McPherson, and said cotton returned to her, as per following receipt:
    “ Received, Vicksburg, Miss., May 13, 1864, of Capt. W. M. ' Finkler, asst, quartermaster and depot quartermaster at Vicksburg, seventy-two bales of cotton.
    “Mart A. Butler (for J. C. Harris).
    “ By F. W. Reynolds.
    “ In presence of—
    “David Stewart.”
    On February 3,1865, George C. McKee, a member of the military board, to whom Topp & Vance applied as shown in finding hi, was called by claimants as a witness, and testified amoug other things, upon cross-examination, in substance: That the witnesses in Topp & Vance Case appeared and testified in person and were cross-examined, and that where their affidavits that had already been made required changing the testimony was reduced to writing by the recorder, otherwise the affidavits were put in as they were.
    On April 23, 1872, a bill was introduced in the House of Representatives for the relief of Robertson Topp and William L. Vance, for their 170 bales of cotton, seized by the Army of the United States on the Yazoo River, in 1864, to refer said claim to the officers of the Treasury Department to audit the same, and pay to the claimants the sum for which said cotton sold in New Orleans, making a reasonable deduction on account of freight, storage, and other expenses, appropriating the necessary money for that purpose; and said claim was thenceforward prosecuted with diligence before Congress, until finally first referred by the War Claims Committee of the House to tbe Court of Claims, December term, 1883, under tbe Bowman Act, to find tbe facts for tbe information of Congress.
    VI. That finding yi be amended as follows:
    Tbe place where tbe cotton was seized by tbe Coates expedition in February, 1864, was witbin tbe geographical limits of tbe territory designated as “ west of tbe Mississippi Central Bailroad,” as described in General Orders, No. 50, of General Grant, issued at Vicksburg, August 1, 1863, and was witbin tbe limits wherein by such orders citizens u are called upon to pursue their peaceful avocations in obedience to tbe laws of tbe United States” and their rights of property would be protected.
    
      Reasons. — Whether under such orders such locality should be regarded as enemy’s territory is a question of law and not properly a finding of fact.
    VII. That finding yn be amended as follows:
    At tbe time of tbe capture of said cotton tbe same class of cotton was selling in tbe river at 80 cents per pound Clear of all charges and expenses, and cotton shortly afterwards went up to more than double that price.
    Tbe price of similar cotton in New Orleans, as shown by tbe New Orleans price current, on tbe first day of each of tbe following months .was as follows:
    Per pound.
    May, 1864 . $0. 82 to $0.83
    June, 1864. . 92 to . 93
    July, 1864. -to 1.60
    August, 1864 ... 1.60 to 1.63
    September, 1864 -to 1.63
    October, 1864... 1.61 to 1.63
    And in tbe month of August, 1864, when said 170 bales of cotton were delivered to Nolan, tbe price of similar cotton was worth in New Orleans $1.60 to $1.63 per pound.
    At tbe rate of $1.60 per pound, 170 bales at 500 pounds per bale would be worth at that point $136,000; and tbe reasonable and probable cost of transportation from tbe place of seizure to Vicksburg, and from Vicksburg to New Orleans, together with commissions, storage, and license for bringing in cotton at tbe time, and all proper contingent expenses, would have been $7,139.50, leaving as tbe net price, if tbe owners could have securely and actually transported their cotton to New Orleans, $128,860.50.
    
      
      Reasons. — The price paid by Topp & Yance and the value of cotton at Mrs. Butler’s place are immaterial. Fixing the value of cotton at New Orleans, the value at Yicksburg is simply a subject of calculation.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Bodge) opposed.
   Nott, J.,

delivered the opinion of the court:

The claimants move the court to insert in the findings matters which have been adjudged to be incompetent evidence and facts which are irrelevant to the legal conditions of the case.

The findings of fact in appealable cases are simply to present to the appellate court the questions of law involved in the case. The court above is interested in no other question. The findings go up amplified by the pleadings of the parties and the opinion of the court below. They receive in the court above the comments and criticisms and explanations of counsel. No legal right is determined until the appellate tribunal has received that most effective aid to the administration of justice which is embodied in the arguments of contending advocates representing the adverse parties, whose legal rights will be affected by the final decision.

The findings of fact in Congressional cases are to inform the legislative authority of those things which are necessary for the convenient exercise of the legislative intelligence. They are not based on a judicial controversy; they are not amplified by the pleadings of the parties; they do not carry with them a judicial opinion setting forth the law applicable to the issue; they do not present to Congress for review a legal decision affecting any legal right; they determine nothing judicially. Congress, when considering them, do not have the benefit of opposing counsel to contest the claims of the petitioners and defend the interests of the United States. If either party is heard, it is the claimant; if either party is unrepresented, it is the Government.

It therefore behooves the court, when preparing these findings for Congress, to so frame them that they shall give rise to no misunderstanding of the legal or equitable conditions of the case. It is also the duty of the court to so frame them that they shall not necessitate in Congress a needless investigation and discussion of irrelevant questions of law. The purpose of the Bowman Act is expressed in its title, “An act to afford assistance and relief to Congress and the Executive Departments in the investigation of claims and demands against the Government.” It is not the purpose of the act that the court shall assist claimants to present only their side of a case to Congress; and assuredly not to present it through the distorting medium of an erroneous legal theory having the apparent sanction of a judicial tribunal, when in fact no such sanction is intended. The end and object of these findings in Congressional cases is to present the material facts and circumstances properly connected with a claim in such a form that the petitioner’s case will be ready, without further investigation, for the exercise of the legislative discretion.

To the end of presenting a case to Congress so that it shall then be ready for the exercise of the legislative discretion, the court should carefully refrain from finding facts which imply that a legal right was impaired when, in the opinion of the court, no such legal right existed. While it is not the object of the findings to present questions of law for judicial determination by the legislative power, they may show for the convenience of Congress the relations of the facts to the law and advert to the law which will be applicable to the facts; and they should do so whenever a statement of the law applicable to the asserted legal rights of the petitioner is necessary to a clear and unmistakable understanding of the facts.

The cases transmitted to this court by Congress are, as a general rule, founded directly or remotely upon an asserted constitutional, legal, or equitable right. The petitioner conies to Congress alleging that he possesses, or has possessed, a right for which no judicial remedy exists, and appealing to Congress for that redress which upon constitutional, legal, or equitable principles he is in justice entitled to receive; and Congress refer his petition to this court for the ascertainment of those alleged rights by judicial proceedings. The determination of what are the facts relevant to the asserted rights will undoubtedly involve the exercise of the judicial function, just as the determination of what is or what is not competent evidence to establish the facts must involve decisions on points of law5 and to aid Congress in tbe investigation of claims and demands against tbe Government tbe judicial function must .be exercised in tbe one case as well as in tbe other. To tbis extent Congress bave made tbis court, in tbis class of cases, a court of last resort.

Tbe petition to Congress in tbe present case is no exception to tbe .general rule. Tbe petitioners set up in effect tbe deprivation of a legal right. They aver tbe capture of their cotton, tbe finding of a military board that it was their cotton, and the turning over of their cotton to one Nolan to reimburse him for cotton which bad been taken from him to case tbe gunboats running tbe batteries of Vicksburg. Tbis was tbe claim transmitted to tbis court by Congress. Tbe court can not make another claim than that which tbe petitioners presented and which Congress transmitted.

Tbe essential facts in the present case which establish or tend to establish tbe legal or equitable rights asserted by tbe claimants, and upon which tbe legislative discretion may or may not be exercised, as shall seem just to Congress, in tbe opinion of tbe court, are these:

Tbe claimants, being domiciled in Mississippi and Tennessee, were, in tbe eye of tbe law, at tbe time of the seizure of their cotton, enemies; and tbe cotton, then situated in Mississippi, was, at tbe time of its capture, enemy’s property. (Hamilton v. Dillin, 21 Wall. R., 73.) The capture was made by a military expedition in hostile territory, and was a lawful capture. (Young v. United States, 97 U. S. R., 39.) So soon as tbe cotton passed into tbe possession of tbe United States bylawful capture tbe only right which tbe owners possessed or could possess was that of having tbe property disposed of according to tbe provisions and requirements of tbe abandoned or captured property act. (Haycraft's Case, 23 Wall. R., 81.)

That statute imperatively provided:

“ That it shall be tbe duty of every officer or private of the regular or volunteer forces of the United States, or any officer, sailor, or 'marine in tbe naval service of tbe United States upon tbe inland waters of tbe United States, who may take or receive any such abandoned property, or cotton, sugar, rice, or tobacco, from persons in such insurrection ary districts, or bave it under bis control, to turn tbe same over to an agent appointed as aforesaid, who shall give a receipt therefor; and in case be shall refuse or neglect so to do, be shall be tried by a court-martial, and shall be dismissed from tbe service, or, if an officer, reduced to tlie ranks, or suffer suck other punishment as said court shall order, with the approval, of the President of the United States.” (12 Stat. L., p. 820, sec. 6.)

And that—

“The Secretary of the Treasury * * # shall also cause a book or books of accounts to be kept, showing from whom such property was received, the cost of transportation, and proceeds of the sale thereof. 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 his right to the proceeds thereof, and that he has never given any aid or comfort to the present rebellion, to receive .the residue of such proceeds, after the deduction' of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.”

None of these things were done. The cotton was retained in the hands of the military notwithstanding the provisions of the statute. In the execution of an order directing that 600 bales of G-overnment cotton be delivered to one "James Nolan, in payment of his claim against the United States for cotton seized and used for military and naval purposes, the officer having charge of captured cotton at Vicksburg turned over to him the cotton alleged to belong to the claimants. By this illegal act the claimants were deprived of their legal right to have the cotton turned over to the agents of the Treasury and sold, and the proceeds paid into the Treasury, and to establish in the Court of Claims their loyalty, ownership, and right to the proceeds. The resulting question, which can not be determined judicially, but is a fitting subject for legislative discretion, is whether the Government shall assume responsibility for the illegal act of the officer, inasmuch as the cotton of the claimants satisfied the alleged claim of Nolan, and discharged a possible liability of the United States to him; and if so, whether there shall be paid to the claimants for this deprivation of their right an amount equal to the probable proceeds which would have reached the Treasury, or such other amount as may seem reasonable to Congress.

As to the matters now brought before the court by the claimants’ motion something should be said.

(1) The proceedings of the military board, which the claimants seek to have inserted in the findings, are not, as their counsel contends, “conclusive upon the United States.” It has been repeatedly held that the decisions of these military boards bind neither party; and that their proceedings are not competent evidence to establish the facts in issue in a civil case. (Brannen’s Case, 20 C. Cls. R., 219, and cases cited.)' In this instance the military board was without jurisdiction to try the question of the claimants’ loyalty or to establish their ownership in the property or to determine their right to it or its proceeds. That jurisdiction was specifically vested in this court by statute, and the Supreme Court has decided that it was exclusive. (Haycraft’s Case, supra, and 10 C. Cls. R., 95.)

(2) The order of General Grant designating the country “west of the Mississippi Central Railroad” as within the United States military lines in August, 1863, and calling upon citizens within that district “ to pursue their peaceful avocations in obedience to the laws of the United States,” and assuring them that their rights to property would be protected, did not describe the condition at the place of capture in February, 1864. That part of the country was then overrun by guerrillas and practically within the Oonfederatelines. Neither could the order of a commanding general change the legal character of the situation, nor make that national territory which was in law hostile. After the proclamation of the President had declared the State of Mississippi to be in a condition of armed rebellion, nothing less than the proclamation of the President could change its legal character. Heflebower’s Case, 21 C. Cls. R., 228.)

(3) The permit issued by the special agent of the Treasury at Memphis, and the attempts of Topp & Vance to bring in cotton, are irrelevant to the claimants’ rights as set up in their petition to Congress and to a proper consideration of the case. The regulations of the Treasury only gave to the person who received the license' an assurance that his cotton should be exempt from seizure when brought in or when in transitu toward the place of delivery. They did not impress upon the property a new character exempting it from military capture before the owner had moved it, nor bind the hands of the Government as a belligerent so that property which was then one of tbe sinews of war should be left where the enemy could seize or destroy it.

(4) The military instructions given to the commanding officer of the Yazoo expedition defining its object do not affect and can not enter into a consideration of the claimants’ rights. In some cases such instructions might be essential to show that the officer acted under proper authority; but in this case the capture was authorized by law, and the rights of the claimants depend wholly upon the pledges and assurances given to loyal citizens by the abandoned or captured property act.

(5) The extracts from the price current of a New Orleans newspaper showing the prices of cotton on the first day of several months in 1864, which the claimants asked to have sent to Congress as a finding of facts, are not facts, but evidence. Furthermore, the price current referred to was not established in this case by competent evidence, but the value of the cotton as fixed by the courtwas shown by a person who bought and sold cotton at the time in Vicksburg and in New Orleans, and who was one of the claimants’ own witnesses.

Finally, the court is of the opinion that to insert in the findings these matters which have no legal relevancy to the case that the petitioners presented when they asked for legislative redress, and which may lead to a misapprehension of the legal conditions of the case and of the views of the court in regard to the rights of the claimants can not ‘‘afford assistance and relief to Congress” “in the investigation of this claim against the Government.”

The motion of the claimants to change the findings in the matters above referred to is overruled, but an amended copy of the findings is now filed, which will be reported to Congress, together with a copy of this opinion.  