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December 1, 1869


APPEAL from the Court of Claims; the case being this: Congress, by act of July 13th, 1861,*fn1 passed soon after the outbreak of the late rebellion, enacted that it might be lawful for the President, by proclamation, to declare that the inhabitants of any State or part of a State where such insurrection was existing were in a state of such insurrection, and that thereupon (with a proviso that the President might, to a limited extent and under regulations to be prescribed by the Secretary of the Treasury, license it) all 'commercial intercourse by and between the same and citizens thereof, and citizens of the rest of the United States, should cease, and be unlawful so long as such condition of hostility should continue.' By a subsequent act of July, 17th, 1862,*fn2 it was enacted–– 'That to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estate and property, money, stocks, credits, and effects of the persons hereinafter named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States.' The enumeration of persons includes several classes of persons; and the section concludes by declaring that 'All sales, transfers, or conveyances of any such property shall be null and void.' Another section goes on to say: 'And if any person within any State or Territory of the United States, other than those named as aforesaid, after the passage of this act, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not within sixty days after public warning and proclamation duly given and made by the President of the United States, cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States, all the estate and property, money, stocks, and credits of such persons shall be liable to seizure as aforesaid, and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof. And all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days from the date of such warning and proclamation, shall be null and void.' By a still later act, one passed when the armies of the United States were beginning to march into the rebellious regions the act, namely, of March 12th, 1863*fn3 –entitled 'An act to provide for the collection of abandoned property, &c., in insurrectionary districts within the United States,' it was provided as follows: 'And 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 (1) of his ownership of said property, (2) of his right to the proceeds thereof, and (3) that he has never given any aid or comfort to the present rebellion, 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.' The time mentioned in this act as that within which a party might prefer his claim, 'any time,' to wit, 'within two years after the suppression of the rebellion,' was one which, as events in the conclusion of the rebellion subsequently proved, was not, to common apprehension, entirely definite. As matter of fact, rebellious districts were brought under the control of the government in different parts of the South at different times, and in April, 1865, the armies of the rebel generals Lee and Johnston surrendered; their surrender being followed by that of Taylor's army, on the 4th of May, and by that of Kirby Smith's, on the 26th of the same month. With this last-named surrender, all armed resistance, in the least formidable, to the authority of the government ceased, and, as matter of fact, the rebellion was prostrate, though rebel cruisers continued their depredations on our commerce, and though there were, in Texas and elsewhere, some wandering bands of robbers. Still, after Kirby Smith's surrender, May 26th, 1865, intercourse, commercial and other, between the inhabitants of the different sections, began to resume itself; trade opened, more or less, on its ancient basis, remittances were made, debts were paid or compromised, and bills of exchange were drawn between the inhabitants of the two sections. The courts, which, in each section, had been closed to the inhabitants of the other, were soon opened, in form at least. The Court of Claims assumed jurisdiction of cases under the Abandoned Property Act, and between the termination of actual hostilities and the date fixed by the court below as the legal suppression of the rebellion (20th August, 1866), thirty causes were commenced in that court under the act, and jurisdiction of them entertained. In this court, the causes pending at the beginning of the war to which inhabitants of the States in rebellion were parties, and which had been suspended and postponed from term to term during the continuance of the war, were, at the December Term, 1865, by the order of the court, called and heard in their order on the calendar, or on special days to which they were assigned. Post-offices were reopened;*fn4 the letting of contracts for mail service throught the rebellious States resumed;*fn5 and the revenue system extended throughout the same States.*fn6 The Federal courts, too, were reopened in the insurrectionary districts. But notwithstanding all this, the late rebellious States were not politically restored to the Union, nor were many of them so restored till long afterwards. On the contrary, many of them were kept under military government, in virtue of statutes of the United States known as the reconstruction acts. And the complete status ante bellum was not yet visible. So far as executive recognitions of the date when the rebellion was to be assumed to have been 'suppressed' were concerned, the government issued three proclamations, one dated June 13th, 1865,*fn7 in relation to the suppression of the rebellion in Tennessee; another, dated April 2d, 1866,*fn8 in regard to the suppression of the rebellion in the States of Georgia, South Carolina, Virginia, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida; and the third, dated August 20th, 1866,*fn9 declaring the rebellion suppressed in Texas, 'and throughout the whole of the United States of America.' And an act of Congress, passed March 2d, 1867,*fn10 declared that a previous act of Congress, passed June 20th, 1864,*fn11 to increase the pay of solidiers in the army, should be 'continued in full force and effect for three years after the close of the rebellion, as announced by the President of the United States, by proclamation bearing date August 20th, 1866.' In this state of enactments, proclamation, and fact, one Anderson, a free man of color, possessed of real and personal property, by occupation a drayman and cotton sampler, and a resident of Charleston, South Carolina, preferred, on the 5th of June, 1868, to the Court of Claims, under the provisions of the already-mentioned 'Abandoned Property Act' of 1863, as it was familiarly styled, a claim for the residue of the proceeds of some cotton. Twenty days after Anderson preferred his claim to the Court of Claims–that is to say, on the 25th June, 1868–Congress passed a law,*fn12 'That no plaintiff, or claimant, or any person, from or through whom any such plaintiff or claimant derives his alleged title, claim or right against the United States, or any person interested in any such title, claim, or right, shall be a competent witness in the Court of Claims in supporting any such title, claim, or right.' When the matter came on afterwards to be heard, Anderson proved this case (proving it, in part, by two persons, the one named Fleming, and the other Doucen, who resided within the insurrectionary district, and from whom he had bought the cotton), the case, to wit, that he had bought part of the cotton in the early part of the war, and the rest in the autumn of 1864, before the evacuation of Charleston by the rebels; that on the 5th March, 1865, the military authorities of the United States being now in possession of Charleston, he reported it to them, and that on the 5th of April following, it was removed, under their direction, from its place of deposit to the Charleston custom-house, whence it was shipped to New York, and there sold for the United States, and the gross proceeds paid into the treasury; the net proceeds amounting to $6723. The loyalty of Fleming and Doucen, from whom the cotton was purchased, was not proven, but that of Anderson was, and that he had never given any aid or comfort to the rebellion, or to the persons who were engaged in it. In the Court of Claims, the counsel for the government urged four principal grounds of objection to the allowance of the claim. 1st. That the action was barred by the limitation in the statute of March 12th, 1863. 2d. That if in this they were mistaken, still that the suit must fail, because the persons who sold the property to Anderson, being residents of an insurrectionary district, were unable, under the state of the law on this subject, to convey title to him. 3d. That the vendors of the cotton in question were incompetent witnesses, by reason of the act of 25th June, 1865, and that their testimony should have been excluded. 4th. That the court had no authority to render judgment for a specific sum, its power being limited to the point of deciding whether the claimant was entitled to recover at all, leaving the amount to be determined by computation by the proper officers of the Treasury Department. But the Court of Claims held: 1st. That the claim was not barred by the limitation mentioned 2d. That the cotton had not been ipso facto forfeited because it had belonged to persons resident in the insurrectionary district, no proceedings having been instituted to confiscate the same as the property of such persons. 3d. That the vendors of the property were not incompetent witnesses. 4th. That upon the whole case the claimant was entitled to judgment for the net proceeds as proved. The correctness of these several rulings was the matter now here for review.

The opinion of the court was delivered by: Mr. Justice Davis delivered the opinion of the court.

Mr. Hoar, Attorney-General, and Mr. R. S. Hale, special counsel, for the United States:

1. Was Anderson's claim, which was preferred on the 5th of June, 1868, preferred at any time within two years after the suppression of the rebellion?

The question when a suppression of the rebellion was made is a question of the actual termination of the war, and one distinct from the political question of the continuance of the rights of war, after the termination in fact of hostilities. The true test of the existence of civil war was tersely stated by Grier, J., speaking for the court in the Prize Cases.*fn13 'When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists,' &c. The test of its termination is logically the same. When the armed organization against the government has ceased, to exist, when the courts of justice are no longer prevented by violence, there is no longer civil war, and the rebellion is suppressed. Now, after the surrender of Kirby Smith, armed resistance to the authority of the United States ceased, the civil war was ended, and the rebellion suppressed, as matter of fact. In the universal speech of the people, 'the war was over.' This is an historical fact, of which this court will take judicial cognizance. Their own proceedings and the call of their docket show it. But the fact is part of public history, and universally known. From that date, all claimants were entitled to sue in the Court of Claims, under the act of 12th March, 1863, and at the expiration of two years from that date (26th May, 1867), their right to sue terminated. The claim was therefore too late.

The various proclamations of the President did not create the condition of peace, but were executive recognitions of the fact that peace was restored, just as the actions of the courts were judicial recognitions of the same fact.

But if executive action is requisite to establish the fact of the suppression of the rebellion, then the proclamation of April 2d, 1866, does it as respects South Carolina; and the cause of action having arisen in that State the statute began to run whenever the rebellion was suppressed there. If this is so, the claim is still too late.

As to the act of Congress of March 2d, 1867, its object was not to determine the end of the rebellion, either for judicial or legislative purposes, but to fix a definite time when the additional pay given to soldiers by the act of 20th June, 1864, should terminate. And it does not, in terms, fix the end of the rebellion; but fixes the desired day by recital from 'the close of the rebellion, as announced by the President,' &c. To give to it the effect of fixing the close of the rebellion for the purposes of the Abandoned and Captured Property Act, or for any other judicial or legislative purpose, would be to give it an effect not contemplated by Congress.

2. The loyalty of Fleming and Doucen, who sold the cotton to Anderson, is not proven. They resided in South Carolina, and such residence fixes on them, in the absence of proof of loyalty, rebel character. Sales by them, under the act of July 17th, 1862, are 'null and void.' Nor is the act of 1862 repealed by the Abandoned and Captured Property Act. These acts are to a limited extent in pari materia, and are so far to be construed by the aid of each other. But in their principal scope they relate to different subjects, provide for different ends, and contain no provisions inconsistent with each other, so that both cannot stand. The proof of ownership required under the latter act is of necessity lawful ownership, as well under the act of 1862 as under all other subsisting laws.

But this is no longer an open question in this court since the case of McKee v. United States.*fn14 The language of the court is:

'This statute prohibited a person occupying the position A. W. McKee did from selling his property; and it follows, as he had no capacity to dispose of it, that the claimant could acquire no title to it.'

[The remaining two points taken below, though still insisted on, were less pressed by the learned counsel here.]

Messrs. J. A. Wills, G. Taylor, T. J. D. Fuller, A. G. Riddle, and W. P. Clarke, contra, for the claimant in this case, or for claimants in other cases involving the same general questions, and argued with this one and disposed of by the opinion in it.

Whether the positions taken by the learned counsel of the United States in the court below, and maintained in this court also, are well taken or not depends on the construction to be given the act concerning abandoned and captured property, and the 4th section of the act of June 25th, 1868.

The act of March 12th, 1863, in one particular, inaugurated a policy different from that which induced the passage of other measures rendered necessary by the obstinacy and magnitude of the resistance to the supremacy of the National authority. To overcome this resistance, and to carry on the war successfully, the entire people of the States in rebellion were considered as public enemies; but it is familiar history that there were many persons whom necessity required should be treated as enemies who were friends, and adhered with fidelity to the National cause. This class of people, compelled to live among those who were combined to overthrow the Federal authority, and liable at all times to ...

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