Under the Act of March 12th, 1863, relating to captured and
abandoned property, and which enacted that any person claiming to
be the owner of such 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 . . . that he has never given any aid or
comfort to the present rebellion,"
receive the proceeds of the sale of such property, the person
who did give aid and comfort to the rebellion, and who has not been
pardoned until after two years from the suppression of the
rebellion, cannot, on then preferring his petition, obtain the
benefit of the act, even though in cases generally the limitation
of actions in the said court is one of six years. The question is
not one of limitation, but of jurisdiction. And the inability of an
unpardoned rebel to sue in the Court of Claims does not control the
operation of the statute.
By an Act of March 3, 1863, [Footnote 1
] relating to the Court of Claims, it was
"The said court shall have and determine all claims founded upon
. . . any
contract, express or implied, with the
government of the United States. "
Page 89 U. S. 82
It was further enacted:
"SECTION 10. That every claim against the United States
cognizable by the said court shall be forever barred unless the
petition setting forth a statement of the claim be filed in the
court . . . within six years after the claim accrued.
This statute relating to the Court of Claims being in existence,
the Act of March 12, 1863, relative to captured and abandoned
property was passed. That act enacts:
"SECTION 1. That it shall be lawful for the Secretary of the
Treasury . . . to appoint a special agent or agents to receive and
collect all abandoned or captured property in any state or
territory designated as in insurrection &c., provided
that such property shall not include any kind or description which
has been used or which was intended to be used for waging or
carrying on war against the United States, such as arms, ordnance,
ships, steamboats, or other watercraft, and the furniture, forage,
military supplies, or munitions of war."
"SECTION 2. That any part of the goods or property received or
collected . . . may be appropriated to public use on due
appraisement and certificate thereof, or forwarded to any place of
sale within the loyal states, as the public interests may require,
and all sales of such property shall be at auction to the highest
bidder, and the proceeds thereof shall be paid into the Treasury of
the United States."
"SECTION 3. That the Secretary of the Treasury . . . shall also
cause a book or books of account to be kept showing from whom such
property was received, the cost of transportation, and proceeds of
"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 the 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,
residue of such proceeds,"
All these provisions of the two statutes being in existence, one
Haycraft, of Mississippi, a person who had given aid and
comfort to the late rebellion,
was the owner of a quantity
Page 89 U. S. 83
cotton in the state just named, which in April, 1863, during the
rebellion, the United States had seized as abandoned property, and
sold, the proceeds ($27,000) being now in the Treasury.
Haycraft having been, as just above said, disloyal to the United
States,\ and unable to give all the proofs which the Captured and
Abandoned Property Act required, was precluded by the terms of the
act, as things stood at the time of its passage, from suing under
However, on the 8th December, 1863 -- that is to say within less
than nine months from the passage of the act -- the President
issued a proclamation offering full pardon and restoration of
property to all insurgents (certain classes excepted), provided
they would take an oath to support, protect, and defend the
Constitution and Union, abide by and support all acts of Congress
and all proclamations of the President made during the rebellion,\
with reference to slaves.
Lee surrendered April 9, 1865; Joseph Johnston on the 26th. On
the 10th of May, Jefferson Davis was captured, and on the 26th
Kirby Smith gave up the remnant of the rebel army.
On the 29th of May, pardon and restoration was offered to all
(certain classes excepted) who would simply take an oath of
and keep it.
The war in Mississippi was, by proclamation, legally
ended April 2, 1866. [Footnote
On the 7th of September, 1867, another proclamation was made
offering pardon and restoration of property to all (except certain
classes more limited than before) who would take an oath of
The latest of all these proclamations of pardon, it will be
observed, was within two years after the war was legally ended.
On the 25th of December, 1868 -- this being, however, more than
two years after the war was ended, even legally viewed -- a final
proclamation was issued by President Johnson,
Page 89 U. S. 84
"a full pardon and amnesty for the offense of treason against
the United States, or of adhering to their enemies during the late
civil war, with restoration of all rights, privileges, and
immunities under the Constitution and the laws which have been made
in pursuance thereof,"
was proclaimed and declared "unconditionally and without
reservation to all, and to every person who directly or indirectly
participated in the late insurrection or rebellion."
In United States v. Klein,
] this Court (December Term, 1874) decided that
the restoration of captured and abandoned property became the
absolute right of persons pardoned, as much as of loyal people,
suit being brought for it in the Court of Claims within two years
from the close of the war.
In this state of enactments and pardons, Haycraft, already
mentioned, on the 30th of July, 1872,
six years and more
after the close of the war, filed his petition in the Court of
Claims, and without so much as alleging that he had been within one
of the classes excepted from the benefit of those different
proclamations which preceded the last, sought to recover the
proceeds of his cotton.
The petition was in the nature of an implied assumpsit for the
value of the cotton. It alleged that during the rebellion the
voluntary residence of the petitioner was in Mississippi, where,
for some time during his said residence, the rebel force held sway;
that he did give aid and comfort to persons engaged in the
rebellion, and was therefore precluded from redress by suit in
the federal courts, and especially from the remedy afforded to
claimants under the provisions of the Act of Congress approved
March 12, 1863, the Captured and Abandoned Property Act.
It further averred that he was entitled to and had received the
benefit of the
"full pardon and amnesty, duly granted by the authority of the
United States, on the 25th day of December, A.D. 1868, whereby his
civil disabilities were removed, and his right of redress by suit
in the United States courts was restored,"
together "with restoration of
Page 89 U. S. 85
all his rights, privileges, and immunities under the
Constitution and laws of the United States."
The petition went on:
"Your petitioner further states that his property aforesaid
having been taken possession of by the United States government and
appropriated by it, and the money arising from the sale of said
property being now held by the government, an implied contract has
arisen on its behalf to make petitioner just compensation therefor
according to what it was reasonably and fairly worth at the time
and place at which it was so taken from him as aforesaid, and
accordingly to pay over to him the net proceeds of the sale of said
Finally it alleged the cotton to have been at the time and place
of its seizure as aforesaid, reasonably worth $27,000, being the
amount of the net proceeds of the sale thereof, which amount under
the implied contract aforesaid, the claimant alleged himself
entitled to receive from the United States.
The United States demurred, and the Court of Claims dismissed
the petition, placing the dismissal upon the grounds:
1st. That no action for proceeds of captured and abandoned
property would lie except under the provisions of the Act of March
2d. That such action, to be maintainable, must be brought within
two years after the suppression of the rebellion.
From this ruling the claimant appealed, alleging that the Court
of Claims erred:
1st. In holding that the only right of action for such proceeds
was exclusively under the Act of March 12, 1863.
2d. In holding that it had not jurisdiction, because the suit
had not been brought within two years after the suppression of the
3d. In holding further that this limitation was available to
defeat the claimant's action, though he was debarred by an act of
Congress from bringing or maintaining such an action.
Page 89 U. S. 92
THE CHIEF JUSTICE delivered the opinion of the Court.
The main question presented for our consideration in this case
is whether one who gave aid and comfort to the late rebellion can,
after the expiration of two years from its suppression, commence
and successfully maintain an action in the Court of Claims for the
recovery of money in the Treasury arising from the sale of his
cotton taken possession of by the United States and sold under the
provisions of the Captured and Abandoned Property Act.
The case has been argued to some extent as though it involved
the consideration of a statute of limitations. To our minds, the
question is one of jurisdiction. A sovereign cannot be sued in his
own courts except with his consent. This is an action against the
United States in its own Court of Claims. The appellant must
therefore show that consent has been given to its prosecution. That
being done, the jurisdiction of the court is established and he may
proceed. Otherwise not.
It is conceded that the required consent is not contained in the
Captured and Abandoned Property Act itself, for the only action
there consented to is one to be commenced within two years after
the suppression of the rebellion. But inasmuch as the United States
has consented to be sued in the Court of Claims upon contracts,
express or implied, it is contended that this action may be
prosecuted on account of an implied promise by the United States to
pay to every owner of captured and abandoned property, whether
loyal or disloyal, the proceeds of his property taken and sold.
As the taking was under the authority of an act of Congress, we
must look to the act to see if this promise has been made. It is
not claimed that any exists if it is not to be found there. If it
has been made at all, it was when the property was taken, and is
equivalent to an undertaking by the United States at that time to
receive and hold the property, or its proceeds if sold, in trust
for the use and benefit of the owner, whoever he might be. The
claim is that, the trust in favor of the owner having then been
created, the remedy for its enforcement in the Court of Claims
as a contract
Page 89 U. S. 93
was restored to the disloyal owner by the operation of the
President's proclamation of December 25th, 1868, granting
unconditional pardon to all who participated in the rebellion.
The act authorizes the Secretary of the Treasury, from time to
time as he shall see fit, to appoint special agents to receive and
collect all abandoned or captured property in the insurrectionary
states, not including, however, any which had been used, or was
intended to be used, for waging or carrying on the war, such as
arms, ordnance, ships, munitions of war &c. Any part of the
property collected might be appropriated to public use, on due
appraisement or certificate thereof, or forwarded to any place of
sale in the loyal states, as the public interests might require.
All sales were to be at public auction to the highest bidder, and
the proceeds paid into the National Treasury. The Secretary of the
Treasury was required to cause books of account to be kept showing
from whom the property was received, the cost of transportation,
and the proceeds of the sale. And any person claiming to have been
the owner of such property was authorized, at any time within two
years after the suppression of the rebellion, to prefer his claim
to the proceeds in the Court of Claims and, on proof of his
ownership, his right thereto and that he had not given aid and
comfort to the rebellion, receive the balance of the proceeds
remaining in the Treasury after deducting certain expenses.
Such was the power to take given by the act, and such the
obligation assumed by the United States upon the taking, with the
remedy provided for its enforcement. It was evidently a war
measure, and the statute is to be construed in the light of that
fact. It was confined to private property of the enemy. Public
property was expressly excluded. It embraced no private property
except such as was abandoned by its owners or liable to capture.
The property in this case was cotton, and according to the uniform
decisions of this Court, the subject of capture. [Footnote 4
] As was said in Mrs.
Page 89 U. S. 94
Alexander's case, cotton was regarded by the insurgent
government as one of its "main sinews of war." It was in fact the
foundation upon which the financial system of the rebellion was
built. It was a security the insurgents offered for the payment of
their debts. Upon it they relied for their influence abroad. To
obtain it, forced contributions were exacted from its owners. From
time to time in the progress of the war it was found upon the
enemy's territory occupied by the military forces of the United
States. While, when so found, it might have been owned by
noncombatant enemies and in that sense private property, it was in
fact, under the circumstances, at least semi-public. If left
undisturbed, and the insurgents should repossess themselves of the
territory, it would again be placed where it might strengthen the
rebellion. Its capture was therefore legitimate -- not for booty,
but to cripple the enemy. In that way it was kept out of the
insurgent treasury. It might have been destroyed, but the
unnecessary destruction of property ought always to be discouraged.
The act of Congress looked to its preservation, but authorized its
capture. In so doing, Congress acted within its constitutional
power to "make regulations concerning captures on land and water."
In the indiscriminate seizure which was likely to follow such an
authority, it was anticipated that friends as well as foes might
suffer. Therefore, to save friends, it was provided that any person
claiming to have been the owner might, at any time within two years
after the suppression of the rebellion, prefer his claim and, upon
proof of his ownership and loyalty, receive the money realized by
the United States from the sale of his property. That expresses all
there is of the trust or the remedy provided.
In Klein's Case,
] the property collected under this act was said
to be of "a peculiar description, known only in the recent war,
called captured and abandoned property," and that
"the government recognized to the fullest extent the humane
maxims of the modern law of nations which exempts private property
of noncombatant enemies from capture
Page 89 U. S. 95
as booty of war."
"No similar legislation," it was also said, "is mentioned in
"the government constituted itself the trustee for those who
were by that act declared entitled to the proceeds of captured and
abandoned property, and for those whom it would thereafter
recognize as entitled."
And again (p. 80 U. S. 139
"the proceeds of the property have passed into the possession of
the government, and the restoration of the property is pledged to
none except those who have continually adhered to the government.
Whether restoration will be made to others or confiscation will be
enforced is left to be determined by considerations of public
policy subsequently to be developed."
In the same case, it was also held [Footnote 7
] that "the restoration of the property became
the absolute right of the persons pardoned on application within
two years from the close of the war." Under this construction, the
effect of the act was to provide a reward for submission to the
government and the acceptance of amnesty, as well as authority for
the seizure of property, and it is thus made to operate in two ways
to weaken the insurgents: first, by depriving them of their
property and second by inducing their adherents to submit to the
authority of the United States as a means of regaining that which
they had lost personally. In that view, time is material. The
length of a war depends largely upon the relative strength of the
contending parties. As a rule, that belligerent is the first to
surrender, other things being equal, who first loses the elements
of warlike power. Especially is this true in a civil war. Strategy
sometimes gives unnatural strength, and thus obtains success, but
more commonly war resolves itself into a question of men and money,
of strength and endurance.
According to the doctrine of Klein's Case,
if a suit
was commenced within two years, a pardoned enemy could recover as
well as a loyal friend. But the commencement of the suit within the
prescribed time was a condition precedent to the ultimate relief.
The right of recovery was made to depend upon the employment of the
remedy provided by
Page 89 U. S. 96
the act. There was no promise even under the rulings in that
case, except to such as should commence the suit in time and upon
the trial be in a condition to bring themselves within the
requirements of the act. The promise, such as it is, was express.
There is no room left for implication. Pardon and amnesty have no
effect except as to such as sue in time. In this, Klein's
but adopts the ruling in previous cases. Thus, in
Mrs. Anderson's Case,
] the doctrine is stated in these words:
"But by the act in question, the government yielded its right to
seize and condemn the property which it took in the enemy's country
if it belonged to a faithful citizen, and substantially said to
"We are obliged to take the property of friend and foe alike,
which we will sell and deposit the proceeds of in the Treasury, and
if at any time within two years after the suppression of the
rebellion you prove satisfactorily that of the property thus taken
you owned a part, we will pay you the net amount received from its
And in Zellner's Case,
"Any person claiming to be the owner of abandoned and captured
property within the meaning of the act may at any time within two
years after the suppression of the rebellion present his claim to
the Court of Claims,"
&c. And again, in Armstrong's Case,
decided at the
same time with Klein's,
this is the language of the Court,
speaking through the late Chief Justice:
"And that the person so pardoned is entitled to the restoration
of the proceeds of captured and abandoned property if a suit be
brought within 'two years after the suppression of the
the special provision as to the time being brought to the
attention of the reader by the marks of quotation.
Provision might have been made for the institution of suits by
loyal owners at any time, but it was not, and the reason may
perhaps be found in Klein's Case.
According to that, an
insurgent who accepted the offers of pardon which were from time to
time extended to him, and became loyal in fact, received as one of
the privileges and immunities to which he was restored the right to
recover the proceeds of
Page 89 U. S. 97
the sale of his property taken under the act, if he made his
claim in time. To obtain a pardon before the war closed, an
insurgent must withdraw himself from the enemy and become loyal.
There could be no recovery, even in a suit commenced, until the
pardon was obtained, and there could be as soon as it was. Hence,
the sooner the pardon, the sooner the money could be had. So too,
after the contest was over, an early submission by all to the
authority of the government was important. To this the act, as
construed, furnished an additional inducement by its promise of
restoration if application therefor was made in time.
Additional strength is given to this interpretation of the act
by what followed its enactment. On the 17th of July, 1862, the
President was authorized by Congress to extend pardon and amnesty
by proclamation to persons engaged in the rebellion, with such
exceptions and upon such conditions as he should deem expedient.
] On the 8th
December, 1863, nine months after the passage of the Captured and
Abandoned Property Act, he issued his first proclamation under this
authority. [Footnote 11
this he offered full pardon and restoration of property to all
insurgents, except a few designated classes, who would take a
prescribed oath to the effect generally that they would thereafter
abstain from the rebellion and support the government of the United
States. On the 26th March, 1864, by a further proclamation, he
excluded from the operation of the writ prisoners of war and those
confined for crime. Thus, during the war, actual withdrawal from
the enemy and an oath of allegiance were made conditions precedent
to amnesty, but on the 29th of May, 1865, and within three days
after the surrender of the last organized army of the rebellion,
another proclamation was issued, [Footnote 12
] offering pardon and restoration of property
to all, with certain exceptions, who would take an oath of
allegiance alone. On the 7th September, 1867, but still within two
years after the suppression of the rebellion as it has been
determined, another was issued extending the operation of the last
to all save three of the excepted classes of persons. [Footnote 13
] Thus, after
Page 89 U. S. 98
the war, simple submission by an insurgent to the authority of
the government was the only price to be paid for pardon and
restoration to the right, according to Klein's Case,
using the means provided by Congress for the recovery of the
proceeds of the sale of his captured or abandoned property. Pardon
was therefore easy to be had, and the promise of a restoration of
this class of property was tendered as a reward for its acceptance
to such as would qualify themselves within the prescribed time to
This appellant, though one of those who might, did not accept
these easy terms. He would not render even this small equivalent
for the restoration of his property, and consequently he has not
availed himself of the only promise the United States has as yet
offered to make looking to that end. The Court of Claims may act
upon promises made, but cannot make them.
There is here no question of confiscation. The title of the
United States, whatever may be the rights it carries with it, is by
authorized capture or appropriation of enemy's property on land.
But the same statute which authorized the capture gave a right to
certain persons to demand and receive a restoration of their
property taken. Coupled with the right to demand was a provision
for the remedy by which it was to be enforced. Both the right and
the remedy are therefore created by the same statute, and in such
cases the remedy provided is exclusive of all others. The demandant
in this case neglected to avail himself of the remedy provided, and
consequently he is now without any. That remedy was the only one of
which the Court of Claims or any other court has been authorized to
take jurisdiction. It is for Congress, not the courts, to determine
whether this jurisdiction shall be extended and other remedies
Act reorganizing the Court of Claims, 12 Stat. at Large 767;
the Act of February 24, 1855, 10th id.
612, organizing the said court.
12 Wall. 700.
80 U. S. 13
2 Wall. 419; Padelford's
9 Wall. 540.
Art. I, section 8, paragraph 11.
80 U. S. 13
Page 80 U. S.
76 U. S. 9
76 U. S. 9
12 Stat. at Large 592.