One who voluntarily leaves his home to engage in rebellion can not, nor can his heirs, complain that, in his absence, his land was sold in judicial proceedings which, had he remained at home, he might have defended.

Jenkins v. Hannan, 26 Fed. Rep. 657.

A confiscation under the act of 1862 does not affect the rights of mortgage in favor of third persons on the property which goes to the Government or to the purchaser cum onere.

Avegno v. Schmidt & Ziegler, 35 La. An. 585.

The heirs of blood of a person whose property has been confiscated under the act of 1862 are not third parties as to such property during the life estate; hence they are bound by the divestiture of the title through foreclosure of a preexisting mortgage, and can not urge the nullity of the decree on the grounds which the expropriated party could not be allowed to set up if he were living and restored to all his former rights.

Shields r. Shiff, 36 La. An. 644.

An incorporated bank in Georgetown, So. Carolina, having in May, 1861, a deposit with its New York correspondent, the Phenix Bank, derived from deposits and collections, assigned a part of it and gave the assignee a check or order on the Phenix Bank for the amount assigned. This transaction took place before the passage of the United States confiscation acts. The order was not presented by the assignee to the Phenix Bank till January 4, 1865, but the bank recognized its validity and undertook to pay it on identification of the assignee. Next day, before it was paid, the debt due by the Phenix Bank to the Georgetown bank was attached under the confiscation acts. The money was paid over to the United States marshal, and the United States district court subsequently entered a decree of confiscation, awarding one half to the United States and the other half to the informer. The assignee sued the Phenix Bank for what was due on his assignment. Held, that the money on deposit in the Phenix Bank was its property and not the property of the Georgetown bank; that the assignment by the latter transferred to the assignee a valid claim to the amount assigned; that the proceedings under the confiscation acts were not strictly in rem, and affected the interest only of the defendant, the Phenix Bank, which interest had, as to the amount assigned, passed from it, and, finally (citing Planters' Bank v. Union Bank, 16 Wall. 496), that the property of a corporation was not confiscable under the acts of Congress. It was, therefore, further held that the assignee (Risley) was entitled to recover from the Phenix Bank.

Risley v. Phenix Bank (1881), 83 N. Y. 318.

This decision was affirmed by the Supreme Court of the United States in
Phoenix Bank v. Risley (1884), 111 U. S. 125.
As has been seen,
supra, p. 291, the decision of this court proceeded on other grounds
than that of the corporate character of the defendant. That the prop-
erty of a corporation was not subject to the operation of the acts was
held in Ellis v. Phenix Bank, 12 Daly (N. Y.) 177.

Proceedings under the confiscation acts of Congress of 1861 and 1862 were not simply in rem, but the right to condemn property under them depended upon the delictum of the owner, whom it was necessary to bring into court in some manner so that he could have a hearing. (Reversing s. c. 44 N. Y. Superior Ct. 340.)

Chapman v. Phoenix Bank, 85 N. Y. 437.

(4) ABANDONED AND CAPTURED PROPERTY ACT.

§ 1152.

"The Government of the United States, in passing the abandoned and captured property act, availed itself of its just rights as a belligerent, and at the same time recognized to the fullest extent its duties under the enlightened principles of modern warfare. The capture of cotton, and certain other products peculiar to the soil of the Confederacy, had become one of the actual necessities of the war. In no other way could the resources of the enemy be so effectually crippled. In fact, as was said in Lamar v. Browne [92 U. S. 187], 'It is not too much to say that the life of the Confederacy depended as much upon its cotton as it did upon its men.' 'It [cotton] was the foundation upon which the hopes of the rebellion were built.'

"Under such circumstances, it might have been destroyed, if necessary, as it often was by the insurgents; but as the destruction of property should always be avoided, if possible, Congress provided for its capture, preservation, and sale.

"While all residents within the Confederate territory were in law enemies, some were in fact friends. In the indiscriminate seizure of private property, it seemed to Congress that friends might sometimes suffer. Therefore, to save them, it was provided that property, when captured, should be sold, and the proceeds paid into the Treasury of the United States. That being done, any person claiming to have been the owner might, at any time within two years after the close of the rebellion, bring suit in the Court of Claims for the proceeds; and on proof of his ownership of said property, of his right to the proceeds thereof, and that he has [had] never given 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. H. Doc. 551-vol 7-20

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property, and any other lawful expenses attending the disposition thereof.' (12 Stat. 820.) As to all persons within the privileges of the act, the proceeds were held in trust, but as to all others the title of the United States as captor was absolute."

Young. United States (1877), 97 U. ́S. 39, 60.

British subjects enjoyed the benefits of the act. United States v. O'Keefe, 11 Wall 178; Carlisle v. United States, 16 id. 147.

The proclamation of pardon and amnesty issued by the President December 25, 1868, 15 Stat. 711, so operated, in the case of claimants under the abandoned and captured property act, who owed allegiance to the United States, as to make proof of pardon a complete substitute for proof that the claimant gave no aid or comfort to the rebellion. United States. Padelford, 9 Wall. 531. But it did not so operate in the case of a claimant who was during the war a nonresident alien, and who, as such, though he gave aid or comfort, did not commit a crime or offense against the laws of the United States.

Young v. United States (1877), 97 U. S. 39, 65.

“The rightful capture of movable property on land transfers the title to the government of the captor as soon as the capture is complete, and it is complete when reduced to ' firm possession.' There is no necessity for judicial condemnation. In this respect, captures on land differ from those at sea."

Young v. United States (1877), 97 U. S. 39, 60; case of capture on land.

"It [the Court of Claims] proceeded upon the doctrine that the Confederate States and the States which adhered to the Union were engaged in a civil war, having such proportions as to be attended with the incidents of an international war, and that therefore the United States could treat all property within the Confederate lines as enemy's property, and in the exercise of their belligerent rights seize and appropriate to their own use any of it which could be of service to them in the prosecution of the war; and that the property which was most beneficial to the Confederacy in furnishing funds was cotton, and it was for that reason particularly sought by the national forces for capture. The Court of Claims recognized the doctrine, also, that the right of capture extended to the products of the soil, whether owned by citizens of the Confederacy or strangers to both belligerents, and that the capture of movable property within the Confederacy transferred the title when reduced to firm possession; and it therefore held that when the' cotton for the proceeds of which this action is brought was captured by the national forces and sold and the proceeds paid into the Treasury of the United States, the title to the property and proceeds passed absolutely to the General Gov

ernment.

"This decision would have been correct, and been sustained, had the Government of the United States confined its action simply to the enforcement of its rightful powers as a belligerent, and had not surrendered its rights as a belligerent to appropriate property of a particular kind taken in the enemy's country, belonging to a loyal citizen.

"In Brown . United States, 8 Cranch, 110, 122, 123, the court said that it was conceded that war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, and observed that the mitigations of this rigid rule, which the humane and wise policy of modern times had introduced into practice, might more or less affect the exercise of this right, but could not impair the right itself.

"Substantially the same thing was said in Young. United States, 97 U. S. 39, 60: 'All property,' was the language of the court in that case, within enemy territory is in law enemy property, just as all persons in the same territory are enemies. A neutral, owning property within the enemy's lines, holds it as enemy property, subject to the laws of war; and, if it is hostile property, subject to capture.' "But in another case, that of Mrs. Alexander's Cotton, 2 Wall. 404, 419, this court said that this rule, as to property on land, has received very important qualifications from usage, from the reasonings of enlightened publicists, and from judicial decisions. It may now be regarded as substantially restricted "to special cases dictated by the necessary operation of the war," and as excluding, in general, "the seizure of the private property of pacific persons for the sake of gain."

The act of Congress of March 12, 1863, providing for the collection of abandoned and captured property in the insurrectionary territory, (12 Stat. 820, c. 120,) declared that all such property might be appropriated to the public use or sold. But it also said, in substance, that the property of friend and foe can not at the time be separated; and all the property of that kind found within the Confederate lines will be taken, sold, and when sold its proceeds will be deposited in the Treasury; but if afterwards within two years after the suppression of the rebellion the owner can establish to the satisfaction of the Court of Claims his title to the property thus taken, and his loyalty to the Union cause, then the portion of the proceeds belonging to him shall be restored, after deducting the expenses attendant upon its capture, removal and custody. United States v. Anderson, 9 Wall. 56, 67. . The records of the Court of Claims show a multitude of cases where this law has been administered, and many loyal people have had the proceeds of their property returned to them, which had been captured because of the fact that it was situated within hostile territory.

"In the present case, the petitioner was allowed [by act of Congress, June 4, 1888, 2 Stat. 1075, c. 348] the same right to present his claim for the proceeds of the property belonging to his testator which would have been allowed if the testator himself had presented his claim within two years after the capture. The question was as to the loyalty of the testator of the claimant, and also as to his ownership of the cotton. His loyalty was found by the court, and also the bona fides of the sale of the property. After these facts had been established the only question that could have been properly considered was the amount of the proceeds which the petitioner should receive. That was not considered by the Court of Claims."

The judgment of the Court of Claims was accordingly reversed.

Briggs v. United States (1892), 143 U. S., 346, 355–358.

Where, during the civil war, cotton situated in Mississippi passed into the possession of the Federal Government by fair capture, the only legal right which the owners possessed was that of having it disposed of according to the provisions of the abandoned or captured property act. And when it was turned over by the officer in charge to third persons, the owners were deprived of their legal right, and their indemnification for such deprivation is a proper subject for legislative discretion.

Vance v. United States, 30 Ct. Cl. 252.

"I have the honour to acknowledge the receipt of your letter of the 12th inst., in which you state that a friend in England makes inquiry whether confiscations were made after the civil war; and, if so, to what extent."

"While the inquiry is limited to what was done after the close of the war, it may interest your correspondent to know what policy was pursued by the Government during the war.

By the act of Congress approved March 12, 1863, the Secretary of the Treasury was authorized to appoint special agents to collect captured and abandoned property in the States in insurrection. The Southern Confederacy had agents in all the cotton States, buying cotton and paying for it in Confederate bonds or currency. The cotton so purchased by the Confederate agents comprised almost the only property captured' by the United States Treasury agents during the war. If a mistake was made by these Treasury agents in taking possession of property wrongfully, the Secretary of the Treasury, upon appeal, released the property; or, if it had been sold, the proceeds. Under the above act, the Treasury agents took possession of abandoned plantations, but they were all returned to their cwners, some during the war, others afterward, and no proceedings to confiscate this property were instituted. If such had been the