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to us that Congress had only in view at the time of its passage compensation for loss of property. The words "loss" and "losses" are used in every section of this act where reclamation or indemnity for injuries committed by the so-called confederate cruisers is referred to. And it seems to us that if Congress had intended this court to entertain jurisdiction of any other character of claims than those for the loss of property, it would have used language more clearly expressing such legislative intent.

We fully agree with counsel for claimants, that it is the duty of the Government to protect the person of its citizen as fully and as readily as it should protect his property. At the same time we recognize the fact that this is a court of special and limited jurisdiction, and that it should hesitate long before it exercises a doubtful power, especially when, by so doing, it disposes of a portion of this fund confided to its trust to a class of claimants, as we think, never contemplated by Congress. Demurrer sustained.

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The act of Congress of 23d June, 1874, provides that no claim shall be admissible or allowed by this court "arising in favor of any person who did not at all times during the late rebellion bear true allegiance to the United States:" Held, That this requirement was in the nature of a condition precedent, and that a claimant, in order to entitle himself to the benefit of the act, must make the averment in his petition of his "true allegiance" during the period specified, and prove the same. An averment which states in substance that the claimant was not guilty of the crime of treason, as defined by the Constitution, is not sufficient.

In a case in which the testimony suggests no doubt on such a point, the claimant's own statement, under oath, will be regarded as sufficient to establish for him a prima-facie case of true allegiance.

A statement of the case will be found in the opinion of the court.

Mr. R. B. McMaster for complainant.

Mr. J. A. J. Creswell for respondents.

PORTER, Judge, delivered the opinion of the court:

The claimant seeks, by this proceeding, to recover the value of certain merchandise shipped from New York to San Francisco, in a vessel known as the Crown Point, which was captured in May, 1863, by the rebel cruiser Florida. The counsel of the United States has demurred to the petition, chiefly on the ground that the petitioner has not averred that during the late rebellion he bore true allegiance to the United States. This raises an important question, not in this case only, but in many other cases, which ought to be set at rest once for all.

The petitioner alleges "that he was not, at the times mentioned in the petition herein, nor at any other time or times, actively or otherwise, or in any way, engaged in making or carrying on war against the United States, or in aiding or abetting, in any way, shape, or manner, the socalled southern confederacy, or any person or persons engaged in rebellion or making or carrying on war against the United States aforesaid." The act of Congress of 23d June, 1874, constituting this court, contains the following provision: "No claim shall be admissible or allowed by said court, arising in favor of any person not entitled at the time of his loss to the protection of the United States in the premises, nor arising in favor of any person who did not at all times during the late rebellion

bear true allegiance to the United States." It is not necessary, and it would not be seemly in us, to discuss the wisdom of this provision. Every good citizen must admire the benign spirit which pervades the more recent acts of Congress, and the decisions of our highest judicial tribunal, in regard to the legal effects of a participation in the rebellion. (Klein's case, 13 Wallace, 128, and Carlisle's case, 16 Wallace, 148.) Doubtless the time will come when words naturally employed in the legislation of a nation struggling to protect its own life will be dropped from the statutes of the united nation. In construing the present statute we must take such provisions as we find in it, and without unnecessary criticism assign to them their true meaning.

Let not the proper attitude of the claimant to the fund for distribution be misunderstood. Whatever his loss may have been, he had not the power to obtain compensation from Great Britain by his own act. Her army and navy would have proved uncomfortable obstacles in his way to her treasury. Just here, the Government of the United States took up his case, and by the exercise of its powers as a sovereign, after years of patient labor, by the highest skill in diplomacy, without the loss of blood or treasure, obtained the whole amount due for the depredations complained of, thus achieving a triumph which may, in the progress of civilization, take a higher rank than the most profound achievements in arms. How the amount of the award obtained at Geneva was made up, what precise species of losses it was intended to cover, or even how the interest was computed, is not now known, and a careful study of the opinions of the several arbitrators has shown us that it was not intended to be known outside of the tribunal itself. The Government of the United States accepted the sum awarded in full settlement of all the claims comprehended in the terms of the treaty, and soon afterwards Congress passed the act providing for its distribution among the claimants, which is to be our chief guide in the actual work of distribution. It is clear to us that the Government had the right to prescribe the terms on which claimants should present their claims. They were not strong enough to compel payment of the money by Great Britain, and when this Government obtained it the claimants had no power to demand it, and no legal right to it, except that which the Government by its own acts chose to accord. They must, therefore, take their respective shares of it subject to all the conditions which the Government has thought fit to appoint, or not take them at all.

Has the claimant in this case complied with the requirement of that portion of the act which has been quoted? He was expressly required to say that he had borne true allegiance to the United States during the period of the late rebellion. Allegiance is the obligation of fidelity and obedience which every man owes to the government under which he lives in return for its protection. He bears true allegiance to his government when he scrupulously and faithfully keeps this obligation of fidelity and obedience at all times and in all things. The petitioner has not said in direct terms that he did during the rebellion bear true allegiance to the United States. Avoiding this plain and simple language, he has in its place introduced certain negative words. He avers that during the times referred to he was not actively or in any way engaged in making or carrying on war against the United States, or in aiding or abetting the southern confederacy, or any person or persons. engaged in rebellion or carrying on war against the United States. In other words, in place of the averment that he bore true allegiance, he states, in substance, that he was not guilty of the crime of treason as defined by the Constitution. Without stopping to inquire whether this

is a mere accidental departure from the terms of the act, or whether he may have done acts short of treason but inconsistent with the true allegiance of a citizen, (which it would serve no good purpose for us to specify,) can the claimant thus vary the terms on which he is allowed to participate in this distribution? The act of Congress has conferred on this court almost unprecedented powers, by making us judges both of the law and the facts of every case, and giving no appeal from our judgments to any other tribunal; but the court is nevertheless one, not of general, but of special and limited jurisdiction, and clearly no claimant can bring himself within this jurisdiction without an exact and faithful compliance with the terms of the act. The claimant who chooses to place himself outside of the limits which the act has prescribed stands where our action cannot reach him. We have no power to excuse him from the performance of conditions which Congress has made it necessary for him to perform before he can present his case at all."No claim shall be admissible or allowed by said court," &c. The term admissible is more commonly used with respect to the introduction of testimony. When it cannot be received at all, or permitted to enter into the consideration of the tribunal for any purpose, it is pronounced inadmissible. So a claim cannot be admitted here from which any one of the essential terms of the act have been omitted. If admitted, it is further provided that it shall not be allowed by the court. The averment of true allegiance during the period defined in the act seems to us one of the conditions thus made essential to the admission or allowance of the claim. It is in its spirit akin to the performance of a condition precedent in law, and no court of law or equity in England or America has ever undertaken to relieve any party from the performance of such a condition. Finding this requirement plainly written in the act, and being both indisposed and unable to modify it, we hold that the claimant must prove his true allegiance before. he can touch a dollar of the money to be distributed, however meritorious his claim in other respects. If he is required to prove his allegiance he should be required. to allege it. It is one of the rules of good pleading that a party should allege that which it is essential for him to prove, so that his opponent may, if he see proper, either traverse it or confess and avoid it. Let it be carefully noted, however, that we are not now called upon to meas ure the quantity or quality of the proof which the claimant will be obliged to give. In the argument before us it was earnestly and ably insisted that the claimant might well rely on the presumption of his innocence. We admit the value of this principle, and agree that no man can be presumed guilty of treason or any other crime until he has been proved guilty; and when he is obliged to aver affirmatively his innocence to bring his case within the jurisdiction of a tribunal of limited powers, the very slightest proof ought, in reason and justice, to be sufficient prima-facie evidence in his favor. We are clear that in a case in which the testimony suggested no doubt on such a point the claimant's own statement, under oath, should be regarded as sufficient to establish for him a prima facie case of true allegiance. For these reasons we sustain the demurrer; but we suspend the entry of judgment until the present claimant, and others who may be affected by this decision, shall have offered to amend their claims, if they shall find themselves able, and deem it good so to do.

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CADWALLADER D. C. RHIND, EXECUTOR, &C.,

vs.

THE UNITED STATES.

No. 242.

A claimant in this court is required to set forth in his petition that during the late rebellion he bore true allegiance to the United States.

It is not sufficient to aver that for any offenses committed by him during the rebellion, he received a pardon from the President of the United States.

A statement of the case will be found in the opinion of the court. The counsel on behalf of the United States demurred to the petition in that the complainant did not aver that at all times during the late rebellion he bore true allegiance to the United States. Argument was had on the demurrer, when it was withdrawn at the suggestion of the court, all questions growing out of it being reserved for argument when the case should come on for final hearing.

At the final hearing

Mr. H. H. Wells for the complainants.

Mr. J. A. J. Creswell for the respondents.

PORTER, J., delivered the opinion of the court:

The petitioner, as executor of the will of John J. Kelly, claims to recover for a certain interest which his testator owned in the bark Lamplighter and her freight. The bark was destroyed by the Alabama, on the 11th day of October, 1862, and we assume that the plaintiff's title to the interest which he claims in the ship and the freight has been established. The objection to a recovery grows out of certain averments of other facts made in the petition. He sets forth that "in legal intendment, and under the allegations already made, he has at all times borne true allegiance to the Government of the United States." These allegations are: "That during the late rebellion the said Kelly, although he resided within the limits of the so-called Confederate States, had no connection with the war in any manner whatsoever, being exempt from conscription by reason of possessing a medical certificate of disability, and that, as far as any sympathy he may have had for the cause of the said Confederate States, he has been duly and legally pardoned." He produces before us exemplifications of two pardons issued by the then President of the United States, in the usual form, bearing date, respectively, on the 28th of August and 23d of September, 1865. From the other proofs submitted, it appears that Mr. Kelly took no active part in the war; that he was exempt from military service; that he contributed no pecuniary aid to the confederacy; that he was in his opinions opposed to the war, but that his sympathies were with the southern people. There is no evidence in any part of the proofs of acts of loyalty on his part toward the United States. This is the substance of his claim for re-imbursement. It differs from every other claim yet brought before us. Can we allow it?

The twelfth section of the act constituting this court contains this now familiar provision: "And no claim shall be admissible or allowed by said court arising in favor of any person not entitled, at the time of his loss, to the protection of the United States in the premises, nor arising in favor of any person who did not at all times during the late rebellion bear true allegiance to the United States." In the case of Charles Pratt Williams, No. 45, we held, unanimously, after full argument, that this requirement of the statute was in the nature of a condition-precedent in law, and that every claimant, to entitle himself to the benefit of the act, must make an averment of his true allegiance during S. Ex. 21– -3

the period of the rebellion. This petitioner avers that his testator did bear true allegiance to the United States, but qualifies the averment by describing his conduct and opinions, and then ascribes to the pardons he received the effect of causing him to occupy, in the eye of the statute, the same position he would have occupied, if he had borne allegiance. Before the passage of the act of 23d June, 1874, many of the most important decisions of the Supreme Court of the United States on the subject of pardons, had been announced; Ex parte Garland, 4 Wallace, 334; United States vs. Klein, 13 Wallace, 136; Carlisle's case, 16 Wallace, 151; and since its passage, Osborn vs. The United States has been decided but is yet unreported. These decisions have held, in substance1st. That the power of pardon conferred on the President by the Constitution is unlimited, except in cases of impeachment.

2d. That the pardon reaches both the punishment prescribed for the offense and the guilt of the offender, releasing the punishment and blotting out the guilt of the offense.

3d. That Congress cannot in any way limit the effect of a pardon, nor exclude from its exercise any class of offenders.

4th. That a pardon restores to its recipient all rights of property lost by the offense pardoned, unless the property has by judicial process become vested in other persons.

The decisions growing out of the Abandoned and Captured Property Act are not pertinent here, for that act and the several interpretations of it were founded on the theory that the right of a claimant once perfect, was not divested by the sale of the property, and that he was entitled to the proceeds, because he was the owner of that which the proceeds represented. (Armstrong's case, 13 Wallace, 154.)

The several principles relating to the effect of a pardon must be supposed to have been known to Congress when the act constituting this court was passed, and, doubtless, the cases decided up to that time were familiar to the members of the Judiciary Committee in each house, before whom the bill came in its progress. With this knowledge in its mind, Congress enacted, not that a claimant should merely assert his allegiance, or that the absence of it might be supplied by proof of a pardon, but that he should establish that at all times during the rebellion he did bear true allegiance; and thus Congress took from this court jurisdiction of every case in which the fact of true allegiance was wanting, by holding that no such claim should be admitted or allowed.

If the right of the petitioner to a part of the fund received from Great Britain were a right of property legally vested in him, it is clear from the cases which have been cited, that a pardon would restore it, and that any denial of the right by Congress would be unavailing to defeat it. Has he such a right? He had a right of property in the ship which the Alabama destroyed, and he lost it without any act on the part of the Government of the United States which could give him redress against

it. The Government of the United States was not obliged to claim from Great Britain payment of the loss, but acted in that regard according to its sovereign pleasure. It did not succeed in obtaining payment of the whole of the claims presented, and the most careful investigation of the proceedings at Geneva has failed to show what claims were included in the award and what excluded therefrom. The award was made in favor of the Government and not in favor of the claimants. The Government thus vindicated the national honor, but it did not assume to pay any particular class of claimants nor any particular claim. Having obtained the money by its own act and at its own cost, it had the right to prescribe the terms on which the distribution should be made. It certainly

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