YOUNG
v.
UNITED STATES.

*46 The case was argued by Mr. J. Hubley Ashton and Mr. W.W. MacFarland for the appellant.

Mr. Attorney-General Devens and Mr. Assistant-Attorney-General Smith, contra.

*58 MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Beyond all doubt, the late rebellion against the government of the United States was a sectional civil war; and all persons interested in or affected by its operations are entitled to have their rights determined by the laws applicable to such a condition of affairs. It is equally beyond doubt that, during the war, cotton, found within the Confederate territory, though the private property of non-combatants, was a legitimate subject of capture by the national forces. We have many times so decided, and always without dissent. Mrs. Alexander's Cotton, 2 Wall. 404; United States v. Padelford, 9 id. 531; Sprott v. United States, 20 id. 459; Haycraft v. United States, 22 id. 81; Lamar v. Browne, 92 U.S. 187.

The authority for the capture was not derived from any particular act of Congress, but from the character of the property, *59 — it being "potentially an auxiliary" of the enemy, and constituting a means by which they hoped and expected to perpetuate their power. As was well said by the late Chief Justice in Mrs. Alexander's case (supra), where this question first arose: "Being enemies' property, the cotton was liable to capture and confiscation by the adverse party. It is true that this rule, as to property on land, has received very important qualifications from usage, from 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 commanding general may determine in what special cases its more stringent application is required by military emergencies; while considerations of public policy and positive provisions of law, and the general spirit of legislation, must indicate the cases in which its application may be properly denied to the property of non-combatant enemies. In the case before us, the capture seems to have been justified by the peculiar character of the property, and by legislation. It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. It is a matter of history that, rather than permit it to come into the possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction. The value of that destroyed at New Orleans, just before its capture, has been estimated at $80,000,000... . The rebels regard it as one of their main sinews of war; and no principle of equity or just policy required, when the national occupation was itself precarious, that it should be spared from capture, and allowed to remain, in case of the withdrawal of the Union troops, an element of strength to the rebellion."

No better evidence can be found of the value of cotton as an element of strength to the insurgents than is contained in this record. It there appears that the "chief requirement" of the Confederate government from abroad was warlike supplies, and that an outward cargo of cotton of one-fourth the carrying capacity of a vessel would pay for a full inward cargo of munitions *60 of war, and leave a "very large surplus" to the credit of that government.

As war is necessarily a trial of strength between the belligerents, the ultimate object of each, in every movement, must be to lessen the strength of his adversary, or add to his own. As a rule, whatever is necessary to accomplish this end is lawful; and, as between the belligerents, each determines for himself what is necessary. If, in so doing, he offends against the accepted laws of nations, he must answer in his political capacity to other nations for the wrong he does. If he oversteps the bounds which limit the power of belligerents in legitimate warfare, as understood by civilized nations, other nations may join his enemy, and enter the conflict against him. If, in the course of his operations, he improperly interferes with the person or property of a non-combatant subject of a neutral power, that power may redress the wrongs of its subject. But an aggrieved enemy must look alone for his indemnity to the terms upon which he agrees to close the conflict.

All property 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. It has never been doubted that arms and munitions of war, however owned, may be seized by the conquering belligerent upon conquered territory. The reason is that, if left, they may, upon a reverse of the fortunes of war, help to strengthen the adversary. To cripple him, therefore, they may be captured, if necessary; and whether necessary or not, must be determined by the commanding general, unless restrained by the orders of his government, which alone is his superior. The same rule applies to all hostile property.

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.

The government of the United States, in passing the Abandoned and Captured Property Act, availed itself of its just *61 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 (supra), "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. In this way, while kept out of the Confederate treasury, it was saved for the purposes of trade and commerce. By this means, the national government acted with double power upon the strength of the enemy: first, by depriving them of the means of supplying the demand for their products; and, second, by lessening the demand. It was to avoid this last effect of the capture that the insurgents preferred to destroy property rather than permit it to fall into the hands of the national forces.

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, being 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 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 *62 as to all others the title of the United States as captor was absolute. Whoever could bring himself within the terms of the trust might sue the United States and recover, but no one else.

It has been decided that this right of suit was given to the subjects of Great Britain, whose property had been taken, as well as to citizens of the United States. United States v. O'Keefe, 11 Wall. 178; Carlisle v. United States, 16 id. 147. The present claimant was a British subject.

There can be no doubt that the words "aid or comfort" are used in this statute in the same sense they are in the clause of the Constitution defining treason (art. 3, sect. 3), that is to say, in their hostile sense. The acts of aid and comfort which will defeat a suit must be of the same general character with those necessary to convict of treason, where the offence consists in giving aid and comfort to the enemies of the United States. But there may be aid and comfort without treason; for "treason is a breach of allegiance, and can be committed by him only who owes allegiance, either perpetual or temporary." United States v. Wiltberger, 5 Wheat. 96. The benefits of the statute are withheld not for treason only, but for giving aid and comfort as well. A claimant to be excluded need not have been a traitor: it is sufficient if he has done that which would have made him a traitor if he had owed allegiance to the United States.

This, we think, was the manifest intention of Congress. It must be remembered that the statute was passed March 12, 1863, in the dark hours of the national cause. The "Florida" and the "Alabama," built in Great Britain, were then in the midst of their successful cruises against the commerce of the United States. Nassau, in the island of New Providence, was the principal port of entry of the insurgents for blockade-running purposes, and aid and comfort from those who could not be guilty of treason were being sent in every conceivable form into the Confederacy through every port not sealed against approach by an absolutely effective blockade. The great object of all was to secure the enormous profits to be realized by an exchange of the "chief requirement" of the enemy for their great staple, cotton. For this, all risks of capture and confiscation *63 were assumed, and the arm of the rebellion upheld. That it was the intention of Congress to permit foreign owners of cotton thus acquired to sue the United States for its proceeds, when captured, cannot for a moment be believed.

A non-resident alien need not expose himself or his property to the dangers of a foreign war. He may trade with both belligerent or with either. By so doing he commits no crime. His acts are lawful in the sense that they are not prohibited. So long as he confines his trade to property not hostile or con traband, and violates no blockade, he is secure both in his person and his property. If he is neutral in fact as well as in name, he runs no risk. But so soon as he steps outside of actual neutrality, and adds materially to the warlike strength of one belligerent, he makes himself correspondingly the enemy of the other. To the extent of his acts of hostility and their legitimate consequences, he submits himself to the risk of the war into whose presence he voluntarily comes. If he breaks a blockade or engages in contraband trade, he subjects himself to the chances of the capture and confiscation of his offending property. If he thrusts himself inside the enemies' lines, and for the sake of gain acquires title to hostile property, he must take care that it is not lost to him by the fortune of war. While he may not have committed a crime for which he can be personally punished, his offending property may be treated by the adverse belligerent as enemy property. He has the legal right to carry, to sell, and to buy; but the conquering belligerent has a corresponding right to capture and condemn. He enters into a race of diligence with his adversary, and takes the chances of success. The rights of the two are in law equal. The one may hold if he can, and the other seize.

Collie, having been a non-resident alien, was not a traitor; but in his foreign home he seems to have done as much as any one private person could do to aid and assist the insurgents in their struggle for supremacy. The case shows that, as early as October, 1863, he entered into a contract of copartnership with the government of the State of North Carolina, the sole object of which was to provide the "country" with its "chief requirement" from abroad of warlike supplies, "with regularity, expedition, and economy," and to assist in running out regularly *64 through the blockade "a quantity of cotton for the State, to enable it to benefit from the very high prices ruling" in Great Britain. During the previous year, he was largely engaged in running the blockade, and supplying the government of the Confederacy with all kinds of munitions of war. He also acted as the agent of the State of North Carolina for the sale in England of its "obligations for the delivery of cotton at the port of Wilmington, or other ports in possession of the Confederate States," sometimes guaranteeing payment. In the following year, he entered into a contract with the government of the Confederate States, to cause to be purchased, and delivered through the blockade, quartermaster's stores and ordnance and medical stores of the value of £200,000, for which he was to be paid, on arrival "in the Confederacy," in cotton at sixpence sterling per pound, adding fifty per cent to the English invoice. For this he was granted special privileges. His cotton was to be shipped "free from any charge or restrictions whatever beyond the ... existing export tax of one-eighth of a cent per pound," and no steamers were to have priority over his in that service. His "agents, with the necessary staff for attending to his business, are (were) to be allowed the privilege of residing in the Confederacy free from liability to conscription, and every facility is (was) to be allowed them for effectually carrying out the terms of this (the) agreement." During the same year, he sent through the blockade and presented to the government of North Carolina "a new kind of gun, reported to be peculiarly destructive," which he asked the authorities at Wilmington to accept (using his language) "as a `substitute' for some of our people, who but for our business would have been doing business in another capacity." This gun was afterwards used by the Confederate authorities, as it was clearly intended by him to be, to aid the entry of blockade-runners into the port of Wilmington by repelling the pursuing vessels of the United States. At another time he sent two Whitworth guns through the blockade, as a gift from himself, which were accepted by the government and used in its service.

Had these things been done by a citizen of the United States, he would have been guilty of treason; and, had they *65 been done by the government of which Collie was a subject, it could justly be charged with having been an ally of the enemy. Clearly, Collie was in league with the Confederate government; and, as was said by Mr. Chief Justice Marshall, in Ex parte Bollman and Ex parte Swartwout (4 Cranch, 75), "All those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in general conspiracy, are to be considered as traitors." In East's Pleas of the Crown, the same principle is thus stated: "Every species of aid or comfort, in the words of the act, which, when given to a rebel within the realm, would make the subject guilty of levying war, if given to an enemy, whether within or without the realm, would make the party guilty of adhering to the king's enemies." 1 East, P.C. 78. And Mr. Justice Foster, in his Discourse on Treason, says: "Furnishing rebels or enemies with money, arms, or ammunition, or other necessaries, will prima facie make a man a traitor." Foster's Crown Law, 217. Mr. Justice Field, in United States v. Greathouse (4 Sawyer, 472), states the same doctrine in this language: "Wherever overt acts are committed, which in their natural consequence, if successful, would encourage and advance the interests of the rebellion, in judgment of law aid and comfort are given."

If, then, Collie had owed allegiance to the United States, it is clear that, aside from all questions of pardon and amnesty, he would have been excluded from the privileges of the statute under which he claims. His acts were hostile acts, and, as has already been seen, the same rule of exclusion applies to him as an alien, that would if he had been a citizen.

This brings us to inquire as to the effect of the proclamation of pardon and amnesty issued by the President Dec. 25, 1868. 15 Stat. 711. By that proclamation, there was granted to every person, within the scope of the pardoning power of the President, who directly or indirectly participated in the rebellion, "full pardon and amnesty for the offence 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 ... made in pursuance thereof." This was done to "secure permanent *66 peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the national government, designed by its patriotic founders for the general good."

The President has the constitutional "power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." Art. 2, sect. 2. The pardon is of the offence, and, as between the offender and the offended government, shuts out from sight the offending act. But if there is no offence against the laws of the United States, there can be no pardon by the President.

This court has decided, in reference to the Abandoned and Captured Property Act, that a pardon relieves the owner of captured property from the necessity of proving he did not give aid and comfort to the rebellion, because the pardon is equivalent to actual proof of his unbroken loyalty. The language of the late Chief Justice, speaking for the court, in United States v. Padelford (supra), is, "The law makes the proof of pardon a complete substitute for proof that he gave no aid or comfort to the rebellion." This is now the settled rule of decision here, and is not to be disturbed. As the United States were, during the war, both belligerent and sovereign, they could act in either capacity, and with all the powers of both. A part of their citizens, assuming that their allegiance to their States was superior to that which they owed the United States, rebelled. The nation, as a nation, protested against this assumption, and the two contending parties appealed to arms. The result was in favor of the United States. In a spirit of conciliation, the nation has pardoned those who, owing it allegiance, have made war upon it, and closed the eyes of the government to their offending acts. It was a bounty extended to them for their return to allegiance. Collie, though by reason of his hostile acts an enemy, was not a traitor. He was no offender, in a criminal sense. He had committed no crime against the laws of the United States or the laws of nations, and consequently he was not, and could not be, included in the pardon granted by the President in his proclamation. His offending acts, therefore, have not been shut out, and he and his representatives *67 remain subject to all his original disabilities under the statute.

Property captured during the war was not taken by way of punishment for the treason of the owner, any more than the life of a soldier slain in battle was taken to punish him. He was killed because engaged in war, and exposed to its dangers. So property was captured because it had become involved in the war, and its removal from the enemy was necessary in order to lessen their warlike power. It was not taken because of its ownership, but because of its character. But for the provisions of the Abandoned and Captured Property Act, the title to and the proceeds of all captured property would have passed absolutely to the United States. By that act, however, the privilege of suing for the proceeds in the treasury was granted to such owners as could show they had not given aid or comfort to the rebellion. This was a reward for loyalty, not a punishment for disloyalty. Collie has been deprived of no right he ever had. Neither he nor any one similarly situated has ever been permitted to sue the United States in their own courts upon such a claim. What he asks is not a restoration to a right which he once had, and by his misconduct has lost, but the grant of a privilege which those who have never given aid or comfort to the rebellion, or who, owing allegiance to the United States, have been pardoned for their offence of disloyalty, now possess. He labors under no disability in respect to any right he ever had. What he wants is the grant of a new right.

If his property was captured by the United States, under circumstances which entitled him to require its restoration, the law of nations gave him the right to prosecute his claim through his own government for the loss he sustained. That right was not taken from him by the Abandoned and Captured Property Act. It was open to him from the first moment of the capture. All he had to do was to induce his government to assume the responsibility of making his claim, and then the matter would be "prosecuted as one nation proceeds against another, not by suit in the courts as matter of right, but by diplomatic representations, or, if need be, by war." In such cases, "it rests with the sovereign against whom the demand is *68 made, to determine for himself what he will do with it. He may pay or reject it; he may submit to arbitration, open his own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself." United States v. Diekelman, 92 U.S. 520. This was the only right Collie had when his cotton was taken, and the United States have never consented to grant him any other. While the President, by his pardon, may restore lost rights, it has never been supposed that in such a way he can grant new ones.

It may be that foreigners who have given aid and comfort to the enemies of the United States are in equity as much entitled to the privileges of the act as the pardoned enemies themselves; but that is for Congress to determine, and not for us. We have decided that the pardon closes the eyes of the courts to the offending acts, or, perhaps more properly, furnishes conclusive evidence that they never existed as against the government. It is with the legislative department of the government, not the judicial, to say whether the same rule shall be applied in cases where there can be no pardon by the President. A pardon of an offence removes the offending act out of sight; but, if there is no offence in the eye of the law, there can be no pardon. Consequently, the acts which are not extinguished by a pardon remain to confront the actor.

Judgment affirmed.

MR. JUSTICE FIELD dissented.