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The daily phoenix. (Columbia, S.C.) 1865-1878, August 08, 1865, Image 1

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VOL. 1.-NO. llfc
Dailv Paper, six months.* .. .$5 00
Tri-Weekly, " " .3 50
Weekly, " " .2 00
Single"copies of the Dailv and Tri-Weekly,
10 conts; or the Weekly, l? cents.
Insertad in either the Daily or Tri-Weeklv at
$1 per squaro for the first insertion, and 75
cents for each subsequent insertion. In thc
Weekly, $1 a square.
JC3"Spocial notices 15 cents a line.
Captured Property.
Wo print below the opinion of the
Attorney-General of the United States
relative to tho status of captured or
abandoned, rebel property taken into
military possession and transferred to
the agents of the United States Trea- j
sury for sale. As it involves very
large interests both North and South,
it is important. Much of this pro?
perty, since it came into possession of
the United States, appears to have
been designed to pay off debts eon- j
trac ted before the war with Northern
merchants, many of whom now hold
assignments of claims ostensibly for
that purpose. And there has been a
good deal of speculation in these
claims also, certain parties in the
North having purchased them at a
very nominal figure. To all concerned, j
tire only recourse, according to the ?
Attorney-General, is the Court of !
July 5, 1865.
Hon. Hugh McCulloch, Ssc/'etcoy of :Jit \
Sn:: I have the honor to acknow- !
ledge the receipt of your letter of the I
17th ult., submitting for my opinion
the questions that have arisen in your
department in the case of the Savan?
nah cotton.
The circumstances under which the
property in question carno into the
possession of the Government are
stated in your letter substantially as
follows :
On the occupation of the city of
Savannah, in December last, by the
United States forces, under Maj. Gen.
Sherman, some 38,000 bales of cotton
were found stored there. This pro?
perty was seized and taken possession
of by the military authorities, and by !
them turned over to agents of the
Treasury Department as "captured
property," pursuant to the provisions
of the Acts of Congress of March 12,
1803, and July 2, 18C4, (12 Stat, at
Liarge, S20; 13 id. 375.) After it was
tims received by the appropriate
agents, the property was forwarded to
New York, and there sold at auction
as provided by law. You state that a
number of claims for the proceeds of
the sales are now being presented to
your department, some of the claim?
ants being residents of Savannah, who
aver that they have bpon loyal to the
Government during the rebellion;
others being subjects of foreign Go?
vernments resident in Savannnah, or
abroad, averring that they were neu?
tral during the late conflict; others,
again, being Northern merchants,
stating that they came into possession
of the cotton claimed by them inpay?
ment of, or as security for, debts con?
tracted prior to the rebellion; and
still others, claiming restitution of
their property, or its proceeds, on the
ground that the cotton in question
was not cnpturable, or properly "cap?
tured property," and should'not be
held and treated as such.
Thc first question arising on thf*
state?of facts that you syibmit is, whe?
ther the property to which reference
has been made, should or should not
be regarded as "captured," under the
Acts of Congress of March 12, 18G3,
and July 2. 1864.
I do not perceive that either of Hie
statutes provides what property shall
be regarded as "captured property,"
within the meaning of the law. A de
finition of "abandoned" property,
however, is contained in the first see
tion of the Act of 18H4. That statut
l provides^that "property, real or per
I gonai, shall be regardod as abandoned
I when the lawful owner shall be volun?
tarily absout therefrom, and engaged
either in arms or otherwise, in aiding
or encouraging tilt? rebellion." (13
Stat, at Large, 376.) Hut I apprehend
that there need be no .difficulty in de?
termining, for our present purposes,
what property ia comprehended by
the phrase "captured property" as
used in these statutes, tor the phrase
i is its own suffieieut explanation. 1
? suppose that all movable property,
j other than that species described by
the proviso to the first section of the
! Act of 1863, actually and hostilely seiz
1 ed and taken on lund, by a military
officer or soldier of the United States,
in a State, or any portion of a State,
i designated aa in insurrection against
I the United States, moy be regarded as
I "captured" within tho meaning of the
I statutes of 1863 and 1864. I do not in?
tend to say that no other property than
that I have thus emdeavorod to de?
scribe, may be denominated and" treib?
en as "captured property" under these
statutes. It would seem by the 7th
1 section of the Act ol' 1804, that certain
property seized and taken by naval
j iorees, viz: "projieaty seized by the
navy upon any of tho inland waters of
? thc UnitedIStates, " may be dealt with
in the manner provided by the laws
under consideration, (13* Stat, at
Large, 377;) whether this section
talles a^ay the prize: jurisdiction ol
th?* Courts in ali cases of seizure ol
water-borne property on the inland
waters of the United States, effected
there by naval commissioned captors,
and commits ail jurisdiction over such
eases to the Court of Claims and te
Congress, must remain for judicial
determination. Hut the Supremt
Court has recently decided that pri?
vate property seized by a naval fort?
on land bordering upon one of thc
inlaud waters of the insurrectionary
South, was not the subject of prizt
jurisdiction, and was receivable by tin
Tre.vsury agents undwr tho statute o
1863, (U. S. 72 Bales ol'Cotton, Dec
7, 1864, No. 360.) Tins decision wa:
rendered in a. eas*' to which the Act o
136-1 did not apply, the-capture then
considered having been made prior ti
the 2>assage of that statute. I refer ti
it for the purpose of showing tha
certain cases ol purely naval captur*
must pursue tho course indicated ii
thc statute for UH; collection of aban
doned and captured property. I hav
said that property seized or taken l>t
any military person iu the insuma
ti?nary territory is denominated a
"oaptured;" but thc 6th section 0
tile Act of 1863 would seem to allix thu
character to "cotton, sugar, rice alu
tobacco" received by any Unitei
States ofliccr or soldier within instil
rectionary districts. The section pro
vides that it shall bo thc duty of ever
officer or privat?? "soldier, who ma
take or receive abandoned property
or any cotton, sugar, rice or tobacco,
from persons in insurrectionary dh
tricts, or have such property undi
his control, to turn the same over t
an agent of the Treasury Department
and it further pros ides that the refus:
or neglect to do so shall subject sue
an ollicer or soldier to trial and punisl
mont. (12 ?tat. at Large, 321.)
Property of the foregoing eharucti
thus turned over to a Tre asury agen
and in that manner "received" 1
him, must be dealt with us the 2d sc
tion of the Act provides: that is,
must be sold, alni its prece.Is pai
into the Treasury, there to await tl
action of-the Court of Claims, win
duly invoked.
Thus it appears that all cotton r
ceived by, or that may have coi:
under the control of, any militai
officer or soldier, whether it was a
tually seized or captured by him i
not, must be dealt with as "abundo
ed or captured property." I ms
have, occasion hereafter to comme:
upon the effect of this provision.
The statute, it may bc said, th
affixes to all cotton, as well as all t
other articles above stated, that ni,
be under the control of a military
naval ollicer in the insurrections
districts, the dc jun1 character
"captured" property, and when sn
property is received by a Treasu
officer appointed to execute the pi
visions of thV. Acts of 1803 and I8t
it becomes, it may be said, de fut
j "captured" property, and must be
disposed of accordingly.
1 am of opinion, therefore, that the
cotton found by our army at Savan
I nail, taken possession of there by tho
military authorities, and receive^ from
? them by the agents of the Treasury
Department, is and shouhl be regard
j ed as de facto and dc jure "captured''
property, under the statutes of li>(53 i
i and 18(54.
The second question which you pro
; pose is, whether, it' this property be
j of the character that 1 am bf opinion
j it is, the power rests with the Secre
j tarj of thc Treasury, or the President, j
I to appoint a Commission to examine ?
I the claims, and restore to loynl claim-1
ants, the proceeds of so much of the
property in question as they can show
to have been legally theirs.
I am of opinion that neither the
President nor any other Executive
officer can restore or "authorize such a
commission as you suggest, to make
reiteration of the proceeds of their
captured property to these loyal claim?
ants. Congress, by the legislation
under consideration, has reserved to
itself tho power of finally dispos?
ing of the claims of thc alleged!
owners of this property; and, so
long as that legislation exists, the
claimants must pursue the remedy
which it indicates for the establish?
ment and enforcement of their rights.
By the Constitution, Congress has ex?
clusive power "to make ltdesconcern?
ing captures on Lind and water." The
present legislation, I apprehend, is
clearly an exercise of that power.
This is a general and comprehensive
sovereign prerogative. Under other
systems of Government the authority
to mn ko such rules may be exorcised
bythe political department. Butin
this country the legislative depart?
ment of tjie Government possesses
exclusive authority both to establish
rules for thc regulation of tl ie light ol
capture in time,of war, and also te
provide the method by which al
questions touching captures may bi
determined The present .legislator
is not so much a regulation of tin
"the right of capture-though tin
sixth section of the Act of 18(5:
may bo-interpreted as authorizing,
if not commanding, the seizure o
certain kinds of propertv found by om
military forces within thc hostile dis
triets of the South-as it is a provi
sion for the judicial ascertainment o
the rights of persons affected by cap
tures that may have been, or may he
made in the progress of our heiliger
ont operations, sot on foot for the re
duction of the rebellious Souther:
country. Congress took notice of tin
fjfc't that captures of property on lam
Had been made, and would continu
to be made, by tho armies operatinj
in and against that territory, as :
necessary and proper means of dimi
nishing the wealth, and thus reducin;
the power, of the insurgent rulers. I
was not expected that such capture
had lucen, or would be, itt all case?
well and wisely made, or that in th
course of snell predatory hostility, th
innocent would not suffer sometime
as well as the guilty. Xor was i
thought well that the Administrator
so u?speak, if so much of tho propert
within the enemy's territory ns mig!
be reduced into the possession of th
military forces, should be controlle
by or under executive authority. I
this view of existing facts, and of ju>
policy, the system provided by thc Ac
ot INC.:' was devised for the acljudici
tion and decision of thc cases conten
plated by the statute. The Secretar
of the Treasury was authorized to a}
point agents to "collect all abandone
or captured property" in tile enemy
country. To secure faithful ann hoi
est performance of their duty, tl:
Secretan' was authorized to requh
such agents t-> give bunds in sue
amounts as he might deem necessar
The duty of the agents was po receii
all property in the insurgent Stab
which was in fact captured or seize
out. of the enemy's possession by tl
military authorities. They had i
duty or power to inquire whether <
not such property natl boen rightful
captured; whether tho generals wi
reported it to thom for collection hi
observed, in etlocting tho capture
what are called "the recognized usa^
of war," or had violated all the pri
cipk'S of writers on what is styleel t
law ot' nations, supposed to tend
against the right of seizing private
property on land; tait it was the duty
of the Treasury agents simply to re?
ceive all property reported to them as
having been captured, irrespective of
any considerations touching the legal
exemption of any of il from seizure,
and to dispose of ii in the manner
provided by the law. After the con?
version of the property into money,
the pi'oceeds were directed to be 'paid
into the. Treasury." Thc words of the
statute are: "The proceeds thereof
sholl he p?dd into the Treasury of the
United -States." lint these proceeds
do not pass into tho Treasury as pro?
ceeds of property sold under n judicial
sentence1 of confiscation. They are
not sequestered or condemned, but
simply held by the United States, so
to speak, i? trust for those who may,
in thc manner provided, and in the
time limited by law, ultimately esta?
blish a legal right to receive them af ter
pacification. When thc insurrection
has been suppressed, the owners aire
authorized to invoke the jurisdiction
of the -Court of Claims, and obtain
there ana djudication of their respec?
tive claims, The proceeds of the pro?
perty are thus in the possession of the
United States, subject to the adjudi?
cation of that Court; and when it shall
have passed upon the claimants' rights,
and d< cree in their favor, Congress
has solemnly declared that they shall
receive restitution of their property.
In the presence of such legislation
covering as it does the entire subject
matter, providing for the safe custody
of the property in question pending
hostilities, and for the final judicial
determination of thc .rights of the
parties interested-I cannot see that
the Executive has power to make a
different disposition of.; tbfe property
from that provided by . Congress, ur
authorize any one to (ttwtjrmine the
questions which Congress hus entrust*
ed to the decision oi another forum.
I am, therefore, of opinion, in reply
to your inquiry, that jurisdiction can?
not be conferred upon a commission
appointed either by the President or
the Secretary of thc Trcnsury to exa?
mine the claims in question, and to
make restoration of thc proceeds of so ?
much of this cotton as may belong to j
loyal claimants.
The third and last question you pro- j
pose is, what disposition should be
made of the proceeds of the sales of
tho property?
I think it is your duty to see that
the direction of the Act of Congress is |
obeyed by those in whose hands the |
proceeds may be. The statute says
that after the sale of any abandoned
or captured property, "the proceeds
thereof shrill be paid into the Treasury
of the United States. " I am of opinion,
therefore, that the proceeds of the
property in question should be paid
into the Treasury of the United States,
there to awaifefthe action of the Court
of Claims and of Congress.
Very respectfully, your obedient
(Signed) , JAMES SPEED,
Fire Insurance.
CU A Ti L ESTO y, S. C.
REPRESENT tho following first-class and
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atv, viz:
With an aggregate cash capital of over
Risks taken on liberal terms, and losses
aroxnntly paid in Charleston.
Applications from thc interior must be
Lccompatiicd by a plat, ami fall descrintion
>f the property to be insured, ?howiig all
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E TR. T. A. TOBIN, who was for a le?th
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.nt in the present firm, and will devote hi*}
itt cation principally to tho State of Soutb
karolina. His adorent? wiTJ be Clinton,
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