#### STEPHEN DUNCAN, EXECU’R OF STEPHEN DUNCAN, DECEASED, v. THE UNITED STATES.

No. 2756

March 12, 1883.

'The claimant’s testator was the owner of several hales of cotton in Mississippi in February, 1863. This cotton was received and receipted for by the captain of a United States gunboat, transferred through different officers to Captain Pennock, of the Navy, at C.airo, Ill., who turned it over to the United States marshal.

"With other lots it was libeled in the United States district court in Illinois as belonging “ to a person in armed rebellion against the Government.” There was no allegation in the libel that the property was seized for the purpose of confiscation.

The cotton was condemned, sold, and the proceeds paid one-half to the United States and the other half to Captain Pennock as informer, who turned- it over to Admiral Porter, in command of the squadron. Admiral Porter delivered the same into the control of the district court of the District of Columbia as prize-money. By order of that court the money was deposited with the assistant United States treasurer, subject to the order of the court, and finally it was distributed by a decree of the court as prize-money to captors named in the decree.

The claimant sues for the half of the proceeds of his cotton which went in and out of the Treasury through the order of the district court of the District of Columbia. '

Held :

I.Without a previous seizure under an executive order for the purpose of confiscation, proceedings could not be lawfully instituted under the *Confiscation Act of July*17, 1862, ch. 195 (12 Stat. L., 589).

II.The facts upon which the jurisdiction of the United States courts rests must in some form appear upon the record, and when such facts do not thus appear the proceedings are void and may be so treated by other courts.

III, Under the Abandoned or captured property act, money paid into the Treasury from the proceeds of cotton taken in 1863 in States in the ■ rebellion, and not confiscated, may be recovered by the owner, even though the money has been paid out, if such payment was made without proper authority.

IV. The rulings in the *Winchester Case*(14 C. Cls. R., 13) reviewed and held to govern this case.

The claimant sues for the proceeds of cotton received from his testator in Mississippi in 1863, bringing his action under the Abandoned or captured property Act of March 12, 1863.

*231The material facts and questions of law involved are substantially the same as those in the *Winchester Case*(14 C. Cls. E., 13).

The following are the facts found by the court:

I. The claimant is sole surviving executor of the will of Stephen Duncan, deceased, late of Issaquena County, in the State of Mississippi, and said Stephen Duncan was the owner of several plantations lying on the Mississippi Eiver, in said county and State, in the year 1863.

II. In the month of February, 1863, there were on two of said plantations 120 bales of cotton belonging to claimant’s testator, which, on the 12th, 13th, 14th, and 15th days of said month, were taken therefrom by the naval forces of the United States under the command of Admiral Porter, and the following receipt given therefor:

U. S. Gunboat Tyler, Skipworth’s Landing, Mississippi Eiver,

. *February 16th,*1863.

I hereby certify that I have this clay tafeen from the plantation, of Dr. S. Duncan one hundred and twenty bales of cotton for the use of the United States.

James M. Pritchett,

*lAeut., Commanding V. S. G-imiboat Tyler, Miss. Squadron.*

III. Said cotton, so taken and put on board of the gunboat Tyler, was carried to the mouth of the Yazoo Eiver, and on the 20th dáy of February, 1863, was transferred by the Tyler to a Government steamer, the Black Hawk, the flag-ship of Admiral Porter, and on the same day Admiral Porter reported to ■ the Secretary of the Navy the seizure of the same 120 bales of cotton. On the 6th day of March following, 157 bales of cotton, in which was included claimant’s cotton, were transferred from the deck of the Black Hawk to a Government transport, the General Lyon, which had previously been named the De Soto.

On the following day, March 7, the General Lyon started to Cairo, Ill., with said cotton on board, by d'rderof Admiral Porter, and arrived there on or before the 17th day of March, and on the last-named day Oapt. E. E. Birch, commanding the General Lyon, delivered the said cotton to Capt. A. M. Pen-nock, commandant of naval station at Cairo, by whom it was snbsequently turned over, with other cotton, to the United States marshal for the southern district of Illinois.

*232IV. Thereafter such proceedings were had respecting said cotton as appear by the following duly certified copy of the records of the court therein mentioned:

In the district court of the United States for the southern district of Illinois.

Pleas in the district court of the United States of America for the southern district of Illinois, at a term thereof begun and held at the city of Springfield, in said district, before the Hon. Samuel H. Treat, judge of said court, on Friday, the eighth day of January, in the year of our Lord one thousand eight hundred and sixty-four, and of the Independence of the United States the eighty-eighth.

The United States on relation oe A. M. Pen-nock, informer, *vs.*

One hundred and thirty-eour bales oe cotton, j

In admiralty.

Be it remembered that heretofore, to wit, on the seventeenth day of April, at the April special term of the district court of the United States for the southern district of Illinois, in the year of our Lord one thousand eight hundred and sixty-three, came Lawrence Weldon, esq., attorney of the United States for the said southern district of Illinois, and filed in open court an information and libel against one hundred and thirty-four bales of cotton, which said information and libel are in the words and figures following, to wit:

To L. Weldon, U. S. dist. att’y for the southern district of Illinois:

Sir: I hereby file information against the following property, to wit: (134) One hundred and thirty-four bales cotton, no mark. Said property was seized by the U; S. gunboats of the Miss, squadron, on or about March 7th, 1863, and has been brought and is now within the southern district of Illinois. The seizure was made for the following reason, viz, for being the property of persons in armed rebellion against the United States. I desire that proceedings be taken in the district court of Illinois against said property, and for the benefit of the United States and all parties concerned. U. S. naval station, Cairo, Ills., April 9th, 1863.

A. M. Pennock,

*Fleet Capt’n §• Commld’t of Station.*

United States oe America,

*Southern District of Illinois :*

District court.

To the Hon. Samuel H. Treat, judge of said court:

The libel of information of Lawrence Weldon, att’y of the U. S. of said district, who, being here in his own proper person, prosecutes in the name and behalf of the United States, as well as A. M. Pennock, would give your honor to understand and be informed that he, the said A. M. Pennock, seized the following property, to wit, one hundred and thirty-four (134) *233bales cotton; said seizure was made on or about the 7Ah day of March, A. D. 1863, by the U. S. guuboats of the Mississippi squadron, on the Mississippi River, a public water of the United States, navigable to the sea by vessels of ten or more tons burden. Said seizure was made for the reasons following, to wit:

That the said cotton was purchased in a district or part *of*the United States which before said purchase had been declared to be under insurrec-tionary control by the President of the United States, and was proceeding from said district or part of the United States to another district or part of the United States which had not been so declared to be under insurrection-ary control, contrary to the act of July 13th, 18G1, and the proclamation of the President of August 16th, 1861.

That all and singular the premises are true and within the admiralty jurisdiction of this court. That by reason of said premises, the said one hundred and thirty-four (134) bales cotton became and are forfeited to the United States.

Wherefore the said attorney, on behalf of the United States, prays the usual process and monition, according to law and the jurisdiction of this honorable court in such case, may issue against said one hundred and thirty-four (134) bales cotton, and that the same may be condemned and sold to answer the prayer of this information, and for such other order as may be required.

LawRence Weldon,

*Dist. Att’y.*

(Indorsed:) Filed April 17th, 1863. S. A. Corneau, clerk.

Whereupon a writ of monition was issued as prayed for against the said one hundred and thirty-four bales of cotton, directed to the marshal of the southern district of Illinois to execute, and was afterwards, to wit, on the same day and year last aforesaid, returned by said marshal duly executed, which said writ, together with the return of the marshal thereto, is in the words and figures following, to wit:

United States oe America,

*Southern District of Illinois, ss:*

The United States of America to the marshal of the southern district of Illinois, greeting:

Whereas a libel has been filed in the district court of the United States in and for the southern district of Illinois, in the year of our Lord one thousand eight hundred and sixty-three, by Lawrence Weldon, att’y of the United States, and A. M. Pennock, against one hundred and thirty-four bales of cotton, for reasons and causes in said libel mentioned, and praying the usual process and monition of the said court in that behalf to be made, and that all persons having or pretending to have any right,- title, or interest therein may be cited to appear and answer all and singular the matters in said libel articulately propounded, and that this court would be pleased to pronounce for the sum of-, the damages alleged in said libel, besides costs of suit: You are therefore commanded to attach the said 134 bales of cotton, and to detain the same in your custody until the further *234order of this court respecting the same, and to give notice by publication in the Illinois State Register for fourteen days previous to the day of trial, and by notice posted up in the most public manner for the space of- fourteen days at or near the place of trial of such seizure and libel, to all persons claiming the said 134 bales of cotton, or knowing or having anything to say why this court should not pronounce against the same according to the prayer of the said libel, and that they be and appear before the said court to be held in and for the southern district-, of Illinois, at the United States court-room, in the city of Springfield, in said district, on the first Monday in May next, if that be a day of jurisdiction, if not, then on the first day of jurisdiction thereafter, at 10 o’clock in the forenoon of that day, then and there to interpose a claim of the same, and to make their allegations in that behalf. And what you shall have done in the premises do yon then and there make return, together with this writ.

Witness the honorable Samuel H. Treat, judge of said court, this 17th day of April, in the year of our Lord one thousand eight hundred and S3, and of our Independence the 87th year.

[l. s..] ' S. A. Cornea u, *Clerk.*

By virtue of this writ I have this day attached the within-described cotton and made proclamation of the same on this 17th day of April, 1863; and I do further request of the honorable court that, as the said cotton is perishable and liable to destruction, that order of sale be made for the disposition of said property pending the suit.

D. L. Phillips,

¡7. *S. Marshal.*

United States of America,

*Southern District of*Illinois, *ss:*

Whereas, on the 17th day of April, A. D. 1863, L. Weldon, United States district attorney, filed a libel in the district court of the United States for the southern district of Illinois, against one hundred and thirty-four bales of cotton, on information of A. M. Pennock, in a cause of condemnation and forfeiture; and whereas, by virtue of process in due form of law, to me directed, returnable on the first Monday in May next, I have seized upon and taken the said 134 bales of cotton, andhave the same in my custody: Notice is hereby given that a'district court of the United States will be held at the United States court-room in the city of Springfield, on the first Monday in May next, for the trial of the said premises; and the owner or owners and all persons who have or claim any interest are hereby cited to appear at the time and place aforesaid, to show cause, if any they have, why a final decree should not pass as prayed.

Springfield, .April 17 th, 1863.

D. L. Phillips,

*V. S. Marshal.*

*Publisher’s certificate.*

The undersigned, publisher of the Illinois State Register, a newspaper published at Springfield, Illinois, does hereby certify that the annexed notice was published in said paper for fourteen days successively, the first *235publication thereof haying been made on the 18th day of April, A. D. 1863, and the last on the 14th day of May, A. D. 1863.

C. H. Lampi-íier, *Publisher Illinois State Register.*

(Indorsed:) Filed this 1st day of June, A.- D. 1863. S. A. Corneau, clerk.

And on the same day, to wit, Friday, the seventeenth day of April, at the April special term of said court, in the year of our Lord one thousand eight hundred and sixty-three, the following proceedings were had in said court and entered of record, to wit:

The United States, on the relation oe A. M.) Pennock as informer, *vs.*One hundred and thirty-eour bales cotton. j-In admiralty.

This day came the United States, by the district attorney, and the marshal having made return to the monition, that he has seized the said one hundred and thirty-four bales cotton, and that it will be for the interest of all concerned that said property should at once be sold:

It is therefore ordered by the court, on the motion of the district attorney, that the said property be sold at public vendue for cash, and that the proceeds be brought into court, to abide the result of this proceeding. It is further ordered that the marshal give reasonable notice of such sale in the newspaper designated by the court, and also in a newspaper published in each of the cities of Chicago and Saint Louis. On motion of the dist. att’y, it is further ordered that he have leave to amend the libel, which is accordingly done.

Whereupon, on the twentieth day of April, in the year last aforesaid, a writ of venditioni exponas was issued against the said one hundred and thirty-four bales of cotton, directed to the marshal of the southern district of Illinois to execute, and was afterwards, to wit, on the fifteenth day of May, in the year last aforesaid, returned by said marshal duly executed, which said writ, together with the return of the marshal thereto, is in the words and figures following, to wit:

The United States oe America,

*Southern District of Illinois, ss:*

The United States of America to the marshal of the southern district of Illinois greeting:

Whereas a libel was filed in the district court of the United States for the southern district of Illinois, on the 17th day of April, in the year of our Lord one thousand eight hundred aud sixty-three, by Lawrence Weldon, attorney of the United States, in the name and behalf of the United States, as well as of A. M. Pennock, against one hundred and thirty-four bales of cotton, praying that the same may be condemned and sold for the causes in said libel alleged; and whereas the said 134 bales of cotton has been attached by process issued out of said district court, in pursuance of the said libel, and is now in custody by virtue thereof, and such proceedings have been thereupon had that by the of the said court, in this cause made *236and pronounced on the 17th day of April, in the year of our Lord one thousand eight hundred and 63, the said 134 bales of cotton was ordered to be sold by you, the said marshal, after giving 20 days’ notice of such sale according to law: Therefore you, the said marshal, are hereby commanded to cause said 134 bales of cotton so ordered to be sold be sold in manner and form, upon the notice and at the time and place by law required. And that you have the money arising from such sale in said court, at Springfield, on the 1st Monday of June, eighteen hundred and 63, and that yon then pay the same to the clerk of the court; and have you also then and there this writ.

Witness the honorable Samuel H. Treat, judge of said court, this 20th day *of*April, in the year *of*our Lord one thousand eight hunnred and 63, and of our Independence the 87th year.

[l. s.] S. A. Cokneau, *Clerk.*

L. Weldon, *Proctor.*

By virtue of this writ I sold on the 15th day of May, 1863, the within described property for the sum of twenty-four thousand six hundred sixty dollars.

D. L. Phillips, *U. S. Marshal,*By E. H. Finch, *Deputy.*

Service and mileage on writ. 16 76

Proclamation fee, .30; printer’s fee, 5.00. 5 30

Mileage on vend, expo. 14 76

Printer’s fee.!. 3 50

Commission on $24,660.07, proceeds of sale. 314 50

Expenses . 295 10

Deduct value of 23 bales, being $4,232.69 being yet undisposed of, balance to be distributed as ordered by the court July 6th, 1863.

D. L. Phillips, *U. S. M.*

(Indorsed:) Filed this 23d day of June, A. D. 1863. S. A. Corneau, clerk.

United States marshal’s sale, in admiralty.

By virtue of an order of sale by the Hon. Samuel H. Treat, judge of the ■ United States district court for the southern district of Hlinois, in admiralty, dated on the 20th day of April, A. D. 1863, will be sold at public sale, to the highest and best bidder, for cash, at Cairo, in said district, on the 15th day of May, A. D. 1863, the following described property, to wit, six hundred and ninety-four (694) bales of cotton, the same having been condemned as contraband of war. Sale to commence at 10 o’clock a. m.

Springfield, Ill’s, April 22d, 1863.

D. L. Phillips,

*U. S. Marshal.*

*Publisher's certificate.*

The undersigned, publisher of the Illinois State Register, a. newspaper published at Springfield, Illinois, does , hereby certify that the annexed notice was published in said paper for twenty days successively, the first *237publication thereof having been made on the 23d day of April, A. D. 1863, and the last on the 15 day of May, A. D. 1863.

G. ÍI. IiAMPHIER, *Publisher Illinois State Register.*

(Indorsed:) Filed June 30, ’63. S. A. Corneau, clerk.

*Amendment to libel.*

And afterwards, to wit, on the twenty-second day of April, in the year last aforesaid, came again the said attorney of the United States and filed in the office of the clerk of said court his amendment to the libel heretofore filed herein, which said amendment is in the words and figures following, to wit:

The leave of court being first had, the said libellant further charges that the said property belongs to a person now in armed rebellion against the Government of the United States.

L. Weldon,

*JDist. Att’y.*

(Indorsed:) Filed April 22d, 1863. S. A. Corneau, clerk.

And afterwards, to wit, on Monday, the twenty-second day of June, at the June term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:

United States, on the relation of A. M. Pen- 1 > Id admiralty. One hundred and thirty-four bales cotton. J

The marshal having returned on the monition issued in this cause that he had attached the said one hundred and thirty-four bales cotton, and had given due notice to all persons claiming the same that the court would on this day proceed to the trial and condemnation thereof, should no claim therefor be interposed:

This day came the libellants, by their advocate, L. Weldon, esq., and, upon their motion, proclamation was made for all persons interested in the said one hundred and thirty-four bales cotton to, appear and interpose their claim therefor, and no person appearing to answer said motion, it is ordered, adjudged, and decreed by the court that the default of all persons be, and the same are accordingly hereby, entered, and that the allegations of the libel in this cause be taken as true against the said property, and that the same be condemned as forfeited to the United States. It is further ordered, adjudged, and decreed by the court that the said one hundred and thirty-four bales cotton be sold by the marshal, under and by virtue of a writ of venditioni exponas to be issued by the clerk of this court, in accordance with the rules and practice of this court, and that upon the return thereof, the marsb'al pay the proceeds of such sale into the depository of the court. It is further ordered, adjudged, and decreed, on the motion of the claimant, the adm’r of Jones, by their proctor, that twenty-three hales of said cotton be set aside, and leave given to the administrator of Jones to intervene, and that this cause stands continued as to said twenty-three hales of cotton.

*238And afterwards, to wit, on Monday, the sixth, day of July, at a special term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:

United States ex Red. & A. M. Pennock ) *vs.*J>In admiralty. One hundred and thirty-four bales cotton. )

The marshal having made return on the writ of venditioni exponas issued in this cause on the twentieth day of April, one thousand eight hundred and sixty-three, that he sold one hundred and eleven bales of said cotton for the sum of twenty thousand four hundred and twenty-seven dollars and thirty-eight cents, and this cause now coming on be heard for final decree : It is ordered and decreed by the court that the following allowances be made out of said proceeds for costs and expenses incurred herein: The clerk, the sum of sixteen dollars and seventy-five cents; the district attorney, the sum of twenty dollars, and the marshal, the sum of six hundred and forty-nine dollars and ninety-two cents. It is further ordered and decreed by the court that one-half of the balance of said proceeds, amounting to the sum of nine thousand eight hundred and seventy dollars and thirty-five cents, be paid to the Treasury of the United States, and the remaining half, amounting to the sum of nine thousand eight hundred and seventy dollars and thirty-five cents, be paid to A. M. Pennock, the informer in this case.

It is further ordered and decreed by the court that this cause bo continued as to the remaining twenty-three bales of cotton. '

And afterwards, to wit, on Friday, the eleventh day of September, at the September term of said court, in the yoar last aforesaid, the following further proceedings were had in said court and entered of record, to wit:

The United States, on relation of A. M. Pen-nock, *vs.*One hundred and thirty four bales of cotton. In admiralty.

*Amendment to libel.*

On motion of the district attorney, leave is granted him by the court to amend the libel in this cause by striking out the first allegation.

And afterwards, to wit, on Monday, the fifth day of October, at a special term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:

The United States, on relation of A. M. Pen-1 ¡>In admiralty. • One hundred and thirty-four bales of cotton. J

It is ordered by the court that an additional allowance of two hundred dollars be made to the district attorney for his services in this cause.

And afterwards, to wit, on the thirteenth day of November, in the year last aforesaid, came Benjamin E. Archer, administrator of the estate of *239John D. Jones, deceased, and filed in tlie office of the clerk of said court his claim and answer, as such administrator, to the lihel of information of Lawrence "Weldon, esq., attorney as aforesaid, against one hundred and thirty-four hales of cotton, as to twenty-three hales of said cotton, and at the same time filed letters of administration on the estate of John D. Jones, deceased; which said claim and answer and said, letters of administration are in the words and figures following, to wit:

In the district court of the United States for the southern district of Illinois.

United States of America,

*Slate of Illinois, Southern District:*

The claim and answer of Benjamin E. Archer, administrator of the estate of John D. Jones, dec’d, owner and claimant, as such administrator, of twenty-three hales of first-class cotton, weighing 10,245 pounds, to the lihel of information of L. Weldon, attorney for the southern district of Illinois, on hehalf of the United States, and of A. M. Pennock, and against One hundred and thirty-four hales of cotton, of which said twenty-three hales is a part.

And noiv comes the said Benjamin E. Archer, administrator as aforesaid, and for answer to the said libel doth allege and propound as follows, viz:

First. That the said John 1). Jones, at his death, was the true and hona fide owner of the said twenty-three hales of cotton, & that no other person was the owner thereof. That respondent is the administrator of the estate' of said Jones, & no other person is or has been, and that as such administrator he is lawfully entitled to the possession & control of said twenty-three hales of cotton so belonging to said Jones, or to the proceeds thereof.

2d. This respondent admits that the said twenty-three hales of cotton, being a part of said 134 hales mentioned in said lihel, was. taken possession of hy some of the gunboats of the Mississippi squadron, some time in February or March, 1883, as respondent is informed, and that said cotton be-was purchased in a district of country or part of the United States which fore said purchase had been declared hy the President of the United States to he under insurrectionary control, hut respondent denies that it was proceeding to a district of country or part of the United States under insurrec-tionary control. This respondent also denies that said twenty-three hales of cotton did or does belong to any person in armed rebellion against the Government of the United States.

This respondent, for further answer, alleges the facts to he as follows, viz:

That some time in the year 1859, the said John D. Jones, with his family, moved from Carrolton, in the State of Kentucky, at which place they had resided many years, to Chicot County, in the State Arkansas, the said Jones having become somewhat embarrassed ; that the s’d Jones and family settled in said county in Arkansas, and remained there. The said Jones was a mechanic hy trade, & during the time he lived in the State of Arkansas he was employed and hired as an engineer in running a saw-mill until the war broke out and the blockade on the Mississippi Eiver was enforced; that after said blockade the said Jones and family had no opportunity of getting north until after the fall of Memphis.

*240That during his stay in the State of Arkansas he earned considerable money, which, in the year 1862, was paid to Mm in Confederate scrip, it being the only sort of money he could get. That respondent is informed, and so believes, that Wm. P. Haliday, having, after the river was opened to Memphis, gone down the river, & being acquainted with said Jones, & hear mg that' he desired to come north with his family, advised him to take cotton for his debts & for his scrip, which the said Jones did do. That after-wards the said Jones started to Vicksburg on board of a gunboat to see Admiral Porter to procure a permit to ship the cotton north to Cairo, as also to bring his family north, and while on board of s’d gunboat, and before he had an opportunity of seeing Admiral Porter, he was taken sick and brought to Cairo, Ill., and placed in the hospital. That before his death he found an opportunity of conveying intelligence to his family pf his condition, &kis son, John L. Jones, went to see Admiral Porter'& procured from him a permit for the said cotton & the family of the said J ohn D. J ones to be shipped north to Cairo. That Admiral Porter told him that the cotton must first come down the river to him, & that then he would write to A. M. Pennock to let the cotton come through; that he would pass it up the river, & that there would be no trouble about it. Immediately thereafter the said family came up, & the cotton, and the said John E. Jones with it, went down the river, both starting at the same time. The said family landed at Cairo, in the State of Illinois, & soon thereafter the said John D. Jones died, leaving a widow & sis small children, with nothing for a support except their earnings, the cotton. Eespondent further says that the said cotton finally came up to Cairo and was delivered over to Capt. A. M. Pennock, & was, while in his possession, seized by the United States marshal for the southern district of Illinois, and has since been sold as a part of the lot of cotton of one hundred and thirty-four bales. Eespondent alleges that the said 23 bales of cotton was not piureliased contrary to the act of Congress of July 13, 1861; that at the time he, the said Jones, purchased the same he was living in the State of Arkansas; that he purchased it of his neighbor & those for whom he had labored; that he did not intend to bring said cotton away without legal permits so to do from the Government of the United States, or its officers, as respondent is informed; that all and singular the allegations are true in substance and fact. Wherefore the respondent prays that the said 23 bales of cotton, or the proceeds thereof, be restored to him.

B. E. Archer, *Adm’r.*

On the second day of November, 1863, appeared personally the above-named respondent, and was sworn to the truth of the foregoing claim and answer.

William Parker, [seal.]

J. *P. of Penning Township, Scott Co., Indiana.*

(Indorsed:) Filed Nov. 30th, 1863. Geo. P. Bowen, clerk.

Be it remembered that at the March term of this court, in the county of Carroll, and State Kentucky, to wit, the second day of March, in the year 1863, before the honorable E. W. Masterson, judge of said court, the following proceedings were had in said court, to wit:

*241On motion of Benj. E. Archer, ordered that administration be granted him on the estate of J. D. Jones, dec’d; whereupon said Archer took the oath of office, and, together with C. N. Stringfellow & J. L. Jones, his sureties, executed and acknowledged the covenant, as in such cases required by law.

On motion of B. E. Archer, adm’r of J. D, Jones, dec’d, ordered that C. N. Stringfellow, Bob’t McCann, and J. W. Lingenfellow, any two whom, after being first duly sworn, may act *of*appraisers to appraise the personal estate of said decedent and report.

A copy. Att.:

•Allen Hanks, *C. C. O. 0.*

The Commonwealth of Kentucky :

Whereas Benjamin Archer has been appointed by the county court of Carroll County administrate» of John Daniel Jones, deceased, intestate : Now we, Benjamin Archer, and C. N. Stringfellow, and Jno. L. Jones, sureties, do hereby covenant to and with the commonwealth of Kentucky that the said Benjamin E. Archer will well and truly administer ;the goods, chattels, credits, and effects of the intestate according to law, and will fur'ther make a just and true account of all his actings and doings therein, and will well and truly make a proper distribution of any surplus money, effects, and rents which may come to his hands, or to any one for him, by color of his office, to the persons entitled thereto. If it shall hereafter appear that a last will and testament was made by the deceased, and the same be approved and recorded, we further covenant that the said Benj. E. Archer will in such cases surrender his letters of administration, and that he will account with and pay and deliver over to the executor or administrator with the will annexed the assets in his hands unadministered. This 2d day of March, 1863.

B. E. Archer.

G. N. Stringfellow.

J. L. Jones.

Attest:

D. L. Hanks,

*D. Cleric Carroll County Court.*

A copy. Att.:

Allen Hanks, *C. C. C. C.*

Commonwealth of Kentucky,

*Carroll Coumty, set:*

I, Allen Hanks, clerk of Carroll County court, Kentucky, do certify that the foregoing are true copies of the orders of the county court of said county appointing Benjamin E. Archer administrator of the estate of John D. Joues, dec’d, also the bond of said administrator, as the same appear by the records and files of my office.

In testimony -whereof I have hereunto set my hand and affixed the seal of my office this 1st day of August, 1863.

[seal.] Allf,n Hanks, *C. C. C. C.,*

By D. S. Hanks, *D. C.*

*242Commonwealth of Kentucky,

*Carroll County:*

I, E. *W.*Masterson, presiding judge of the county court of said county, do certify that the foregoing certificate and attestation of Allen Hants, clerk of the county court of Carroll County, to the copy of the orders and bond, is in due form, and that his signature is genuine. In testimony whereof I have hereunto setiny hand this 27th day of Octo., 1863.

E. W. Masterson,

*Presiding Judge of the County Court of Carroll County, Kentucky.*

[5-cent internal-revenue stamp.]

(Indorsed:) Filed Nov. 30th, 1863. Geo. P. Bowen, clerk.

And afterwards, to wit, on Friday, the eighth day of January, at the January term of said court, in the year of our Lord one thousand eight hundred and sixty-four, the following further proceedings were had in said court and entered of record, to wit:

The United States, on relation of A. M. Pennocic,') informer, l In admiralty. One hundred and thirty-four bales of cotton. J

Now comes the district attorney, and now comes also Benjamin E. Archer, administrator of J. D. Jones, deceased, claimant of twenty-three hales of the said cotton, hy Messrs. Hay and Cullom, his proctors, and, hy agreement, it is ordered hy the court that this cause he dismissed as to the said twenty-three 'hales at the costs of the said claimant, and that the marshal pay to the said claimant the proceeds of the said twenty-three hales of cotton amounting to the sum of four thousand two hundred and thirty-two dollars, and sixty-nine cents.

* * * * # # *

And on the same day, to wit, Monday, the fourth day of April, at a special term of said court, in the year last aforesaid, the following further proceedings were had in said court and entered of record, to wit:

The United States, on relation of A. M. Pennock, informer, *vs.*One hundred and thirty-four ba-les of cotton. In admiralty.

Benjamin E. Archer, administrator of the estate of John D. Jones, deceased, having intervened and set up his claim and answer herein, claiming twenty-three hales of the cotton libelled, or the proceeds thereof, and the court having, at its January term, A. D. 1864, ordered that said proceeds, he paid to said intervening claimant, which proceeds, after deducting the costs retained hy the officers of this court, amounted to the sum of four thousand and seventy-four dollars and eighty cents; now at this term comes H. Cox and files his petition, showing that since the order foregoing herein rendered said Benjamin E. Archer has heen removed from his said office as administrator of said estate, and that said H. Cox has heen duly appointed administrator of said estate, the record whereof *243is duly exhibited with said petition, and that said proceeds are now in the hands of Messrs. Hay and Cullum, the proctors of said intervening claimant; and it appearing that said proceeds so in the hands of said proctors are proper assets of the estate of said John D. Jones, and that said petitioner, as administrator of the estate of said Jones, is entitled to said proceeds, it is ordered that said proctors pay said proceeds to said petitioner, retaining their reasonable fees thereout, in the matter of said intervening claim.

UNITED States of America,

*Southern District of Illinois, ss:*

I, George P. Bowen, clerk of the district court of the United States for the southern district of Illinois, do hereby certify the foregoing to be a full, true, and complete transcript of the record and proceedings had in said court in a certain cause lately pending therein, wherein the United States en relation of A. M. Pennook, informer, are libellants, and One hundred and thirty-four bales of cotton is defendant, as the same are now on file and of record in my office.

In testimony whereof I have hereunto set my hand and affixed the seal of said court, at Springfield, in said district, this third day of January, in the year of our Lord one thousand eight hundred and seventy-eight, and of our Independence the one hundred and second year.

[seal.] Geo. P. Bowen, *Cleric.*

United States of America,

*Southern District of Illinois, ss:*

I, Samuel H. Treat, judge of the district court of the United States for the southern district of Illinois, do hereby certify that the foregoing attestation signed by George P.’Bowen, clerk of said court, is in due form.

In testimony whereof I have hereunto set my hand, at the city of Springfield, in said district, this third day of January, in the year of our Lord one thousand eight hundred and seventy-eight, and of the Independence of the United States the one hundred and second.

S. H. Treat, *District Judge.*

United States of America,

*Southern District of Illinois, ss:*

I, George P. Bowén, clerk of the district court of the United States for the southern district of Illinois, do hereby certify that the Hon. Samuel H. Treat, whose name appears subscribed to the foregoing certificate, is and was at the date thereof sole judge of said district court, and that his signature to said certificate is in his genuine handwriting.

In testimony whereof I have hereunto set my hand and affixed the seal of said court, at Springfield, in said district, this third day of January, in the year of our Lord one thousand eight hundred and seventy-eight, and of the Independence of the United States the one hundred and second.

[seal.] Geo. P. Bowen, *Cleric.*

*244V. The 111 bales of cotton thus finally condemned as forfeited were the claimant’s cotton, captured and seized as set forth in the second finding, and all the money decreed to be paid over, one-half to the United States Treasury and the other half to Capt. A. M. Pennoclr, as informer, was the proceeds of his said cotton. What became of the other nine bales included in the receipt of Captain Pritchett, set out in finding II, does not appear.

The sum of $9,870.35, decreed to be paid into the Treasury, was so paid by the United States marshal.

YI. The balance, a like amount, decreed to be paid to Captain Pennock, as informer, was included with other money received and decieed in like manner by said court in other cases, making in all $59,943.42, and a check therefor drawn by the marshal on the assistant treasurer at Saint Louis, with whom the proceeds of cotton libeled in said court had been deposited, was given to said Pennock, who handed the same to Admiral Porter as the real informer. Admiral Porter declined to accept the same as informer, but received the check and forwarded it to the Secretary of the Navy for distribution among the officers and crews of his squadrons as captors. Subsequently it was deposited by said Porter, .by order of the Secretary of the Navy, with said assistant treasurer at Saint Louis, and said Poster’s check therefor was given into the control of the district court of the United States for the District of Columbia, by said Porter, and such proceedings were had thereon as appear by the following duly certified copies of the records of said court:

Office United States District Attorney,

*Washington, D. C., July*12, 1864.

*To the honorable the judge of the United States district• court for the District of Columbia:*

I have the honor to transmit herewith a paper signed by David D. Porter, rear-admiral commanding the Mississippi squadron, relative to the sum of $59,943.42 decreed to said Porter, as informer, by the United States district court for the southern district of Illinois, in certain cases therein adjudicated. Rear-Admiral Porter declines to receive the money as informer, and, -with most honorable and just intentions, through his counsel, Mr. Charles Eames, and through the Navy Department, invokes the aid of the United States district court.for this District to distribute, in a formal and proper way, the sum of money specified among the officers and crews of the vessels making the captures of the property sold by the decrees of the court heretofore referred to.

*245I desire to have the case put upon the docket as hy the consent of the parties, and upon the paper referred to and upon the check on the assistant United States treasurer at Saint Louis, Mo., payable to the order of the assistant treasurer at Washington, D. C., and indorsed, “ Prize-money of Mississippi squadron, deposited with assistant treasurer, by order of the Secretary of the Navy, by Rear-Admiral David D. Porter, commanding Mississippi squadron,” I shall base a motion for a decree of distribution.

E. C. CARRINGTON,

*United States District Attorney.*

*■*Per Nath’l Wilson,

*Assistant District Attorney.*

Washington, D. C., *July*7, 1864.

I hereby certify that the sum of $59,943.42, now on deposit with the assistant treasurer at Saint Louis, Mo., and represented by my draft for the said amount to order of the assistant treasurer at Washington, under date of Cairo, January 3, 1864, is the moiety of several amounts decreed by the United States district court at Springfield, Ill., to be forfeited to the United States, which said moiety was decreed to me as informer, in which capacity I decline to receive it, holding myself to be, as commanding officer of the Mississippi squadron, one of the captors, and that the said amount ought to be distributed to the ship’s companies entitled thereto according to the law of distributing prize-money, and I invoke the aid of this honorable court to the end that such distribution may take place through its decree to that effect.

And 1 certify that, to the best of my knowledge and belief, the money rightfully belongs to the ships’ companies of the following vessels of the Mississippi squadron, by which I believe the property, of which it is the proceeds, to have been captured. The vessels are the following: Forest Rose, Curlew, General Pillow, New Era, Louisville, Mound City, Conestoga, Marmora, Signal, Pittsburg, Cincinnati, GeneialLyon, Romeo, Caron-delet, Tylor, Petrel, Black Hawk, and tugs.

David D. Porter,

*Dear-Admiral, Commanding Mississippi Squadron.*

And sucb proceedings were bad thereon as appear by the following duly certified copies of the records of said court:

United States district court for the District of Columbia.

Present, David K. Cartter, chief justice.

United States *vs.*$59,943.42, Prize-money, Mississippi squadron, &c.

It is ordered by the court in admiralty sitting, this thirteenth day of Jnly, A. D. 1864, that the check accompanying the petition of Rear-Admiral David D. Porter, and signed by the said Porter, for the sum of $59,943.42, and *246•endorsed as follows: *“*Prize-money of Mississippi squadron, deposited with, •assistant treasurer by order of the Secretary of the Navy, by Rear-Admiral David D. Porter, commanding Mississippi squadron,” be deposited by the marshal with the assistant treasurer at Washington, and that the money' therein described, being the sum of $59,943.42, remain in the hands of the •said assistant treasurer subject to the further order of this court.

By order of the court.

Lsbal.] *o*D. K. Cartter,

*Chief Justice.*

At a stated term of the United States district court for the District of Columbia, held at the United States court-rooms in the city of Washington, on Wednesday, the thirteenth day of July, in the year of our Lord one thousand eight hundred and sixty-four.

Present, David It. Cartter, chief justice.

The United States

*vs.*,

$59,943.42, Piuze-money oe Mississippi squadron,

deposited with assistant treasurer, by order of the *'*

Secretary of the Navy, by Rear-Admiral David D.

Porter, commanding Mississippi squadron.

It appearing to the court that there is the sum of ñfty-nine thousand nine hundred and forty-three dollars and forty-two cents deposited with the assistant U. S. treasurer at St. Louis, Missouri, subject to the order of the assistant U. S. treasurer at Washington, and that the said amount was decreed to Rear-Admiral David D. Porter, as informer, by decree passed by the United States district court for the southern district of Illinois in certain cases there adjudicated;

And it further appearing to thq court that the said Rear-Admiral David D. Porter declines to receive the said sum of money, or any part thereof, as informer, and desires that the-same be distributed as prize-mouey among the officers and crews of the vessels making the captures of the property condemned by the decrees of the court hereinbefore referred to;

And it further appearing to the court that the said Rear-Admiral David D. Porter regards the following-named vessels as entitled to share in the distribution of the said fund, and that by agreement, consent, and understanding by and between the said Rear-Admiral David D. Porter and the officers and crews of the vessels hereinafter to be named, the vessels here- ■ inafter named are entitled to the proportion of the said sum of $59,943.42 hereinafter stated;

And it further appearing that the aggregate sum of the costs and disbursements herein, as by the adjustment on file in the office of the clerk will appear, is eleven hundred and ninety-eight dollars and eighty-six cents, and that the net amount for distribution on the basis of the said adjustment is fifty-eight thousand seven hundred and forty-four dollars and fifty-six cents:

It is now ordered and decreed, on the motion of the district attorney, the counsel for the captors being present in open court and assenting to *247the same, that the aforesaid net amount he distributed among the following named public vessels of the United States as follows:

To the Forest Eose, two thousand six hundred and forty-four dollars and eighty-three cents.

To the Curlew, two thousand two hundred and seventy-seven dollars and seventy-eight and one-half cents.

To the General Pillow, four hundred and thirty-six dollars and thirty-six cents.

To the New Era, live hundred and thirteen dollars and eighty-three cents.

To the Louisville, five thousand and sixty-six dollars and seventy-nine cents.

.To the Mound City, five thousand and sixty-six dollars and seventy-nine cents.

To the Conestoga, four thousand and ninety-four dollars and ninety-four cents.

To the Marmora, four thousand five hundred and thirty-one dollars and ninety-four cents.

To the Signal, five thousand four hundred and seventeen dollars and two cents.

To the Pittsburg, five thousand and sixty-six dollars and seventy-nine cents.

To the Cincinnati, five thousand and sixty-six dollars and seventy-nine cents.

To the General Lyon, two hundred, and sixty-eight dollars and forty-seven cents.

To the Eomeo, two thousand three hundred and forty-one dollars and fifty-one cents.

To the Carondelet, five thousand and sixty-six dollars and seventy-nine cents.

To the Tylor, eight thousand eight hundred and fifty-eight dollars and twenty-one cents.

To the Petrel, two thousand and thirty-nine dollars and thirty-eight cents.

To the Black Hawk and tugs, two thousand nine hundred and eighty-six dollars and thirty-four cents.

By order of. the court.

D. K. CaRtter,

*Ch’f Justice.*

District court of the United States for the District of Columbia. 1 *Glerh's certificate of costs.*

United States *vs.*59,943.42, Prize-money op Mississippi squadron, deposited with assistant treasurer, by- order of the Secretary of the Navy, by Eear-Admiral David D. Porter, commanding Mississippi squadron. >No. ; • In prize.

Amount of sales, as per marshal’s return $59,943 42

*248Amount of costs taxed by the court:

District attorney. $424 5&

Marshal. 149 85

Counsel for captors. 599 43

Clerk. 25 00

Prize commissioners.

- $1,198 86

Balance for distribution. 58,744 56

Examined and certified this 13th day of July, A. D. 1864.

. D. K. Caettee, *Cl\.f Justice.*

United States district court for the District of Columbia.

United States ] *vs.*| ■ $59,943.42, Pkize-money op Mississippi sqvadbon, ( p • deposited with assistant treasurer, by order of the f ' ' Secretary of the Navy, by Kear-Admiral David D. | Porter, commanding Mississippi squadron. J

It is ordered by the ■ court, in admiralty sitting, this thirteenth- day of July, A. D. 1864, that in the above-entitled case the sum of eleven hundred and ninety-eight dollars and eighty-six cents having been taxed and allowed as costs, that the same be paid to the deputy U. S. marshal, G. W. Phillips, for the District of Columbia, and that the balance remaining in the hands of the assistant treasurer of the United States at Washington, D. C., being the sum of fifty-eight thousand seven hundred and forty-four dollars and fifty-six cents, to be paid into the Treasury of the United States, to be distributed according to the terms of the decree passed by this court. [seal.] ' D. *K.*Caettee,

*Ch’f Justice.*

YII. In pursuance of said orders of the United States district court of the District of Columbia, said money was deposited with the assistant treasurer at Washington, and the final balance, $58,744.56, was covered into the Treasury “on account of money received for prize-money belonging to the Mississippi squadron,” “to go to the credit of the captors”; and thereafter said money was paid out of the Treasury in accordance with the terms of the decree of said court hereinbefore set out.

VIII. On the 28th of August, 1862, the Secretary of the Navy issued the following order:

NAVY DEPARTMENT,

*August*28, 1862.

The attention of naval officers is called to the regulations of the Secretary of the Treasury concerning commercial intercourse with insurrectionary States or sections, dated August 28, 1862.

*249I. Commanders of naval vessels will render suoli aid as may be necessary in carrying out tlie provisions of said regulations, and enforcing observance thereof to the extent directed by tbe Secretary of the-Treasury, so far as can possibly be done without danger to the operations or safety of their respective commands.

II. There will be no interference with trade in or shipments of cotton or other merchandise conducted in pursuance of said regulations within any of the waters controlled by the naval forces of the -United States, unless absolutely necessary to the successful execution of military or naval plans or movements. But in cases of the violation of the conditions of any clearance or permit granted under said regulations, and in cases of unlawful traffic, the guilty party or parties will be arrested and the facts promptly reported.

III. No officer of the Navy will seize cotton or other property of individuals within the territory opened to traffic and subject to the regulations of the Secretary of the Treasury, unless the same is exposed to destruction by the enemy, or needed for naval purposes, or for confiscation under the act of Congress; and in all such cases the fact, with all attendant circumstances, shall be promptly reported to the Department.

Gideon Welles,

*Secretary.*

The following order was issued by the Secretary of the Navy, but it does not appear when, if at all, it reached or was forwarded to-the officers of the Mississippi squadron:

Navy Department, *Washington, March*31, 1863.

For the purpose of more effectually preventing all commercial intercourse with insurrectionary States, except such as shall be authorized in pursuance of law, and of securing consistent, uniform, and efficient action in conducting such intercourse as shall be so authorized, and for the purpose of carrying out the provisions of an act of Congrhss entitled “An act to provide for the collection of abandoned property, and for the prevention of frauds in insurrectionary States,” approved March 12, 1803, it is hereby ordered:

I. That no officer of the Navy of the United States, nor other person connected therewith, shall authorize or have any interest in the transportation of any goods, wares, or merchandise (except supplies belonging to, or contracted for by, the United States, designed for the military or naval forces thereof, and moving under military or naval orders, and except also sutlers’ supplies and other things necessary for the use and comfort of the naval forces of the United States, and moving under permits of the authorized officers of the Treasury Department) into any State declared by the President to be in insurrection; nor authorize nor have any interest in the purchase or sale therein of any goods or chattels, wares or merchandise, cotton, tobacco, or products of the soil thereof; nor the transportation of the same, except as aforesaid, therefrom or therein; nor shall any such officer or person authorize, prohibit, or in any manner interfere with any *250such purchase or sale or transportation which shall be conducted 'under the regulations of the Secretary of the Treasury, unless under some imperative military necessity in the place or section where the same shall he conducted, or unless requested by an agent or some other authorized officer of the Treasury Department, inr, which case all officers of the Navy of the United States and other persons connected therewith will render such aid in carrying out the provisions of the said act and of the law, and in enforcing due observance of the said regulations of the Secretary of the Treasury, as can he given without manifest injury to the public service.

II. It is further ordered that every officer, sailor, or marine in the naval service of the United States who shall receive or have under his control any property which shall have been abandoned by the owner or owners, or captured in any district declared to he in insurrection against the United States, including all property seized in any such district under naval orders, excepting only such as shall he required for the use of the naval forces of the United States, and as is excluded by the act of March *12,*1863, shall promptly turn over all such property to the agent appointed by the Secretary of the Treasury to receive the same, who shall give receipts therefor, if desired.

And every such officer, sailor, or marine shall also turn over to such agent in lite manner all receipts, bills of lading, and other papers, documents, and vouchers showing title to such property, or the right to the possession, control, or direction thereof; and he shall make such order, indorsement, dr writing as he has power to make to enable such agent to take possession of such property or the proceeds thereof. Arms, munitions of war, forage, horses, mules, wagons, beef-cattle, and supplies, which are necessary in naval operation, shall -be turned over to the proper officers for the use of the Navy. All other property abandoned, captured, or seized, as aforesaid, shall be delivered to the said agent of the Treasury Department.

The officer receiving or turning over such property shall give the usual and necessary invoices, receipts, or vouchers therefor, and shall make regular returns thereof, as prescribed by the Navy regulations. The receipts of the agents of the Treasury Department shall be vouchers for all property delivered to them. And whenever called upon by the said agent of the Treasury Department authorized to receive such abandoned, or captured, or seized property, as aforesaid, or the proceeds thereof, all persons employed in the naval service of the United States will give him full information in regard thereto, and if requested by him so to do, they shall give him duplicates or copies of the reports and returns thereof, and of the receipts, invoices, and vouchers therefor. ,

And every officer of the Navy of the United States hereafter receiving abandoned, or captured, or seized property in any insurrectionary State as aforesaid, or the proceeds thereof, or under whose order it may be applied to the use of the naval forces as aforesaid, shall, upon request of au agent appointed by the Secretary of the Treasury as aforesaid, render a written report, with invoices thereof, to said agent, in which he will specify the arms, supplies, or other munitions of war retained for use of the naval forces as aforesaid, and also, separately, the property turned over.to said agent, or which may have been sold or otherwise disposed of. And in case a sale *251of any such property shall he made under his authority, or under the authority of any one subject to his order, he will so siate, and will describe the property so sold, and will state when and where, and by and to whom, sold and the amount received therefor, and what disposition was made of the proceeds.

And all the officers of the Navy of the United States will at all times render to the agents appointed by the Secretary of the Treasury all such aid as may be necessary to enable them to take possession of any abandoned, or captured, or seized property aforesaid, and in transporting the same, so far as can be done without manifest injury to the public service.

All expenses of transporting property herein referred to will be reported by the officers who furnish the transportation to the agent of the Treasury Department, and also, through the proper channels, to the Navy Department at Washington, in order that the expenses may be reimbursed from the proceeds of sales of such transported property.

III. All naval officers in command of squadrons, vessels, or stations will, upon receipt of this order, revoke all existing orders throughout their respective commands conflicting or inconsistent herewith, or which permit, or prohibit, or in any manner interfere with, any trade or transportation conducted under the regulations of the Secretary of the Treasury not understood as applying to any lawful maritime prize by the naval forces of the United States; and their attention is particularly directed to said regulations, prescribed March 31, 1863, and they will respectively make such orders as will insure strict observance of this order throughout their respective commands.

Gideon Welles,

*Secretary of the Navy.*

IX. The following- correspondence took place between Admiral Porter and the Secretary of the Navy:

U. S. Flag-Ship Black Hawk,

*March*7, 1863.

Sir : In the last twenty days I have sent to Cairo 388 bales of captured cotton, valued at one hundred and thirty-nine thousand dollars, and have on hand from the New Era No. 5, and other sources, t.wo hundred and fifty-nine (259) bales, valued at ninety-one thousand dollars; two hundred"and thirty thousand dollars in all. This cotton has been turned over to the-marshal at Cairo. In the Army, all cotton seized is sent to Memphis and sold by the quartermaster for the use of the Army. If our paymaster at Cairo had the authority to sell the cotton, much of which has no ownership, he could easily keep the fleet supplied with funds.

Very respectfully,

David D. Porter,

*Act’g Bear-Admiral, Comm’g Miss. Squadron.*

Hon. Gideon Welles,

*Secretary of Navy, Washington.*

*252„ Navy DEPARTMENT, *March*28, 1863.

Sir: In reply to your letter of the 7th. inst., yon are informed that all property captured as “prize property” must he sent to a prize court for adjudication, and be disposed of as the court may decree.

The disposition of captured abandoned property” is provided for by the reeent act of Congress, approved March 12, 1863.

Very respectfully,

Gideon Welles,

*Secretary of the Navy.*

David D. Porter,

*Act. Bear-Admiral, Commanding Miss. Squadron, Cairo, Ills.*

X. The following order and instructions were respectively issued by the President and the Attorney-G-eneral :

Executive Mansion,

*Nov.*13, 1862.

Ordered, by the President of the United States, that the Attorney-General be charged with the superintendence and direction of all proceedings to be had under the act of Congress of 17th of July, 1862, entitled “An act to suppress insurrection, punish treason and rebellion, seize and confiscate the property of rebels, and for other purposes,” in so far as may concern the seizure, prosecution, and condemnation of the estate, property, and effects of rebels and traitors, as mentioned and provided for in the fifth, sixth, and seventh sections of said act of Congress. And the Attorney-General is authorized and required to give to the attorneys and marshals of the United States such instructions and directions as he may find needful and consistent touching all such seizures, prosecutions, and condemnations; and moreover, to authorize all such attorneys and marshals whenever there may be reasonable ground to fear any forcible resistance to the act in the discharge of their respective duties in this behalf to call upon any military officer in command of the forces of the United States to give them such aid, protection, and support as may be necessary to enable them safely and efficiently to discharge their respective duties; and all such commanding officers are required promptly to obey such call, and to render the necessary service as far as may be in their power consistently with their other duties.

Abraham Lincoln.

By the President:

Edward Bates, *Attorney-General.*

*General instructions to district attorneys and marshals relative to proceedings under the acts of Congress for confiscation.*

Attorney-General’s Oestce,

*Jan.*8, 1863.

The President of the United States has charged the Attorney-General with the superintendence and direction of all proceedings to be had under the act of Congress of the 17th of July, 1862, and the act of August 6, 1861, *253commonly called the confiscation laws, and authorized and required him to give to the attorneys and marshals such instructions and directions as he may find needful and convenient touching all such seizures, proceedings, and condemnations.

In'the execution of that duty I find it necessary to give hut a few preliminary instructions relative to the seizure of property, with a view to condemnation under the law.

The law requires the proceedings -to begin with seizure. When once seized and properly reported to the district attorney,it will he proceeded against in court. Then each case becomes an action pending, and the laws themselves are the sufficient instruction to both the attorney and the marshal in all ordinary cases. If unforeseen difficulties arise in the progress of a cause so as to-embarrass the district attorney or marshal as to his mode of xiroceeding, he should report to this office, stating the precise facts, and asking instruction upon the point of his difficulty.

With regard to the seizure of property, the following instructions are given:

1. All seizures will be made by the marshal of the proper district, under written authority, to be given him by the district attorney, specifying with reasonable certainty the property to be seized and the owner whose right is sought to be confiscated.

2. When the marshal has seized any property under subh authority, he will, without any unnecessary delay, make a true return thereof in writing to the district attorney.

.3. The district attorney shall keep in his office, fairly written in a book, a duplicate or exact copy of every such order of seizure made by him smd directed to the marshal. And the marshal shall keep in his office, fairly written in a book, a duplicate or exact copy of every return of seizure which he shall make to the district attorney; and this as well for their own safety as for the information of the Government and the court.

4. The issuing of the order of seizure is trusted to the discretion of the district attorney; and while he ought to be vigilant to execute the law, he ought, to be careful to avoid hasty and improvident seizures. In every instance he ought to be satisfied that there is probable cause for the seizure, and that he has reasonable ground to believe that he can prove in court the facts necessary to warrant the condemnation. For otherwise, besides the injustice which may be done to individuals, the Government will be put to great expense, and will be discredited by the frequent failure of its prosecutions. The district attorney must necessarily do this part of his duty upon his own judgment and responsibility. He is on the spot, and has the means of knowledge, while this office cannot have the requisite information of the facts, nor govern the details of the prosecution in the multitude of cases that will probably arise in all the districts bf the nation.

5. As to the manner of making the seizure, I can do little more now than suggest methods of convenience. Where the State law directs the method of seizure, it should be conformed to as nearly as may be, consistently with the objects of the acts of Congress. If the thing to be seized be personal property, it ought to be actually seized and safely kept. If real estate, the marshal ought to seize *all the right, title, interest, and estate*of the accused *254party, giving notice in writing of the seizure to the tenants in possession, if any. If stocks or other intangible property, the marshal ought (if there be no specific method prescribed by the State law) to describe the property as plainly as he can in his return, and leave the court to determine the sufficiency of the seizure. •

6‘. I am credibly informed that in various parts of the country property has been seized by military officers with a view to confiscation, under the acts of Congress. In all such cases, when the military officer in possession is willing to surrender the property to the civil authority, to be proceeded against according to law, the marshal shall receive the same, and *make*return thereof to the district attorney, as required in No. 2.

7. After the seizure of the property, the district attorney will, with all convenient speed, proceed in the proper court for the condemnation of the property seized.

As this is a new class of business in our courts, Congress has thought proper to put your fees and compensation upon a new basis. , The act of July 17, .1862, § 8, p. 591, provides that *“*the said courts shall have power to allow such'fees and charges of their officers as shall be reasonable and proper in the premises.”

Edward Bates, *Attorney-General.*

(The following is a list of district attorneys and marshals to whom a copy of the foregoing instructions was sent:)

U. S. DISTRICT ATTORNEYS.

** ■ a a** *a*#

Elliot B. Herndon, Springfield, III.

U. S. MARSHALS.

*#*#•#**

, David L. Phillips, Springfield, Ill.

*if*, *if it it- if if if*

Attorney- General’s Oeeice,

*Washington, March*17, 1863.

*L.*Weldon, Esq.,

¡7. *S. Dist. Att’y, Springfield, III.:*

Sir : I have just received yours of March 11, in which I regret to find that my printed letter of instructions (under the confiscation act) is not fully understood.

I tried to make it very plain and clear; and for that purpose, used the very words of the act of Congress with regard to “fees and charges.”

The act of July 17, 1862, assimilates, as near as may, the practice under it to the practice in admiralty; and in courts of admiralty, I understand, the uniform practice is to allow the officers such fees and charges “ as shall be reasonable and proper in the premises.”

Really, sir, I do not know how to state the matter plaiuer than it is stated in the letter of instructions.

Very respectfully, your ob’t serv’t,

Edw’d Bates.

*255XI. Agents, under the Act of March 12,1863, were appointed by the Secretary of the Treasury, April 4,1863.' It does not appear when they accepted the appointments, gave bonds, or first entered upon their duties.

*Mr. James S. Bmbry*for the claimant:

1. The proceedings of the district court in Illinois taking jurisdiction of the cotton in question were instituted under the *Act of July*17,1862 (12 Stat. L., 589), and were invalid and void because there was no previous seizure under an order of the President, and it was not alleged in the libel that the seizure was made by his order.

2. Neither the information nor the libel mentions the name of the owner of the cotton or the place where it was seized, and the owner had no. legal notice, actual or constructive. *(Winchester*v. *United States,*14 C. Cls. R., 13; 99 IT. S. R., 372; *Stmley*v. *Banlc of*America, 4 Dali., 11; *Confiscation cases,*20 Wall., 87 ; *Bee parte Smith,*94 IT. S. R., 456;. *Galpin*v. *Page,*18 Wall., 350; *Schooner Hoppet*v. *United States,*7 Or., 389; *Brig Caroline,*ibid., 496; *United States*v. *Weed,*5 Wall., 62.)

3. There is a marked difference between the Act of July 17, 1862, where the *person*alonéis charged as the offender, and the Acts of July 13 and August 6,1861, where the *property*becomes the offender and is proceeded against *(The Moses Taylor,*4 Wall., 411; Conkling’s Treatise, 584; *Miller*v. *United States,*11-Wall., 308.)

*Mr. John S. Blair*(withwhom was *Mr. Thomas Simons,*Assistant Attorney-General) for the defendants:

1. The default established every fact alleged in the libel which was necessary to the judgment. It is to be presumed that everything necessary to warrant the judgment was done by the court. *(Miller*v. *United States,*11 Wall., 300.)

The libel was sufficiently certain. *[Schooner Uoppct*v. *United*States,7 Or., 390; *United States*v. *Schooner Little Charles,*1 Brock., 350; and being the case under sec. 5, *Act of July*13,. 1861,12 Stat. L., 257).

The district court for the southern district of Illinois had as-full jurisdiction over the case as if the seizure had been made in that district. '(Sec. 9,12 Stat. L., 258.)

*256Section 5 of tbe act of July 13, 1861, is similar to section 5 of the *Act of March*1,1809 (2 Stat. L., 529), and is subject to the rule in *The United States*v. 1,960 *hags of coffee*(8 Or., 404), to wit, that divestiture of title takes place on the commission of the offense. *(United States*v. Grundy, 3 Or., 348.) Consequently it is immaterial what disposition was made of the proceeds, whether improperly divided or paid into the Treasury.

2. The decree of the court is an affirmance of the charge in the libel, and whether the judgment was correct or not is not open to collateral inquiry. *(Woodruff*v. Taylor, 20 Vt., 74, quoted in Smith’s Leading Cases; *Harvey*v. *Tyler,*2 Wall., 342, 349, and cases there cited; *Galpin*v. *Page,*18 Wall., 371; *Confiscation Cases,*20 Wall., 92.)

3. This is not a case involving crime on the part of the owner; it is the offense of the property which causes the forfeiture. *(Dobbins’s Distillery,*96 U. S. E., 399.)

No rule of pleading required the libel to negative the proviso of section 5, and the court will take judicial notice of the fact that as late as the seizure and condemnation of this property commercial intercourse with the rebels was absolutely forbidden. *(United States*v. *Lane,*8 Wall., 196.)

Jurisdiction having been conferred upon the district court, it is to be presumed that it did everything that was necessary to warrant its entry of judgment. *(Miller*v. 11 *United States,*11 Wall., 299, 300, 301.)

■ 4. Ample relief against the harshness of forfeitures under the Act of July 13,1861, was provided by section 8, which extended to such cases the benefits of the Act of March 3, 1797; and that is the only remedy.

OPINION.

Scofield, J.,

delivered the opinion of the court:

In February, 1863, the claimant’s testator was the owner of several plantations in the State of Mississippi, on which were 120 bales of cotton, also owned by him. This cotton was seized and receipted for by the captain of the United States gunboat Tyler. The Tyler transferred it, at the mouth of the Tazoo Eiver, to the Black Hawk, the flag-ship of Admiral Porter. From the Black Hawk it was transferred to the United States *257transport General Lyon, and taken to Cairo, Ill. The General Lyon delivered it with other cotton to Captain Pennock, by whom it was turned oyer to the United States marshal. One lot of 134 bales, supposed to contain claimant’s cotton, was libeled as set forth in finding IY, in the district court of the United States for the southern district of Illinois, at first under the *Act of July*13, 1861, ch. 3 (12 Stat. L., 256), but finally, by amendment, as property belonging’“to a person nowin armed rebellion against the Government of the United States.” *(Act of July*17,1862, ch. 195,12 Stat. L., 589.) By decree of the court, 23 bales were given up to John D. Jones, who was found to be the owner, and 111 bales were condemned and sold. One-half the proceeds of the sale, amounting to $9,870.35, was paid into the United States Treasury, and the other half to Captain Pennock, as informer. Captain Pennock turned over his half to Admiral Porter, who was in command of the Mississippi squadron. By Admiral Porter it was deli vered, with other like money, t& the district court of the District of Columbia, by whose adjudication it was finally covered into the United States Treasury, “ on account of money received for prize belonging to the Mississippi squadron, to go to the credit of the captors.” The sum thus covered into the Treasury being the proceeds of the Pennock moiety of the 111 bales, less costs and charges, amounted to $9,673.44. These 111 bales of cotton, as appears by finding Y, belonged to claimant. What became of the other 9 bales, said to have been seized by the Tyler, does not appear.

By the amended libel, the court proceedings were brought under the *Confiscation Act of July*17, 1862 (12 Stat. L., 591).

The facts in this case (finding X excepted) are in all respects similar to the facts in the *Winchester Case*(14 C. Cls. B., 13). Judge Davis, delivering the opinion of the'court, stated, in two short paragraphs, the whole law of the case as follows:

> Without a previous seizure under an executive order, for the purpose of confiscation, no proceedings could' he properly instituted under the confiscation Act of July 17, 1862 *(The Confiscation Cases,*20 Wall., 108), and as a di stri ct court of the United States is a court of limited j urisdietion, although notan inferior court *(Thompson v. Lyle,*3 Watts & Serg., 166), and as it must always appear in the record that it has jurisdiction of the particular case which it attempts to adjudicate *(Ex parte Smith,*94 U. S. R., 456), the record in any proceeding for confiscation must show an executive seizure of the property condemned before the court assumed jurisdiction over it. *(The Confiscation Cases, sup.')*And if the facts necessary to give the court *258.'jurisdiction do not appear in tlie record, its jurisdiction may be inquired into in every other court -where the proceedings are relied upon and brought before the latter by a party claiming the benefit of them. *(Williamson*v. *Berry,*8 Pet., 540. Cited with approval in *Thompson*v. *Whitman,*18 Wall., 467.)

> In the present case no such executive order preceded the confiscation proceedings. The claimant’s cotton was seized by the naval forces of the United States, under the general executive order of August 28, 1862, for the purpose of naval defense. The «admiral in command reported the seizure ■as required by the order, and was instructed by the Secretary of the Navy, ■ on the 28th of March, to hold the cotton under the abandoned and cap•tured property act. This executive order struck at the root of the proceedings in Illinois; and when the district attorney libeled the cotton he did snot, because he could not, aver that it had been seized by executive order for the purpose of confiscation. The condemnation and sale under such a record are void, and for such portion of the claimant’s cotton as passed into ■the Treasury he is entitled to a judgment in this action, notwithstanding the judgment in Illinois.

Upon the question whether the claimant in- that case was '-entitled to recover the moiety which found its way into and •out of the Treasury, through the decree of the district court of v-the District of Columbia, this court was divided. From, the - decision of the majority affirming such right two judges filed ••dissenting opinions. The case was appealed to the Supreme AOourt and affirmed. *(Winchester*v. *United*States, 99 U. S. R.., 372.)

These decisions settle all questions of law in the case at bar, ■■ except the one depending on the new fact set out in finding X. That finding contains the order of the President directing .the Attorney-General to superintend all proceedings under the ..Act of July 17, 1862, and the instructions of the Attorney-'-General to his subordinate officers.

Does this order of the President and the pursuant instruc-Vtioas of the Attorney-General supply the executive order of - seizure, the absence of which in the Winchester Case, as decided in that case, deprived the United States district court of Illinois of jurisdiction ?

By these instructions of the Attorney-General (which must be regarded as coming from the President) the marshal is directed to make seizures “under written authority to be given [.by the district attorney, specifying with reasonable certainty rihe property to be seized and the owner whose right is sought •to be confiscated.” Had it been averred in the libel that the *259¡seizure was thus made the case would hare been brought within the rule laid do wn in the *Confiscation Cases*(20 Wall., 109), but the record contains no such averment. The cotton is therein stated to have been seized “ by the United States gunboats of the Mississippi squadron,” and it appears by finding IX that this squadron was directed by the Secretary of the Navy, presumed also to be acting by order., of the President, to make ■quite another disposition of naval seizures.

Chief Justice Waite, in giving the opinion of the court in *Ex parte Smith*(94 U. S. R., 455), says:

> The facts upon which the jurisdiction of the courts of the United States Tests must, in some form, appear in the record of all suits prosecuted before ¡them. To this rule there are no exceptions.

As there is nothing in the record of the Illinois court to indicate that the seizure was made by executive authority, through the instructions of the Attorney-General or otherwise, and nothing in the findings upon which, such allegation could have been truthfully based, this suit must be governed by the rulings in the Winchester Case.

The decision of the court is that the claimant recover from the defendants the sum of $>19,543.79.