#### CARLISLE AND HENDERSON'S CASE. Hugh Carlisle et al., appellants, *v.*The United States, appellees.

(6 Court of Claims R., p. 398; not yet reported in Wallace.)

*On the claimants’ Appeal.*

*Alims domiciled in Georgia begin the manufacture of saltpeter in*December,1861. *In April,*1862, *owing to the approach of the United States troops, they abandon their works. Immediately after the withdrawal of the troops they return and resume. In May,*1863, *they sell their works and a (quantity of saltpeter to the rebel government. In the bill of sale it is expressed that the saltpeter is for the manufacture of gunpowder; otherwise they never give aid or comfort to the rebellion. The Court of Clams decides that saltpeter is 'one of those articles which may be used for purposes of war or peace, according to circumstances, and that for an alien resident to engage in its manufacture amid the circumstances of this case, was to give aid and comfort to the rebellion. The Supreme Court approves this, but orders a re-argument upon the question whether the amnesty proclamations of the President apply to domiciled aliens as toell as to citizens. In the court below judgment for the defendants. The claimants appeal.*

I. The well-established rule that an alien while domiciled in a country owes to it a local and temporary allegiance, which continues during the period of his residence, in return for the protection he receives; and that, for a breach of this temporary allegiance, he may he punished for treason, extends to aliens who were domiciled during the rebellion within the insurrectionary district and within the Confederate lines.

II. The voluntary sale of saltpeter to the Confederate government during the rebellion by a domiciled alien, who knows that it is to be used in the manufacture of gunpowder for the prosecution of the war, makes him a participator in the treason of the Confederates as if he had been an original conspirator with them.

*154III. The *Proclamation of General Amnesty*extends to aliens domiciled within the insurrectionary district during the rebellion, and relieves them from the consequences of treasonable participation in the war as effectually as if they were citizens.

*The Reporters'*statement of the case:

In the court below the case turned upon the point whether the manufacture and sale of saltpeter to the Confederate government amid the circumstances stated'constituted aid and comfort to the rebellion. On the first hearing in the Supreme Court this was also the point chiefly discussed. But the court agreeing on the point with the court below, ordered a re-argument upon the question “ *whether the amnesty proclamations of the President apply to domiciled, aliens as loell as to*citizens.” The essential facts found by the court below were as follows :

The claimants did not give aid or comfort to persons engaged in said rebellion, unless the following facts constituted such aid and comfort, to wit: from having, in 1860 and 1861, been engaged in the business of railroad contractors; they, in December, 1861, began the manufacture of saltpeter at Santa Cave, in Jaclrson County, Alabama, and continued engaged therein until the following April, when, owing to the presence of United States troops in the vicinity, they left the cave, and remained absent therefrom until the following October, when, immediately after the evacuation of Huntsville, Alabama, by the United States forces, they resumed work in making saltpeter at said cave, and continued it about two months. Their right to make saltpeter there was under a contract of lease between the owners of the cave and other parties, which had been transferred to the claimants, by whom it was, in May, 1863, sold and .transferred to the so-called “ Confederate States of America” for $34,600. On the 28th of March, 1862, the claimants sold to the said Confederate States of America 2,480 pounds of saltpeter, at 75 cents per pound, aggregating $1,860, and received payment therefor at Richmond, Virginia, on the 27th of June, 1862, from a rebel captain of artillery; and on the 30th of November, 1862, they sold to the said “ Confederate States” 4,209 ])ounds of niter, at 75 cents per pound, aggregating $3,156.75, and in the bill of the same, which the claimants receipted, it was expressed that the said niter was “for manufacture of gunpowderand the amount of said bill was paid at Larkins-*155trille, Jackson County, Alabama, on the 24th. of December, 1862, by the rebel “ superintendent of nitre and mining district ¿55'®. 3 *f*and the claimants hired to said “ Confederate States ” wagons to transport, said nitre from said Santa Care to Borne,. (Georgia.

*Messrs. Carlisle & McPherson*(oil the re-argument) for the .«claimants, appellants:

The President has *u*power to grant reprieves and pardons for ■offenses against the United States, except in cases of impeachment.” (Con., art. 2, sec. 2, par. 1.) The character of the offender is immaterial — if the offense exists, thepower of pardon co-exists. 'The language of the Constitution has no terms of limitation. The power of the President to pardon is co-extensive with the power of the courts to convict. And this court has, in numerous ■eases, held that the President’s pardon restored to claimants their right to sue in the Court of Claims. If these propositions be true the conclusion is inevitable that if an alien can commit an offense

against the United States,” the President can pardon him. And as if the act of the appellants was a giving of aid and comfort to the rebellion, it was within the meaning of the *Act July*3L”, 1862, which punished with fine and imprisonment the giving of aid and comfort to the rebellion, it was an offense against ’the United States. For, to prescribe punishment for any act is to prohibit the act, and to make its commission an offense against the Government. And if, on the other hand, the act of these appellants was not an offense against the United States, it does not-bar their recovery.

'But it may be suggested that an alien cannot commit an offense against the United States by rebellion or insurrection— that such offense is treason, and an alien cannot commit treason, ¿because he owes no allegiance to the United States. If this proposition be correct, it would not help the defense, for, as -above remarked, it is only the offense against the laws of the United States that constitutes the bar, and if the appellants by ■reason of their national character were incapable of committing the offense, it would follow that they-would not be punishable «under the laws of the United States, and consequently not be barred. If their disability was that of an alien enemy only,' «■the disability ceased when peace was restored, and as their *156title to tbeir property never was divested, and could not be-without legal provisions for the purpose, *(Brown*v. *United States,.*8 Or., 110; *Klein*v. *United States,*13 Wall., 128,) their right of action was restored with the return of peace. Peace is amnesty as to aliens. (1 Kent, 169.)

But the proposition is not correct. If aliens be not capable-of committing treason, they are still capable of committing the-statutory crime of giving aid and comfort to the rebellion. Kent says, (part 1, sec. 2,) “ Strangers are equally bound with natives to obedience to the laws of the country during the time* they sojourn in it, and they are equally amenable for infrac--tions of the law.” (1 Kent, 36.) But aliens may also commit treason. Not only are they amenable to law and punishable-for offenses committed against it, but they owe allegiance in the same sense that a native citizen owes allegiance, the only difference being that the allegiance of the native is permanent,, following him abroad; and the allegiance of the alien temporary, terminating with the termination of his residence or domicile in the country.

“Allegiance, both express and implied, is, however, distinguished by the law into two sorts or species — the one natural,, the other local; the former also being perpetual, and the latter temporary. * * * * * Local allegiance is such as is due-from an alien, or stranger born, for so long a time as he continues within the King’s dominion and protection.” (I Blackstone’s Com., 369 and 370; and this language is adopted by Story, Conflict of Laws, sec. 21.) “It [allegiance] may foe-proved by evidence that the party was by birth a citizen of the-State or of the United States, as the case may be, *or an alien tolio was resident here with his family and effects;*and if he were gone abroad, leaving his family and effects, his allegiance is-still due for the protection which is afforded them.” (3 Green-leaf on Evidence, sec. 239, citing 1 East’s Pleas of the Crown,. 52 and 53; 1 Hale’s Pleas of the Crown, 59, 62,.and 92; Yat-tel’s Law of Nations, Book 2, secs. 101, 102.) Wildman (1 lot.. Law, 40) says: “ The rights of sovereignty extend to' all persons and things not privileged that are within the territory.. They extend to all strangers resident therein; not only to those-who are naturalized, and to those who are domiciled thereioy having taken up their abode with the intention of permanent residence, *hut also to those ivhose residence is*transitory„ AI?¿ *157¡strangers are under the protection of the sovereign while they ::are within his territories, and owe a temporary allegiance in ¡return for that protection.” (Citing G-rot., II, 18, III, 8, IY, 5; Bynk., F, L, II, III, XXIY, p. 183 *y*Yatt., I, 230, II, 101.) .Such also is the common law. *(Galvin’s*Case, 7 Coke, 11, and ■authorities there cited; 9 Bac. Ab., 382, Tit. Treason A.) And . see the report of Mr. Webster, Secretary of State, to the House of ¡Representatives, in December, 1851, on the case of J. S. Thrasher, &c., (cited Lawrence’s Wheaton, 1st ed., pp. 124,125,) ■and in the same volume, pp. 132,133, Mr. Secretary Marcy’s íefeter on the *Koszta Case.*

In Brightly’s Federal Digest is found a case (369) cited as 'deciding that an alien cannot commit treason, viz, *United States*v. *Till ato,*(2 Dallas, 370.) But in this case the prisoner, -a Spaniard, had enlisted “ in parts out of the United States,” •on a French privateer, and had aided in capturing an American vessel. He was not a domiciled alien. His allegiance was .claimed only on the ground that he had taken in Philadelphia ■the oath specified in the third section of the act of assembly of Pennsylvania. The act was held void and the prisoner discharged.

In the *Act April*30, 1790, *uFor the •punishment of certain crimes against the United*States,” (1 Stat., 112,) the first section ■enacts “ that if any person or persons *owing allegiance to the <United States*of America shall levy war against them, &c., &c., ■and shall be convicted, &c., &c., such person or persons shall -be adjudged guilty of treason,” &c. The construction of this •act came under consideration in the case of the *United States'*w- WiWberger, (5 Wh., 76,) and Oh. J. Marshall, delivering the ‘opinion of the court said, *“*treason is a breach of allegiance, and can be committed by him only who owes allegiance, ■either perpetual or temporary. The words, therefore, ‘owing -allegiance to the United States,’ in the first section, are entirely surplus words which do not in the slightest degree affect Its sense. The construction would be precisely the same were ■they omitted.” (P. 97.)

This grant of pardon follows the tenor of the act creating the •tifíense, and in terms includes these appellants. On this point, which in our judgment is so clear upon principle, we give one -authority. In *Cotorteen’s Case,*(Hobart, 270 a,) certain Dutchmen were charged with the offense of exporting coin. They set *158up the defense of a general pardon, but this pardon was offered' only to “ bis [the King’s] loving and obedient subjects.” Hobart thought “ the Dutch living here within the King’s protection, being of a friendly country, to be also truly under his subjection, and therefore capable of the title of his loving and obedient subjects.” And he said: “I think no judge will doubt, but that such stranger shall have the benefit of such a pardon against common penal statutes and other common offenses.”

*Mr. Assistant Attorney-General Sill*(on the re-argument) fertile United States, appellees:

The Constitution declares that “ treason against the United! States shall consist only in levying war against them or scUbe---ing to their enemies, giving them aid and comfort.” The *Act April*30, 1790, (section 1,1 Stat. L., p. 112,) providing for the-punishment of treason, begins: “ If any person or persons, owing: allegiance to the United States of America, shall levy war-against them, or shall, adhere to their enemies, giving them aid and comfort within the United States or elsewhere.”

The *President’s*Proclamation, *Pecember*25,1868, (15 Stat. L.,.. 711, 712,) after reciting, i! Whereas the President of the United. States has heretofore set forth several proclamations offering, amnesty and pardon to persons who had been or were concerned in the late rebellion,” grants “ to all and to every person, who directly or indirectly participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason-against the United States, or of adhering to their enemies during the late civil war, with restoration oí all rights, privileges,, and immunities under the Constitution and laws which have-been made in pursuance thereof.” The offense pardoned by fcliis proclamation is treason, and treason only $ and a *person*who could not be punished for treason cannot take advantage-of the *proclamation.*— Gay’s Gold, (13 Wallace, 358.)

What is treason in the United States depends solely upon-, the Constitution, aud the act of Congress passed in pursuance-thereof, *{ubi supra,)*and as the latter is a criminal statute, it must be construed strictly; and although at common law an-alien could be punished for treason, yet it may be doubted whether the language of the act of 1791 is broad enough to-*159justify its extension beyond citizens actually subjects of the Government.

At all events, it is doubtful whether it was the intention of the President’s proclamation to relieve aliens who participated in the rebellion from the consequences of their abase of the privileges of national hospitality.

Mr. Justice Field

delivered the opinion of the court:

This case comes before us from the Court of Claims. The claimants are subjects of the Queen of Great Britain, but they were residents within the United States prior to the war of the rebellion, and during its continuance. ‘In 186-1 they were the owners of *65*bales of cotton stored on a plantation in Alabama. This cotton was seized during that year by naval officers of the United States and turned over to an agent of the Treasury Department, by whom the cotton was sold and che proceeds paid into the Treasury. The present action was brought in the Court of Claims, under the act of Congress of March 12, 1863, known as *the Captured and abandoned property Aet, to*recover these proceeds.

The court found that the claimants were the owners of the cotton, and that it was seized and sold as stated, and that the net proceeds, amounting to $13,232, were paid into the Treasury.

The court also found that the government of Great Britain accords to citizens .of the United States the right 'to prosecute claims against that government in its own courts j but that the claimants were engaged, in 1862, in manufacturing saltpeter in Alabama, and selling that article to the Confederate States, and that they thus gave aid and comfort to the rebellion, and for that reason were not entitled to recover the proceeds of the cotton seized. Their petition was accordingly dismissed.

The circumstances attending the manufacture and sale of the saltpeter, as disclosed in the findings of the court, plainly show that the claimants knew that the saltx>eter was to be used by the confederates in the manufacture of gunpowder for the prosecution of the war of the rebellion, and there is little doubt that the sale was made in order to aid the confederates in accomplishing their treasonable purposes. By thus furnishing materials for the prosecution of the war while they were domiciled *160in the.country, knowing the uses to which the materials were to be applied, the claimants became participators in the treason of the confederates equally as if they had been original conspirators with them. The Court of Claims, therefore, did not err in its conclusion that the act of the claimants in selling the saltpeter to the confederates, under these circumstances, was an act of aid and comfort to the rebellion. We have already held, in *Hanauer v. Doane,*(12 Wall., 347,) and we repeat and reaffirm what we there said, that “ He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason *or*a misprision thereof.. *He*voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act.”

But the aid and comfort thus given to the rebellion bythe claimants did not justify a denial of their right to recover the proceeds of their property in the Treasury of the United States after the proclamation of pardon and amnesty made by the President on the 25th of December, 1S68, unless their character as aliens excludes them from the benefit of that proclamation, a question which we shall presently consider. Assuming that they are within the terms of the proclamation, the pardon and amnesty granted relieve them from the legal consequences of their participation in the rebellion, and from the necessity of proving that they had not thus participated, which otherwise would have been indispensable to a recovery. ■ It is true, the pardon and amnesty do not and cannot alter the actual fact that' aid and comfort were given bythe claimants, but they forever close the eyes of the court to the perception of that fact as an element in its judgment, no rights of third parties having intervened.

There has been some difference of opinion among the members of the court as to cases covered by the pardon of the President, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from the pun-*161isbment prescribed for tire offense, but that it obliterates in legal contemplation the offense itself.

When, therefore, in *Padelford’s Case,*(7 C. Cls. R., p. 144,) a claimant under the *Captured and abandoned property Act,*who liad giren aid and comfort to the rebellion, appeared in the Court of Claims, ashing for'a restoration of the proceeds of his property, and showing that "he had taken the oath prescribed by the proclamation of President Lincoln, of December 8,1863, and had since then kept the oath inviolate, and was thereby by force of the proclamation pardoned, this court held that after the pardon thus granted no offense connected with the rebellion could be imputed to him $ that if, in other respects, he made the proof which under the act entitled him to a decree for the proceeds of his property, the law made the proof of pardon a. complete substitute for proof that he had given no aid or comfort to the rebellion; and that a different construction would defeat the manifest intent of the proclamation and of the act of Congress which authorized it.

In *Klein’s Case,*(7 C. Cls. R., p. 240,) which subsequently came before the court, an act of Congress designed to deny to the pardon ox the President the effect and operation which the court had thus adjudged to it, and which declared that an acceptance of pardon without disclaimer should be conclusive evidence of the acts pardoned, and be inoperative as-evidence of the rights conferred by it in the Court of Claims and in this court, was held to be unconstitutional and void.

In *Mrs. Armstrong’s Case,*(7 C. Cls. R., p. 280,) which was here at the last term, the court declined to consider whether the evidence was sufficient to prove that the claimant had given aid and comfort to the rebellion, and held that the proclamation of pardon and amnesty issued by the President on the 25th of De-' cember, 1868,'entitled her to the proceeds of her captured and abandoned property in the Treasury, without proof that she never gave such aid and comfort; that the proclamation granting pardon unconditionally, and without reservation, was a public act of which all courts of the United States were bound to take notice, and to which all courts were bound to give effect.

In *Pargoud’s Case,*(7 C. Cls. R., p. 289,) also here at the last term, the claimant stated in his petition that he was guilty of participating in the rebellion, but that he had been pardoned by the *162President, by special act, in January, 1866, and also by operation of the President’s general proclamation. The Court of Claims decided against the claimant on the ground that his petition did not aver that he had not given any aid or comfort to thfe rebellion, and did not sufficiently aver a pardon by the President. This court reversed the judgment, following- the decision in Jirs. *Armstrong’s Case,*and holding that the President’s proclamation of December 25,1868, relieved claimants of captured and abandoned property from proof of adhesion to the United States during the civil war.

After these repeated adjudications, it must be regarded as settled in this court that the pardon of the President, whether granted by special letters or by general proclamation, relieves claimants of the proceeds of captured and abandoned property from the consequences of participation in the rebellion, and from the necessity of establishing their loyalty in order to prosecute their claims. This result follows whether we regard the pardon as effacing the offense, blotting it out, in the language of the cases, as though it had never existed, or regard persons pardoned as necessarily excepted from the general language of the act, which requires claimants to make proof of their adhesion, during the rebellion, to the United States. It is not to be supposed that Congress intended by the general language of •the act to encroach upon any of the prerogatives of the President, and especially that benign prerogative of mercy which lies in the pardoning power. It is more reasonable to conclude that claimants restored to their rights of property by the pardon of the President were not in contemplation of Congress in passing the act, and were not intended to be embraced by the requirement in question. All general terms in statutes should be limited in their application, so as not to lead to injustice, oppression, or any unconstitutional operation, if that be possible. It will be presumed that exceptions were intended which would avoid results of that nature.— *United States*v. *Kirby,*(7 Wall., 482.)

Such being the general effect of pardon and amnesty granted by the President, it only remains to consider whether the proclamation of December 25, 1868, embraces the claimants, who were aliens domiciled in the country, within its provision's. And upon this point we entertain no doubt. The claimants were residents in the United States prior to the commencement *163of tbe rebellion. They so allege in their petition ; they were, therefore, bound to obey all the laws of the country, not immediately relating to citizenship, during their sojourn in it; and they were equally amenable with citizens for any infraction of those laws. “The rights of sovereignty,” says Wildman, in his Institutes on International Law, (p. 10,) “ extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection.”

Ey allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, of at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien while domiciled in the country owes a local and temporary allegiance, which continues during the period of his residence.

This obligation of temporary allegiance by an alien resident in a friendly country is everywhere recognized by publicists and statesmen. In the ease of Thrasher, a citizen of the United States resident in Cuba, who complained of injuries suffered 'from the government of that island, Mr. Webster, then Secretary of State, made, in 1851, a report to the President in answer to a resolution of the House of Eepresentatives, in which he said: “ Every foreigner born residing’ in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty upon him by the mere fact of his residence and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding iu ail civilized states, and nowhere a more established doctrine than in this country.” And again: “ Independently of a residence with intention to cou-tinue Such residence; independently of any domiciliation; inde*164pendently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may *b6punished for treason*or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulation.” (Webster’s Works, vol. 6, p. 526.)

The same doctrine is stated in Hale’s Pleas of the Crown, vol. 1, chap. 10; East’s Crown Law, vol. 1, chap. 2, sec. *4;*and Foster’s Discourse upon High Treason, sec. 2, p. 185 ; all of which are treatises of approved merit.

Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort .to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the Government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25, 1868. That proclamation, in its comprehensive terms, includes them and all others in like situation. It -grants, “ unconditionally, and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the lats civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made, in pursuance thereof.”

The *Act July*27,1868, (15 Stat. L., 243,) authorizes any alien to prosecute claims against the United States in the Court of Claims where the government of which he is a citizen or subject accords to citizens of the United States the right to prosecute claims against such government in its courts. In *O’Keefe’s Case*(7 C. Cls. R., p. 192) it was held that, by the proceeding known as a “petition of right,” the government of Great Britain accords to citizens of the United States, the right to prosecute claims against that government iu its courts, and therefore that British, subjects, if otherwise entitled, may prosecute claims against the United States in the Court of Claims. There is, *165therefore, no impediment to the recovery by the claimants in this case of the net proceeds of their cotton paid into the Treasury.

The judgment oí' the Court of Claims must therefore be reversed, and that court directed to enter judgment in favor of the'claimants for the amount of such net proceeds j and it is so ordered.