#### Hamilton Slawson, Jr., *v.*The United States.

*On the Proofs.*

*The agent of the steamboat De Kalb buys her at an administrator's sale at Charleston, South Carolina, during the toar. Before and after the sale, she is impressed and*used as a *transport by the Confederate government. When Charleston is*
      *88
      *evacuated, the owner secretly disables the boat to •prevent her being carried off. She is fired by the rebels as they leave the city, but is cut loose by friends of the owner, who extinguish the fire. The owner lets her drift on to the beach at James Island. After the capture of the city he brings the steamer over and gives her up to the naval engineer having charge of the captured steamers in the harbor. The engineer has previously agreed with the owner that he will place her in the service of the defendants. No terms or price were agreed upon. The steamer is then transferred, with all captured property, to the United States quartermaster. She is then repaired and used for several months by the defendants, and is then sold as captured property, and the net proceeds placed in the Treasury. The owner proves his loyalty, and that he took the oath of allegiance immediately after the capture of the city.*

I. Under tile *“Act to provide for the better organization of the quartermasters' department,” 4th July,*1864, (13 Stat. L., p. 394,) authority to charter vessels for the use of the army belongs exclusively to that department. A naval engineer, hy virtue of his office alone, has no authority to charter a steamer for the use of the quartermasters’ department.

II. Under the *“Act to restrict the jurisdiction of the Court of Claims,” 4th July,*1864, (13 Stat. L., 381,) a steamboat used and treated hy the quartermasters’ department at Charleston, South Carolina, during the war as captured property, there being no legal express contract for her use, must be deemed to he *“an appropriation of property by the army,”*within the meaning of the act, and an action upon the implied contract cannot he maintained in the Court of Claims.

*Mr. George Taylor*for tlie claimant:

In the month of February, 18G5, and after the evacuation of ■'Charleston, South Carolina, by the confederates, the claimant (who had kept his said steamer out of the possession of the retiring confederates, and had saved her-from being burnt up by them, by the greatest efforts) offered to hire or charter this steamboat to the United States authorities. She was of light draught, and well adapted to the service of the government; and being much needed, she was hired or employed by G-. A. B. Tower, an engineer-in-chief in the United States navy, who had been placed in charge of such service. At the time this contract or agreement was made Chief Engineer Towers did not see the steamer, but he agreed co pay what she was reasonably worth; and the steamer was brought up to Charleston and placed in the service of the government, where she remained 104= days; but owing to the irregularity and haste in which business was then done, a formal charter was not made out, and the employment of the steamer- was continued on this verbal contract. *89The steamer was not seized or taken by the army or navy for their use. She was not claimed as captured property, but the right and ownership of the claimant were recognized, and the officer duly appointed to take charge of this particular service contracted for her services, and agreed and promised to pay a reasonable compensation for the same.

After the United States had had the said steamer in their employ for 402 days, and after she had passed out of the hands of the officers who had originally contracted for her services, the said steamer was most unjustly turned over to an agent of the Treasury Department, by whom she was sold for a very small price, and the net proceeds, to wit, $3,963 38, were paid into the treasury of the United States.

Claimant now seeks to recover $75 per day for her services, to wit: $30,150, less about $200 for original repairs, leaving $30,000.

The act of July 4,1864, and the explanatory act of February, 1867, do not extend to this case. It cannot be supposed that Congress intended to impair the validity of contracts or violate the faith of the nation. Where property, either real or personal, had been seized or taken possession of in the progress of the army or navy as a part of the legitimate fruits of conquest, it is natural that Congress should hesitate to pay for its use, or for the property itself, if destroyed; but it cannot be supposed that Congress intended to limit the jurisdiction of this court, or to refuse payment to loyal citizens who had entered into a contract with the government for the use of property which was under the unrestricted control of such party, and had not been captured, seized, or taken possession of by the military or naval forces of the republic.

On the hearing of this case a motion was made to amend the petition, by striking out the claim for the net proceeds of the steamer De Kalb, as paid into the Treasury. This motion was granted, and, when filing the amended petition, by consent of counsel the claimant filed, as additional evidence, the oath of amnesty, taken by claimant on the 2d day of March, 1865, under the proclamation of President Lincoln, dated December 8,1863; which proclamation was issued in pursuance of the 13th section of the act entitled “An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of *90rebels, and for other purposes,” approved July 17,1862, 12 Stat. L., p. 591.

The evidence shows that claimant was a loyal citizen; hence the officers of the government, acting under the laws and proclamations and the general policy of the government during the war, vide *The Venice,*(2 Wallace, p. 276,) had a right to and did contract for the use of the steamer. The Supreme Court says: *“*Wherever the national troops have re-established order under national rule, the rights of persons and property have been, in general, respected and enforced.” ('Vide *The Venice,*p. 278.)

The President’s proclamation was as much a part of the law of the land as if it had been wholly incorporated in an act of Congress. He had a right to issue it, not only by virtue of his high pardoning prerogative, (vide *The ease of Garland, i*Wallace, 333,) but by the express authority of Congress, provided in the very act which directed the confiscation of steamboats. *(Act of July*17, 1862, 12 Stat. L., p. 591.)

In the case of *The Venice,*(2 Wallace, 273,) the Supreme Court held that the proclamation of Major General Butler guaranteeing “ the rights of property,” (p. 276,) was strictly within the policy of the government, and that such rights “ must be regarded as protected by its terms,” (p. 279.) Certainly the President’s proclamation can have no less authority. But, in the case of *Mgee et al.*v. *Lovell,*decided during the present term of the Supreme Court, Judge Miller held that a pleading setting forth that the party had taken the oath of amnesty under this proclamation, and was entitled to the protection of his person and property, was a good replication, and he overruled the demurrer thereto.

*Mr. Alexander Johnston,*(with whom was the *Assistant Attorney General,)*for the defendants:

The claimant cannot recover for two sufficient reasons:

1st. That the agents of the United States into whose possession this vessel came after its capture by the United States military or naval authorities, had no right or authority to make any contract by which the United States should be bound to make compensation for the use of such vessel subsequent to its capture.

*912d. The use of the claimant’s steamboat subsequent to its capture was an appropriation of the claimant’s property by the military authorities. This court has not, therefore, jurisdiction of any claim that may have resulted to the claimant for such use. *Act July*4,1864, 13 Stat. L., p. 381.

The questions now presented for consideration upon the claimant’s amended petition, and the evidence under it, are as follows:

1st. Does the fact that the claimant took and subscribed the oath of amnesty under the President’s proclamation of December 8, 1S63, relieve him from the effects of having given aid and comfort to the rebellion, and result in giving him a right to have restored to him property that came to the possession of the United States under a military capture1?

2d. ITad the officers into whose possession such property came the right to release said property to the claimant, and to make a contract in respect to such property by which the United States should be bound to make compensation for its subsequent use *%*

The solution of these questions must depend upon whether the claimant’s property came to the possession of the United States under the exercise of the rights of war, or whether it was seized for the purposes of confiscation and forfeiture under the acts of Congress declaring penalties for engaging in rebellion.

If the property came to the possession of the government in virtue of the exercise of the rights of war, then- the title passed to the government at the instant of capture, and could not be divested by the subsequent pardon of the person from whose possession it was taken.

It will not be contended that this property was seized by the United States for the purpose of being forfeited to it under the provisions of the act of Congress approved July 13, 1861, or August 6,1861, or July 17,1863. It came to the possession of the United States from the prosecution of the war for the suppression of the rebellion; it was one of the fruits resulting from, the capture of Charleston, against which place a *siege*had been maintainedfor nearly three years previous to its capture.

We shall endeavor to establish upon the argument of this case the following propositions:

1st. That from and after the 16th day of August, 1861, the *92citizens resident within the limits of the States embraced in the President’s proclamation of that date became *public enemies,*and that this condition attached to the loyal as well as disloyal.

2d. That as a necessary result of the existence of this condition, there existed the right on the part of the government of the United States to seize all the property of such public enemy, whether on land or sea. _

3d. That the exercise of this right did not depend upon statutory provisions, but existed and was authorized by international' law.

4th. That the title to the property of the public enemy coming t,o the possession of the military authorities of, in virtue of capture, *jure l>elli,*vested from the time the government had undisputed and complete possession of it.

5th. That the pardon of the claimant under the amnesty proclamation of the President, of December 8, 1863, did not apply to or affect captures made *jure belli.*That proclamation was issued under the provisions of the 13th section of the act of July 17,1862, and has reference only to property subject to confiscation as there denounced. *(The Gray Jaelceb,*5 Wallace, 368.)

6th. That the act of March 12,1863, was passed for the purpose of disposing of the property that came to the possession of the military or naval authorities in the prosecution of the war for the suppression of the rebellion. It denounced no penalties' against either persons or property. It treated all the property of the citizens of the rebellious States as lawful prize of war, and appointed officers to receive and dispose of such property for the use of the United States, reserving to those persons who were not *enemies*in fact a right to the proceeds of property taken from them, upon bringing themselves within the provisions of the 3d section of that act.

7th. It necessarily results, therefore, that the officers of the United States, into whose possession the property of this claimant .came, had no right to release the same, nor to make any contract for the use by the United States of such property by which it would be bound to make compensation therefor subsequent to its capture.

*93Casey, Ob. J.,

delivered tbe opinion of the court.

The claimant is, and during the war of the rebellion was, a citizen and resident of Charleston, South Carolina. In April, 1863, he became owner, by purchase at an administrator’s sale, of the steamboat De Kalb. Previous to this purchase he had been the agent for the owner for the same boat. At the time of the purchase, and probably for some time before, this steamboat was in the iiossession of the confederate authorities. She was used for the transportation of men, arms, and supplies, in the harbor of Charleston. On the evening before the evacuation of Charleston by the confederate forces, the persons in charge of the boat were directed to proceed to one of the islands in the harbor to bring off some men and material; but, at the suggestion of the claimant, the engineer in charge so disabled the boiler as to prevent her from going upon that service. In this condition she was lying at the wharf when the rebel forces evacuated the city of Charleston. With a gunboat and other craft lying near she was set on fire, cut loose from , her moorings, and drifted out into the stream. At this time the claimant, with several persons as assistants, went on board; she was either conveyed by them, or drifted, on to the beach at James island, in the harbor of Charleston. In this place and condition she remained when the city was captured by the national forces. After possession of the city had been taken, G-. A. B. Tower, an engineer in the navy, was placed in charge of captured steamers in the harbor of Charleston; but by what order or what were the nature and character of his duties does not appear. The witnesses say he was so detailed by G-en. Schim-melpfennich. How an officer of the navy was subject to the orders of a general of .the army is not explained by the evidence, nor is the order itself given by which the extent of his authority could be judged. Shortly after the evacuation, Tower, having become acquainted with the claimant, and learning of his ownership of the steamer De Kalb, and that she was lying off James Island in a disabled condition, entered into an arrangement with Slawson to have her put in a sailing condition and brought back to the city, and agreed with him to place her in the service of the United States government. No term s or price were agreed upon for the hire of the boat, except that she was to be paid in proportion what other boats received for their services.

The steamer was accordingly brought to the city, turned over *94to Mr. Tower, and sbe was placed on duty in the government service. Mr. Tower in a short time turned the boat over to the quartermaster in charge of the harbor transportation at Charleston. He had the boat overhauled and extensive repairs made upon her, amounting in the aggregate to over $15,000.' She continued in the United States service for the period of 402 days. She was then turned over by the quartermaster to the special agent of the Treasury Department as captured property, and was by him sold under the act 12th March, 1863. At that sale she was purchased by or for the claimant. The net proceeds were paid into the treasury of the United States.

No hire was ever paid to the claimant for the boat; nor was his right to such pay ever acknowledged or assented to by the quartermaster under whose charge she performed the service. But she was always treated by him as captured property.

This suit is now brought on the alleged contract made with Tower. And it is averred that the services of the boat were reasonably worth $75 per day, amounting to the sum of $30,150.

The claimant proves his loyalty, and that very soon after the surrender of Charleston he came forward voluntarily and took the oath of allegiance to the United States.

A number of difficult and abstruse questions were discussed on the hearing of this case; but we think that the legal principles which conclusively rule this case are few and simple. The case is put by the claimant entirely upon the contract, and his claim for compensation in this court could rest on no other ground. If there be no contract, express or implied, he has no standing in court. And even though there should be an implied contract arising from the capture or appropriation of the claimant’s private property to make just compensation, yet that appropriation, if by the army or navy engaged in the suppression of the rebellion, and during its continuance, is withdrawn from our cognizance and placed beyond our jurisdiction by the express and -explicit terms of the act of Congress of 4th July, 1864. The question therefore arises, was there an express contract between the United States and this claimant for the use of his boat ? The fatal defect in the plaintiff’s case is, that no right or authority to enter into such a contract is shown to exist in the officer or agent by whom it is ’ alleged it was made. Tower was an engineer in the navy. The duties and functions of his office had no relation to or connection with procuring trans-*95portatiou for tbe army. That duty belonged to, and was, by tbe *act of Congress approved éth*July, 1864, entitled *“Aivaet to provide for the better organisation of the quartermasters’ depart*ment,” vested in tbe 3d division of tbe Quartermaster General’s office, (13 Stat. L.,394,2Bright. Dig., p. 14, pi. 40, cl. III.) There may be some doubt whether — situated as this jaroperty was, and falling into tbe hands of the United States with tbe capture of tbe city, it having been, up to tbe fall of tbe city, in the actual occupancy and service of tbe enemy for belligerent purposes— a regular quartermaster even could have made a valid contract for her services. But it is unnecessary for us to decide this question. The officers to whom this duty belonged, an d in whom all the power and authority delegated by tbe United States in the premises was reposéd, never made or recognized the existence of any contract with the claimant for the charter or hire of this steamboat. All their conduct and acts treated it as captured property appropriated by tbe army, and when no longer needed sold as such by the treasury agent, to whom it was delivered over by the military authorities.

; This clearly brings tbe case within the provisions of tbe act of the 4th July, 1864, talcing away our jurisdiction. We are, therefore, compelled to dismiss tbe petition, and adjudge that the defendants go thereof without day.