#### William H. Stark *v.*The United States.

*On the Proofs.*

*A citizen of Connecticut, noting there in*I860, *and again in*1868, *is engaged in business in Savannah. At the outbreak of the rebellion he has a residence in Connecticut, where he resides six months in the year, and (mother hi Savannah, where he spends the other six months. Bis partners place so low an estimate on the stock that instead of selling out his interest, as he expected to do, hebuys theirs, and continues in business in Savannah as before the tear. His transactions during the rebellion range from*.$200,000 *to*$600,000 *a year, and he deals in merchandise which, as he is atoare, has come into the insurrectionary States in violation of the blockade. He also subscribes in his own name, in behalf of another, to a Confederate loan. He evades paying to the Confederate government motleys due from himself to his northern creditors.*

I. A citizen of a loyal State who voluntarily remains in an insurrectionary State merely to avoid selling liisproperty at a loss, wlio does alarge business in goods, knowing the samo tobe imported in violation of the blockade, and who subscribes in his own name, though on behalf of another, to a confederate loan, renders aid and comfort-to the rebellion under the *“Abandoned 01• captured property act,”*(12 Stat. L., p. 820.)

II. The residence of a citizen of a loyal State, for the purpose of gain, in a territory where the rebel force holds sway, is that kind of *“voluntary residence”*which the statute *(Act June*25,1868, 14 Stat. L., chap. LXXI, J 3,) declares shall be *prima facie*evidence of giving aid and comfort to the rebellion.

*281*Messrs. Cooley and Clarice*for claimant:

Tlie claimant, a native of the State of Connecticut, where he still retains his home, but a resident of Savannah, in the State of Georgia, seeks to recover the net proceeds of 227 hales of cotton, taken from his possession by the authority of the United States after the fall of'that city. Of the cotton claimed, 91 bales were sea-island, and 136 bales upland.

Having established the ownership of the cotton, and its seizure and sale by the United States, we proceed now to show that the claimant was at all times loyal to the United States, and never gave any aid or comfort to the late rebellion. Upon this point the claimant himself says:

“ I am a native of the State of Connecticut, and still retain a home there; at all times I have been true and loyal to the United States and opposed to the rebellion; there never has been a time when I saw a reason to change my first view, that it was uncalled for, would result unfavorably, and was wrong; I never .voluntarily aided the rebellion; I never did in any way subscribe to Confederate loans, organize companies or soldiers to fight the United States; I once sent to Cuba for fifty-six pounds of Cuba coffee, fifty pounds of sugar; I never brought in anything else; that was for the use of my family; I never had blockade stock or anything of that kind; I never did anything of that kind to help the Confederate government;. I did my best to keep Mr. Richmond from going into the rebel army; I do not know that I had any opportunity to aid Union prisoners here; I saw none that I knew; I believe northern men here were all watched and a general surveillance exercised over them; northern men here were under constant dread, and had to be very cautious what they did and what they said to escape public violence; there were clubs and other organizations here who used to watch out and take those suspected of disloyalty ’ to the Confederacy; I heard some were lynched, but I did not see them; there was a perfect reign of terror here, and I thought I would better be cautious; I got into difficulty in Augusta; in a friendly conversation with a friend, in a store there, I was overheard by a clerk and reported to a vigilance committee; they came down in force and took me off, but let me go on the terms that I would leave town; they had before that lynched a man, but for some cause or other I got off; I was in the store of Mr. *282Conley .at the time; the conversation was a Union conversation, in which I expressed strong hostility to the Confederacy; they came, about six or seven of them, armed with sticks; I was told I’d better be very cautious; I think I was watched by the Bat-tlesnake Club here; that they were following me and on my trail; I employed one of that club in my store, to avoid the surveillance of the club, a little time after; I was a member of a firm when the war commenced and endeavored to sell out and get away; they thought I would sell out at any price, and placed so low an estimate on it, that I turned around and bought them out; I insisted upon our northern debts being paid after the ordinance passed here prohibiting it, and I did pay the debts by an underground railroad; I paid every dollar the firm owed north; I attended no meetings to incite men to join the rebellion ; I did nothing intentionally to incite rebellion; I did nothing but what I thought necessary to avoid danger; all Union men here had to act the hypocrite more or less; there was no time during the war when a Union man could express his Union sentimens, at a Union meeting or anywhere else, with safety.”

# # * * # # * * #

“ I was elected president of the first Union club organized after the arrival of the Union troops here made it safe for such an organization to exist; I believe Colonel Amherst W. Stone, the counsel here representing the government, had as much to do with getting up that club or rather more than anybody else.”

To show the state of feeling that existed against those who were supposed to be *disloyal*to the Confederacy of the rebels, and the danger to which men of northern birth were exposed in Savannah, we refer to the deposition of David B. Dillon, which, by agreement, is to be used in this case. No court can read the statements of Padelford,, Dillon, and others, and not realize that if a man ivas truly loyal at heart, and managed to keep out of the rebel service, he was doing all that could be required at his hands.

We cannot doubt but the court will concur with us in saying that the loyalty of this claimant is fully established. To overcome this evidence of loyalty, the government called a single witness, Martin Duggan, who testified substantially, that on one occasion the claimant, with two other gentlemen, came as a committee and ordered him to the front. The witness is not positive about the time, nor does he state that claimant said or *283did anything; and on tlie whole, the testimony is vague and indefinite. To rebut this testimony the claimant was recalled, who, after hearing the deposition of Duggan read, testified as follows:

“ I have heard read the deposition of Martin Duggan in this case; I never did serve on any committee to notify or warn men to go into the front in the rebel service; I have no recollection of waiting on him.”

This plain statement, bearing frankness on its face, we think, ought to be sufficient to overcome the testimony of the only witness that .could be found to impeach the loyalty of the claimant, sustained as it is by the backing of such men as Padelford and Bingham.

*Mr. B. 8. Sale,*special counsel of the Treasury, for the defendants :

The proof of claimant’s loyalty wholly fails. The ordinary presumption of complicity with the rebellion, by voluntary residence within the Confederacy, applies with ten-fold force to the case of a citizen and a resident of the north voluntarily remaining absent from his northern home, in the south, from motives of gain. This is expressly shown to have been the claimant’s case. His own evidence shows that it was a mere question pf price whether he should return home or remain in business in Savannah. He had an opportunity to sell at the beginning of the rebellion; but being dissatisfied with the - amount of the offer, chose rather to buy out his partners and remain trafficking within the rebel lines.

Jointly with Lama, he embarked in speculative enterprises, outside his regular business, in blockade goods, at Wilmington, to the amount of hundreds of thousands of dollars. These transactions of themselves constitue “ aid and comfort to the rebellion.” *(Gearing*v. *The United States, supra.)*

In his store at Savannah he sold indiscriminately, on credit, to his rebel customers, and to quartermasters and commissaries of the rebel armies, for rebel use; and this line of business continued during the entire war. He joined with others in attempting to force Martin Duggan, an unquestioned Union man, into the rebel army; and the same with Thomas Pepper. Duggan’s evidence on this point is unimpeached. Stark himself does not *284pretend to deny it, but simply says be does not recollect it; and Williams’s apparent contradiction is wdtolly shoved aside by tbe honest and truthful correction of Duggan of a very natural error. To offset this tbe claimant relies on vague proof of loyal sentiments. But bis own evidence in this respect is so weak, that such witnesses produced on bis behalf as Padelford show that be bad no “particular reputation” in that respect. He belonged to tbe same class with Miller and Barramore, who sought soft places in tbe rebel service.

Peck, J.,

delivered tbe opinion of tbe court:

William H. Stark, who describes himself as a resident of Savannah, in tbe State of Georgia, by bis petition claims tbe net proceeds of ninety-one bales of sea-island and one hundred and thirty-six bales of upland cotton; which net proceeds, amounting to the sum of $68,975 25, be alleges are in tbe trea-siuy of tbe United States.

Mr. Stark was a registered voter in tbe town of Lyme, in the State of Connecticut, on tbe list of electors for April, 1861, though be did not vote at tbe spring election, but bad voted in that town at tbe presidential election on November 6,1860, and voted there again at tbe presidential election for 1868. He owned an estate in Lyme, which be always called home. It is not shown that claimant was tbe owner of any real property elsewhere than at Lyme, Connecticut. Claimant was examined as a -witness, and gives this statement as to bis residence:

> “ My residence at tbe outbreak of tbe rebellion was this: I bad a residence in Connecticut, where I spent six months of tbe year, but my residence was in Savannah, where I spent tbe other six months, as I do now. I considered my residence rather in Connecticut; I do now claim a citizenship in Connecticut ; and rather consider I was at tbe outbreak of tbe rebellion.” Which we understand to mean, that be claimed to be a citizen of Connecticut at tbe time of tbe commencement of tbe rebellion.

In another deposition — for this claimant -was examined several times — be says: “I am a native of tbe State of Connecticut, and still retain a home there.” He accounts for bis abandonment of Connecticut and the choice of a new home in Georgia in this way: “I was a member of a firm when tbe war commenced, and endeavored to sell out and get away. They thought I *285would sell out at any price, and placed so low an estimate on it that I turned round and bought them out.” Thus voluntarily casting his lot among rebels, because of the gain he would make by so doing. “ He chose to pitch his tent toward Sodom, where the men were wicked, and sinners before the Lord exceedingly.”

Having purchased the interests of his copartners in the business at Savannah, he remained there until the close of the rebellion, continuing the business which had previously been conducted by the copartnership. He says: “ I bought and sold, and went on with the citizens of Savannah as before the war j my yearly transactions during the war continued, and accumulated, I should say, to $200,000 the first year; during subsequent years, in inflated currency, to $500,000 or $600,000 a year.”

Besides his regular business in Savannah, which he concedes was carried on by replenishing his stock with merchandise which he was aware had been introduced into the rebellious States by violating the blockade, the claimant entered into a speculating project with one Lama, by which they sought to benefit themselves by dealing largely in merchandise which had been brought into Wilmington, North Carolina, in defiance of the blockade established by the United States. The purchases made on their joint account by Lama, at Wilmington, amounted to $200,000 or $300,000. Claimant says he does not know whether Lama was a Union man or not.

. Claimant made a purchase of Confederate bonds, as he says, as agent, hut is not certain that they were not entered as sold to himself.

There is proof to show that the claimant assisted in warning parties to join the Confederate forces. The claimant seeks to overthrow this testimony by showing that he was not engaged with one Williams, a rebel conscript officer, in warning persons to appear at the front and join the rebel army. It may be that claimant was not with Williams when Williams was notifying the witness and other parties to repair to'the front and join the rebel forces. The witness is nevertheless positive that claimant was an actor in some transaction of the kind, whether, in company with Williams or not. This official conduct of claimant is proved by another witness, who says that after he had received a similar notice, as he was informed through the claim*286ant, be went and saw Stark at Ms store, and requested bim to let bim off, but that be would not engage to do anything for tbe witness. Claimant did not then deny that be bad given tbe notice, nor tbat be bad been acting in tbe premises as one having authority under tbe rebel government; but, on tbe con trary, by bis conduct, admitted tbat be bad given tbe notice, and bad been exercising such authority, and left the witness still in error, if be really bad not been acting as tbe witness supposed. He at all events did not appear loth to have it beber ed tbat be was in tbe service of tbe rebel government.

Claimant has attempted to prove tbat be was in sentiment loyal to tbe United States. What many witnesses mean by tbe use of tbe word loyal, is not always easy to understand. Many witnesses seem to think if a resident of Georgia x>aid bis cred itors in the loyal States, or reserved bis means to do so, in preference to paying over bis indebtedness to tbe receivers of tbe rebel government, that such conduct furnishes complete evidence of loyalty to tbe United States. There are different tests and many standards of loyalty with those people of tbe South who call themselves Northern adherents, which fall far short of satisfying our minds. Tbe claimant exx>lains bis opinions of loyalty by stating tbat if a man evaded paying to rebel receivers his indebtedness to Northern creditors, it would be reasonable to believe tbat tbat was a sign of Unionism. He says: “I should consider a man who did tbat, a rebel — a man, 1 mean, who paid to rebels a debt due by bim to a Northern man.” He states this test without regard to tbe condition' or circumstances of tbe debtor. It may be tbat a debtor like himself, who bad large means at tbe North, accessible to the process of tbe law, when invoked for tbat purpose by his creditors, might well be anxious, though ever so disloyal, to save bis means as well within as without rebel territory, tbat they might be applied to tbe payment of all bis debts. . If tbe rebellion failed, and of that there was always, even to tbe most blinded, a possibility, bis debts would still remain, and they must be satisfied out of means diminished by what bad been paid to rebel receivers. It is therefore easy to conceive tbat debtors at tbe South might for many other reasons than loyalty to tbe United States, ■ avoid paying to rebel receivers tbe debts they owed to Northern creditors.

Claimant attempts to prove by bis own deposition tbat bis apparent support of the rebellion was hypocritical, and tbat *287■underneath his pretenses in that respect,there was a sincere devotion to the United States. He says in reply to the question, what he meant by saying that all Union men had to play the hypocrite, “ that they had to behave with the greatest circumspection, and sometimes pretend to be what they were not.” All this may have been so. If it was, we can only say that such Unionism was but of little use in suppressing the rebellion, or in supporting the Federal Union. If men were so double in their conduct, and so seemed to be the things they were not, that their daily associates and the men who were constantly watching and scrutinizing their action, were deceived by their duplicity; it should not be surprising to those men if we are also perplexed in our efforts to ascertain what their real sentiments or opinions were. If men who have, like Proteus, a facility of “ changing shapes for advantage,” play their parts so well that their daily observers did not know the false from the real man, it hardly can be expected of us, that we shall at this distance of time, with less opportunity for discerning, be more correct or skillful in detecting the truth than were those who had so much better opportunities for doing so.

Mr. Edward Padelford, who is recognized by all parties as having been eminently loyal, says he confided in claimant as a loyal man j but on cross-examination to the question: “ Did not Mr. Stark have as good a reputation as a rebel as he did as a Union man?” he answers: “ I did not hear any particular reputation that he had at all.”

The evidence in this case does not satisfy us that claimant never gave any aid or comfort to the rebellion. ’That his residence in Savannah was voluntary is very apparent. He had a most desirable residence in Connecticut, surrounded by his relatives and friends; and for aught that is shown he had ample means for support. He relinquished all these, with the rebellion pending, because he thought he could make a good bargain with his copartners. He abandoned his patriotism, or gave it in exchange for the profit he hoped to make. How much he was called upon to sacrifice, had he accepted the offer of his copartners, is not shown; it may or may not have been considerable ; he has omitted to inform us what the amount was; therefore we cannot judge of the justification or excuse he had for purchasing their interests. His present predicament with this claim is as little the result of necessity as that of any person can be; to avoid some loss he preferred to remain with *288rebels; be cbose bis lot, fixed bis condition, and be must abide tbe consequences.

Tbe conduct of claimant and tbe circumstances already ■referred to are sufficient to deprive bim of a recovery. His residence in territory where tbe rebel force beld sway, for tbe purpose of gain, is tbat kind of voluntary residence wbicb tbe statute declares shall b *e prima facie*evidence of giving aid and comfort to tbe rebellion, and to tbe persons engaged therein; be has not successfully rebutted tbe presumption wbicb tbe statute raises against bim, and bis petition is dismissed.