The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-08-14
FURTHER hNsyNERTO SPECIAL ORDER
No. Ilo.
CnA,r.Ksros, $. G., August 1a,

| 10 CHtaM" e" h. tf"HS, oom u. .. Hpantfy, Il
SIN We hnvo Tho honor to acknowledge tllr
receipt of M official copy of Or,ler 1l0, Head
fund aljudgcd by Chancellor Lcsesno in n caus,
between tho Bank of Charleston, complainant, ant
James Tnpper, the Bank OF the State, and others
AZ This order has boon ssucd and inado public
without any hearing or opportunity of explanation
on our part 1t il natural and proper that e!vrlt
pututions which deem unjust anu injurious
] Tho allegations to which wo have particular refer
cnco are, Tint "tho gold in question was the pro,
porly of the United States ut tho tino Of said pro
| cocdinSs;" that unusual and irregular means
were employed TO prevent knowledge of tho said
suit and of tho existence OF said fund, from com
Alleged that tho said Chancellor md tho parties
before the Court and their counsel were cognizant;
and that tho docrce was "withuut iurIstlicIon
orroneorIs Irregular and u fraud upon Tho rjghts
OF the United Rtatcs."
II tho United States had any right or tillr TO
this property, IL was nf c0urae, proper that tlIey
should bo nude party TO the suit. But, in our
Judgment, professional men, the United States
did not thon have, nor hayo they now, my proper
~, right or claim whatever under tho lnws in tho
subject matter Of the suit. Declaring this TO bo
| our deliberate and we'll considered opinion, (antl
wo desire to bc regarded az declaring it Ill the
Judgment. il such could bo plndo to appear most
clearly, would not carry with it any violation Of
propriety, or aubjcct us to my imputution upon,
ut law in equity, counsel must bo left to tho OK
orcso OF their own judgment upon tho facts of Tim
case and tho rules OF pleading This Judgment
nnd discretion we claim to havo exercised i'm good
faith, and nothing more in that respect can Justly
be required of us.
Dutit is affirmed in tho ordor that tho gold was
stie property ot the United Stutes." Tho tille Of
tho Unito1 Sintcs is not set forth. is thore any
Indication OF tho way in which they acquired It,
All that wo find is tho positive assertion of tho
on which the claim Of tho Government is rested,
Tho gold was advanced or contributed for spe-
eific purpose, to, wit: to assist In ronlounting
Hampton's Cavalry. Certainly tho Confederate
Stntes had no connexion whatoror with the trans
action and Ind right or liability growing out of
il. They made no application for it. 1t was not,
30 far VIC know. any knowledge OF what WINS pro-
posed or done. Nor was it O loan to tho State nor
did tho State ovcry assume its repayment. uov
Mngratli expressly declined to commit tho State to
repayment. It was not placed in tho State Trcasu-
ry, but waB Kept separate md distinct from all
other public moneys 1t was q voluntary contri-
OF particular public officor or agent for specific
purpose connected with the war. II Gov. Magrath
OF Mr. Tuppor had attempted to divert it to any
othor purpose, they, could have been restrained
FROM 30 doing. II was not ueed or employed in
tho manner indicated. When this purpose failed
or became impossible, rs it did by tho tcrmina-
eiplo of reason and of law to tho original contrjbu
tors, unless it woro intercepted BY sonio right or
act Of war, or by sonic Act or Congress dBposing
OF 1t in pursuance of such right.
IT, them this gold was not tho property of the
Confederate Sta,ca, nor of this State il was pri-
yato property, and must bo dealt with rs such.
Tho rnlo of modern war is clear that no transfer
or titlo TO private property is worked by tho nero
belligerent occupation, or oven by tho absolute
conquest Of a country. Tho victorious Stuto doea
succeed to the public property OF the conquered
State but not to the private property OF its cii-
zens. This doctrine is, Of course subject to tho
modification ofnctual capture OF personal property
tho belligerent right Of actual capture ceases In
this case thcro was ITO actual capturo my con-
structisc capture ny tho taking of the city for tho
city, In the District OF Abbnyille, nor was Il
brought back until after the cessation OF hos
tilitics
9Th, 1861, it is provided that all property used, or
intended to be uscd Tor insurreciioiiary purposes
snall be deemed Lawful! subject OF prizo and cap
say that this Act was intended to mid in suppres-
sing tho roballion, and that its operation ceased
with tho termination Of tho war. But it cannot
e is + subeS spso
prize and capture." These arc technical words,
mode Of Is sGG ssGHGpcy nTescri6ad 3 10
wit !: through the District, Circuit or Admiralty
Courts of tho United States prizo and capture
must be during continuance of hostilitios; there
can bo 10 such thing after the cessation Of hos
tilitics and during peace. They arc the creatures
OF war, aud 1.-Two only upon it, aud with it. They
do not survive IT.. Until capture, there is no titlo
or transfer, even during war, and at tho end of
war prize aud capture are also Mt end. Not hav-
Ing been abandoned property or captured pro-
pcrty, daarumfc beao, tho gold in question was
not, at the time OF these proceedings "lawfu sub
jcct or prize and capture" much loss was il the
property of the United statea There could l1e no
property before condemnation, and there could be
no condemnation nftor cessation OF war.
We arc not singular i'll this opinion. IL it bo an
error, IL is an crror in company with four Of tho
most distinguished juriHts of tho United States
In tho absence of judicial decision, tho well coll
sidered opinion Of fMessrs 0Conor, Evarts, PioTTa-
Pont and Brndy. may, well be taken for fair and
Just exposition OF tho law Of any subject. In an
elaborate opinion prepared by Charles OConor,
and i'll which the other gentlemen concur both as
TO tho conclusion and tho llne OF argument, it il
announced as thoir joint opinion that according
to the true construction OF tho Non-intorcourso
Act OF 1861, property not actually seized for the
offence during tho continuance OF hostities can
not DO subsequently taken, captured seized or for
feted for or by roasun OF any violation of that
Act" or "of tho amendat0ry section lnst reforred
to-. tsection OF 2d Treasury Agent Aot.)
Wo need not ontcr into the reasons given and
judgment, arc conclusive, but We may be per.
mittod to .aay shnt those distinguished lawyers
having arrived at that legal conclusion, would not
havu deemed the Unitod Stntos q necessary or
proper party to these proceedings, and that if thcy
had failed or omitted 10 mako them party thoy
would hardly hayo been suspected Of design 10
commit fraud upon the government
But tho order rectcs that unusual and irrogu-
lar means we're used to prevent tho knowledge of
this suit and Of tho existence OF tho fund from
coming to tho knowledge OF the United States au-
II tho United States had no right or titlo 10 tho
property, thon no injury or injustice was done 10
them, even il knowledge OF tho suit aid OF tho
fund had he0n concealed from them; and il credit
DO given to those concerned in thoso proceedings
for good faith in the opinion that there was no
ion might be, they would bo entitled in common
fairness to protection from oil imputation upon
their motives.
Tho order does not specify what wero tho
"unnHual and irregular means" referred to- Wo
must Eceort TO conjecture on this point also.
Tho Proceedings were originated in January,
1sG6, but the papers wero not fled until February
all tho papers from fling until como final decree
or deoratal ordOr il sought. In this caso there
certainly wa8 no hurry, Moro than gear trans
pired boforo nny othor ordor was taken than those
necessary to secure the fund in Court. When the
papers wero lod II was stated upon The faco Of the
that the caso had not becn docksted before, "for
prudential reasons. ThiB statement was unnoceg-
sary, but sill IT was made because 1t was trno. Wo
havo no hesitation in ayoWing that the papers wcro
not filed earlier because tho State Was at that
time infested by persona claiming to be Treasury
Agents, by whom private properly OF overy de-
scription was seized upon any protext, in tho
State before any adjudication or relief could be
had. Tho United Btatos Court was not then Or
ganiZod, and it is known 20 the Whole country that
tho Rrossest wrongs were pcrpetrated upon an i'm
pogorishcd and hclpiefB pooplo by Designing per-
cons, who, under color or -pretoxt OF authority,
took cruol advantage OF tho disorgazed condition
OF things, to- prey upon ThatoYer OF valno thoy
could lny their hands upon, But the very order
for tho dockotng OF the case in February 1867, Is
not only frank asowul Of tho reason why il had
not beon dockoted hoforo, but implied acknoHl-
edgmont that thora vas no longer any occasion for