The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-08-14
FURTHER ANSWER TO SPECIAL ORDER
No. u9.
CHARLESTON, s. O., August Il, 1867
To Captain j. W. Cous, SSH u 81. Infdntrq

quarters "a mlntary DlStrlct, IN reference TO tne
fund adjudged by Chancellor Lesesne in cause
between the Bank Of Charleston complainant, and
James Tupper, the Bank Of the State, and others
defendants.
As this, order has been issued and made public
without any hearing or opportunity of explanation
on our part it is natural and proper that we should
seek to vindlcate our names from charges and i'm
putations which We deem unjust and injurious.
The allegations to which we have particular refer
ence are, that 'the gold in question was the pro-
perty of the United States at the time Of said pro-
ceedings;" that unusual and irregular means
we're employed to prevent knowledge of the said
suit, and Of the existence of said fund, from COM
ing to the United States authorities, Of which it is
alleged that the said Chancellor and the parties
before the Court and their counsel we're cognizant;
erroneous, irregular, and fraud upon the rights
Of the United States"
If the United States had any right or title to
this property it was, Of course, proper that they
should be made party to the suit But, in our
Judgment, as professional men, the United States
did not then have, nor have they now, any proper
ty, right or claim whatever under the laws in the
subject matter Of the suit. Declaring this to be
our deliberate and well considered opinion, land
we desire to be regarded as declaring it in the
most solemn and unqualified manner,) an error OF
judgment, if such could be made to appear most
clearly, would not carry with it any violation OF
propriety, or subject, us to any imputation upon
our motives. In making parties to a suit, whether
at law in equity, counsel must be left to the ex-
ercise Of their own Judgment upon the facts OF the
case and the rules Of pleading. This judgment
and discretion We claim to have exercised In good
faith, and nothing moro in that respect can justly
be required Of US.
But it is affirmed in the order that the gold was
sthe property of the United States" The title OF
the United States is not set FORTH nor is there any
indication Of the way in which they acquired it.
ALL that we find is, the positive assertion OF the
fact, and we are left to speculate for the grounds
on which the claim Of the Government is rested,
|! The gold was advanced or contributed for spe-
icific purpose, to wit: to assist in remounting
\ Hampton's Cavalry. Certainly the Confederate
States had no sconnexon whatever with the trans
action, and had no right or liability growing out of
it. They made no application for 1t. 1t was not
so far as we know, any knowledge of what was pro-
posed OF done. Nor was it loan to the State, nor
did the State every assume its repayment. GoY
Magrath expressly declined to commit the State to
repayment. It was not placed in the State Ireasu,
ry, but was kept separate and distinct from all
other public moneys. It was voluntary contri-
button from private sources, placed in the hands
of particular public officer or agent, for specific
purpose connected with the war. II Gov. Magrath
or Mr.. Tupper had attempted to divert it to any
other purpose, they could nave peen restralned
from so doing. 1t was not used or employed in
the manner indicated. When this purpose failed
or became impossible as it did by the termina-
ton Of the war; the gold reverted, on every prin-
cple of reason and Of laws to the original contrlbu-
tors, unless it we're intercepted by some right or
act Of war, or by some Act OF Congress dlsposlng
Of it in pursuance Of such right.
II, then, this gold Was not the property OF the
Confederate States nor Of this State it Was pri-
vate property. and must be dealt with as such.
The ruie'of modern war is clear that no transfer
or title to private property is worked by the mere
belIigerent occupation, or even by the absolute
conquest Of country. The victorious State does
succeed to the public property of the conquered
State, but not to the private property OF its oia-
zens. This doctrine is, Of course subject to the
modification of actual capture Of personal property
during We war, but upon termination OF the war
the beiligerent right Of actual capture ceases. In
this case there was no actual capture nor any con-
structve capture by the taking OF the city for the
gold was at that time far beyond the limits OF the
CITY, in the District Of Abbeville, nor was it
!bro1ohf back until after the cessation of hos
But it NAV bo claimed that, by Act Of August
9Th, 1861 il is provided that all property used, or
intended to be used for insurrectionary purposes,
shall be deemed "lnwful subject OF prize and cap
ture. wherever found" It might be enough to
saw That this Act was intended to aid in suppress
sing The rebellion, and that its operation ceased
with the Termination Of the war. But it cannot
escape attention, that such property is not abso,
lutely forfeited, but is made lawful suGlect OF
prize and capture" These are technical words,
and have precise fixed legal meaning; and the
mode Of condemnation is explicitly prescribed, to
wit through the District, Circuit or Admiralty
Courts of the United States. Prize and capture
must be during continuance OF hostlhtles; there
can be no such thing after the cessation of hos
tilities and during peace. They are the creatures
OF war, aud live only upon it, and with 1t. Ihey
do not survive it. Until capture, there is no title
or transfer even during war, and at the end OF
war prize and capture are also at an END. MOI nav
ing been abandoned property or captured pro-
perty, fagrahts belo, the gold in question was
not. at the time of these proceedings "lawfu sub
ject OF prize and capture much less was 1t the
property of the United States. There could bo no
PROPERTY before condemnation, and there could be
no condemnation after cessation OF war.
We are not singular in this opinion. II it be an
error, it is an error in company with four Of the
most distinguished jurists OF the United States.
In the absence of judicial decision, the well con-
sdered opinion of Messrs. OConor, Eyafts, Pierre,
lust exposition Of the law Of any subject. In nm
elaborate opinion prepared by Charles O'Conor,
and in which the other gentlemen concur both as
to the conclusion and the Line OF argument, it is
announced as their joint opinion that according
to the true. construction Of the Non-intercourse
Act of 1861, property not actually seized for the
offence during the continuance of hostiities can
not be subsequently taken captured, seized or for
feited for or by reason OF any violation OF that
Act" or "of the amendatory section last referred
to-" (Sechon4 4 Of I'd Treasury Agent Act.)
We need not enter into the reasons given and
authorities cited for this opinion which, in our
Judgment, are conclusive, but We may be per.
mltted to say that these distinguished lawyers,
having arrivsdat that legal conclusion, would not
have deemed the United States necessary or
proper party to these proceedings, and that if they
had failed or omitted to make them party, they
would hardly have been suspected OF design to
commit fraud upon the government.
But the order recites that unusual and irregu-
this suit and of the existence Of the fund from
coming to the knowledge Of the United States au-
thorities," &c.
! II the United States had no right or title to the
property, then no injury or injustice was done to
them, even if knowledge Of the suit and of the
fund had been concealed from them; and credit
be given to those concerned in these proceedings
for good faith in the opinion that there was no
such right or title, however erroneous that opin-
ion might be, they would be entitled in common
fairness to protection from all imputation upon
their motives.
The order does not specify what were the
Unusual and irregular means" referred to. We
must resort to conjecture on this point also
The proceedings were originated in January,
1866, but the papers were not filed until February,
1867 1t is not unusual or irregular" to withhold
all the papers from filing until some final decree
or decretal order is sought. In this case there
certainly was no hurry. More than year trans
pired before any other order was taken than those
necessary to secure the fund in Court When the
papers were filed it was stated upon the face Of the
OrQer lGS6u, anu 30 TeCOTQeu Ill Iue lutuuIe UoOh,
that the case had not been docketed before, "for
prudential reasons. This statement was unneces-
sary, but still it was made because it was true We
have no hesitation in avowng that the papers were
not fled earlier, because the State was at that
time infested by persons claiming to be Treasury
Agents, by whom private property of every de-
scription was SEIZED upon any pretext, in the
name Of the Government and removed DYED from from tho ne
had. The United States Court was not then Or
ganized and it is known to the whole country that
the grossest wrongs were perpetrated upon an i'm
poverished and helpless people by designing per-
sons who, under color or .pretext OF authority,
took cruel advantage Of the disorganized condition
Of things, to prey upon whatever OF value they
could lay their hands upon. But the very order
for the docketing of the case in February 1881 is
not been dooketed before, but an implied acknowl-
edgment that there was no longer any occasion for
these prudential reasons 1t is difficult to see how
this part Of the proceedings can be tortured into
any sort OF "concealment."
But reference may be had to the order for
taking the papers off file. Upon this point Of the
case wa desire In mako our exclamation very plain,