kind of circulation. On the contrary, Congress must have intended that the information, if given at all, should be complete.

This conclusion is fortified by the long-established construction which the Post Office Department has placed upon the cognate subject of second-class mail matter. Section 14 of the act of March 3, 1879 (20 Stat. 359), conditions the admission of publications to the second class of mail matter upon their "having a legitimate list of subscribers," and the Post Office Department, as evidenced both by section 438, subdivision 14, of the Regulations of 1902, and by paragraph 5 of the Regulations of January 9, 1911, has always construed this provision to include all copies of the paper which have been genuinely sold or distributed for a compensation either in money or money's worth.

Reference is made to an opinion of Attorney General Wickersham of September 25, 1912 ((29 Op. 526), construing this same provision of the act of August 24, 1912, in a somewhat different manner, but this opinion was rendered prior to the decision of the Supreme Court in the case of Lewis Publishing Co. v. Morgan (229 U. S. 288), and was based almost wholly on the ground that the provisions of the act of August 24, 1912, were highly penal in character, since a failure to comply with them entailed entire exclusion from the use of the mails, and it was held that they should, on that account, be strictly construed. The Supreme Court, however, in the above case, held that the act was not punitive, but "was exclusively addressed to the regulation of second-class mail and was shaped in contemplation of the long-established law and regulations governing that class" (229 U. S. 309). I can not concur, therefore, in Mr. Wickersham's opinion, in so far as it gives a restricted meaning to the words "sold or distributed to paid subscribers."

It follows that each of the classes of circulation to which you refer is within the contemplation of the act.

I have the honor to be, your obedient servant,

J. C. McREYNOLDS.

To the POSTMASTER GENERAL.

SURRENDER BY WAR DEPARTMENT OF CERTAIN PERSONAL EFFECTS FORMERLY BELONGING TO JEFFERSON DAVIS.

Where property of a disloyal person was seized by the military forces of the Government during the Civil War, and no proceedings by way of forfeiture, condemnation, sale, etc., were had concerning it as would suffice to divest his title or any portion of it, and transfer it to third persons or to the United States, then a subsequent pardon restores to him his plenary title. The Secretary of War has authority to surrender certain personal effects in his official possession formerly belonging to Jefferson Davis to the latter's personal representatives.

DEPARTMENT OF JUSTICE,

January 7, 1914.

SIR: In your letter of the 31st ultimo you request an opinion as to your legal right to return certain personal effects in your official possession, and formerly belonging to Jefferson Davis, to the executor of his estate on the written order of all his next of kin.

The articles to which you refer are as follows, to wit: One double-barreled pistol, two dueling pistols, four bullet molds, two pistol holsters, and one pistol case; and they were captured by Union soldiers in June, 1865, sent to the War Department, and have been in the custody of said department ever since. It is stated in the memorandum of the Judge Advocate General of the Army accompanying your letter, and must, therefore, be assumed for present purposes that the property, while technically arms, etc., was really not fitted for purposes of war, but was valued entirely for its personal associations.

While Governments have the inherent right in time of war to seize and take title to the property of enemies, the exercise of that right in this country apparently depends on legislation by Congress (Brown v. United States, 8 Cranch, 110). At any rate, in the Civil War it was exercised mainly pursuant to such legislation, and there does not seem any reason to suppose that Mr. Davis's property was seized under any other pretended authority than that either of the confiscation act of July 17, 1862 (12 Stat.

589), as amended by the act of July 2, 1864 (13 Stat. 375), or of the abandoned and captured property act of March 12, 1863 (12 Stat. 820). The former act, by paragraph second of section 5, expressly made it the duty of the President to cause the seizure of all the property of Mr. Davis; but it provided, by section 7, for judicial proceedings of condemnation, and such proceedings have never been had as to the property now in question. The latter act provided that abandoned or captured property-excepting such as had been used or was intended to be used in waging war against the United States-should be turned over to Treasury agents, to be by them sold and the proceeds. covered into the Treasury; and it gave any loyal claimant the right to recover the proceeds by preferring his claim in the Court of Claims within two years after the suppression of the rebellion. The articles now in question, however, were never turned over to Treasury agents for sale, but have remained in the custody of the War Department, which originally effected their seizure.

On December 25, 1868, President Johnson issued a proclamation of pardon and amnesty (15 Stat. 711), which, after reciting several other such proclamations within whose terms Mr. Davis did not fall, granted a full pardon and amnesty to every person who directly or indirectly participated in the rebellion, “with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof."

The effect of such a pardon upon property rights of disloyal persons in land or personalty seized by virtue of the confiscation act or of the abandoned and captured property act has been the subject of discussion by the Supreme Court in numerous cases. In Klein's case (13 Wall. 128) it was held that a pardon "blots out the offense pardoned and removes all its final consequences"; so that where property of a disloyal person was seized under the abandoned property act, sold, and its proceeds covered into the Treasury, a subsequent pardon gave the owner the same right as a loyal person to recover the proceeds by

petition in the Court of Claims filed within the requisite two years. The court said (13 Wall. 142):

"We conclude, therefore, that the title to the proceeds of the property which came to the possession of the Government by capture or abandonment, with the exceptions already noticed, was in no case divested out of the original owner. It was for the Government itself to determine whether these proceeds should be restored to the owner or not. The promise of the restoration of all rights of property decides that question affirmatively as to all persons who availed themselves of the proffered pardon."

In Carlisle's case (16 Wall. 147, 151) the court applied these principles to the case of aliens, residents of this country, who aided the rebellion, and said:

"It is true, the pardon and amnesty do not and can not alter the actual fact that aid and comfort were given by the 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."

In Haycraft's case (22 Wall. 81, £8) the court refused to give this effect to a pardon where the petition to recover the proceeds of sale of the captured property was not filed within the requisite two years. No contract could be implied against the United States under such circumstances. The court said:

"There is here no question of confiscation. The title of the United States, whatever may be the rights it carries with it, is by authorized capture or appropriation of enemy's property on land. But the same statute which authorized the capture gave a right to certain persons to demand and receive a restoration of their property taken. Coupled with the right to demand was a provision for the remedy by which it was to be enforced. Both the right and the remedy are, therefore, created by the same statute, and in such cases the remedy provided is exclusive of all others.

*

In Osborn's case (91 U. S. 474), where property was forfeited by judicial proceedings under the confiscation act, sold, and the proceeds lodged in the registry of the court, it was held that a pardon restored to the owner the right

to such proceeds, the reasoning of the court being thus expressed (91 U. S. 478):

legal contemplation

* * *
9

"The pardon, in releasing the offense, obliterating it in removes the ground of the forfeiture upon which the decree rests, and the source of title is then gone."

In Knote's case (95 U. S. 149), however, the court refused to apply the above principle to a case where the property had been condemned, sold, and the proceeds covered into the Treasury, distinguishing the case as follows (95 U. S. 154):

66* * * So, also, if the proceeds have been paid into the Treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the Treasury can only be withdrawn by an appropriation by law. However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers-it can not touch moneys in the Treasury of the United States except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.

"Where, however, property condemned, or its proceeds, have not thus vested, but remain under the control of the Executive, or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored or its proceeds delivered to the original owner upon his full pardon. The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to the individual entitled to them in the one case or are covered into the Treasury in the other."

In Young's case (97 U. S. 39) the court declined to apply the principle of Carlisle's case to an alien giving aid and comfort to the rebellion but not resident here, and hence not owing allegiance to this country, for the reason that he had committed no offense, had lost no rights, and