against common penal statutes and other common offenses."

Messrs. Geo. H. Williams, Atty. Gen., and C. H. Hill, Asst. Atty. Gen., for appellee.

Mr. Justice Field delivered the opinion of the court:

This case comes before us from the court of claims. The claimants are subjects of the Queen of Great Britain, but they were residents within the United States prior to the war of the rebellion and during its continuance. In 1864, they were the owners of sixty-five bales of cotton, stored on a plantation in Alabama. This cotton was seized during that year by naval officers of the United States, and turned over to an agent of the treasury department by whom the cotton was sold and the proceeds paid into the treasury. The present action was brought in the court of claims, under the act of Congress of March 12, 1863, known as the Captured and Abandoned Property Act, to recover these proceeds.

The court found that the claimants were the owners of the cotton and that it was seized and sold as stated, and that the net proceeds, amounting to $43,232, were paid into the Treasury.

The court also found that the government of Great Britain accords to citizens of the United States the right to prosecute claims against that government in its own courts; but that the claimants were engaged in 1862, in manufacturing saltpeter in Alabama, and selling that article to the confederate states, and that they thus gave aid and comfort to the rebellion, and for that reason were not entitled to recover the proceeds of the cotton seized. Their petition was accordingly dismissed.

The circumstances attending the manufacture and sale of the saltpeter, as disclosed in the findings of the court, plainly show that the claimants knew that the saltpeter was to be used by the confederates in the manufacture of gunpowder for the prosecution of the war of the rebellion, and there is little doubt that the sale was made in order to aid the confederates in accomplishing their treasonable purposes. By thus furnishing materials for the prosecution of the war whilst they were domiciled in the country, knowing the uses to which the materials were to be applied, the claimants became participators in the treason of the confederates equally as if they had been original conspirators with them. The court of claims, therefore, did not err in its conclusion that the act of the claimants in selling the saltpeter to the confederates, under these circumstances, was an act of aid and comfort to the rebellion. We have already held in Hanauer v. Doane, 12 Wall. 347, 20 L. ed. 441, and we repeat and re-affirm what we there said, that "he who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is him151*] self guilty of treason or a misprision thereof. He voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his

acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act."

But the aid and comfort thus given to the rebellion by the claimants did not justify a denial of their right to recover the proceeds of their property in the Treasury of the United States after the Proclamation of Pardon and Amnesty made by the President on the 25th of December, 1868, unless their character as aliens excludes them from the benefit of that Proclamation, a question which we shall presently consider. Assuming that they are within the terms of the Proclamation, the pardon and amnesty granted relieve them from the legal consequences of their participation in the rebellion, and from the necessity of proving that they had not thus participated, which otherwise would have been indispensable to a recovery. It is true, the pardon and amnesty do not and cannot 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.

There has been some difference of opinion among the members of the court as to cases covered by the pardon of the President, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from the punishment prescribed for the offense, but that it obliterates in legal contemplation the offense itself.

When, therefore, in Padelford's Case, 9 Wall. 531, 19 L. ed. 788, a claimant under the Captured and Abandoned Property Act, who had given aid and comfort to the rebellion, appeared in the court of claims, asking for restoration of the proceeds of his property, *and show- [*152 ing that he had taken the oath prescribed by the Proclamation of President Lincoln, of December 8th, 1863, and had since then kept the oath inviolate and was thereby, by force of the Proclamation, pardoned, this court held that after the pardon thus granted no offense connected with the rebellion could be imputed to him; that if in other respects he made the proof which under the act entitled him to a decree for the proceeds of his property, the law made the proof of pardon a complete substitute for proof that he had given no aid or comfort to the rebellion; and that a different construction would defeat the manifest intent of the Proclamation and of the act of Congress which authorized it.

In Klein's Case, 13 Wall. 128, 20 L. ed. 519, which subsequently came before the court, an act of Congress designed to deny to the pardon of the President the effect and operation which the court had thus adjudged to it, and which declared that an acceptance of pardon without. disclaimer should be conclusive evidence of the acts pardoned, and be inoperative as evidence of the rights conferred by it in the court of claims. and in this court,—was held to be unconstitutional and void.

In Mrs. Armstrong's Case, 13 Wall. 154, 20 L. ed. 614, which was here at the last term, the court declined to consider whether the evidence was sufficient to prove that the claimant had given aid and comfort to the rebellion, and held that the Proclamation of Pardon and Amnesty issued by the President on the 25th of Decem

question remains whether, because the vessel did not arrive until after the assignment was executed, comity requires that a N. Y. creditor of the insolvent, pursuing with diligence the remedy prescribed by the law of N. Y., shall be deprived of the fruits of his diligence for the accommodation and benefit of his assignees and the Massachusetts creditors whom they represent. To this there can be but one answer, and the right of the N. Y. creditor must be preferred and his remedy upheld.

Story, Conf. L. § 414.

The learned counsel for the plaintiff in error, in his brief, virtually concedes that if the point in issue is regarded as a question of comity between attaching creditors and foreign statutory assignees, contending for property situated as this ship was at the time of the assignment, the superior rights of the former must prevail. He seeks to avoid the question of comity altogether, and rests the argument upon the proposition that the operation of the insolvent law of Massachusetts did proprio vigore transfer the absolute title of the ship, being at sea, to the assignees, to the exclusion of creditors attach ing under the laws, of whatever state and jurisdiction she should first reach.

This proposition is in defiance of the settled law of the Federal and state courts. And, not only is there no authority whatever for the new and startling proposition contended for; not only must this court, to establish it, override the well settled current of American law, by which bankrupt laws and proceedings of foreign states have been allowed no effect upon property situated outside their territorial limits; but the result sought to be obtained will be contrary to our best interests and subversive of our long established and well recognized policy. It will be a complete abandonment of our American doctrine and a submission to the rule devised by Great Britain for its own benefit as the great creditor nation of the world, so that it might, in the language of Judge Platt, in Holmes v. Remsen, 20 Johns. 264, "By issuing a commission against the bankrupt merchant in London, spring a net which shall cover all the effects of such bankrupts throughout the world, and draw them over into her own forum for distribution, for the fact cannot be disguised that Great Britain having the most extended commerce, and her merchants and manufacturers crediting abroad vastly more than they owe to foreign creditors, has a strong and peculiar interest in contending for a rule which draws to herself the distribution of all the effects which her lucrative commerce had dispersed over the globe."

Unfortunately, our relative position in this respect has not been changed in the lapse of fifty years since that case was decided.

Massachusetts is the last state in the Union to which any enlarged comity should be extended in regard to the recognition of her insolvent laws, and of titles thereby created. In 1854, the supreme court of that state decided that an assignment of property in that commonwealth made in N. Y. by an insolvent citizen, to a trustee for the benefit of creditors, giving preference to certain creditors, also citizens of N. Y., is ineffectual as against an attachment made in Massachusetts by a citizen thereof.

When a state which pursues such a policy sends its assignees in insolvency in N. Y. to take possession of property, no principle of comity, heretofore announced, can require our courts, for their benefit, to take the property away from N. Y. creditors, who have acquired a prior lien.

Zipcey v. Thompson, 1 Gray, 243.

"In regard to goods and merchandise belonging to a foreign bankrupt or insolvent person found here, if attached before any possession is taken by the assignees, whether under a commission of bankruptcy or otherwise, the attaching creditor would hold, because delivery, either actual or constructive, is necessary to complete the transfer."

Blake v. Williams, 6 Pick. 303; Lanfear v. Sumner, 17 Mass. 110.

"All comity of this sort must be built up, in a great measure, upon the doctrine of reciprocity." Story, Confl. L. § 414.

Mr. Justice Hunt delivered the opinion of the court:

*

The claim of Federal jurisdiction over this action is based upon article 4, section 1, of the Constitution of the United States. It is there declared that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; and the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof." In 1790 and in 1804 Con- [*619 gress passed laws prescribing that manner and effect. By the Act of May 26, 1790 (1 Stat. at L. 122), after prescribing the forms of authentication, it is enacted: "And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken." Under this statute it has been held in this court, from an early day, that the faith and credit spoken of are not limited to the form of the record, and are not satisfied by its admission as a record. It is held that the same effect is to be given to the record in the courts of the state where produced, as in the courts of the state from which it is taken. Mills v. Duryee, 7 Cranch, 483; Leland v. Wilkinson, 6 Pet. 317; United States v. Johns, 4 Dall. 412.

The defendant in error insists, in reply, that the validity of the record of the court of probate and insolvency in the state of Massachusetts is not involved, and the faith and credit due to it is not in question. This is based upon the argument that that record has never adjudicated upon the title or possession of the vessel in question, and that the same was res integra when this action was commenced in New York.

The case of Green v. Van Buskirk, 5 Wall. 310, 18 L. ed. 600, 7 Wall. 139, 19 L. ed. 109, is relied upon as conclusive upon this point. In that case, Bates, who lived in New York, executed and delivered to Van Buskirk, who lived in the same state, a chattel mortgage on certain iron safes which were then in the city of Chicago. This was done on the 3d day of November, 1857. Two days after this Green, who was

The present case is deficient in each of the elements necessary to bring the vessel within the range of the foregoing principles. She was not transferred by the personal act of the owner. She was not literally within the territory of Massachusetts when the insolvent assignment took effect; and, thirdly, she was not in the Port of New York.

The question then arises, while thus upon the high seas was she in law within the territory of Massachusetts? If she was, the insolvent title

will prevail.

It is not perceived that this vessel can be said to be upon United States territory, or within United States jurisdiction, or subject to the laws of the United States regulating the transfer of property, if such laws there may be. Except for the purposes and to the extent to which these attributes have been transferred to the United States, the state of Massachusetts possesses all the rights and powers of a sovereign state. By her own consent, as found in article 1 of the Constitution of the United States, she has abandoned her right to wage war, to coin money, to make treaties, and to do certain other acts therein mentioned. None of the subjects there mentioned affect the question before us. The third article of that instrument extends the judicial power of the United States "to all cases of admiralty and maritime jurisdiction." This gives the power to the courts of the United States to try those cases in which are involved questions arising out of maritime affairs, and of crimes committed on the high seas. To bring a transaction within that jurisdiction, it must be not simply a transaction which occurred at sea, as the making of a contract, but one in which the question itself is of a maritime nature, or arises out of a maritime affair, or it must be a tort or crime committed on the high seas. Over such cases the United States courts have jurisdiction; that is, they are authorized 624*] to hear and determine *them. No rule of property is thereby established. This remains as it would have been had no such authority been given to the United States court.

To Congress is also given power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." It will scarcely be claimed that the title to property could be affected by this provision. Nor does the circumstance that The Arctic sailed under the flag of the United States and was entitled to the protection of that government against insult or injury from the citizens or ships of other nations touch the present point. None of these instances are like that of the passage of a bankrupt law by the United States, which acts directly upon the property of all the citizens of all the states wherever it may be. Had the claim of either party to this vessel been based upon a proceeding under that statute, the title would have been complete, if the property had been within the territory or jurisdiction of any of the states of the Union.

if that state were an independent sovereign state, unconnected with the other states of the Union. The question is the same as if this assignment had been made in London by a British insolvent court, adjudicating upon the affairs of a British subject.

We are of the opinion, for the purpose we are considering, that the ship Arctic was a portion of the territory of Massachusetts, and the assignment by the insolvent court of that state passed the title to her, in the same manner and with the like effect as if she had been physically within the bounds of that state when the assignment was executed.

The rule is thus laid down by Mr. Wheaton in his treatise on International Law (8th ed., sec. 106, et seq.): "Both the public and private vessels of every nation on the high seas, and out of the territorial limits of any other state, are subject to the jurisdiction *of [*625 the state to which they belong. Vattel says that the domain of a nation extends to all its just possessions, and by its possessions we are not to understand its territory only, but all the rights it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory. Grotius holds that sovereignty may be acquired over a portion of the sea.' As an illustration of the proposition that the ship is a portion of the territory of the state, the author proceeds: "Every state has an incontestable right to the service of all its members in the national defense, but it can give effect to this right only by lawful means. Its right to reclaim the military service of its citizens can be exercised only within its own territory, or in some place not subject to the jurisdiction of any other nation. The ocean is such a place, and any state may unquestionably there exercise, on board its own vessels, its right of compelling the military or naval services of its subjects.'

Chancellor Kent, in his Commentaries (Vol. I., p. 26), says: "The high seas are free and open to all the world, and the laws of every state or nation have there a full and perfect operation upon the persons and property of the citizens or subjects of such a state or Nation." "No nation has any right or jurisdiction at sea, except it be over the persons of its subjects, in its own public and private vessels; and so far territorial jurisdiction may be conceded as preserved, for the vessels of a nation are in many respects considered as portions of its territory, and persons on board are protected and governed by the law of the country to which the vessel belongs.

Wharton (on the Confl. of L. sec. 356), says: "A ship in the open sea is regarded by the law of nations as a part of the territory whose flag such ship carries." "By this (he says) may be explained several cases quoted as establishing the lex domicilii, though they are only sustainable on the ground that the ship at sea is part of the territory whose flag she bears. In respect to principle, ships at sea and the property in them, must be viewed as part of the country to which they belong."