appear in the statement of facts in Senate Report 344, Sixty-ninth Congress, first session.

On August 22, 1861, the United States Quartermaster General directed that one-half of the royalty to be paid for the Sibley tents and payable to Sibley should be withheld, as well as all sums then due him, because of his resignation from the United States Army and entry into the Confederate service.

On October 26, 1861, the Secretary of War directed that no further payments be made to Burns to whom Sibley had assigned a one-half interest in his patent. Of the total number of tents made, that is 47,541, there had been paid royalty on 3,849, leaving unpaid royalty on 43,692.

Burns remained in the service of the United States. In 1868, Burns sued in the Court of Claims for $101,242.50, one half of the royalties on 40,497 tents, there being a dispute as to the liability for 3,196 tents, and that number accordingly was eliminated. Judgment was given for him.

The United States appealed the decision of the Court of Claims to the Supreme Court of the United States, and judgment in favor of Burns was affirmed by the Supreme Court. (Burns v. U. S., 12 Wallace 246, 20 L. Ed. 388.)

The United States has paid the claim to Burns.

Sibley has never been paid for his half of this claim and H. R. 8749 is for such payment.

By resolution of the United States Senate, under the act of March 3, 1887, known as the Tucker Act, the Sibley claim on May 22, 1908 was referred to the Court of Claims (S. Doc. 105, 61st Cong. 1st sess.) for findings of fact and under date of June 17, 1909, report was made thereon.

These findings will show that Sibley accepted the President's pardon with all conditions therein specified under date of August 26, 1867, and died August 21, 1886. These findings will be found in the above mentoned Report No. 344, submitted to accompany S. 2602, which passed the Senate without objection, and also on pages 37 and 43 of Senate Report 1333 on H. R. 3436, Sixty-ninth Congress, second session.

The report of the Court of Claims established the fact that Sibley had not been paid for 40,497 tents on which the royalty (one-half) was $2.50 per tent, making the amount due Sibley's estate under the agreement made between Sibley and the United States $101,242.50, this being an amount equal to that for which judgment had been previously awarded to Burns in the Court of Claims and affirmed by the Supreme Court of the United States.

It was also established that on August 16, 1867, there was granted by the President of the United States to Henry H. Sibley a pardon which was accepted by said Sibley, with all the conditions therein specified under date of August 26, 1867. In the Senate report of the pending bill it is correctly stated to be a rule of international law, well settled and universally recognized, that existing valid contracts made before the commencement of a war, are revived and resume a legal status upon the return of peace. Further, it is correctly stated that the taint of disloyalty which stood against Sibley was removed by the pardon of President Johnson and the general amnesty.

Supporting these propositions are the case of Cicero L. Lincoln, administrator of Joseph A. Harvey, deceased v. United States, decided in the Court of Claims on February 9, 1914, and Paddelford v. United States (9 Wall. 533, 19 Law Ed. 788), in which the court said that the pardon by its terms, included restoration of all rights of property except as to slaves and as against the intervening rights of third parties.

The contention was made that the petitioner was without remedy in the Court of Claims unless proof is made that he gave no aid or comfort to the rebellion. The court said:

"The sufficient answer to it is that after the pardon no offense connected with the rebellion can be imputed to him. If in other respects the petitioner made the proof which under the act entitled him to a decree for the proceeds of his property, the law makes the proof of a pardon a complete substitute for a proof that he gave no aid or comfort to the rebellion.”

Whatever is due Sibley under the contract has never been confiscated; his pardon restored him to all his rights. The pardon was granted only a short time before the final bar of the statute of limitations, and during that time he was ignorant that the effect of the pardon was to restore his right to sue; furthermore, it was a general understanding of lawyers and other persons that no person could maintain a suit in the Court of Claims without taking an oath "that he had given no aid or comfort to the rebellion," and this belief continued until the promulgation of the decision of the Supreme Court in the case of Arm

strong v. U. S., in 1871 (20 Law Ed. 614, 13 Wall. 154), which was after the door of the court was closed to Sibley by the bar of the statute of limitations.

STATEMENT OF LAW

The validity of the patent issued to Sibley is settled by the suit brought by Sibley's assignee, Burns, and by the judgment of the Court of Claims and the Supreme Court of the United States. (Burns v. U. S., 12 Wall. 246, 20 L. Ed. 388.) The court held that the contract entered into on behalf of the United States with Sibley was a valid contract, and in answer to the point that Sibley had been an officer in the United States Army when he made his contract with the United States and that Burns had been an officer in the United States Army when he purchased from Sibley, the court said:

"If an officer in the military service, not specially employed to make experiments, with a view to suggest improvements, devises a new and valuable improvement in arms, tents, or any other kind of war material, he is entitled to the benefit of it, and to letters patent for the improvement, from the United States, equally with any other citizen not engaged in such service; and the Government can not, after the patent is issued, make use of the improvement any more than a private individual, without license of the inventor or making compensation to him."

The court held that the power of determining the license remained with the patentee, but that the United States could at any time have determined its liability by ceasing to make the tents, but that it did not determine its liability until the tents for which the claim was asserted had been made and used.

The court held that the order of the Secretary of War of December, 1861, did not repudiate the liability of the United States to Burns for tents already made or for those which might be made subsequently, but only left the rights of Burns to be determined by proper judicial tribunals.

In this case, the court does say that by the act of March 3, 1863, Sibley was barred of any action in the Court of Claims by reason of his disloyalty. But it must be remembered that this decision preceded the decision of the Supreme Court of the United States, at the December term, 1871, in Armstrong v. United States, supra, which finally settled the right of Sibley, notwithstanding his disloyalty, to sue in the Court of Claims upon a contract with the United States made before the war.

In that case the court said that the President's proclamation of December, 1868, granted "unconditionally and without reservation to all and every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offense of treason against the United States, or of adhering to their enemies during the late Civil War, with restoration of all rights, privileges, and immunities under the Constitution, and laws which have been made in pursuance thereof."

The court said:

"We have recently held, in the case of the United States v. Klein, ante 517, that pardon granted upon conditions, blots out the offense, if proof is made of compliance with the conditions."

Again, the statement in the Burns case that Sibley was by the act of March 3, 1863, barred of his right to sue by reason of his disloyalty could not bind Sibley as it was made in a case to which he was not a party, and upon a record which did not present all the facts so far as he was concerned. As he was not a party, the record did not show the pardon which had been specifically granted to him or that he was within the class benefited by the general pardon. Furthermore, it dealt with the record as presented when the suit was instituted in the Court of Claims October 8, 1866, and at that time Sibley had not been specifically pardoned nor had the general pardon issued.

The final and conclusive answer to this statement is that the effect of a pardon was not before the Supreme Court in the Burns case, but that it was before the court in Armstrong v. U. S., supra, and the Supreme Court held in that and other cases that the requirements of the act of March 3, 1863, were complied with by proof of a pardon.

The pardon restored Sibley's rights. This has been settled by the case of Armstrong v. U. S. cited above. Furthermore, in U. S. v. Padelford (9 Wall. 531, 19 Law Ed. 788) the court said:

"In the case of Garland (4 Wall. 380, 18 L. Ed. 370) this court held the effect of a pardon to be such that in the eye of the law the offender is as innocent as if he had never committed the offense, and in the case of Armstrong's Foundry (6 Wall. 769, 18 L. Ed. 884) we held that the general pardon granted to him

relieved him from a penalty which he had incurred to the United States. It follows that at the time of the seizure of the petitioner's property he was purged of whatever offense against the laws of the United States he had committed by the acts mentioned in the findings and relieved from any penalty which he might have incurred. It follows further, that if the property had been seized before the oath was taken, the faith of the Government was pledged to its restoration upon the taking of the oath in good faith. We can not doubt that the petitioner's right to the property in question at the time of the seizure, was perfect, and that it remains perfect, notwithstanding the seizure."

The court in the same case said further:

"If, in other respects, the petitioner made the proof which, under the act, entitled him to a decree for the proceeds of his property, the law makes the proof of pardon a complete substitute for proof that he gave no aid or comfort to the rebellion."

Further authorities sustaining this point are: Pargoud v. U. S. (13 Wall. 156, 20 L. Ed. 646); Carroll v. U. S. (13 Wall. 151, 20 L.. Ed. 565); Carlish v. U. S. (16 Wall. 147, 21 L. Ed.).

There can be no question under these authorities that the pardon granted to Sibley restored his right to sue, but Sibley did not know he had this right. It can not be denied that it was the opinion of the profession generally that proof of loyalty was essential to a suit in the Court of Claims under the act of March 3, 1863, and that doubt was not relieved until the decision in the case of Armsburg v. U. S., supra.

But in the meantime Sibley's right to sue in the Court of Claims had been barred by the statute of limitations, and his only recourse must be to Congress. Sibley and his heirs are entitled to as much consideration as would be accorded a foreign enemy.-Sibley had been pardoned and restored to all of his rights. All taint of disloyalty had been removed. If he had been a foreign enemy, his rights would only have been suspended. See also Vattel's Law of Nations, edition of 1855, in footnote on page 284, where it is said:

"But independently of such express treaties, and by the general modern law of nations, the right to debts and choses in action is not forfeited by way of reprisal or otherwise on the breaking out of war, but merely the remedy or right to enforce payment is suspended during the war and revives again on the return of peace.

In Brown v. United States (8 Cranch 123, 3 L. Ed. 504) Chief Justice Marshall said:

* * *

"The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives in the restoration of peace would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. The proposition that a declaration of war does not, in itself, enact a confiscation of the property within the territory of the belligerent is believed to be entirely free from doubt. * * * It appears to the court that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war.

In U. S. v. Percheman (7 Peters 51, 8 L. Ed. 604) Chief Justice Marshall said: "The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled."

In Hanger v. Abbott (6 Wall. 532, 18 L. Ed. 939) the Supreme Court said: "In former times the right to confiscate debts was admitted as an acknowledged doctrine of the law of nations, and in strictness it may be still said to exist, but it may well be considered as a naked impolitic right condemned by the enlightened conscience and judgment of modern times."

In Ware, administrator v. Hylton (3 Dallas 199, L. Ed. 568) Justice Patterson, in 1796, said:

"Confiscation of debts is considered a disreputable thing among civilized nations of the present day; and indeed nothing is more strongly evincive of this truth than that it has gone into general desuetude, and whenever put into practice, provision is made by the treaty, which terminates the war, for the neutral and complete restoration of contracts and payments of debts." Mr. Justice Wilson said:

"By every nation, whatever is its form of government, the confiscation of debts has long been considered disreputable; and we know that not a single

confiscation of that kind stained the code of any of the European powers who were engaged in the war which our revolution produced."

This principle has been recognized recently by our own House of Representatives in legislation on alien property of the World War.

In Senate Document No. 25, Seventieth Congress, first session, will be found a message of the President recommending settlement of claims to German nationals arising before our war with Germany, and resolutions for the payment have been introduced and should, and will, pass. In our alien property bill we went so far as to pay claims, which included many which it was strongly urged and with great force that we were under no obligation to pay. Here we are dealing with a situation where Sibley undoubtedly could have recovered judgment if he had brought his suit. As pointed out by Senator Daniels, in Senate Report No. 159, Fifty-third Congress, second session, submitted by him recommending that permission be given Sibley's representative to sue in the Court of Claims, the statute of limitations should be waived for the reason that the deceased (Sibley) was misled in his lifetime, and induced not to bring his suit within the time when it was permissible, and that committee was of opinion that these circumstances created equitable considerations which should move the United States to waive the question of limitation, and entitle the claimant to a fair adjudication of legal rights in the premises.

The Congress has recognized that the fair and just thing is to pay claims arising before the Civil War as evidenced by the following action which has been taken. In the Sixty-third Congress, second session (38 Stat. L. 454), by the act approved July 6, 1914, the loyalty restriction as to claims of officers of the Union Army, who subsequently served in the Confederate Army, for service in the United States Army, prior to April 13, 1861, was removed by the repeal of section 3480, Revised Statutes, so far as it affects payments for service in the Army prior to April 13, 1861.

According to House Report 933, Sixty-sixth Congress, second session, May 6, 1920, by reason of the above-mentioned act, the claims of about 140 Confederate officers for longevity pay due them prior to entering the Confederate Armyprior to April, 1861, were paid, aggregating about $150,000. The report states: "The Confederate claims, although a third of a century old, were paid.'

Sibley's rights were never confiscated.—Four confiscatory acts were passed during the war.

1. The act of July 13, 1861, prohibited commercial intercourse between the United States and the Confederate States, and forfeited goods and chattels, wares and merchandise, coming from said States, and all proceeding to said States, by land or water. Section 9 provided the proceedings in court whereby the law was made effective.

2. By act of August 6, 1861, it was provided that all property used or intended to be used in aid of the rebellion was subject to seizure and confiscation, but seizure and condemnation by a court was necessary.

3. By act of July 17, 1862, it was made the duty of the President to seize any estate and property, money, stocks, effects, and credits of any persons in certain named classes, but in the seventh section of the bill condemnation by the courts was made necessary to enforce the act.

4. Act of March 3, 1863, related entirely to property captured or abandoned in any State or Territory designated as in insurrection or rebellion against the United States.

Obviously, Sibley's rights and claim do not fall within any of the above statutes. If he came within the scope of these laws, there was never any seizure or confiscation or condemnation of his property. No action was ever taken in any court as provided for in the acts, and it is significant that, as shown in some of the reports, Sibley, though he went into the service of the Confederate States, never entered into any agreement with the Confederate States for the manufacture or use of these tents, but refused to do so. Under date of July 16, 1861, Sibley notified Hon. L. P. Walker, Secretary of War, Richmond, Va., that he had not nor would he take out letters patent in the Confederate States for the Sibley tent patented in the United States in 1856.

Sibley's wife remained loyal and the children were of tender age. It will be noted that in the petition before the Court of Claims reported in Senate Report No. 344, Sixty-ninth Congress, first session, favorably reporting the Sibley claim, it is said that Sibley died leaving a widow, and two children; that his widow was born in the State of New York, and was loyal to the United States throughout the Civil War. The two children were born in 1846 and 1861, respectively, and were too young to be disloyal. This has been fully shown at various times by the affidavits of the widow and others.

Mrs. Sibley was born at Sackets Harbor, N. Y., and she was the daughter of William Kendall and Charlotte Howard, both of the city of Boston. Her grandfather, Joseph Howard, was one of the selectmen of Boston. All of Mrs. Sibley's relatives, so far as known, were loyal to the United States, remained in the United States, and were true to the Union cause.

In view of the pardon to Sibley, the question of loyalty is not involved, but if it were, the loyalty of the widow and infancy of the children at that time should be recognized.

It may be added that while in the service of the United States Sibley had a distinguished career. He was in several Indian wars, in many battles, including several important battles in the Mexican War, and was brevetted a major on March 25, 1847, for gallant and meritorious conduct in the affair at Medellin, near Vera Cruz.

This Government can not afford to refuse payment of its just claims. I ask favorable report of the bill. S. O. BLAND,

Member of Congress First District of Virginia.

The CHAIRMAN. Mr. Bland has already said something to the full committee about this proposed measure, but, at the request of Mr. Strong we have sent for a reporter and arranged to take the statements stenographically in this class of claims, so that if these bills go to the House we may have a full report of the facts upon which our action is based.

I have requseted Mr. Bland to return and repeat his statement of a little while ago. We shall probably desire to ask him some questions after he has presented his case. Mr. Bland.

STATEMENT OF HON. S. OTIS BLAND, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

Mr. BLAND. In so far as I can repeat the statement I have made, I will do so.

The CHAIRMAN. Of course we do not mean that you shall repeat it exactly as you did before.

Mr. BLAND. I understand. I have five copies of a brief that I prepared in this case, and one copy of it has been handed to each member of this subcommittee. It presents the legal phases of the case and the facts about as clearly and as completely as I can in an oral argument, although I desire to supplement by oral argument at this time. I will also file a copy of Senate Report No. 344, Sixty-ninth Congress, first session, Calendar No. 341, with the committee, since it covers the case.

(The document in question reads as follows:)

[Senate Report No. 344, Sixty-ninth Congress, first session]

The Committee on Claims, to whom was referred the bill (S. 2602) for the relief of the legal representatives of the estate of Henry H. Sibley, deceased, having considered the same, report favorably thereon with the recommendation that the bill do pass without amendment.

The facts are fully set forth in Senate Report No. 730, Sixty-third Congress, second session, which is appended hereto and made a part of this report.

[Senate Report No. 730, Sixty-third Congress, second session]

The Committee on Claims, to whom was referred the bill (S. 1851) entitled "A bill for the relief of the legal representatives of the estate of Henry H. Sibley,' respectfully reports the bill with the recommendation that the same do pass.