
    Simeon Hart’s Administrator v. The United States.
    
      On the Proofs.
    
    
      The case is transmitted to this court by the Secretary of War. Some of the items of demand so transmitted accrued prior to April 13,1861, and were in favor of a person who encouraged the rebellion. Some grew out of transactions between a contractor who aided the rebellion and Army officers who, about the same time, went over and joined the insurgents. The remaining items rest on vouchers given for supplies purchased across the lines on the 22d April, 1861.
    I. The Joint liesolution 2d March, 1867 (Rev. Stat., § 3480), which prohibits officers of the government from paying claims that accrued prior to April 13, 1861, in favor of persons who promoted or encouraged the rebellion, in effect prohibits the heads of departments from transmitting them to this court under the Act 25</i June, 1868 (Rev. Stat., § 1063).
    
      II. Where a claim is transmitted, which the officer transmitting it is hy law forbidden to pay, the court does not acquire jurisdiction and cannot determine it upon the merits.
    III. The Act 30th April, 1790 (1 Stat. L., 112), and the Act 17th July, 1862 (12 ib., 589), subjected a person guilty of treasonable conduct to criminal conviction and confiscation of his property, but imposed no disability as to receiving debts due to him.
    IY. An executive pardon would relieve the person pardoned from penalties and disabilities; but could not authorize officers of the government to pay him moneys which might be due to him, if they were prohibited from so doing by a subsequent statute.
    Y. The Joint Resolution 2d March, 1867 (Rev. Stat., §3480), operated upon nothing conferred by the pardon of the executive, and does not conflict with the pardoning j>ower of the President.
    VI. Congress have a constitutional right to prohibit the officers of the government from paying persons who encouraged rebellion, and they cannot consider such claims, although the claimants may have received an executive xiardon.
    yil. The Act 25th June, 1868 (Rev. Stat., § 1063), authorizing heads of departments to transmit claims, confers on claimants neither right nor remedy which did not exist before, and does not extend to claims reserved for future legislation by the Joint Resolution 2d March,, 1867 (Rev. Stat., § 3480).
    yin. The provision authorizing the head of a department to transmit a-claim “where any authority, right, privilege, or exemption is claimed or denied under the Constitution” (§ 1063), cannot be invoked in aid of jurisdiction, when payment is forbidden by an act within the constitutional power of Congress.
    IX.Where vouchers i>ut in evidence by the claimant were given by a military officer, who at the time was holding treasonable communications with the insurgents, the court will take into consideration facts of public history bearing upon the vouchers, and find that the goods receipted for were never delivered.
    X.Where a contractor within the insurgent lines in April, 1861, kept possession of Army supplies which he had contracted to sell to the defendants, there could be no constructive delivery.
    XI.Where an Army contractor brings his action upon certain vouchers for supplies furnished from time to time, and it appears that they were merely part of a series and that upon the whole of the transactions he has been overpaid, the facts shown constitute a defense and need not be pleaded as a set-off.
    
      XII. The míe of international law which converts all inhabitants of an. enemy’s country into enemies, and makes unlicensed dealings with them illegal is inflexible. Nevertheless, in applying the rule to transactions interrupted by the outbreak of a civil war, cotirts endeavor to mitigate its severity whore its rigid application must produce inequity; bnt they never sway from it, except for such a purpose.
    XIII. On the 22d April, 1861, it was illegal for a military officer to trade with an insurgent across the military lines, and all claims growing out of the transaction are absolutely void.
    
      The Reporters’ statement of the case:
    This case was tried at the previous term of the court, and is reportbd in 15 C. Ols. R., 414. Judgment -went against the claimant, but a new trial was subsequently allowed upon newly discovered evidence. On this the second trial the court found the following as the facts of the case:
    I. On the 3d March, 1861, Thomas IL Jackson was and for some time had been a first lieutenant of infantry in the Army of the United States, and acting assistant commissary of subsistence and acting quartermaster at Fort Bliss, in Texas. On the 1st day of April, 1861, he resigned from the Army of the United States, and his resignation was accepted, and he entered the rebel service.
    II. On the same 3d day of March, John B. Grayson was and for some time before had been a major and commissary of subsistence and brevet lieutenant-colonel in the Army of the United States, on duty as chief commissary of subsistence of the Department of New Mexico. He was relieved April 19, 1861, as set forth in finding IX, and left the department on the 17th of the following June. He then proceeded to San Antonio, Tex., where Col. Earl Van Dorn, on the 21st of April, 1861, had taken command of the insurgent forces gathered there. From that place he resigned from the Army of the United States, on the 1st day of July, 1861, and entered the rebel service.
    III. On the same 3d day of March, Edward Treacy was a second lieutenant in the regiment of mounted riflemen in the Army of the United States, and then was and for two months' previous had been on duty as acting assistant quartermaster and acting commissary of subsistence at the post of Fort Craig, in New Mexico, and continued at such post on such duty until May 1, 1861. He remained loyal. His services in the Army were terminated by his death, February 15, 1864.
    
      IY. On tbe same 3d day of March, Simeon Hart, the claimant’s intestate, was residing in El Paso, Tex., and was in active sympathy with those who were inciting to rebellion. In April, 1861, he joined the insurgents, and then and afterwards furnished them with supplies, money, and means of transportation to carry on their invasion and campaign into New Mexico. On the 3d November, 1865, the President granted to said Hart a full pardon and amnesty for all offenses committed by him arising from participation, direct or implied, in the rebellion.
    Y. On the 28th June, 1860, said Hart contracted in writing with said Jackson to deliver to the United States at Fort Butler, at or near Hatch’s rancho, in New Mexico, on or before October 1,1860,100,000 pounds of flour, at 13 cents a pound; and the United States contracted to receive and pay for the same. No deliveries are shown under this contract; but deliveries for which no contract is proven are shown as follows, and payments, therefor in full, viz:
    rounds.
    1860. Sept. 4. At Fort Craig, N. Mex., at 12 cents ... 21, 000 1860.'Oct. 8. At Albuquerque, N. Mex., at 13 cents. 36,000 1860. Nov. 15. At Fort Craig, N. Mex., at 12 cents... 19, 000
    In all. 76, 000
    YI. On the 3d day of November, 1860, said Hart contracted in writing with said Jacksou to deliver flour to the United States as follows, the deliveries commencing immediately, and to be completed before January 15, 1861; and the United States contracted to receive and pay for the same, viz:
    At Fort Fillmore, N. Mex. 10,000 pounds, at 16 cents.
    At Fort Craig, N. Mex . 50,000 pounds, at 18J cents.
    At Albuquerque, N. Mex. 75,000 pounds, at 13 cents.
    The following deliveries were made under said contract of November 3,1860, and have been paid for in full, at the contract prices:
    At Fort Fillmore, November 17, 1860 . 10,000>
    At Fort Craig, November 15, 1860. 2,000
    At Fort Craig, January 16, 1861. 24, 000
    " At Fort Craig, January 29, 1861... 24, 000
    -- 50,000
    At Albuquerque, January 31,1861. 40, 600
    At Albuquerque, February 18, 1861. 11, 300
    At Albuquerque, balance in May, 1861, as will appear in finding YIII. 23,100
    - 75, 000
    
      YII. Ou the 9th clay of November, 1860, the said Hart addressed the following letter to the said Grayson, and the said Grayson accepted the offer made therein, but no written acceptance is shown or set up except the one indorsed thereon. El Paso, where this letter is dated, is near Fort Bliss, to which it is addressed. The offer in said letter is described in the voucher hereinafter' set forth as the contract of November 10. No agreement on the part of the United States to take any part of the 263,000 pounds of flour offered by said letter is shown except by said letter and by its acceptance by Colonel Grayson. Said letter and the acceptance indorsed thereon are as follows:
    “El Paso Mills, Texas,
    “9 November, 1860.
    “ Colonel : After declining yesterday to undertake to furnish your dep’t any more flour beyond the amounts called for by our special contract of the 3d inst., and being since informed by yourself and Col. Fauntleroy, com’g dep’t, that you have not time to order a supply from New Orleans to fill up deficiencies of contractors in New Mexico, to oblige you and Col. Fauntleroy I have determined to attempt to fill your order for 263,000 pounds from my Chihuahua mills, although I shall have serious difficulty in procuring the requisite am’t of wheat in Chihuahua.
    “I hereby agree to furnish from my Chihuahua mills the above amount of 263,000 pounds of good and wholesome flour, on terms similar to those of our special contract of 3d inst., made with L’t T. K. Jackson, A. A. O. S., by your order. If you receive it here or at F’t Bliss, at 15 c’ts per lb.; if at F’t Fillmore,, at 16 c’ts per lb.; if at F’t Craig, 181 c’ts per lb.; if at F’t Stanton, 181 c’ts per lb.; if at Albuquerque, 201 P’ts per lb. You are to give me timely notice as to the posts you will require it to be delivered at, and to order its delivery before the first of July next, as I will have all this flour here from my Chihuahua mills for delivery on your orders by the first of next April.
    “I have established a flour depot at Donana,'New Mexico, 60 miles north of here, to facilitate forwarding flour to posts in N. Mexico, as you may order it.
    “Very respectfully, your ob’t serv’t,
    “S. Hart.
    “Colonel John B. Grayson,
    “ O. 8., U. 8. Army, Fort Bliss, Texas.
    
    “Approved as recommended by me, & accepted by order of Col. T. Y. Fauntleroy, com’d’g Dep’t New Mexico.
    “John B. Grayson,
    
      “Bre. Lt. Gol. & O. of 8.
    
    “Fort Bliss, Texas, November 10th, 1860.”
    
      "VIH. In May or June, 1861, tlie said Grayson issued the ■ following voucher for flour delivered to the United States by said Hart under the contract of November 3 and the letter of November 9. Of the amounts therein described as delivered at Albuquerque, 23,100 pounds were delivered under the contract of November 3, as shown in finding VI, and 82,196 pounds are claimed as having been delivered there under the alleged contract of November 10, as set forth in the letter of November 9.
    
      The United States to Simeon Hart, Hr.
    
    1861.
    .May 13. To 51,920 lbs. flour delivered at Albuquerque, under the contracts of 3d and 10th
    November, 1860, at 20J cents. $10,643 60
    May 23. To 49,800 lbs. flour delivered at Fort Stanton, under the contract of 10th November, 1860, at 18£ cents per pound. 9,213 00 '
    May 26. To 52,776 lbs. flour delivered at Albuquerque, under the contracts of 3d and 10th November, 1860, at 20¿ cents per pound 10, 819 08
    May 30. To 500 lbs. flour delivered at Albuquerque to make up short delivers under the contracts of 3d and 10th November, 1860, at 20¿ cents per pound. 102 50
    “I certify that the above account is correct and just; that the services were rendered as stated, and necessary for the public service.
    “I certify on honor that the above account is correct and just; that this flour has been faithfully issued; that I have accounted for this flour by the receipts of officers duly qualified to receive the same; that it was purchased at the prices mentioned and contracted for (see contracts of 3d and 10th November, 1860); and that Judge Hart is entitled to the amount specified on the face of this account; and I have not paid this account, owing to the order of the Secretary of War, through the Commissary-General, of 11th May, 1861.
    “JNO. B. GRAYSON,
    
      Brv’t Lt. Goln G’ry S’e.”
    
    This voucher was assigned to McKnight and Richardson. The accounting officers of the Treasury allowed $30,675.68 upon it, and that amount was paid in full, as follows:
    Gash to the assignees of the voucher. $21, 675 68
    Credit to the United States against the obligations of Hart as bondsman for Colonel Grayson. 9, 000 00
    30.675 68
    
      And tbis settlement was sustained by tbis court, MoKnigMs Case (13 C. Ols. B., 292), and by the Supreme Court on appeal (98 IT. S. B., 179).
    IX. Oapt. John P. Hatch was, on the 19th April, 1861, ordered by the Adjutant-General to relieve Colonel Grayson as chief of the subsistence department in New Mexico. On the 1st June the commander of the department directed Captain Hatch to enter upon his duties. He did so at once. Colonel Grayson left the department on the 17th June. On the 25th June from within the enemy’s lines he wrote the following letter to the said Hatch:
    “El Paso, Texas, June 25th, 1861.
    “Sir : I have the honor to enclose herewith a memorandum contract made by me with Judge Simeon Hart on the 10th day of Nov., 1860, for 263,000 pounds of flour. This contract was made by positive order of Col. Fauntleroy, commanding Depart, of New Mexico. One hundred and ten thousand pounds of this flour has been duly delivered, leaving a balance of 153,000 lbs. (one hundred fifty-three thousand pounds), which Judge Hart has in his possession here subject to your orders.. The enclosed memorandum contract will show what the prices are at the points of delivery in New Mexico.
    “I also enclose the contract made between Lieut. Jackson & Judge Hart, recommended by me, and ordered by Col. Fauntleroy, made the 3rd November, 1860.
    “Eespectfully, y’r ob’t serv’t,
    “JOHN B. Grayson,
    
      Bre. Lt. Ool. & O. of 8.
    
    “Oapt. John P. Hatch,
    “A. G. 8., TJ. 8. Army, Santa FéP
    
    The court finds as a fact that at the date of said last-named letter said Hart had in his possession and subject to his control, at El Paso, in Texas, within the enemy’s lines, 153,000 pounds of flour, under the said contract of November 9-10, which had not then been and has never since been actually delivered to the United States.
    X. The whole amount of flour returned by Grayson and by Jackson as delivered under the said contract of November 9-10 for the delivery of 263,000 pounds of flour, and reported by Grayson as on band June 25 within the enemy’s line's for delivery under the same contract, is as follows:
    Pounds.
    Delivered at Albuquerque as shown by finding YII. 105,196 Delivered at Fort Stanton, as shown by finding VIII. 49,800
    Delivered at Santa Fé April 21,1861 . 32,000
    Delivered at Santa Fé April 28,1861 . 17, 800
    On hand at El Paso as above June 25, 1861 . 153, 000
    357, 796
    XI. The following deliveries of flour were made at Fort Bliss, and were paid for at the rate of cents a pound, and the payments received in full satisfaction:
    Pounds.
    1860, October 8. 6,810
    1860, November 9. 4, 000
    1860, December 10. 4,102
    1861, January 16... 4,000
    1861, February 20. 3,000
    1861, March 3.-.32,000
    53,912'
    No contract was shown under which this flour was delivered and paid for other than those already set forth. The following voucher for flour was also given by said Jackson to said Hart:
    
      The United, States to Simeon Kart, Dr.
    
    Date of lanchase. Dollars. Cents.
    March 3,1861. For 30,000 lbs. flour, delivered at Fort Bliss, Texas, © 9£ c. 2, 850 00
    Total, two thousand eight hundred and fifty dollars ..... 2, 850 00
    “I certify that the above account is correct and just, and that the articles have been accounted for on my provision return for the month ending on the 31st of March, 1861, and that the account has not been paid by me in consequence of the want of funds.
    “THOMAS K. JAOKSON,
    “l*i it of Inf y, A. A. O. SI
    
    This voucher having been transmitted to Washington by said Hart, the Commissary-General of Subsistence wrote him the following letter in relation to it:
    “Office of Commissary-General of Subsistence,
    
      Washington City, May 22, 1861.
    “ Sir : Your account of flour delivered at Fort Bliss, Texas, has been examined at this office and transmitted to the Third Auditor for settlement, and the Assistant Treasurer of tbe United States at New Orleans has been this day requested to pay you the sum of two thousand eight hundred and fifty dollars in satisfaction of your account.
    “ Very respectfully, &c.,
    “J. P. Taylor,
    “ Commissary-General Subsistence.
    
    
      u SiMEON Hart, Esq.,
    
      UJEH Paso, Texas.”
    Among the papers transmitted to the court from the Treasury Department, in answer to a rule made at the claimant’s request, are the following copies of papers on file or of record in that department:
    No. 5042.]
    “Treasury Department,
    “Third Auditor’s Oeeioe,
    
      11 May 24,1861.
    “I certify that there is due from the United States to Simeon Hart, contractor, the sum of two thousand eight hundred and fifty dollars, on account of 1 subsistence,’ by general account of money advanced for 30,000 lbs. of flour. © 9J cents per lb., delivered to Lieut. Thomas K. Jackson, 8th Infantry, acting assistant commissary at Fort Bliss, Texas, in the month of March, 1861, as per voucher herewith, $2,850.00 (remit to Simeon Hart, contractor, El Paso, Texas, by draft on assistant treasurer at New Orleans, La., on account of subsistence, $2,850-1ao%), appears from the statements and vouchers herewith transmitted for the decision of the Second Comptroller of the Treasury ■ thereon.
    “B. J. Atkinson, Auditor.
    
    “To James M. Outts, Esq.,
    “ Second Comptroller of the Treasury.”
    “Second Comptroller’s Oeeice.
    “ I admit and certify the above balance this 25th day of May, 1861.
    “ J. Madison Cutts,
    “ Second Comptroller.”
    May 28, 1861. — Requisition No. 4357. Simeon Hart, contractor at El Paso, Texas. Due on sett., per certificate of the 2d Comptroller, No. 5042.
    Subsistence .
    $2,850 00
    No warrant or draft was ever issued pursuant to said requisition. The records of the Treasury Department do not show that it has been paid.
    
      XII. In. Jackson’s provision returns he charged himself with the following flour as purchased from Hart:
    Pounds.
    1860, November.. 36, 000
    1860, December. 4,102
    1861, January... 28, 000
    1861, February..'. 78,900
    1861, March ... 62,000
    208,002
    In these returns all the flour received by him is apparently accounted for, but in so accounting he credits himself with 50,600 pounds of flour as delivered to “ J. W. Magoffin, agent.” Magoffin called himself the agent of the State of Texas, and professed to receive the subsistence stores at Fort Bliss on its surrender in March, 1861, on behalf of the State. The receipt which he gave Jackson therefor was a follows:
    “Deceived, Fort Bliss, Texas, March, 1861, of 1st Lieut. Thomas K. Jackson, 8th Infantry, A. A. O. S., Ú. S. Army, the following subsistence stores, viz :
    » # # * - * # #
    600 flour.
    
      *******
    
    “J. W. Magoppin,
    “ Agent for the ¡State of Texas.'”
    
    Grayson’s provision returns for November and December, 1860, if any were made, are not before the court. His returns for January, February, and March, 1861, show no purchases from Hart. His April returns show the following purchases from him:
    Pounds.
    April 21. 32,000
    April 28 . 17,800
    ■ He made no returns after April, 1861.
    XIII. Among the papers transmitted by the Secretary of War with this case is a voucher dated June 21, 1861, and a certificate of Colonel Grayson thereon. The certificate is on a different kind of paper from the voucher and is pasted to it, and there is no other evidence to show when this was done, or whether the voucher itself ever came under Grayson’s observation. The said voucher and certificate are as follows:
    
      “ The United States to Simeon Hart, Hr.
    
    
      iL June 21st, 1861. To error in voucher No. 5,2nd qr., 1861, being for 32,000 lbs. flour, at 12 cts. per lb., in lieu of 13 cts. per lb. for 12,100 lbs., as per contract June 28th, 1860. 121 00
    And 20£ cts. per lb., for 19,900 lbs., as per contracts of Nov. 3rd 1860 .•.• 1,591 50
    And also error in voucher No. 9, 2nd qr. 1861, being for 17,800 lbs. flour, at 12 cts. per lb., in lieu of 20¿ cts. per lb., as per contract Nov. 3rd, 1860 .. 1,513 00
    Making total in errors... 3,325 50
    “ Error on the first- item, 1 ct. pr. lb.; on second and third item, 8J cts. per lb.
    “ I certify on honor that the above account is correct and just; that this flour has been faithfully issued; that I have accounted for this flour by the receipts of officers duly qualified to receive the same; that it was purchased at the prices mentioned and contracted for (see contract of 28th June and 3rd Nov., 1860), and that Judge Hart is entitled to the amount specified on the face of this account; and I have not paid this account owing to the order of the Secretary of War, through the Commissary-General, of 11th May, 1861.
    “John B. Grayson,
    “ Brent. Lt. Col. & O. of
    
    It does not appear in direct proof in what manner the said account or voucher came into the possession of said Hart, or where the same was signed by the said Grayson; but the court have no doubt, from the, surrounding circumstances, and find as a fact, that when this voucher purports to have been issued both Grayson and Hart were within the enemy’s lines.
    XIV. There is nothing due from the United States to the claimant for flour delivered after April 13, 1861. The United States paid the said Hart, or his assignees, for flour alleged to have been delivered after April 13, 1861, but never delivered, more than the amounts claimed in this suit as due for corn and forage, said payments being made partly in cash to him or his assignees, and partly by a credit allowed him as security for Grayson’s faithful performance of his official duties, as shown in the McKnight case.
    XT. Amoug the papers so transmitted by the Secretary of War is the following voucher, signed by the saidThomas K. Jackson:
    
      The United States to Simeon Hart, Hr.
    
    Date of purchase. Dollars. Cents.
    Nov. 25, 1860. For foraging & taking care of 25 . public animals of the Q. M. D. from the 5th to 25th Nov., 1880. 20 days, © 75c. pr. head pr. day. 375 00
    Jany. 3, 1861. For foraging & taking care of 18 pub. animals of the Q. M. D, for 12 days, commencing the 22d of Dec., 1860, & ending the 3 of Jany., 1861, © 75c. pr. head pr. day. 162 00
    Feb. 22, 1861. For foraging & taking care of 21 pub. animals of the Q. M. D. for 10 days, commencing the 13th & ending the 22d Feb., 1861, © 75c. pr. head pr. day. 157 50
    694 50
    “I certify that the above account is correct and just; that the serviceswere rendered as stated; and that they were necessary for the public service; & that the account has not been paid by me in consequence of the want of funds
    “Thos. K. Jacicson,
    
      “1st. Lt. of Infy., Quartermaster.
    
    “Received at-, the — of-, 185 , of-, quartermaster United States Army, the sum of six hundred and ninety-four dollars and fifty cents, in full of the above account.
    “S. Habt.”
    The said Jackson made no other return of this matter to the Quartermaster-General’s Office, and, exceptthis voucher, there is nothing in the record to show that the services set forth in the voucher were rendered to the defendants by said Hart, or that they were worth the sums therein named.
    XYI. By order of the Secretary of War the following instructions were, on the day of tbeir date, addressed to tlie said Hatch as the successor of said Grayson:
    “Oeeice Commissary-General Subsistence,
    “ Washington, May 11,1861.
    “Captain: The Secretary of War directs that no further payments he made to Mr. Simeon Hart, of El Paso, on account of moneys due him by the United States, and that he he instructed to forward his accounts, properly certified, to this office. You will give instructions accordingly.
    “ Very respectfully, your most obedient servant,
    “ J. P. Taylor, A. O. G. Sul).
    
    “Oapt. John P. Hatch,
    “ Mounted Rifles, Acting O. S., Santa Fé, N. Jf.”
    The said Treacy was at Fort Craig, acting under said Hatch, when Taylor’s letter was received. He thereupon addressed the following letter from Fort Craig to the said Hart within the enemy’s lines, at El Paso:
    “Oeeice oe the A. A. Q. M.,
    
      “Fort Craig, FT. Jf., Jume 12th, 1861.
    “Sir : I herewith enclose for your information a copy of a letter received on the 6th inst., from the acting commissary of subsistence of this department, relative to the settlement and payment of accounts due you by the United States.
    “ To comply with the instructions contained in that letter, I have again to ask you to send me at your earliest convenience all my receipts for corn and sacks, and in the event of doing so I shall give you a single receipt for the balance, upon which you can base an account to which I will certify, and then by your forwarding it to the Bureau of the Quartermaster-General there will be no difficulty in obtaining a speedy settlement.
    “ The following is an exposition of how our account now stands:
    PAID.
    61J fanegas of corn, at 6^,-pr. fanega. $3,000 00
    UNPAID.
    1,624J fanegas of corn, Tú pr. fanega. 10, 559 25
    1,408 corn sacks, @ 20 cts. each. 881 60
    Total indebtedness.. . $11,440 85
    “ I am, sir, very respectfully, your obd’t serv’t,
    “Edward Treacy,
    
      “2nd Lt, R. M. R., A. A. Q. M.
    
    “ Mr. Simeon Hart, &c. &c.,
    
      “FI Paso, Texas.
    
    “Becord, p. 51.”
    
      On tbe 19th day of June, 1861, tbe said Lieut. Treacy made out, signed, and certified tbe following vouchers, viz:
    No. 12.
    
      The United States to S. Hart, Dr.
    
    Dato of purchase. Dollars. Cents.
    March 31, 1861. For 935 fanegas of corn, at 6.50 per fanega. 6,077 50
    “ “ “ For 3,278 corn sacks, at 20 cents each.:- 655 60
    $6, 733 10
    “I certify that the above account is correct and just, and that the articles have been accounted for on my property return for the quarter ending 31st of March, 1861.
    “Edward Treacy,
    “ 2d Lieut., B. M. B., A. A. Q.
    
    
      “ Fort Craig-, N. M., June 19th, 1861.”
    No. 12.
    
      The United States to S. Hart, Dr.
    
    Date of purchase. . Dollars. Cents.
    April 22nd, 1861. For 689^ fanegas of corn, at $6.50 pr. fanega.. 4,481 75
    “ “ “ For 1,130 corn sacks, at 20 cents each. 226 00
    $4,707 75
    “I certify that the above account is correct and just, and that the articles have been accounted for on my property return for the quarter ending on the 30th of June, 1861.
    “Edward Treacy,
    , “2d Lieut., B. M. B., A. A. Q.
    
    “Fort Craig, N. M., June 19th, 1861.”
    It does not appear by positive proof how these vouchers reached said Hart, but as the said Hart was at that time within the enemy’s lines, actively co-operating with them, the court finds as a facb that they were transmitted to him by Treacy across the enemy’s lines.
    XVII. Thesaid Hart transmitted thesaid last-named vouchers to Washington, where they were presented for allowance and payment. The accounting officers of the government disallowed them, and they have never been paid.
    The said Treacy in the abstracts of purchases rendered with his quarterly returns of quartermaster stores for the quarters ending March 31,1861, and June 30,1861, returned the following articles as purchased from the said Hart:
    March 14, 21,539 pounds of corn .$1, 000 00
    March 31, 195,517 pounds of corn, 3,278 corn sacies - 9, 733 20
    April 22, 74,984 pounds of corn, 1,130 corn sacks .. 3, 707 40
    14, 440 60
    And in his abstracts of purchases paid for accompanying his accounts current for the same quarters he returned the following payments to the said Hart:
    March 14, 21,539 pounds corn. $1, 000 00
    May 15, 43,077 pounds corn. 2, 000 00
    ,- 3, 000 00
    11, 440 60
    On the foregoing facts the court finds as a resulting fact that prior to the 13th day of April, 1861, the said Hart sold to the defendants corn and corn sacks of the value of $10,733.20, upon which he has received from the defendants the sum of $3,000; and that after the 13th day of April, 1861, to wit, on the 22d day of April, 1861, he sold to the defendants corn and corn sacks of the value of $3,707.40, for which neither he nor his representatives have been paid.
    XVIII. The sum of $9,000, mentioned in the defendants’ plea of set-off, was retained by the defendants out of the said sum of $30,778.18 paid by the defendant to McKnight & Richardson, on account of the indebtedness of the defendants to the said Simeon Hart, on the 31st day of January, A. D. 1873, and the defendants still retain the said sum of $9,000 to their own use.
    XIX. The said Simeon Hart has deceased intestate since the commencement of this suit, and the claimant, James P. Hague, has been duly appointed by the proper court of Texas to administer upon his estate.
    XX. All of the vouchers embraced in this suit were transmitted by the said Hart to the War Department for settlement and payment at the dates following, viz:
    The voucher for $2,850, dated March 3,1861, was transmitted to tbe Commissary-General of Subsistence in a letter dated April 37.1861, and received by that officer May 23, 1S61.
    The two vouchers certified by Lieutenant Treacy and amounting to $11,440.85, and the voucher certified by Lieutenant Jackson for $695.50, were transmitted to the Quartermaster-General in a letter dated June 25, .1861, and were received by that officer on the 2d day of August, 1861.
    The voucher certified by Lieutenant-Colonel Grayson for the sum of $3,325.50, together with a voucher certified by Lieut. Z. B. Bliss, A. A. O. S., for the sum of $87.52, and a voucher also certified by Lieutenant-Colonel Grayson for the sum of $30,778.18, were transmitted to the Commissary-General in a letter dated June 26, 1861, and received by that officer August 11.1861.
    And the said vouchers and each of them remained in the custody and under the control of the officers of the executive department of the government from the time they were so received until they were (with the exception of the voucher for $30,778.18) transmitted by the Secretary of War, with other papers in the case, to this court. The said voucher for $30,778.18 was settled and paid in the Treasury Department in the month of January, 1873, and was in form as shown in finding VIII.
    
      Mr. Samuel Shellaharger and Mr. John J. Weed for the claimant:
    Upon the point whether the joint resolution of March 2,1867, was one in its nature taking away all jurisdiction of the accounting officers to look into the claim of Hart which accrued prior to the 13th of April, we inquire, first, what, in its essential nature, is jurisdiction, as distinguished from things coram non judice. This is well defined in cases in the Supreme Court, some of which will be found reviewed in Grignon’s Lessee v. Astor, 2 Hoav., 338, 339; 6 Pet., 709; 12 ib., 718, 623; 3 ib., 205.
    As applied to this case, if the accounting officers of the Treasury had, under section 236 Eevised Statutes, and other provisions of law conferring their jurisdiction, power to enter upon the investigation of Hart’s claims; find out whether he delivered the goods to the defendant under a valid contract; find out Avhether they were paid for; find out whether this was done prior to 13th of April, 1861; find out whether he became disloyal ; then that power to do these things was jurisdiction, and the question whether the joint resolution of 2d of March, 1867, made out a defense to his claim was a question also to be decided by the accounting officers in the exercise of existing jurisdiction, to hear, determine, adjust, and settle.
    That this claim is one which, by its face, is brought within the jurisdiction conferred by section 236 Bevised Statutes, is palpable. That section, and other similar ones, requires these officers to take jurisdiction of “all claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or creditors.” That, under these laws, these accounting officers were required to examine this account, and find out, first, whether, independently of the joint resolution of the 2d of March, 1867, the claim was proved; whether, if proved, it accrued prior to the 13th of April, 1861; and whether, if proved and accrued before said date, Hart became disloyal, is not capable of Iona fide dispute. And that authority to proceed thus far in the trial of the claim constitutes “jurisdiction,” is absolutely plain by the above-cited authorities; and besides is, in principle, expressly decided in Klein v. The United States, where, on page 146, the court, in speaking of the power thus to enter upon the trial of a cause, uses these words: “The court has jurisdiction of the cause up to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease; and it is required to dismiss the case for want of jurisdiction.”
    And the Supreme Court there held that where a statute left in the Federal tribunals the power to enter upon the trial of a cause and to proceed therein up to the point where it was disclosed to the court that the claimant had been guilty of disloyalty (which, however, had been pardoned), and expressly provided that such disclosure ousted the jurisdiction of the court, such a statute was one, notwithstanding its term, which did not abolish jurisdiction over said “class of cases”; but was, on on the contrary, a statute leaving the jurisdiction existent, but seeking to create a defense — but a defense cognizable under said existing jurisdiction.
    In so far as the act of ’67 seeks to set up pardoned disloyalty as a “defense” to a claim of which any tribunal, executive or judicial, could, but for such pardoned disloyalty, take jurisdiction and pay, so for sucb act is declared unconstitutional by the Kline Case.
    The cases all hold that unconditional pardon is such absolute “'oblivion,” that in no court, for no purpose and nowhere, can the pardoned man be distinguished, on the ground of the pardoned act, from those who never offended, Oblivion is complete. (Garland, 4 Wall., 380; Armstrong’s Foundry, 66 ib., 766; Kline’s Case, 13 ib., 141; Carlisle’s Case, 16 ib., 151.)
    Kline’s Case is one which recognizes the unquestioned power of Congress “to deny the right of appeal or jurisdiction in a particular class of cases,” and so too Congress may deny the accounting officer’s jurisdiction in a particular class of cases.
    The question there was, has the particular statute in question (12 July, 1870, 16 Stat. L., 235,) done that thing — cut off jurisdiction — or has it only enacted that pardoned disloyalty shall be a defense, the jurisdiction remaining; and the court held that the essence and effect of said act was not to abolish jurisdiction but to attempt to create a defense; and our next point is that if said act of July 12, 1870, was in its nature and effect not one exercising the admitted power of Congress to cut off jurisdiction in the courts, then much more is not the Act of March 2,1867 (14 Stat. L., 571; Rev. Stat., § 3480), prohibiting payment to disloyal persons, not one cutting off the jurisdiction of accounting officers over claims cognizable under section 236 of Revised Statutes, but on the other hand is, at most, one prohibiting the allowance of the claim when in the exercise of lawful jurisdiction the accounting officers shall find (1) that the claimant was disloyal; (2) that the claim was older than 13th April, 1861; and (3) that it was hot assigned.
    Since, therefore, it cannot be denied that the law of 2d March, 1867, left in the accounting officers jurisdiction, in claims like this, to proceed with the examination of our claim to these extents, (1) to ascertain whether the property was contracted for, delivered and not paid for; (2) whether this occurred before the 13th April, 1861; (3) whether the claith had been assigned to a loyal citizen; (4) whether the claimant became disloyal — and jurisdiction is not pretended to be arrested until the point is reached which shows the claimant’s disloyalty, the ante helium character of the claim and its non-assignment; then, when these facts are disclosed, in and by such exercise of admitted jurisdiction, and the claimant sets up, as a “ right under the Constitution,” tbe oblivion caused by unconditional pardon, that makes tbe exact case wbicb section 1003 Eevised Statutes makes one of tbe grounds for certifying to tbis court. In other words, even did tbe law of 2d March, 1807, make tbe disclosure of disloyalty, by tbe claimant, to oust all jurisdiction prior to tbe enactment of tbe act of 25th June, 1808 (15 Stat. L., 70; Eev. Stats., § 1003), then tbe seventh section of such act repeals the act nf 2d March, 1807, in that regard, because tbis act of 25tb June, 1808, in express and unambiguous words, provides for such exact case as tbis.
    Here a claim was made on a department. A “right” was here “claimed” by Hart, and “denied” by tbe United States, “under tbe Constitution,” to wit, tbe right to recover in virtue of bis pardon, notwithstanding the act of 2d March, 1807, and tbe exact case was presented for transmitting to tbis court. It was tbe very thing which, in United States v. Lippitt, 10 Otto, 007, tbe Supreme Court says tbis act of 1808 expressly covers. It was filed, as tbe court says Lippitt’s was, in tbe proper department. When it was filed no act prevented its payment. It was certified to tbis court for tbe purpose of getting tbe decision of, amongst others, tbe question, Does tbe pardon entitle Hart to be treated as if tbe 2d March, 1867, did not exist? And to now allow that act of 1807 to prevent tbe jurisdiction of tbis court is, as said in Lippitt’s Case (10 Otto, 067), ’ to “defeat tbe very object of tbe reference.” Tbe act of 1868, in one of its clauses, expressly sends tbe act of 1807 to tbis court for trial, as one attempting to deny a “constitutional right.” To make tbe act of 1867 defeat tbe jurisdiction created by tbe act of 1808, for tbe very purpose of trying tbe validity of tbe act of 1867, is to reason in a circle and to make act of 1867 repeal 1808.
    “ Tbe vouchers sent by Tracey, through Hart, being sent and certified under express orders of ¡Secretary of War, are not unlawful, because “either belligerent may modify or limit tbe operation of the laws of war relating to intercourse with enemies as to persons or territories of the other.” (See The Venice, 2 Wall., bottom page 274; Mitchell v. Harmony, 13 How., 115, 133; Walker's Executors, 12 O. Cls. E., 423; Hamilton v. JDillin, 12 Wall., 87, bottom page; Mathews v. McStea., 1 Otto, 10, 11; Merchants1 Bank v. Union Bank, 22 Wall., 295, 296.)
    If it be objected either that there was before tbe accounting officers of the Treasury when this claim was there pending no evidence of Hart’s pardon or “claim” of a constitutional right growing out of the pardon; and hence that this case cannot be treated, by this court, as one sent here under that clause of the statute, then the reply is—
    (1) Independently of the special pardon of Hart he and all others were pardoned by amnesty of 25th December, 1868. It had pardoned all; and the courts and departments were bound to bate notice of that as a public law. (Carlisle’s Case, 16 Wall., 152.)
    The law made this defense for Hart; and the departments were compelled, by section 1063, to notice this constitutional “claim.”
    (2) The certificate sending the case to this court says “important questions of law” arose in the case; and there is no authority for presuming this was not one of them.
    (3) And the petition here filed set up pardon; and it was not denied.
    The Supreme Court, in Paddleford’s Case, reversed this court, because it required averment and proof of pardon; whereas this court was bound to take j udicial notice of the amnesty of 25th December, 1868, which pardoned all. (See this repeated in Car/isZe’s Case, 16 Wall., top of page 153.)
    The procurement of such part of these supplies as were obtained from Hart, after he was engaged in disloyal acts, was not an unlawful contract on the ground that it was a contract with the public enemy.
    In McKnight v. United States, 13 O. Cls. B., 292, and 8 Otto, 179, a voucher in favor of the same Hart, signed by the same John B. Grayson, dated 11th May, 1861, for flour delivered in part under same contract of 3d November, 1860 (see 15 C. Cls. B., 296), as that under which this flour was delivered (13 O. ' Cls. B., 184), came under the adjudication of this and of the Supreme Court.
    And one of the questions was, in said McKnight case, can Hnited States recover back $21,675.68 audited and paid on said voucher by Grayson for a total of $30,675.68 ?
    (1) If our flour contract was void then so was McKnight’s.
    (2) In McKnight’s case it appears that in settling the claim the point was made that Hart was disloyal, and that the act of 1867 prevented the payment. See Broadhead’s allowance of claim, 6tli January, 1873 (13 O. Cls. B., 293), where he says claims allowed pursuant to opinion of Attorney General, 5th December, 1872 (14 Opins., 145).
    So that this court’s record showed Hart’s disloyalty.
    (3) It is impossible to say Hnited States may not recover back money paid on claim which never existed. (See MeJElratWs Case, 102 H. S., 426'; Shrewsbury’s Case, 13 C. Cls. B., 189.)
    (4) And that this court held that because this money was actually “ due” to Hart, and that, owing to Hart’s consent that it should be paid to McKnight, the government could lose nothing, therefore United States could not recover it back. (See 13 C. Ols. B., 313.) Hence, this makes out a decision that a purchase from Hart precisely like ours was not unlawful.
    (5) And the Supreme Court is more explicit than this court in saying Hart’s claim was a just one, and the court says expressly that the voucher by Grayson “was a sufficient warrant for the allowance of the amount found due to Hart.” (8 Otto, 185.)
    (6) All the cases above cited showing that the sovereign may trade with its enemy show that officers of army may supply the army by contracts with enemy. (See 1 Otto, 10 and 11; 21 Wall., 87 and 88, and cases cited; 22 Wall., 295; read top of 297.)
    (7) The same conclusion is reached by the fact that war does not bring the right to confiscate or seize private property generally. (Klein’s Case, 13 Wall., 137.)
    Private property is, as a rule, respected in such wars, and the army may lawfully be supplied by the officers making purchase for that purpose. McKnight’s case decided that the Grayson voucher is good evidence. (8 Otto, 185, and see 15 O. Ols. B., 424.)
    As to all that part of the claim antedating 13th April, 1861, the case of United States v. Union Pacific B. B. Co. (1 Otto, 91), virtually decides this case in any view, and even if jurisdiction was cut off by the joint resolution of 1867. The act of 1873 (1 Otto, 91) prohibited payment just as that of 1867 here does. The act of 1873 (1 Otto, 91), after prohibiting payment, gave this court jurisdiction just as we have shown that the act oí] 1868 does in this case, and the court there held (1 Otto, 91) that prohibition of payment there did not (1 Otto, 91) defeat recovery. So here the prohibition of payment by act of 1867 does not defeat recovery.
    
      
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants, relied upon his brief at the former trial of the case. (15 C. Gls. It., 414.)
   Davis, J.,

delivered the opinion of the court:

This case was first heard at the December term, 1879 (15 C. Cls. R., 414). The claimant, being dissatisfied with the judgment then rendered, and having discovered new evidence, asked for a rehearing. The exhaustive argument of the junior counsel for the claimant on the facts as now presented, and the comprehensive and able exposition of the law by the senior counsel, leave the court no room for misunderstanding his theory of his case in both branches.

I. A question of jurisdiction arises at the threshold with regard to a large portion of the claim. The cl.iims come here from the Department of War, by virtne of a letter from the Secretary of War, transmitting them to this court for adjudication under the statute. As some question was made at the argument as to the cause of the transmission, it may be as well to insert the Secretary’s letter textnally in this opinion:

“WAR DEPARTMENT,
Washington City, October 13, 1873.
“To the honorable Judg-es op the Court op Claims:
“The undersigned, Secretary for the Department of War of the United States, hereby represents that a claim has been made upon said department by Henry B. Ward, assignee of Simeon Hart, for payment for supplies furnished the Quartermaster and Commissary Departments, under contract.
“This claim involves disputed facts and controverted questions of law, and the amount in controversy exceeds $3,000, and it is therefore deemed proper to transmit the claim, with all the vouchers, papers, proofs, and documents pertaining thereto, on file in this department, to the Court of Claims, to be there proceeded in according to law.
“Wi. W. Belknap,
1 “Secretary of War?

It .appears by the petition that a large part of the demands sued for in this action accrued prior to April 13, 1861. In his fifth request for findings, the claimant asks us to find that “on the 3d day of March, 1861, Simeon Hart, the claimant’s intestate, was residing in El Paso, Texas, and was in active sympathy with those who were inciting to rebellion”; and that “in April, 1861, he joined the insurgents, and then, and afterwards, furnished them with supplies, money, and means of transportation to carry on their invasion and camjiaign into New Mexico.”

The joint resolution of Congress of March 2, 1867, which is embodied in the Revised Statutes as section 3480, enacts as follows:

“That until otherwise ordered it shall be unlawful for any officer of the United States Government to pay any account, claim, or demand against said government which accrued or existed prior to the 13th day April, A. D. 1861, in favor of any person who promoted, encouraged, or in any manner sustained the late rebellion; or in favor of any person who, during said rebellion, was not known to be opposed thereto, and distinctly in favor of its suppression; and no pardon heretofore granted or hereafter to be granted shall authorize the payment of such account, claim, or demand until this resolution is modified or repealed: Provided, That this resolution shall not be construed to prohibit the payment of claims founded upon contracts made by any of the departments where such claims were assigned or contracted to be assigned prior to April 1, 1861, to creditors of said contractors, loyal citizens of loyal States, in payment of debts incurred prior to March 1, 1861.”

It is plain from the pleadings that so far as the date is concerned most of thé demands in suit come within this act. It is also clear, from the claimant’s request, that his intestate was one of the persons to whom the act forbids payments to be made. The provisions of this act, so far as they have any force, clearly apply to such demands, unless they are taken out from it by some other act.

The claimant asks us to find that on the 4th of November, 1865, his intestate received a full pardon, and he maintains that it operated to set aside the provisions of this act as to him and his claims. We cannot concur in this view. It seems to ns that it rests upon a radical error as to Hart’s status in the executive departments and in this court, after the close of the war.

The facts stated in the claimant’s request show that Hart was guilty of levying war against the United States, of adhering to their enemies, and of giving them aid and comfort within the United States. For these acts he was liable on proper conviction to the punishments provided by the first section of the Act April SO, 1790 (1 Stat. L., 112). It also shows that he committed the crime of treason against the United States, and became liable on proper conviction to one of the punishments provided by sections 1 and 3 of the Act July 17, 1802 (12 Stat. L., 589). It also shows that he was guilty of the offense of inciting, setting on foot, assisting, or engaging in the rebellion, and of giving aid or comfort thereto, and became liable, on proper conviction, to the punishments provided by sections 2 and 3 of the last-named act (ib., 590). It also shows a state of things which authorized the seizure of his property, including the.demands now in suit, and its confiscation by means of judicial proceedings instituted for that purpose, under the provisions of sections 5, 6, and 7 of the last-named act (ib., 590, 591).

The close of the war left Hart liable to be proceeded against for any or all these offenses against the statutes of the United States, and to be punished for each or all when convicted, and liable to the confiscation of his property. From all that liability the President’s pardon of November 9, 1865, completely exempted him.

So, too, in order to authorize this court to render a judgment in his favor, it was necessary that he should set forth in his petition that he had at all times borne true allegiance to the Government of the United States, and that he had not in any way voluntarily aided, abetted, or given encouragement to the rebellion; and the government could traverse this, and if on the trial the issue should be decided against him, his petition would be dismissed (Act of March 3, 1863, § 12). And in proceedings under the captured and abandoned property act he was obliged to prove, affirmatively, that he had never given aid or comfort to the rebellion (Act of March 12, 1863, § 3). From the effect of these statutory provisions also the pardon relieved him.

But disability to receive debts due to him, whether from individuals or the United States, was not made a consequence of any offense. So far as' his relations with the United States were concerned, Hart had, at the time of the receipt of his pardon, or at the time of the passage of the joint resolution of March 2,1867, committed' no offense which took away from him the right to be paid at the Treasury any sums of money due to him by the United States, for which no proceedings for confiscation had been instituted. It is therefore clear that there ■was no disability of this kind for the pardon to operate on when it was granted.

Hart’s disabilities did not grow out of treasonable acts for which, so far as appears, he was never indicted; but from another and quite different relation which he bore to the United States — that of a public enemy. Before the war he could make a valid contract with the government, could fulfill that contract, and could earn the right to the compensation provided for its fulfillment. The war converted him into a public enemy irrespective of his individual acts. During its existence he could not contract with inferior government officials, could not earn compensation on such contracts, and could not receive payment for services. When the war closed he reverted to his original status. He could contract anew with the government, could receive pay under the new contract, and could receive pay earned under an old contract prior to the war, provided it had not been paid or confiscated. He needed no pardon to enable him to do this.

As the President’s pardons conferred no increased right upon Hart to obtain pay under the old contracts, so the resolution of March 2, 1867, took nothing from him which had been conferred by the pardons. It impinged upon no function intrusted by the Constitution to the Executive. It did not, like the legislation which was reviewed in Klein’s Oase (13 Wall., 128), attempt to prescribe to the judiciary the effect to be given to an act of pardon or amnesty by the President. Congress simply forbade claims of this class to be paid until it should otherwise order.

The claimant contends that this cannot be done, because it practically leaves him without a remedy. This position is entirely untenable. The only remedy which the Constitution provides for a claimant against the government is in Congress. It says, “No money shall be drawn from the Treasury but in consequence of appropriations made by law.” It provides for the distribution of work in carrying on the government in executive departments. It contemplates the passage of general laws providing machinery for doing this work. Such departments have been organized, and such legislation has been had and is constantly going on. Congress provides for the payment of the work which it thus authorizes by general appropriations, and it directs by general legislation what officers shall audit accounts presented for payment under general appropriations, and what officers shall authorize their payment. It delegates a portion of its power to this court, and authorizes judgments to be rendered by it which shall be respected at the Treasury. All these provisions are wise ; but we. entertain no doubt that the same power which created them can abrogate them; that it can deny to the court and the department the right to pass upon and pay any class of claims; still further, that it can refuse to appropriate for any or all classes of claims. The absolute control of the moneys of the Hnited States is in Congress, and Congress is responsible for its exercise of this great power only to the people. As we said in our former opinion, It is entirely within the power of Congress to indicate a class of persons who shall not be paid out of general appropriations, but shall come to Congress for relief.”

Congress having, in the exercise of a clear constitutional right, provided that claimants like Hart should not be paid from general appropriations for claims that accrued prior to April Í3, 1861, the Executive was powerless to consider such claims. Auditing and accounting are but parts of a scheme for payment; and, in our opinion, the arrest of the object was the arrest of the means for obtaining it.

The act of 1868 was strictly auxilary, for the purpose of assisting heads of departments in investigating and disposing of ordinary claims against the government. It conferred on claimants no rights or remedy which did not previously exist. If the resolution of 1867 deprived claimants of the right to receive pay, the subsequent act did not restore that right. On the contrary, it expressly restricted the reference of claims to the classes of which the court already had jurisdiction. It would be an abuse of construction to extend the right to specific classes of claims which Congress had carved out of the mass and reserved in terms for future legislation. Should the head of a department be in doubt (as was the case in PaddforWs Case, 9 Wall., 531) whether a claimant comes within the excluded class, he may refer the case to this court. It would then become our duty to take jurisdiction; but as soon as the fact is ascertained that the claim is within the prohibition of the resolution of 1867, the court must say that, being a claim which the Executive was forbidden to pay, its reference does not confer jurisdiction to proceed with it to final judgment. With this modification, induced by the recent argument, we repeat the former expression of our views:

“ That would be making the Treasury do indirectly what Congress has said it cannot do directly. Were we to render judgment in the claimant’s favor on such claims we should invite the officers of the Treasury to do an act, under cover of our judgment, which Congress plainly intended that they should not have authority to do in any contingency. We are not required to determine whether we should be authorized to render judgment against the government on this class of claims if the claimant had appeared here on his own motion. We confine ourselves to this: that when the head of an executive department is forbidden by law to pay a claim, there can arise no disputed fact, no controverted question of law, nothing in which our decision can affect a class of cases, nothing in which it can furnish a precedent for the future action of an executive department, nothing in which any authority, right, privilege, or exemption can be claimed or denied under the Constitution of the United States, to warrant the transmission of the claim to this court, or to confer upon this court a jurisdiction, derived through the department, which is expressly denied to the department. The duty of the executive officer is to deny the claim irrespective of all such considerations. He has no power to assist the claimant to any other remedies.”

The claimant’s counsel, in answer to this, ingeniously contends that the effect of the President’s pardon-is a constitutional question. The act authorizing the Executive to transmit claims here provides that it may be done, among other cases, where any authority, right, privilege, or exemption is claimed or denied under the Constitution of the United States. He argues with great vigor that the right of transmission must exist in spite of the resolution of 1867, because the very constitutional question to be tried is raised by that resolution.

The answer to this argument is that the case is not sent here for such a cause or with such an object. The claim is transmitted here under a different and distinct provision of the act, as a claim involving disputed facts and controverted questions of law, in which the amount in controversy exceeds $3,000. No constitutional question was suggested in the Secretary’s letter. None was suggested at the former trial. It is an ingenious afterthought of counsel; but it cannot be raised here by counsel for the purpose of giving us a jurisdiction we should not otherwise bave had. Our jurisdiction in these cases is special; wider than the court enjoys in cases commenced by the voluntary action of claimants, inasmuch as the statute of limitations cannot be interposed; and depends upon the letters transmitting them for its origin. We cannot travel beyond the Secretary’s letter in order to ascertain whether another reason existed which might also have justified him in transmitting the case here. And even if we could, we are all of opinion, as we have already stated, that our jurisdiction ceases when we ascertain that a law enacted within the constitutional power of Congress forbids payment of the claim by the Executive transmitting it. We cannot then proceed to give a judgment which may secure payment of the claim in violation of the act; nor, on the other hand, a judgment which will bar the claimant when the act is repealed. Therefore, as to all the claims prior to April 13, 1861, we decline to take jurisdiction further than to find the facts upon which, taken in connection with the pleadings and request for findings, we rest our disposition of this part of the case.

II. For a proper understanding of the disposal which xve make of the remainder of the case, it will be necessary to refer briefly to some of the principal facts in the findings.

The controversy arises on disputed vouchers for flour supplied to the Subsistence Department, and corn and forage supplied to the Quartermaster’s Department. The two classes of transactions are distinct.

It is claimed that the flour was delivered under three contracts, all of which are set out in the findings. One, of the 28th June, 1860, for 100,000 pounds, and one, of the 3d November, 1860, for 135,000 pounds, were made with Lieut. Thomas B. Jackson, of the Eighth Infantry, who was stationed at Fort Bliss, in the northwest corner of Texas, and acting as assistant commissary of subsistence. They were in the usual form. The third contract, for 263,000 pounds, was made with Col. John B. Gray-son, who was the chief commissary of subsistence at Santa Fé, in New Mexico. It was made at El Paso, in Texas, near Fort Bliss, by means of a letter from Hart, dated November 9, making proposals, and a written indorsement thereon by Grayson, dated November 10, accepting the same.

Jackson and Grayson sympathized with the movement for secession, and went over when the resistance became overt; Jackson intbe latter part of Marcli and Grayson on the 17th. June. Hart, as we have already seen, was also an active sympathizer and participator in the rebellion.

Official documents from executive departments form part of the findings, from which it appears that Jackson certified to the delivery by Hart of flour, as follows:

Pounds.
In New Mexico : September 4, 1860, at Fort Craig... 21, 000
October 8,1860, at Albuquerque. 36, 000
November 15,1860, at Fort Craig. 19, 000
November 15,1860, at Fort Craig... 2,000
November 17, 1860, at Fort Fillmore.. .■. 10,000
January 26, 1861, at Fort Craig. 24,000
January 29, 1861, at Fort Craig.. . 24,000
January 31,1861, at Albuquerque.. 40, 600
February 18, 1861, at Albuquerque. 11,300
In Texas: October 8, 1860, at Fort Bliss. 6,810
November 9, 1860, at Fort Bliss. 4, 000
December 10,1860, at Fort Bliss . 4,102
January 16, 1861, at Fort Bliss. 3,000
February 20, 1861, at Fort Bliss. 4, 000
March 3,1861, at Fort Bliss. 32,000
241, 812
By means of the same documents it appears that Grayson certified to the delivery of flour by Hart, as follows:
Pounds.
The vouchers in WcKnight’s Case (13 O. Ols. R., 292; 98 H. S., 179; Finding XIX)... 154, 996
His provision returns for April.. 49,800
A further amount in his voucher of June 21, 1861, which does not appear in any other voucher. 19, 900
224,696

The United States have paid vouchers for all the flour covered by Jackson’s certificates as above and by Grayson’s certificate in the McKnight case. There is another voucher certified by Jackson for the delivery of 30,000 pounds of flour at Fort Bliss, on the 3d of March, which has not been paid,' and which is now disputed. Adding Grayson’s certificates and Jackson’s certificates paid and unpaid together, we have an aggregate of 496,508 pounds; or so near to the aggregate of 498,000 pounds called for by the three contracts as to raise a strong presumption in the claimant’s favor, if there were nothing else in the case.

It appears, however, that on the 25th June, 1861, nearly three months after the date of the disputed delivery to Jackson, and several weeks after the last alleged delivery to Grayson, Hart had in his possession at El Paso, within the enemy’s lines, 153,000 pounds of flour,' which he claimed was the property of the United States under the contracts. The conclusion is irresistible that about 150,000 pounds of flour, covered in part by the disputed voucher of Jackson and in part by other vouchers, most or all of which have been paid, never came into the actual possession of the United States. If delivered at all, all this property was delivered constructively, Hart retaining possession of it in the enemy’s country.

The provision returns of Jackson and Grayson show some facts embodied in the findings which fortify these conclusions.. Jackson charges himself with 208,002 pounds of flour bought from Hart. This includes the disputed voucher. In balancing the return he credits himself with 50,600 pounds delivered to the agent of the State of Texas when Fort Bliss was surrendered. But the findings show that the agent of the State of Texas receipted for only 600 pounds. It was pressed upon us that this was a clerical error; but under the circumstances of this case we cannot accept such a theory.

Grayson made returns in January, February, March, and April. His April returns show purchases from Hart to the amount of 49,800 pounds, all of which was delivered at Santa Fé and is accounted for. Of the alleged deliveries in May to the amount of 154,996 pounds, which formed the subject of controversy in the McKuight case, and of the 19,900 pounds included in the voucher of June 21, no return was ever made.

Some other facts in the public history of the time have a bearing upon the disputed voucher of Jackson. On the 18th February, 1861, Major-General Twiggs issued an order for the evacuation of all the military posts in Texas, and required the troops, as soon as the necessary preparations could be made, to march to the coast, taking with them provisions as far as the- ' coast. The next day General Twiggs surrendered the force under his immediate command at San Antonio. The total fprce that was to be so embarked was 2,684 men. (Official Becords,, first series, vol. 1, page 524.) Of these, 320 men were stationed at Forts Bliss, Quitman, and Davis, in the northwest. (Ib.,. 568.) On the 3d March both Hart and Jackson must have known that these posts were to be at once surrendered. In his capacity of quartermaster, Jackson must also have known the. fact reported by the officer who commanded the little force in its march across Texas, that there was only transportation enough at Fort Bliss to carry subsistence for forty days. (Ib.). If Jackson’s vouchers are to be believed, he laid in on the 3d March six months’ rations of flour for the whole force. When the surrender was made on the 9th May, at San Lucas Springs,, about fifteen miles west of San Antonio, Jackson’s name is not found among the list of officers reported as on duty at that time. (Ib.)

With all these independent facts pointing in one direction,, we have not hesitated to find as a resulting fact, bearing upon such vouchers as were subsequent in date to the 13tii April, 1861, that there is nothing due from the United States to the. claimant for flour delivered after April 13, 1861, and that the United States paid the said Hart or his assignees for flour-alleged to have been delivered after April 13, 1861, but never delivered, more than the amounts claimed in this suit as due for corn and forage, said payments being made partly in cash to him or his assignees, and partly by a credit allowed him as security for Grayson’s faithful performance of his official duties as. shown in the McKnight case. It is plain from the other facts found, that if it had been open to us to act upon the flour claims prior to April 13th, it would have been our duty also to find that nothing was due for them.

This finding is reached by assuming as a matter of law: 1st. That while Hart kept possession of the flour at El Paso,, there was no constructive delivery of it to the United States; and, 2d. That the court can make this finding, although the matter is not pleaded by the government as a set-off. If the claimant desires a review of our action in this respect, lie-is. entitled to have this stated.

III. In our opinion, however, it is of little consequence-whether this finding stands or falls. There are fatal objections, in law to the claimant’s recovery on the forage vouchers. They are three in number: one from Jackson and two from Treacy, who was stationed at Fort Craig as assistant quartermaster.. Jackson’s voucher and one of T-reacy’s vouchers were for goods alleged to bave been delivered prior to April 13, 1861. No recovery can be bad on these.

Treacy’s second voucher was for corn delivered after April 13. At tbe former trial it was found that tbe only proof of tbe delivery of tbe corn was tbe voucher. Tbe voucher was transmitted by Treacy to Hart across the enemy’s lines. We held it to be absolutely void, and that there was no proof of ■-the alleged delivery. Tbe claimant has supplied other proof, and it is now found as a fact that tbe corn was delivered. It ■only remains to consider whether Treacy could lawfully trade across the lines on tbe 22d April, 1861.

On that day there existed in Texas not only tbe technical •state of war resulting from the President’s proclamation, but an actual state of conflict. Tbe effect of this upon private rights in tbe early stages of the rebellion has been tbe subject of frequent discussion in tbe Supreme Court. From tbe many •cases we deduce these general conclusions. Tbe theoretical rule which converts all inhabitants of enemy’s country into •enemies on tbe outbreak of a war, which ends business relations, dissolves partnerships, stops trade and intercourse, and makes unlicensed dealings illegal, is inflexible. In applying this rule to transactions interrupted by the outbreak of a civil war which commences without previous declaration and without the ordinary premonitory forebodings, the courts endeavor to lighten it •and mitigate its severity where its rigid application must produce inequity; but they have never swayed from it except for •such a purpose, and have never departed from it so far as to leave the principle out of sight.

In the present case we can see no equities to induce us to hesitate to apply rigidly the rule which made all trading with Hart, a public enemy, on the 22d April, 1861, illegal, and all claims and demands growing out of it absolutely void. The subsequent combination between Hart and G-rayson, and the dealings between Hart and Jackson, which have been examined, ■entitle Hart’s representative to the benefit of no equitable considerations. This transaction was wholly outside of the operation of a pardon. It was illegal from the outset, and never •constituted the foundation for a claim against the United States.

The judgment of the court is, as to so much of the claimant’s petition as relates to claims or demands which accrued or existed prior to the 13th day of April, 1861, that it be dismissed for want of jurisdiction in this court to hear and determine said claims and demands, and without prejudice to the claimant; and as to so much of said petition as relates to claims and demands which accrued on or since the said 13th day-of April, 1861, that it be dismissed on the merits.  