
    ENSLEY’S CASE. Enoch Ensley v. The United States.
    
      On the Broofs.
    
    
      . In March, 1864, a resident of Memphis, claiming to own slaves at Mobile, gives to one D., a subject of Denmark, his power of attorney to sell the slaves and invest the proceeds in cotton. D. passes through the military lines under a provost 
      
      marshal’s pass, sells the negroes, invests the proceeds in cotton; the cotton is captwed.
    
    Commercial intercourse in Marcli, 1864, between a resident of Memphis and persons within the confederate military lines, through an agent then appointed at Memphis by power of attorney, who passes the United States lines nnder a provost marshal’s authority, is unlawful, and no title to personal property could be thus acquired, notwithstanding- that the Proclamation 2d April, 1863, declares Tennessee in a state of insurrection, and prohibits commercial intercourse between its citizens and those of loyal States.
    
      Messrs. Hughes, Denver & Peelc for claimant:
    This claim is for seventy-seven bales of upland cotton, taken by tbe United States authorities at Mobile, and sent to New York and sold.
    This cotton was purchased for the claimant by C. Dickmann, with money which had been furnished to him by the claimant.
    The evidence of the seizure of these seventy-seven bales, which had been stored with N. W. Perry & Co. by C. Dickmann, is complete.
    As to loyalty, the evidence is abundant and conclusive.
    The ownership and loyalty of the claimant, and the seizure of the cotton by the United States, being fully proved, a judgment is asked for the proceeds.
    
      Mr. Alexander Johnston (with whom was the Assistant Attorney General) for the defendants:
    Prior to the late war of the rebellion, the claimant owned a plantation ten or twelve miles south of Memphis, Tennessee, where he resided up to the time of the occupation of that city by the national forces. Soon after such occupation he moved into Memphis, where he has resided ever since.
    Early in the year 1864 the claimant employed one Christian Dickmann, then residing in Memphis, to proceed to Mobile, in the State of Alabama, and sell certain persons, which the claimant pretended to own. The said Dickmann sold the persons alluded to, and received therefor about two hundred thousand dollars. A portion of the money so obtained was invested in the cotton which is the subject of controversy in this case.
    
      I. Tbe claimant has not proved in the case that he has, at all times, borne true allegiance to the government of the United States.
    II. Against the.testimony offered to prove the loyalty of the claimant we have the glaring fact that, in defiance of the President’s proclamation of January 1, 1863, declaring that all persons held as slaves within any State, the people whereof were then in insurrection against the government of the United States, should be thenceforward and forever free, the claimant assumed to sell such persons.
    III. The act of sending Dickmann to Memphis, for the purpose indicated, was unlawful; it was holding intercourse with the enemy.
    To sustain this proposition, we do not rely upon the statutes regulating intercourse with insurrectionary districts, but upon the general law. The Act Jioly 13,1861, was not passed with reference to a war, but with reference to. an insurrection; and that act, and the proclamation issued thereunder, were intended, as it were, to regulate intercourse between citizens of the United States in States and parts of States in insurrection against the government, and citizens of the United States in States and parts of States not in insurrection. Afterward the insurrection grew into a great war, and the laws of war became applicable to it.
    The proposition that intercourse between citizens of the respective parties engaged in a war is unlawful is one too plain to require argument or to need support from any authorities. All writers on public law agree upon this subject.
   Drake, Ch. J.,

delivered the opinion of the court:

In the spring of 1864 the claimant was a resident of the city of Memphis, Tennessee, which city was then in the military occupation of the United States. He claimed tb be the owner of certain slaves which were at Mobile, Alabama, and. he gave to Christian Dickmann, a subject of Denmark, a power of attorney to sell the said slaves and invest the proceeds in cotton, real estate, or anything Dickmann pleased. Mobile was then within the territory occupied by the rebel Confederacy. Dickmann passed through the military lines of the United States under a passport of the provost marshal at Memphis, and, prior to April, 1864, arrived at Mobile, where he sold the negroes, which the claimant assumed to own as slaves, for $200,000 in Confederate money, with which he bought cotton, turpentine, and rosin. Seventy-seven bales of the cotton so bought were captured by the military forces of the United States upon the occupation of Mobile by them, and sold, and the proceeds paid into the Treasury of the United States, for which the claimant brings this suit.

It seems to us.'that this case is essentially undistinguishable from Grossmeyer’s Case, (9 Wall., 72,) except that the claimant here is less entitled to recover than was the claimant in that case.

There the claimant, a resident of New Tork, was, when the war of the rebellion broke out, a creditor of one Einstein, a resident of Macon, Georgia; and while the war was in progress, a correspondence on the subject of the indebtedness of the latter was kept up, through the medium of a third person, who chanced to pass back and forth between Macon and New Tork. The communication between the parties resulted in Grossmeyer requesting Einstein to remit the amount due him in money or sterling exchange, or, if that were not possible, to invest the sum in cotton and hold it for him until the close of the war. Einstein purchased cotton for Grossmeyrer, and informed him of it, Grossmeyer expressing himself satisfied with the arrangement. The cotton was captured by the military forces of the United States at Savannah, and sent to New Tork and sold. Grossmeyer preferred a claim for the net proceeds in this court, and when the case went to the Supreme Court it was there held that he was prohibited during the war from having any dealings with his agent; that nothing which both or either of them did could have the effect to vest in Gross-meyer the title to the cotton; and that not being, therefore, the owner of the cotton, he had no claim against the United States.

Now, what is the difference, in substance, between that case and this? If there is any, it is against this claimant.

Here the claimant’s agent was not his debtor trying to pay his debt, but one appointed for a specific purpose.

Nor was the agent a resident of the insurrectionary States, with whom the claimant communicated by letter, but a resident of the territory occupied by the military forces of the United States, receiving within the lines of those forces apower of attorney from the claimant to sell negroes which were in Mobile, Alabama, and to execute his agency, passing through those lines, under a passport granted by the provost marshal of the Union forces, without knowledge of the specific purpose he had in view. •

He went, too, with authority to sell as slaves persons who, more than a year before, had been declared free by proclamation of the President of the United States, and to invest the proceeds in other property.

The whole transaction, therefore, was, in any point of view, much less meritorious than that between G-rossmeyer and Einstein.

It is, however, attempted to distinguish this case from that, upon the ground that Grossmeyer was resident in a loyal State, while the claimant in this case was resident in a State which had, by presidential proclamation, been declared in insurrection, and therefore constituted a part of the insurrec-tionary region within which it is claimed parties might lawfully hold commercial intercourse with each other. This distinction is not sound.

The proclamation of the President of August 16, 1861, declaring the people of certain States and parts of States in insurrection, excepted from its operations such parts of any of such.States as might “be, from time to time, occupied and controlled by forces of the United States engaged in the dispersion of said insurgents.” Among the States named in that proclamation was Tennessee.

On the 6th .of June, 1862, the city of Memphis was captured, and thenceforth was occupied and controlled by forces of the United States, and thereby came within the exception of that proclamation.

On the 2d of April, 1863, however, the President issued another proclamation, revoking that exception, and declaring the inhabitants of Tennessee, as well as those of the other rebel States, to be in a state of insurrection; and that all commercial intercourse not licensed and conducted as provided in the Act 13th July, 1861, between the said States and the inhabitants thereof, (with certain defined exceptions,) and the citizens of other States and other parts of the United States, was unlawful, and would remain unlawful until the insurrection should cease or be suppressed.

It is urged that the effect of this proclamation was to make Memphis, though then occupied by Union forces, a part of the insurrectionary region, in such sense as to authorize commercial intercourse between its inhabitants and those of Alabama; or, in other words, that the mere fact of its being within the limits of a State declared in insurrection authorized such intercourse, regardless of the fact that it was within the military lines of those forces.

This position cannot, in our judgment, be maintained. Whatever might be said in support of the right of commercial intercourse between inhabitants of portions of Tennessee which were not Avithin the lines of the military forces of the United States and inhabitants of Alabama Avithin the enemy’s lines* there is no principle of law which would alloAv such intercourse between persons residing within the former lines and persons, residing in the region controlled and held by the enemy.

The act of the claimant in holding such intercourse is not,, as we understand, defended upon legal principles, but upon the simple ground that, technically, Memphis was in a State which had, as a whole, been declared in insurrection, though at that spot the insurrection was practically subdued through its occupation by the military forces of the government.

If the illegality of commercial intercourse between the inhabitants of Memphis and those of Mobile rested upon that proclamation alone, this position would be more plausible; but it had. a much broader foundation in the well-established rule of public law, announced by the Supreme Court in Grossmeyer’s case in these words:

“It has been found necessary, as soon as Avar is commenced, that business intercourse should cease between the citizens of the respective parties engaged in it, and this necessity is so great that all writers on public law agree that it is unlawful, loithout any express declaration of the sovereign on the subject.”

This rule is decisive. The claimant was a citizen of the United States, residing within lines of, and protected by, the military forces- thereof, and his sending an agent through thosé lines to trade with inhabitants of the rebel confederacy was unlawful “business intercourse ” Avith them, and gave him no rights which he can enforce here against the government whose laws he disregarded.

If it be asked what, then, was the object and intent of the-proclamation of April 2, 1863, we answer, that it seems to us to have been simply to define the territorial limits of the insurrection, and to notify the people who adhere to the government' that commercial intercourse with the insurgent people residing within those limits was unlawful.

Had the war been with a' foreign nation, there would have been no difficulty in all knowing that commercial intercourse with that nation was ■ suspended, and in knowing, too, the boundary line between us and that nation; but in an internal war, where the parties were of the same nation, and States were ■divided by imaginary lines, an official definition of the boundaries of the insurrection was indispensable. This was made in the proclamation, and was, we suppose, its principal object and intent.

Whether so or not, however, we have no difficulty in holding that, upon the principle of public law stated by the Supreme Court, the acts of the claimant and his agent were unlawful, and therefore no title to the cotton in question was by those acts vested in the claimant.

The claimant’s petition is therefore dismissed.

Boring-, J.,

dissenting:

The proclamation of the President of 16th August, 1861, prohibited commercial intercourse between the inhabitants of the loyal States and the inhabitants of she States it declared in insurrection, except as to such parts of the latter as may be, from time to time, occupied and controlled by forces of the United States,” &c. Such parts so occupied and controlled were thus made loyal territory, and had its rights and disabilities under the proclamation, for their inhabitants could trade with the loyal and could not trade with the disloyal States. But this was the effect of the exception in the proclamation and not of the military occupation, because the exception attached this effect to the military occupation which it would not have had otherwise, for military occupation is mere force and has no power in itself to determine the political relations of the government or the civil rights and status of the people. For neither our law or the common law, or the law of nations, gives it any such power. When the G-erman armies occupied a French city, such military occupation did not make the inhabitants of that city Germans, or alter their relations to their fellow-citizens or the government of France. And when the forces of the Confederacy occupied a town in the State of Pennsylvania, its inhabitants were still citizens of that loyal State, and as such could, under the proclamation, trade in that and other loyal States, and could not trade in the States in insurrection. So when our forces occupied a city in the States in insurrection, such military occupation had no legal effect on the rights of the citizens to commercial intercourse, and its only effect was to bring the city within the exception that governed such commercial intercourse. There is a wide difference between the law which governs a subject and the circumstance which brings the law into operation; and the military occupation was only such circumstance, while the exception, as part of a proclamation made by virtue of an act of Congress, was the law that governed the subject. To compress what I have said into a single sentence, if the prohibition as to commercial intercourse between the loyal and disloyal States had been absolute, the military occupation of itself could not have made any exception to it.

' As the proclamation of 16th August, 1861, declared the State of Tennessee in insurrection, thereafter its inhabitants could not trade in the loyal States, and could trade in the States of insurrection, until June 6,1862, when the capture of Memphis brought it within the exception of the proclamation, and its inhabitants could then trade in the loyal States and could not trade in the disloyal States. But, as 1 have said, this was the effect of the exception as to military occupation; and by the proclamation of 1863 the exception was revoked, and (as it was expressly declared) ‘‘because it embarrassed the due enforcement of the act of 13th July, 1863, and the proper regulation of the commercial intercourse authorized by it.” And after the revocation of the exception for this cause, to give to military occupation any effect on commercial intercourse would be to disobey the proclamation of 1863 and defeat its purpose. And after the exception was revoked it was as utterly inefficient for all purposes as if it had never been made; and then the prohibition as to commercial intercourse between the loyal and disloyal States was absolute and unqualified. Moreover, the proclamation of 1863, after revoking the exception as to military occut>ation, in express terms reenacted the prohibition as to commercial intercourse between the loyal and disloyal States; so that under both proclamations all Tennessee was in insurrection, and Memphis,, notwithstanding its military occupation, was no long’er excepted j, and the petitioner, as an inhabitant of Tennessee and of Memphis, was, irrespective of his personal loyalty or disloyalty, by the proclamations, excluded from commerce and citizenship with the inhabitants of the loyal States, and forced into citizenship with the inhabitants of the disloyal States. Our laws made-him their confederate because of his locality; and then his commercial intercourse with them was not prohibited by the proclamations, but permitted by them. Neither was it prohibited by the common law, whose rules in this case coincide with the-proclamations as to commercial intercourse. In 1862 the Supreme Court, in the prize eases, (2 Black, 265,) decided that from 1861 there was between the United States and the Confederate States a territorial war $ that the two governments, were belligerents; that the territory of the Confederate States was enemy’s territory, and the property of its people subject to capture jure belli. And, as has been said, neither by the common law nor the law of nations does the military occupation of a portion of enemy’s territory1 alter its hostile character or the relations of its people to their own government or to the government whose forces hold it. Mere military occupation, therefore, had no power to reconstruct an insurrectionary State, or any part of it; and this was conclusively established for this case by the joint resolution of Congress of 24th July, 1866, “restoring Tennessee to her relations to the TJnion; ” for that resolution declared in terms that such restoration could only be made “by the consent of the law-making power of the United States.”' And it has been said that the proclamation of 1863 revoked the exception as to military occupation, and made the prohibition of commercial intercourse between the loyal and disloyal States absolute and unqiialified, and expressly reenacted it in that form as to all Tennessee. And I think, as a consequence of all this, that in 1864 'all Tennessee (and Memphis as a part of it), was enemy’s territory, and that the petitioner, as am inhabitant of it, could not trade in the loyal and could trade in the disloyal States by the rule of the common law and by the proclamations; and that it was lawful for him either personally’- or by agent, under a passport from our military authority holding Memphis, to leave it and go into Alabama and trade there.

For the same reasons I think the case of The United States v. Grossmeyer (9 Wal., p. 72) is not applicable here; for in that case one of the parties was an inhabitant of a loyal State, and. the other of a disloyal State, while here, I think, each of the parties was an inhabitant of a disloyal State.

Then, as to the sale of negroes for confederate money. It is-claimed that this proved and was an act of disloyalty within the third section of Act 12th March, 1863. Certainly no intent-to aid the rebellion can be inferred from such sale, because it was an ordinary business transaction of its locality, and entered into for profit, and, as the counsel for the defendants states, for speculative purposes. And so far as it was a sale, for confederate money, between two citizens of the Confederate States, in which property and price changed hands between them, it is obvious that it could no more- give aid and comfort to the rebellion than any other sale in the Confederacy, as, for instance, the sales of cotton for confederate money, which we adjudge good between citizens of the Confederate States every day.

• And so far as it was a sale of negroes, it was a valid sale when and where it was made; for slavery was not abolished till the 18th of December, 1865. Then the thirteenth amendment to the Constitution of the United States went into effect. And until 1865 slaves were property, and vendible in Alabama, where the vendee lived, and in Tennessee, where the vendor lived.

It is true that the President, by his proclamation of January 1^1863, declared that therefrom all slaves in States in insurrection were free, but I think it is not competent to executive or legislative power to abolish slavery, but that that is for the sovereign power exercised by the people and declared in the Constitution: and that, therefore, an amendment to the Constitution was necessary to abolish slavery, and that it was not abolished till the thirteenth amendment to the Constitution was made. And that that amendment was made to the Constitution of the United States, and that the States restored to the Union after the war were required to abolish slavery by provisions in their constitutions, are authoritative declarations that slavery could only be abolished by such constitutional provisions. And in the case of Prigg v. The Commonwealth of Pennsylvania, (16 Peters, 540,) the Supreme Court said that the Constitution contemplated “the existence of a positive, unqualified right on the part of the owner of a slave.” And a right recognized by the Constitution is maintained by it, and cannot be destroyed or impaired by any other authority. And the exercise of such a right cannot be imputed to any man as 'an act or as evidence of disloyalty.

Our jurisprudence recognizes and declares the existence of certain absolute rights which are natural, inherent, and indefeasible; and among them is the right to acquire and enjoy property. And it is manifest that the power to say in what things this natural right may or may not subsist is the power to control and destroy it. For if legislative or executive authority may say it shall not subsist in any particular thing, it may say the same as to every other thing, and thus destroy the natural right altogether. And the power that may destroy one natural right may destroy all, and such a power the people had not delegated to the government.

, On the whole case, I am of opinion that the claimant is entitled to judgment for the net proceeds of the cotton claimed by him.  