
    JAMES A. BRIGGS, EXECUTOR, v. THE UNITED STATES.
    [No. 16262.
    Decided February 3, 1890.]
    
      On the Proofs.
    
    In April, 1862, Morehead gives to Briggs, both being in Kentucky, a bill of sale of “ all the cotton on my tw« plantations in Mississippi. This is intended to cover all cotton that 1 have notv or may have this year on said two plantations, supposed to he about two thousand hales.” There is no cotton on the plantations; but a crop is grown that year which subsequently is captured. Congress pass an act authorizing Briggs to bring suit in this court for the proceeds.
    I.The Act 4th June, 1888 (25 Stat. L., 1075), for the relief of C. N. Briggs revives the jurisdiction of the Captured Property Act.
    II.It is well settled in suits for the proceeds of captured property that if the claimant’s title was acquired in contravention of prohibited intercourse or against public policy it is void.
    III.All property produced within enemy’s territory, by whomsoever owned, is stamped with the character of that country, aud no act of the owner can free it from that inherent character.
    IY. A sale or transfer of cotton in Mississippi in April, 1862, the parties being in Kentucky, the crops not yet grown, but subsequently made by the agent of the vendor appointed before the war began, was absolutely void, and no legal title passed to the purchaser.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. James A. Briggs is the executor of the last will and testament, under the laws of Kentucky, of Charles M. Briggs, deceased. On the 18th day of April, 1862, Citarles S. More-head was, as he had been many years, a resident and citizen of said State of Kentucky, and was then the owner of two planta--tions in Washington County, State of Mississippi; near Egg’s Point and Greenville, in said State. lie had been governor of said State, and was, before the commencement of the war, engaged in the practice of law, with the said C. M. Briggs as his partner.
    II. After the commencement of the war and before said 18th day of April, 1862, the said Morehead was' arrested by the officers of the United States because of his sympathy with the Confederate cause, and confined in Fort Warren for a considerable period of time, until February, 1862, when he took the oath of allegiance and was released. The said Charles M. Briggs was loyal to the Government of the United States throughout the war.
    III. On the 18th day of April, 1862, the said Morehead executed and delivered to the said Charles M. Briggs the following instrument in writing:
    “ For and in consideration of money loaned and advanced heretofore by Mr. 0. M. Briggs, and further valuable consideration by way of suretyship for me by said Briggs, I hereby sell and transfer to said 0. M. Briggs all of the cotton on my two plantations in Mississippi, near Egg’s Point and Green-ville. Said cotton, so sold, embraces all that I have, baled and uubaled, gathered and ungathered. This is intended to cover _all cotton that I have now or may have this year on said two plantations, supposed to be about 2,000 bales.
    “O. S. Mobehead.
    “Apeil 18, 1862.”
    Said instrument was executed and delivered when both parties were citizens and residents of the State of Kentucky, was founded upon a valuable consideration, and was bona fide between the parties.
    IV. Said Morehead, while a citizen of Kentucky, in the year 1861, after the commencement of the war, was for a short time at said plantation in Mississippi, late in the spring or early in the summer. He left in charge of said plantations two agents, who superintended the raising of cotton, and who had the general .direction of the affairs of the plantations in the years 1861, 1862, and 1863. The claimant’s son, who had charge of one of the plantations, sold cotton grown on said plantations in those years for the purpose of raising means to carry on the plantations. Some of said sales were made to the agent of the Confederate Government. It does not appear whether or not the said Morehead gave any directions to said agents as to the disposition of the crops for said periods. It does not appear whether or not he had any communication with his said agents in the years 1862 and 1863.
    V. At the time of the execution of said instrument there was no cotton on said plantations belonging to said Morehead which afterwards came into the possession of the United States. The crops raised before said time were, by the acts of one of the said agents, as aforesaid, disposed of to the agent of the Confederate Government or to other parties, and all the cotton hereinafter mentioned was raised after the execution of said instrument.
    VI. In the year 1862 the said agents in the control of the said plantations for said Morehead raised a crop of cotton on said plantations, a portion of which, in December, 1862, or January, 1863, was, by the direction of said agent, hauled to “ Wilsons Burn,” a place then and there used as a place for the storage of cotton belonging to, or intended to be sold to, the Confederate Government, and which was also used for the storage of the cotton of individuals. Said cotton was mat ked C. S. A. by said agent m order to save it from destruction by Confederate soldiers. It was not so marked by the direction of said More-head. While said cotton was so placed, as aforesaid, in the month of March, 1863, three hundred and eighty bales of it was taken possession of by Capt. E. D. Osband, acting under orders of General Grant, taken to Worthington’s Landing on the Mississippi Biver, where it was intermingled with other cotton taken about the same time from adjacent plantations, and shipped to Memphis, Tenn., where it was turned over to Capt. G.L. Fort, assistant quartermaster,United States Volunteers, by whom it was sold, and the proceeds taken up on his returns as assistant quartermaster, and accounted for as funds of the Quartermaster’s Department.
    VII. That the total amount of cotton so received and sold by Capt. G. L. Fort, and of which claimant’s formed a part, was 2,180 bales ,• and this amount, after rebaling and prior to sale, was reduced to 2,111 bales, which latter was the total number of bales of said cotton sold and accounted for by said Fort; and the total amount of net proceeds derived from the sale of said 2,111 bales of cotton was $422,125.70.
    VIII. Of the total amount of net proceeds, $422,125.70, of the cotton received by the steamer Empress, by Captain Fort, and by him sold as 2,111 bales, there have been paid to the owners, on judgments of the Court of Claims, the following amounts:
    To Sam "Worthington’s administrator. $165,673.42
    To W. W. Worthington. 45,177.00
    To Evelina M. Hammett. 6,158. 35
    To Nannette Sweitzer. 8,173.81
    To Kobert M. and Stephen A. Douglass. 58, 419.20
    
    
      Total amount oí net proceeds, $422,125.70. Whole number of bales, 2,111 accounted for by Captain Fort. Amount of cotton received as aforesaid from the plantations of Morehead, 455 bales. The proportion which said 455 bales bears to whole number of bales malíes the proceeds of said 455 bales $91,000.
    IS. It does not appear what was the state of indebtedness between Morehead and Briggs at the time of the execution of the instrument. Briggs had paid $8,000 or $10,000 bank debts for Morehead from time to time, and Morehead had collected Briggs’s portion of a fee amounting to $5,000, and was in the habit of borrowing money from him during the continuance of the law partnership which existed before and up to the commencement of the war. It does not appear that any definite settlement was made between them. ■
    
      Mr. Philip B. Thompson, jr., for the claimant:
    The case narrows itself down to this point: Can two citizens of Louisville make a contract as to personal property situated in hostile territory ?
    The Supreme Court in the case of Montgomery v. United States (15 Wallace, 401), in which this identical question was raised, said: “ They might have sold their lien on the debt secured by it, and had they done so, the Sale would have involved no trading with the enemy.”
    If the “ aggregatio mentiwm” has to cross the lines to get to gether, no difference how-this is accomplished — by telegraph, letter, messenger,’ or in person — the contract is void. But whenever both parties are on the same side, and neither came there in violation of law, they have a right to trade as much as they please, and it is a matter of no consequence whether the property embraced in the trade is situated in hostile or friendly territory.
    Maddox’s case, Lane’s case, Grossmeyer’s/and all the others cited are correct in principle, but each involved a trading across the lines, and an agreement to bring the property from hostile territory into the power of the Government. In this case no trading across the lines is done, nor any property to be delivered from hostile into neutral or friendly territory. Simply a sale of the cotton as it stood was all that the contract purported.
    
      The final contention of’ Government counsel is that the cotton was the property of the Confederate States, therefore forfeited. If this were true,'of course we could not expect a judgment. It can not be true.
    1. Because Crai¿, who had charge of it, had no authority to sell it. In Taylor cases (5 O. Cls. B., 701), the authority of the overseer to sell the cotton under similar circumstances was considered and denied, and Taylor was allowed judgment for his cotton. ’
    2. But if the court should hold that the general authority given Craig authorized him to sell the cotton to the Confederacy, we say: That Craig swears in both his affidavits and his deposition in the Douglass case, which deposition was by the Government long before Briggs brought this action, and when no claim was being pressed by Morehead, and when there was not the slightest reason for his telling a falsehood, if he was capable of such a thing, that this cotton had never been sold to the Confederacy by him, and that it was Morehead’s cotton when taken. He explains the branding of the cotton “ O. S. A.,” and as this court, in the case of W. W. Worthington and in other cases, has held that this branding did not defeat the right of the owner, we hesitate to go into a lengthy argument upon this subject.
    3. But Craig could not possibly have sold this cotton to the Confederacy, for the reason that his principal, Morehead, before it was gathered had sold it to Briggs.
    The Confederacy only bought cotton well-baled and at least 10 miles from the river. There was no authority to buy it any other way or place. Before this crop was made and gathered on the 18th day of April, 1862, Morehead, the owner, sold it himself, and after that no sale by any agent of his could defeat the title, which he had passed to another, except an innocent purchaser for a valuable consideration and without notice.
    The Government is not a purchaser, for it paid no consideration. Its title is that of captor of hostile property, modified by its own wise and beneficent law that the real owner may have the net proceeds, if loyal.
    It does not by capture succeed to any rights or supposed rights of the Confederacy, but assumes and is clothed with full title by the capture, except as modified by the acts of 1863.
    
      The Confederacy had no title as against Briggs; its purchase as to him was void in law. It was not an innocent purchaser, but a vicious one. It paid no consideration, and as between Briggs, the prior purchaser for value, it had no legal claim, and in consequence if we were to find that Craig .sold the property to the Confederacy, and the Government succeeds to its claim, it must yield to Briggs, whose purchase in gopd faith from the principal for a valuable consideration antedates the act of the agent.
    There is not the slightest proof that in the alleged purchase by the Confederacy any consideration passed, valuable or otherwise. But Craig swears there was no sale, and the marking was for prudential reasons and without the knowledge of Morehead. Parties have recovered in this court who had even ■used part of their cotton to bribe Confederate officers in order to protect the residue. (See Grogan's Case, vol. 7, p. 510, C. ■Ols. K.)
    It is insisted, however, that the United States occupies by ■analogy in this case the position of a creditor or purchaser for value without notice. But this court, in the case of Bern-heimer v. United States (5 C. Cls. R., p. 563), said:
    1st. “We do not deem the defendants to stand in the place ■of attaching creditors who have levied upon property in the hands of debtor, for the reason that the defendants had no preexisting demand or equity against the property of the holder, and that all of their rights sprang out of and were limited by •capture.
    2d. “ We do not deem the defendants acquired by capture the unquestionable rights of a purchaser in good faith for a valuable consideration, for the reason that the defendants parted with nothing when they acquired the property, nor drew to themselves value given the equity which courts are ever ready to maintain.”
    So we see there is no analogy .between the right which the Government holds as captor and a purchaser for value or a creditor. And the superior right of Briggs as a purchaser for value from the principal must prevail over any claim which the Government can assert as captor.
    
      Mr. Robert A. Howard (with whom was Mr. Assistant Attorney-General Cotton) for the defendants:
    The cotton raised was subject to the provisions of this non-intercourse act, and the disabilities imposed by the status quo 
      of insurrection, attached to it. Briggs could not have obtained possession of it, nor could he have brought it within the Union lines without special license and commission of the President through the Secretary of the Treasury. This be did not pretend to have. Morehead could not have exercised any acts of ownership without going into his own country and among his own people, and remaining there subject to the fortunes of the success or failure of a hazardous cause.
    This statute being in force, Briggs can not bring himself within any exception made to the rule laid down in Hamilton v. Bussell (1 0., 310).
    The most liberal rule, laid down in Batch v. Oil Company (110 U. S., 124, 132), has not been complied with, even had this property been in being. The goods are not clearly specified; the terms of sale, including the price, are not explicitly given. (2 Kent. Com. (12thed.), 492; Tomev. Dubois, 6 Wall., 548, 554; Carpenter v. Hale, 8 G-ray (Mass.), 157; Martineau v; Hitching, Law Rep., 72 B., 436, 449; Story, Sales (4th ed.), sect. 300.)
    After this cotton was grown, gathered, and baled, Briggs-never having seen the stalk or the bale, nor obtained possession of a fiber of the material, the deed could have no retrospective force to give him ownership.
    The cotton was taken by the United States and sold under the provisions of the captured and abandoned property act.. Whatever (and this it is unnecessary to discuss) rights More-head or his representatives may have had to recover in the Court of Claims, if they had made application within the statutory time, we insist that Briggs could not have so recovered;. and, that being so, that he can not recover under any provisions of the enabling act by virtue of which lie comes into-this court. The principles upon which this argument is based have been fully recognized in this court and in the Supreme Court of the United States. (Maddox’s Case, 5 C. Ols. B., 372.}
    The Supreme Court affirmed this decision (which was put by both courts upon the authority of Lane’s Case; (United States v. Grossmcvyer, 9 Wall., 72; Hall v. Coppell, 7 Wall., 542).
    The case of Griswold v. Waddington (16 Johns., 459), cited in the above, is a strong case in support of our contention. (Montgomery v. United States, 5 C. Cls. R., 648-660.) The Supreme Court affirmed the judgment (Montgomery v. United States 15 Wall., 395-400; Kershaw v. Kelsey, 100 Mass., 561).
    
      The defendant respectfully calls the attention of thé court to the following additional cases : Unsley v. TJ. 8., C. Ols. R., -¡82; Dillon v. TJ. 8., 5 O. Cls. R., 586-592; Gooch v. V. 8., 15 O. ■Ols. R., 281; Mitchell v. U. 8., 21 Wall. R.,350; McKee v. TJ. 8., 8 Wall. R., 163; TJ. 8. v. Lapene, 17 Wall. R., 602; Gutner v. TJ. 8., 17 Wall. R., 517.
    The whole tenor and effect of these cases, as applicable to the case at bar, are that by the public law. and the declaratory legislation of Congress all trading -in personal property situated in the insurrectionary States between parties one of whom is loyal and one disloyal is interdicted. And our contention is that it is immaterial whether both the parties are in •a loyal State.
   Richardson, Oh. J.,

delivered the opinion of the court:

Jurisdiction of this case is conferred upon the court by the following act of Congress:

“AN ACT for the relief of the estate of C. M. Briggs, deceased.
uBe it enacted, etc., That the Court of Claims is hereby given, subject to the proviso hereinafter mentioned, like jurisdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased, for the proceeds of four hundred and fifty-five bales of cotton, now in the Treasury of the United States, alleged to have been owned, in whole or part, by said Briggs, as is given to said court by the acts of March twelfth, eighteen hundred and sixty-three, and July second, eighteen hundred and sixty-four, upon petition to be filed in said court at any time within two years from the passage of this act, any statute of limitations to the contrary notwithstanding;
u Provided, however, That unless the said court shall, on a preliminary inquiry, find that said Briggs was in fact loyal to the United States Government, and that the assignment to him hereinafter mentioned was honafide, the court shall not have jurisdiction of the case, and the samé shall, without further proceedings, be dismissed;
And, provided further, That if the court shall find that the alleged assignment from one JVIorehead to said Briggs, of date April eighteenth, eighteen hundred and sixty-two, under which said Briggs claimed said cotton, was intended only as security to said Briggs for indebtedness, and against contingent liabilities assumed by him for said Morehead, judgment shall be rendered for such portion of the proceeds of said cotton as will satisfy the ■debts and claims of said Briggs, to secure which said assignment was given;
11 Provided, Said judgment shall not be paid out of the general fund in the Treasury arising from the sale of captured and abandoned property, but shall be paid out of the special fund charged to and accounted for by Captain G-. L. Fort, assistant quartermaster at Memphis, arising from the sale of the two-thousand two hundred and nine bales of cotton received by him, with which claimant’s cotton was intermingled, said claimant to receive only the proportion which his cotton bears to the-net proceeds accounted for by said Fort.” [June 4, 1888, Oh» 348, Stat. L., 1075.]

The act revives in favor of the claimant the jurisdiction given to the court by the Adandoned or Captured Property Act of March 13, 1863 (12 Stat. L., 820), removing the limitation of time for bringing actions which had long since expired, and allowing the claimant two years from the passage of the latter act in which to bring suit in this court.

The only other departures from the terms of the Abandoned or Captured Property Act are that the claimant is required to prove that the assignment under which he claims title to the cotton in question was bona fide; that if the court finds the assignment was intended only as security for indebtedness and certain contingent liabilities the measure of damages shall be only sufficient to satisfy the debts and claims to secure which the assignment was given, and that any judgment recovered shall be payable not out of general proceeds of the abandoned or captured property, but out of a designated part of the same.

In all other respects the action is subject to the provisions of the act of 1863 and its amendments, as interpreted and construed by the courts.

That act, in section three, thus provides:

“And any person claiming to have been the ownerof any such abandoned or captured property may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court of his ownership of said property, of his right to the proceeds thereof, and that he has never given anyaid or comfort to the presentrebellion,to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.”

In numerous decided cases under that act it has been held that the validity of the claimant’s alleged title to the property at the time of seizure must be established, and that if the'title had been acquired through illegal transactions in contravention of that prohibited intercourse between the sections at war with each other, which was declared by statute or contrary to public policy, such asserted title was void as against the United States, and that the claimant relying upon it was not the owner of the property and had no right to the proceeds thereof, within the meaning of the Abandoned or Captured Property Act. Grossmeyer’s Case (9 Wall., 72); Ensley’s Case (6 C. Cls. R., 283), affirmed on appeal without opinion (see 9 C. Cls. R., 11); Lane's Case (8 Wall., 195); Montgomery’s Case (15 Wall., 395); The Elgee Cotton Cases (22 Wall., 183); Desmare’s Case (93 U. S. R., 605), affirming the judgment of the Court of Claims (10 C. Cls. R., 385); Lapene’s Case (17 Wall., 602); Mitchell’s Case (21 Wall., 350); Walker’s Case (12 C. Cls. R., 408), affirmed (106 U. S. R., 413); Whitfield's Case (92 U. S. R., 165).

In the present case the claimant’s testator derived his alleged' title to the cotton by assignment from one Morehead, in the following terms:'

u For and in consideration of money loaned and advanced heretofore by C. M. Briggs, and further valuable considerations by way of suretyship for me by said Briggs, 1 hereby sell and transfer to said C. M. Briggs all bf the cotton on my two plantations in Mississippi, near Egg’s Point and Greenville. Said cotton, so sold, embraces all that I may have, baled and nn-baled, gathered and ungathered. This is intended to cover alL cotton that 1 have now, or may have this year, on said two plantations, supposed to be about 2,000 bales.
c< C. S. Morehead.
. “ APRIL 18, 1862.”

This bill of sale, assignment, or contract was executed and delivered when both parties were citizens and residents of the State of Kentucky. The plantations to be worked were in disloyal territory and had been owned by Morehead from a time anterior to the war. All the cotton, the proceeds of which are now claimed, was still to be raised thereon.

The vital question is presented whether or not Morehead, or Briggs under his contract or assignment, acquired a valid title against the United States to the cotton thereafter in that year to be grown and gathered on those plantations in hostile territory.

It is laid down in Lawrence’s Wheaton on International Law, Part IV, ch. 1, p. 576, edition of 1863, that “ the produce of an enemy’s colony or other territory is to be considered as hostile properry so long as it belongs to the owner of the soil, whatever may be his national character in other respects, or wherever may be his place of residence.” The learned author thus quotes from and reviews the opinion of Sir William Scott on that subject:

“ ‘ It can not be doubted,? said he, ‘ that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war and the local residence of the parties. The produce of a person’s own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country in' that particular transaction independent of his own personal residence and occupation.’
“It was contended that this rule, laid down with so much precision, did not embrace Mr. Bentzon’s claim, because he had not ‘ incorporated himself with the permanent interests of the nation.’ He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British.
“This distinction did not appear to the court to be a sound one. The identification of the national character of the owner with that of the soil in the particular transaction is not placed on the dispositions with which he acquires the soil or on his general national character. The acquisition of land in «anta Cruz bound the claimant, so far as respects that laud, to the fate of Santa Cruz, whatever its destiny might be. While that island belonged to Denmark the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general-national character of the particular proprietor.”

Such is the law of prize. Although the present action is not limited to that law, we learn from it what has an important and material bearing in this suit, that all property produced within enemy’s territory, by whomsoever owned, is stamped with the character of that country, as having contributed directly or indirectly in its production or otherwise to the resources of the enemy, by whom it can be appropriated at any time to hostile purposes. No act of the owner can free such property from that inherent character, nor preveut the laws and power of the enemy from laying upon it contributions to carry on the war.

The subject-matter of the contract or assignment in this case, ■cotton produced in hostile territory during the war, was peculiarly and emphatically hostile property.

In Mrs. Alexander’s Case (2 Wall., 420), Chief-Justice Chase, speaking for the Supreme Court, said :■ “ It is well known that cotton has constituted the chief reliance of the rebels for means to purchase the munitions of war in Europe. It is matter of history that rather than permit it to come into the possession of the national troops the rebel government has everywhere devoted it, however owned, to destruction. The rebels regard it as one of their main sinews of war.”

In the case of Young, trustee, etc., of Collie (97 U. S. R., 59), Chief-Justice Waite, after referring to cotton during the rebellion as “being ‘ potentially an auxiliary’ of the enemy and constituting a means by which they hoped and expected to perpetuate their i>ower,” quotes with approval the above and other language from the same opinion. Again, in the case of Lamar, ex Browne, et al. (92 U. S. R., 194), the same learned Chief-Justice said: “That cotton, though private property, was' a legitimate subject of capture is no longer an open question in this court. It was the foundation on which the hopes of the rebellion were built. It was substantially the only means which the insurgents had of securing influence abroad. In the hands of private owners it was subject to forced contributions in aid of the common cause. * * * It is not too much to say that the life of the Confederacy depended as much upon its cotton as it did upon its men. If they had had no cotton they would not have had, after the first year or two, the means to support war; to a very large extent it furnished the munitions of war, and kept the forces in the field.”

So in Sprott’s Case (20 Wall., 462), Mr. Justice Miller said :

“ It is a fact so well known as to need no finding of the court to establish it, a fact which, like many other historical events, ¡all courts take notice of, that cotton was the principal support of the rebellion so far as pecuniary aid was necessary to its support. The Confederate government early adopted the policy of collecting large quantities of cotton under its control either by exchanging its bonds for the cotton, or, when that failed, by forced contributions.” '

The cotton seized, the proceeds of which are now claimed, ■was not in existence when the contract or assignment was made. It was wholly of the crop afterwards to be grown.

Much active aud expensive work was to be done. Whether or not the seed had been planted at the time the assignment was made does not appear. It was so early in the season, April 18, that if the seed had been planted its growth had scarcely begun. No delivery was then made and none could be made in the state of the crop and in the condition of the country, and none was ever subsequently made.

Cotton is not of spontaneous growth, like wood, which comes to maturity when left to itself. For its production the land must be plowed and prepared, seed must be purchased and planted, the ground must be kept free from weeds, and the cotton must be picked, ginned, and baled, all requiring the employment of labor and the expenditure of money. The labor employed must in this case have been that of persons residing in hostile territory and who in law were enemies. The money expended must have been sent across the lines or procured of enemies by contract of borrowing or of sale of property between them and the owner in a loyal State.

These acts could have been done only by Morehead himself, or through an agent, or at the instance of the claimant’s testator, who was most of all to be benefited by them.

The findings show that in point of fact Morehead, while a citizen of Kentucky, was at his plantations in Mississippi after the war began and left them in charge of agents, who superintended the raising of the cotton and also had the general direction of the affairs of the plantations in the years 1861,1862, and 1863. The exact time when the agents were appointed is not in proof. The instructions given and the powers intrusted to them do not appear, and are only to be presumed from what was done. It is found as a fact that part of the cotton was stored at a place used for the storage of cotton belonging to the Confederacy and for that of individuals who intended to sell to the Confederacy, and was marked O. S. A. Some of it was actually sold to the Confederate government by one of the agents for the purpose of raising money with which to carry on. the plantation.

Thus while the United States forces were seizing cotton wherever found in hostile territory in Older to diminish the revenues and weaken the power of the enemy, Morehead and Briggs were interested in raising a crop of cotton, which of necessity would increase those resources and strengthen that power. It was against public policy that residents of loyal States should have such interest and should contract with each other upon it.

Much of such interest and of such contracting would have destroyed the loyal cause.

In the case of Grossmeyer v. The United States (9 Wall., 75)., brought under the abandoned or captured property act, the Supreme Court held that the plaintiff, a citizen of New York, was not the owner of cotton purchased for him in the enemy’s country by hiso creditor residing therein, whom, after the war began, he had directed to invest the sum due in cotton and hold it for him until the close of the war, and that “ not being the owner of the property he has no claim against the United States.”

Mr. Justice Davis, in delivering the opinion of the court, said:

“We are not disposed to deny the doctrine that the resident in the territory of one of the belligerents may have, in time of war, an agent residing in the territory of the other to idiom Ms debtor could pay Ms debt in money, or deliver to Mm property in discharge of it, but in such a case the agency must have been created before the war began, for there is no power to appoint an agent for any purpose after hostilities have actually commenced, and to this effect are 411 the authorities. The reason why this can not be done is obvious, for while the war lasts nothing which depends on commercial intercourse is permitted. * * * *'
“ Besides, if, as is conceded, Grossmeyer was prohibited from trading directly with the enemy, how can the purchase in question be treated as lawful when it was made for him by an agent appointed after his own disability to deal at all with the insurgents was created ‘l

This decision had reference to the Non-intercourse act of July-13, 1861 (12 Stat. L., 255), which the claimant contends does, not apply to the case of raising cotton in the manner this cotton was raised, but applied only to the commercial intercourse of trading with the enemy, in its restricted sense of buying and selling. We can not accept this view. It was as much a violation of that act for Morehead in hostile territory to have agents to work his plantations, with the result that the agents made sale to the Confederate States of part of the cotton raised to obtain means of cultivating the plantations, as were any acts of' Grossmeyer. '

The transactions of Moreliead & Briggs were not only prohibited by the non-intercourse act, but by reason of the peculiar hostile character of the subject-matter of the contract — cotton and its production and situation within enemy’s territory were illegal as against public policy, and in violation of the obligation of all citizens not to do any act through which the enemy ■may obtain power, assistance, or advantage.

Had Morehead owned a manufacturing establishment in disloyal territory at the breaking out of 'the war, he might have •continued the manufacture of arms and ammunition, and have contracted for the sale of the future production” with as much ■legality as to have raised cotton on his plantations in disloyal territory, where it was subject to taxation for continuing the war, as well as to all the laws of the Confederacy, and was within the grasp of Confederate authority to take and use for hostile purposes.

As was said in Walker’s Case (12 C. Cls. R., 408, 430), “ The transactions were throughout, in the language of the .Supreme Court, ‘tainted with the vice of the rebellion,’ and that vice, as against the United States at least, destroy s every contract, makes void every purchase, and bars every claim into which it ■enters.”

The President’s proclamation of pardon and amnesty of De■cember 25, 1868 (15 Stat. L., 711, 712), is of no avail to the claimant. Amnesty threw oblivion over crimes and offenses, but did not disturb pre-existing rights of property. It left untouched past and completed transactions in contracts and property to stand upon their validity at the time of consummation. It did not make valid that title to the cotton which Briggs illegally attempted to acquire in 1862, more than six years before the issue of the proclamation of pardon and amnesty, nor did it .give him a right to its proceeds arising from the seizure and sale ■by the defendants in 1863. Those proceeds, after having been ■held some years to the credit1 of the Treasurer of the United States, were finally “ covered into the Treasury ” by order of a resolution of Congress, March 30, 1868 (15 Stat. L., 251; 21 C. Cls. R., 420). That proclamation removed the bar of disloyalty, and persons who had committed crimes and offenses by disloyal acts might thereafter bring suits in the Court of Claims under the provisions of laws then existing, but it gave no rights ■of property and cured no defects of title thereto.

The court has not passed upon the question whether the assignment relied upon by the claimant was intended as an absolute sale or as a mortgage or pledge, because the judgment is for the defendants on grounds applicable alike to the instrument whichever way it be interpreted.

The opinion of the court is that Morehead had no legal title to the cotton as against the United States; that Briggs, the-claimant’s testator, acquired none by the assignment to him, and that the claimant has no rights to the proceeds in the Treasury.

The petition therefore is dismissed.  