
    ENSLEY’S CASE. Enoch Ensley, appellant, v. The United States, appellees.
    (6 Court of Claims R., p. 282; not reported in Wallace.)
    
      On the claimant's Appeal.
    
    
      In March, 1864, a resident of Memphis, owning staves in 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 slaves, and invests the proceeds. Subsequently the cotton is captured. The claimant brings suit in the court below to recover the proceeds in the Treasu/ry. The court decides that no title to personal property'could be 
      
      thus acquired by one residing within the United States lines at Memphis, notwithsimuling the proclamation 2d April, 1663, declared Tennessee in astate of insurrection, and prohibited commercial intercourse between its citizens and those of the loyal States. Judgment for the defendants. The claimant appeals.
    
    Tho decision of the Court of Claims affirmed without an opinion being rendered by the Supreme Court.
    
    
      The Reporters’ statement of the case:
    The court below found the following facts:
    1. The claimant, prior to the occupation of Memphis, Tenn., on the 6th day of June, 1862, by the military forces of the United States, lived on a plantation some ten or twelve miles south of that place; but, soon after that occupation, removed into Memphis, where he remained until the suppression of the rebellion.
    2. Early in 1864, the claimant executed, at Memphis, a power of attorney to one Christian Dickman, a subject of Denmark, authorizing him to dispose of certain property of the claimant, in Mobile, Ala., and invest the proceeds thereof in cotton, real estate, or anything the agent pleased. The said Dickman obtained a passport from the provost-marshal of the United States forces at Memphis, by which he passed through the lines of those forces, and made his way to Mobile, prior to April, 1864, which place was then in the possession and under the control of the so-called Confederate States of America. There, under the power of attorney of the claimant, he sold for $200,000, in “ confederate money,w certain negroes, which the claimant held to be his property, and invested the proceeds in cotton and turpentine, which was stored with Ewing & McCaw, cotton-brokers, at Mobile, who, on the 28th of September, 1864, receipted to him therefor, to be held by them on account of said Dickman, and to be disposed of for him, according to his future directions. On the 15th of November, 1S64, from Memphis, whither he had returned, the said Dickman wrote to said Ewing & McCaw, requesting them to accept and carry out any instructions they might receive from the claimant in this suit in relation to the said cotton and turpentine.
    
      
      Mr. G. 1'. Peck for tlie claimant, appellant:
    The only question raised upon this appeal is, whether the transaction, as related in the finding of facts, was in violation of the non-intercourse laws in force during the late civil war. Ensley, the claimant, was a citizen of Tennessee, resident in Memphis. Early in 1864, and prior to April of that year, he authorized one Dickman to sell his property, situated in Mobile, and to invest the proceeds in cotton; all of which was done by Dickman.
    At this time, Tennessee and Alabama were States declared to be in insurrection ; the transaction was therefore as valid as if both the vendor and vendee had lived in Mobile or in Memphis.
    The act of Congress approved July 13, 1881, entitled 11 An act further to provide for the collection of duties on imports, and for other purposes,” generally known as “ the Non-intercourse Act,” in its fifth section, provides as follows:
    “That it may, and shall be, lawful for the President, by proclamation, to declare that the inhabitants of such State, or any section or part thereof, where such insurrection exists, are in a state of insurrection against the United States; and thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods and chattels, wares and merchandise, coming from said State or section, into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle con-vejfing the same, or conveying persons to or from such State or section, be forfeited to the United States.” (12 Stat. L., p. 257.)
    I do not assert that this act was intended to supersede the rules of the law of nations, and to be the only expression of. the prohibition placed upon commercial intercourse between the people of the two sections. So far as it prescribes penalties, it is unquestionably cumulative only, and so far as it prohibits commercial intercourse, it is undoubtedly declaratory of the public law. This statute was for one purpose a great necessity. In an international war, the general principle that commercial intercourse between the citizens of the two states is unlawful, can be readily applied and enforced. Each government has its well-defined boundaries and its well-known citizens or subjects. Jn a civil war, no suck certain line of distinction is found. Mr. Justice Greer, in the Prize Oases, (2 Black R., p. G74,) referring to a time prior to tbe passage of this statute, and speaking of the disloyal territory, said: “ It has a boundary marked by lines of bayonets, and which can be crossed only by force. South of this line is enemies’ territory,' because it is claimed and held in possession by an organized, hostile, and belligerent power.”
    Such a line, however sharply defined, at some places would often be found uncertain and illusory in other parts of the vast territory in which the war was being prosecuted, and it is evident, from the perusal of the act, that it was intended to furnish the citizen with some more certain definition of the parts of the country with which he might lawfully trade.
    A brief examination of the proclamations issued by the President, under the authority conferred upon him, will more fully illustrate this point. On the 16th of August, 1861, President Lincoln issued his first proclamation on this subject, declaring :
    “That the inhabitants of the said States of Georgia, South Carolina, Yirginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, (except the inhabitants of that part of the State of Yirginia lying west of the Alleghany Mountains, and of such other parts of that State, and the other States hereinbefore named, as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by force of the United States engaged in the dispersion of said insurgents, are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States and other parts of the United States, is unlawful, and will remain unlawful, until such insurrections shall cease or have been suppressed.” * * * (12 Stat. L., p. 1262.)
    Here was introduced an important clause, excepting from commercial interdiction such parts of the rebel States as might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgent governments. • The effect of this exception was to leave the line of demarcation between the loyal and disloyal territory shifting and uncertain.
    The difficulties arising from this uncertainty were such, that on the 2d of April, 1863, the President issued a further proclamation, in which, after reciting the terms of the proclamation of August 16,1861, it is stated:
    “And whereas experience has shown that the exceptions made in and by said proclamation embarrass the due enforcement of said act of July 13,1861, and the proper regulation of the commercial intercourse authorized by said act with the loyal citizens of said States:
    “Now, therefore, I, Abraham Lincoln, President of the United* States, do hereby revoke the said exceptions, and declare that the inhabitants of the States of Georgia, South Carolina, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas,. Mississippi, Florida, and Virginia, (except the forty-eight counties of Virginia designated as West Virginia, and except also the ports of New Orleans, Key West, Port Boyal, and Beaufort,, in North Carolina,) are in a state of insurrection against the United States, and that all commercial intercourse not licensed and conducted as provided in said act between the said States, and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful, until said insurrection shall cease or have been suppressed, and notice thereof has been duly given by proclamation.” * * * (12 Stat. L., p. 731.)
    The President did not issue his proclamation declaring the rebellion suppressed in the State of Tennessee until the 13 bh of June, 1865. (12 Stat. L., p. 763.) From the time this exception was revoked, April 2,1863, to the end of the war, the State of Tennessee was part of the insurrectionary territory, and its-inhabitants, in their relations with the inhabitants of the loyal. States, were subject to all the technical disabilities which arise from a condition of war between two countries. To subject them to a like disability in their relations with the inhabitant^ of the other insurrectionary States would be to introduce a new and harsh rule,when the tendencies of the present age are to mitigate rather than to aggravate the evils of war.
    Undoubtedly the appellant, while living in a country under military occupation, was subject to the restrictions and inconveniences of such an occupation. He was not at liberty to pass to and fro through the military lines without consent, or to receive or send merchandise through the lines. This class of ■restrictions imposed upon inhabitants residing in a district of military occupation is entirely different in its nature from the disabilities resting upon the people of two belligerent countries. The former depend upon the extent and character of the military occupation, the policy with which the war is conducted, the severity of the military discipline, &c. The latter depends mpon certain fixed rules of law, which come into operation with the war itself, and are a necessary incident to it, and can only be relaxed or modified by the law-making power. This is based upon the principle that war makes all the citizens of the two countries enemies respectively to each other. (“The Rapid” 8 Oranch, 155; Jeelcer et al. v. Montgomery, 18 How., p. 113.) Audio the same effect are all the writers upon the public law. It is a just application of this principle, which forbade a citizen in a loyal State from contracting with a citizen of an insurrec-tionary State. The vendor and the vendee, in this case, did not hold the relation of enemies to each other, although each of them held that relation to every citizen residing in the loyal States. In conclusion, I assert that there was nothing in the transaction which interfered with the rights of military occupation of the State of Tennessee. The agency was created in Memphis, where both the principal and agent were. The agent passed through the lines by consent of the military authorities; he took nothing with him in the ivay of property, either corporeal or incorporeal. All the property affected by the transaction was situated in Mobile, and was not removed from that place. No communication ever passed through the military lines between the claimant and any other person. The only objection to appellant’s title, is the disability to contract alleged to exist from the status of the vendor and vendee as enemies to each other; and this objectionhas been, I think, sufficiently answered. If the alleged disability existed, and the parties stood in the relation of enemies to each other, the transaction did not violate the non-intercourse laws.
    In the case of Grossmayer v. The United States, (7 0. 01s. B., p. 129,) the court says :
    “ We are not disposed to deny the doctrine that a resident in the territory of one of the belligerents may harm, in time of war, an agent residing in the territory of the other, to whom his debtor could pay his debt in money, or deliver to him 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 all the authorities. The reason why this cannot be^ done is obvious',’, for while the war lasts nothing which depends on commercial intercourse is permitted. In this easdfif .-Einstein is to: be' considered-’the-agent of Grossmayer-to buy,tice cotton, the - act appointing him was illegal,, because it was done by means of- a.direct communication through a messenger, who was in some manner not stated in the record, able to pass, during 'the- wár,"betw'eéh 'Macon and New York. It wasnot-neeessary/to make-tlreaót unlawful, that Grossínayer'shpuld have hiMffiiihicáied' |iéíáoíiallyMth‘‘Biiistéim/''''Thel'tíusihess intercpiirse'thrpiP^h ai ihictdle-maii,'w^LidJi ;r4pultptfid e|,i;ablishipg.the. agency.;is,ip<iually ^tbp^.tbe.cppdemiJ.atipn..,o^,,the law.” ,- • o , . ■; ,v-v : ,:.p; ■...., «/ .-_-i,r, m.v, sm'vj
    In the ■ cáse" at' bar,: th# agency--was-láw'fti-lly' created"0he !prin - cipal áúd; agent' both’ 'being-'' r’esident inrNashville htít of appointment'is "therefore as" uhdbje'ciióhaiiie.’ás ii* íígl^ad been made before ..the.war, ocpnrred, -When .the.'agpptj ^hoiwas a foreign, consul, reached Mobile, -he merely changed one-hind of ■ property into another! Tn the'-casé "of GrosSffiayér,\"at :the-eonclusiori'of "the-'e-xtract quoted, there"“is an intimátiqff'tlíát’ an agency could not be created after a disability to, 'deaf.with'the enemy existed; but this manifestly refers to the manner,of creating, the, agepcy, in :that ..cij.§p,jyiz,.',% sending .the, ap^gintment.-throughltheilines to a,.cifizettm£-an\insurgen.t,'Stated:..-;
    
      Mr., Attorney-General Williams an^Mr. SoUQipjyfienefatPhil-lips for the United States, appellees-; .... • ■ ¡. ¡.'hi
    Commercial transactions.,across .settled, military lines are-as •unlawful as when across the boundaries of belligerent States. (Mongomery’s Case, 8 C. 01s. 15., p." 82¿Vl'Ketít’sfCpmm., 66 eiseg_<; The Bella GuiMta, reported in The Hoop, at page 208 of 1 O. Epb. E.) The - only.-foundation of the transaction, by,. which Ensley became owner of the cotton .in. question, wap an illegal - comm única tioii between him and" certain" public' 'enemies of the United States, carried on through Dickman across the settled, military, lipes dividing; Memphis! from. Mobile, ¡ ,
    
      
      See Culner’s Case, (ante,) which forms the complement of this, the two establishing the rule that a person residing within the United States military lines, within the insurrectionary district, could neither trade across tho lines with persons in other disloyal territory, nor within the lines with persons in the loyal States.
    
   The judgment" of -the Court of Claims waS’ affirmed by;the Supreme Court, no opinion being delivered.  