
    Thomas J. Carver v. The United States. The same v. The same.
    
      On the Proofs.
    
    
      A Treasury agent for the collection of Confederate cotton in theinsurreationary district is arrested in Alabama, in 1865, and tried by a military commission pursuant to orders of the President. He is found guilty of conspiring with others to defraud the government, and is sentenced to pay a fine of ¡$90,000 and to be imprisoned one year and until the fine be paid. He pays the fine and the remainder of the sentence is remitted. A portion of the money is paid to informers, the balance into the Treasury. After paying the fine, the claimant voluntarily renders an account of cotton collected by him, treating the fine as a payment on account, and claiming a balance remaining, which is paid to him.
    
    I.A contract can be implied to refund money paid into the Treasury to satisfy a fine imposed by a military commission on a conviction void for want of jurisdiction.
    II.No action can be maintained against the government to recover money illegally exacted while it remains in the hands of military officers.. Such a taking is tortious, and no liability on the part of the government arises from a tortious act.
    III.No such action can be maintained while the money remains in the hands, of a person not its lawful custodian. The Treasurer is the official custodian of public money for Congress, and unless money is in his. custody, or in the es^tody of persons authorized by law to receive it on behalf of the government, it is not in the possession of the government.
    
      IV. In October, 1865, a Treasury agent appointed to collect and care for captured government property in Alabama, who bad collusively permitted tbe property to be secreted and carried away, committed an offense for wbicb be could tben be tried, sentenced, and punished by a military court under executive direction in tbe absence of a statute defining tbe offense. Tbe authorities relating to the civil war and .to tbe status of tbe insurrectionary district after tbe cessation of active hostilities examined and set forth.
    V. If an agent of tbe government who was sentenced by a military tribunal to pay a fine, and who having paid it was released from confinement, tben consents that tbe money pass into tbe Treasury to make good certain losses which the government suffered through bis frauds, it is immaterial whether tbe fine was imposed legally or illegally. No contract can be implied to refund money thus paid into tbe Treasury.
    VI. When an agent attempts to defraud tbe government, be earns no commissions, although tbe accounting officers may treat a fine paid by him under sentence of a court as tbe proceeds of property collected by him, and upon which it was agreed he should receive a commission.
    
      The Reporter’s statement of tbe case:
    Tbe following are tbe facts of these cases as found by tbe court. Tbe cases differed chiefly in tbe theories upon wbicb a recovery was sought, but tbe material facts in each were tbe same, and they are thus presented by tbe court as applicable to both cases.
    I. On tbe 14th August, 1865, tbe President instructed Major-General Thomas, commanding tbe military division in wbicb tbe transactions hereinafter described took place, as follows :
    “ Washing-ton, August IMh, 1865.
    
      ■“ To Maj. Genfl Thomas, Nashville:
    
    “I have been advised that innumerable frauds are being practiced by persons assuming to be Treasury agents in various portions of Alabama in tbe collecting of cotton, pretended to belong to the confederate government. I also understand that they are connected with tbe commander of post of Montgomery. I hope you will appoint some efficient officer under .your command to proceed and examine and ascertain tbe facts, and if any parties shall be found, whether connected with tbe Treasury or military, that you will deal with them in the most summary manner, and report tbe names of persons engaged in •each transaction and each case.”
    II. In August, 1865, one Duff C. Green held tbe position of -local agent to collect cotton formerly sold by planters to tbe Confederate States for the United States in Choctaw and other counties in Alabama, under appointment of T. C. A. Dexter, supervising special agent of the Treasury Department for the ninth agency, with authority to appoint sub-agents in the several counties of his district.
    In October, 1865, the claimant, a citizen of the United States, was, and had for many years been, resident at Mobile, in the State of Alabama.
    III. About July 1,1865, Oreen appointed the claimant a sub-agent under him for collecting said cotton in Choctaw County, and also one Israel Pickens, a resident of said county. Carver and Pickens at once proceeded to collect the cotton, contracting with the planters in whose possession it was to put it in order and haul it to Tuscahoma and Tompkins Bluff, on the Tombigbee Biver. In the latter part of July one Myer, a relative of Carver, was stationed at Tuscahoma, and received the cotton so brought there.
    IY. On the 5th August, 1865, a change was made, under instructions of the- Secretary of the Treasury, in the mode of collecting such cotton, in accordance with which the authority of said Green and his said sub-agents terminated on that date. By the change the collection was required to be made by a bonded officer of the department, and on August 29 the claimant was appointed such officer for the collection of government cotton in Choctaw County by said Dexter, gave the required bond, and entered upon the discharge of the duties of the office.
    September 6" Carver appointed said Pickens and Myer agents under him for collecting cotton in said county.
    Y. For a short time, under the first employment of these three parties, they made arrangements with, the planters to put the cotton in order and haul it to a shipping point on the river at rates varying from $1.50 to $5 per bale; but, in order to get possession of the cotton more rapidly, they proceeded to bargain with various planters, and to pay them from $40 to. $50 per bale for their cotton delivered as aforesaid. These payments were not made from the defendants’ funds or on defendants’ account, but were from funds supplied by Carver, with the intent of appropriating the cotton to his own use. About 600 bales of cotton were collected and appropriated by him, for which he paid the planters upwards of $25,000, and none of it was ever turned over to or received by the defendants.
    
      YI. About September 16 the claimant was superseded in said office, and on September 23, I860, at Mobile, be was arrested by military authority, and on October 4, 1865, an order was issued by the commanding general of the Military Department of Alabama, of which the following is an extract:
    “Headquarters Dep’t oe AlabAMA,
    “ Mobile, Ala., October 4,1865.
    "[Special Orders 23o. G8. — Extract.]
    “ I. A military commission is ordered to convene at the office of Brevet Lieut. Col. Hunter Brooke, judge-advocate-general Department Alabama (corner Boyal and St. Michael streets, Mobile), at 10 a. m., the 5th instant, for the trial of Thomas J. Carver (citizen) and such other prisoners as may be properly brought before it.
    “Detail for the commission.
    “ Brig. Gen. W. B. Woods, chief of staff, Department Alabama.
    “Major John D. Wilkins, 15th U. S. Infantry.
    “ Major Henry McGonigle, 21st Missouri Infantry.
    “ Captain C. W. Morgan, Ad’t’l A. D. O.
    “ Captain J. W. Davis, 21st Missouri Infantry.
    “ Brevet Lieut. Col. Hunter Brooke, judge-advocate-general Department Alabama, will act as judge-advocate of the commission.
    “No other officers than those named can be assembled without manifest injury to the service.
    * * * * * *
    “By order of Maj. General Chas. R. Woods:
    “Fred. H. Wilson, A. A. G.”
    
    YII. In pursuance of said order, the said military commission convened at the time and place therein designated, all the members being present except Captain Davis, whose order of detail had not reached him, and adjourned until the 6th of October, at 10 a. m. On the 6th of October said commission met, the same members being present, and adjourned until the 7th of the same October, at 10 a. m. On the said 7th of October said commission met, the same members being present. Carver was brought before them, and heard the order convening the commission read. The following charges and speci-fixations were then read to said Carver, wbo sew forthwith arraigned thereon:
    “ Charges and specifications against Thomas J. Carver, citizen, and late bonded special agent for the Treasury Department in Choctaw County, Alabama.
    “Charge I . — Fraud.
    
      “Specification1. — In this, that the said Thomas J. Carver, being the duly-authorized special bonded agent of the Treasury Dept, for the county of Choctaw, State of Alabama, did combine with one Israel Pickens, citizen of said county, to fraudulently purchase, at a price far below the real value, a certain amount of cotton, legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of sixty-three bales of said government cotton, purchased by said Thomas J. Carver, or his authorized partner, Israel Pickens, from W. J. Coleman, of said Choctaw County, for which the sum of forty dollars per bale, or two thousand five hundred and twenty dollars, was paid on account of said T. J. Carver, by his financial agent, C. N. Wilcox. This with the intend to defraud the Government of the United States, and to appropriate said property to his own use.
    “All this at the county of Choctaw, State of Alabama, on or about the month of August, A. D. 1865.
    “ Specification 2nd. — In this, that the said Thomas J. Carver, being the duly-authorized special bonded agent of the Treasury Department for the county of Choctaw, State of Alabama, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase, at a price far below the real value, a certain amount of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of ten bales of said government cotton, purchased by said Thomas J. Carver, or his authorized agent, from J. A. Mills, of said Choctaw County, for which the sum of forty dollars per bale, or four hundred dollars, was paid on aqeount of said T. J. Carver, by his financial agent, O. N. Wilcox. This with the intent to defraud the Government of the United States, and to appropriate said property to his own use.
    “ All this at the county of Choctaw, State of Alabama, on or about the month of September, 1865.
    “ Specification 3rd. — In this, that the said Thomas J. Carver, being the duly-authorized agent of the Treasury Department for the county of Choctaw, State of Alabama, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase, at a price far below the real value, a certain amount ■of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of thirteen bales of said government cotton, purchased from John J. Williams, of said Choctaw County, by said Thomas J. Carver, or his authorized partner, Israel Pickens, for which the sum of forty dollars per bale, or five hundred and twenty dollars, was paid on account of said T. J. Carver, by his financial agent, C. N. Wilcox. This with the intent to defraud the Government of the United States, and to appropriate said property to his own use.
    “ All this at the county of Choctaw, State of Alabama, on or about the month of September, 1865.
    “ Specification 4th. — In this, that said Thomas J. Carver, being -the duly-authorized-agent of the Treasury Department for the county of Choctaw, State of Alabama,, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase, at a price far below the real value, a certain amount of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of five'bales of said government cotton, purchased by said Thomas J. Carver, through his authorized agent, F. F. Myer, from John Curry, of said Choctaw County, for which the sum of two hundred dollars was paid on account of said T. J. Carver, by his financial agent, C. U. Wilcox. This with the.intent to defraud the Government of the United States, and to appropriate said property to his own use.
    “All this at the county of Choctaw, on or about the month of September, 1865.
    “ Specification 5th. — In this, the said Thomas J. Carver, special agent of the Treasury Dept, for the county of Choctaw, State of Alabama, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase^ at a price far below the real value, a certain amount of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of ninety-three bales, purchased by T. J. Carver, or his authorized agent, from Col. D. Hopkins, of said Choctaw County, for which the sum of four thousand dollars was paid on account of T. J. Carver, by his financial agent, C. N. Wilcox. This with the intent to defraud the Government of the-United States, and to appropriate said property to his own use.
    “ This at the county of Choctaw, on or about the month of September, 1865.
    “ Specification 6th. — In this, that the said Thomas J. Carver, being the special agent of the Treasury Dept, for the county of Choctaw, State of Alabama, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase a certain amount of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, the amount of twenty-five bales of said government cotton, purchased by T. J. Carver, or his authorized agent, Israel Pick-ens, for which the sum of one thousand dollars was paid on account of said T. J. Carver, by Ms financial agent, C. N. Wilcox. This with the intent to defraud the Government of the United States, and to appropriate said property to his own use.
    “ This at the county of Choctaw, on or about the month of September, 18(55.
    
      “¡Specification 1th. — In this, that said T. J. Carver, being special agent of the Treasury Dept, for the county of Choctaw,. State of Alabama, did combine with one Israel Pickens, a citizen of said county, to fraudulently purchase various amounts-of cotton legitimately the property of the United States, he and they well knowing the same to be such, to wit, eighteen bales of said government cotton, purchased from B. G. Little-page, of said county, for which the sum of eight hundred dollars was paid on account of said T. J. Carver, by his financial agent, O. N. Wilcox. This with the intent to defraud the Government of the United States, and to appropriate the same to his own use.
    ‘•This at the county of Choctaw, State of Alabama, on or-about the month of September, 18C5.
    “ Specification 8th. — In this, that the said Thomas J. Carver, being the special agent for the Treasury Dept, for the collection of government cotton in the county of Choctaw, State of Alabama, did order and instruct one A. Hill, warehouse-keeper at Tompkins Bluff, in said county, to erase the original marks, upon three hundred and six bales of government cotton, he well knowing the same to be such, and to mark said cotton with private marks, to wit, “O. C.,” <I> “U. C.,” “W. C.,” and “L.” This with the intent to appropriate said cotton to his own use, and to defraud the Government of the United States. All this at the county of Choctaw, State of Alabama, on or about the-month of September, A. D. 1865. •
    “Hotter Beooice,
    
      uBvt. Lieut. Gol., Judge-Advocate?
    
    Till. The 'said Carver pleaded to said charge and specifica-' tions as follows: To each specification, not guilty; to the charge, not guilty; and further, denied the jurisdiction of the court to try him. The court sustained its jurisdiction, and thereupon Carver, by his council, proceeded to cross-examine the witnesses introduced by the prosecution, and to offer evidence on his own behalf. Argument was then had upon both sides, and on the • 25th of October, 1865, the court made the following finding as-to the said Carver:
    “FINDING.
    “Of the 1st specification, excepting the word “bonded”: guilty.
    “Of the 2d specification, excepting the word “bonded”: guilty.
    
      “ Of the 3d specification: guilty.
    “Of the 4th specification, excepting the words “through his authorized agent, F. F. Myer”: guilty.
    “ Of the 5th specification : guilty.
    “ Of the 6th specification: guilty.
    “Of the 7th'si>ecification, exceptingthe initial letters “B. G.” before the name “Littlepage”: guilty.”
    “Of the 8th specification: not guilty.
    “Of the charge: guilty.”
    And thereupon the said commission sentenced the said Carver as follows:
    “SENTENCE.
    “That he be fined in the sum of ninety thousand ($90,000) dollars, to be paid into the Treasury of the United States, and that he be confined at hard labor in such penitentiary as the •commanding general may direct for the term of one year, and until such fine of ninety thousand ($90,000) dollars shall be paid.
    “W. B. Woods,
    
      “Brig. Gen. U. 8. Vols. & President.
    
    “Hunter. Brooke,
    
      “Bvt. Lt. Ool. and Judge-Advocate?
    
    IX. On the 27th of the same October, the said proceedings, finding, and sentence of the commission were approved by the commanding general of the department, and the provost-marshal-general was ordered to see that the fine was duly paid; and the prisoner was ordered to be sent to Nashville for the execution of the imprisonment clause of his sentence.
    X. On the 7th day of November, 1865, the claimant paid $90,000 to Lieutenant-Colonel Brooke, the provost-marshal-general, or the deputies, in full satisfaction of said fine. On the 8th day of the same November the said Hunter, by direction of the major-general commanding the department, cashed out of the said funds so paid a check of the chief commissary of subsistence for the department for $10,000, and on the 20th of November forwarded, the remainder of the money and the • said check by express to the Adjutant-General of the Army at Washington, accompanied by the following letter:
    “HD. QRS. DEP’T ALABAMA,
    “Office Prov. Mar. Gen.,
    
      “Nov. 20th, 1865.
    Brigadier-Gen’l Lorenzo Thomas,
    
      “Adjuta;nt-General, U. 8. A.:
    
    “General : I have the honor to report that I have this day forwarded to your office by Adams Express Co. the sum of $90,000 — $80,000 in money and $10,000 in a check upon the depository at Washington, cashed by me under orders from Map Gen. G. E. Woods (enclosed). These funds are the proceeds of a fine levied by a military commission upon Thomas J. Carver, citizen, convicted of frauds in Government cotton, as per Gen. Orders Hd. Qrs. Dep’t Alabama, No. 55. I enclose the express receipt.
    “1 am, general, very respectfully, your ob’t seVt,
    “Hunter Brooke,
    
      uBt. Lt. Gol., P. M. G., & Judge-Advocate.”
    
    XI. On the Sth of November, 1865, the following order was made, remitting a portion of the sentence of said Carver:
    “Headquarters Department op Alabama,
    
      “Mobile, Ala., November 8th, 1865.
    “ 1. Thomas J. Carver (citizen) having paid the fine of ninety thousand dollars ($90,000) inflicted upon him by the military commission of which Brig. Gen. Wm. B. Woods was president, so much of General Orders No. 55, current series, from these headquarters, as sentences him to confinement at hard labor in such penitentiary as the commanding general may direct, for the term of one year, is hereby remitted. He will, therefore, be at once released from arrest.
    “By order of Major-General Chas. E. Woods:
    “A. Eamsey Nininger, A. A. G.
    
    “Official:
    “A. Eamsey Nininger,
    “ Assistant Adjutant- General.
    
    XII. On the 10th day of the same November the commanding-general of the department addressed the following letter to the Secretary of the Treasury:
    “Headquarters Department op Alabama,
    . “Mobile, Ala., Nov’b’r 10th, 1865.
    “Hon. Hugh McCullough,
    
      “Secretary of the TJ. S. Treasury, Washington, D. O.:
    
    “Sir: Enclosed please find order promulgating sentence of military commission in the case of T. J. Carver, citizen, for frauds in the collection and shipment of Government cotton. The sentence covers the amount of cotton proven to have been taken and converted to private use.
    “Of the,fine of $90,000 (ninety thousand- dollars), $74,000 (seventy-four thousand dollars) have been paid in U. S. currency, and is now on deposit in the First National Bank of Mobile. For the remaining $16,000 (sixteen thousand dollars), I have in custody 65 (sixty-five) bales of the finest cotton in Mobile, weighing from 500 (five hundred) to 600 (six hundred) pounds per bale, with the assurance if the cotton does not bring the $16,000 (sixteen thousand dollars) the remainder will be made good.
    “Upon the payment of the fine of $90,000 (ninety thousand dollars), and certain sworn statements of Mr. Carver, which opens up the whole system of frauds in this department, I have revoked the imprisonment clause of his sentence. Please find enclosed copy of orders.
    “Within two or three days I will be able to-remit to the Treasury Department of the U. S., in the manner indicated by 'General Orders No. 58, dated Adjutant-General’s Office, Washington, 1). O., April 7th, 1865.
    “It has been customary to pay to citizens, giving information that would lead to the recovery of stolen Government cotton, from one third to one-fourth of its value, depending upon the difficulty and amount of labor in procuring the necessary evidence.
    “In the case of Mr. T. J. Carver, which has required, more labor, time, and expense than all the other cases of stolen Government cotton in this department, I am indebted to Mr. Wm. M. Moulton, citizen of Mobile, who gave the first information in this case, and who has for the last two months been busily engaged in working up the case, at his own expense hunting up the witnesses and bringing them to this city, that were necessary for the conviction of the prisoner.
    “I should, therefore, respectfully recommend that, so soon as the money is received in the Treasury of the U. S., you give an order to pay over to Mr. Wm. M. Moulton, of Mobile, one-fourth of the amount of the fine, as he has not received any remuneration for his services, nor have I any funds out of which I can pay him his actual expenses. It is my opinion that over 50,000 (fifty thousand) bales of Government cotton have been stolen in the State of Alabama, and shipped out of the State or moved from place to place, so that all traces of it have disappeared; and, unless the most liberal rewards are given for its detection, will be lost to the Government.
    “ I have arrested Mr. T. C. A. Dexter, late special supervising agent, of the 9th agency, upon charges of defrauding the Government, and will probably be able to bring him before a. military commission next Tuesday. From sworn evidence now in my hands, I think I will be able to show that many thousand bales of Government cotton have been diverted from their proper channels, or, in other words, fraudulent’ taken from the Government by private parties and wdth the connivance and knowledge of Mr. Dexter.
    “It will be impossible for me to try all the parties against whom I can make cases of defrauding the Governm’t. Gan you suggest any means by which I may recover for the Government property without being obliged to bring the cases to trial? All the more important cases will be tried by military commission. There is no U. S. court established in this district.
    “ I hare been unable to get any clue to the frauds in tbis department until the trial of Mr. T. J. Carver, who has since come out and made developments that open up the whole subject.
    “Most of the transactions of which I speak, and the largest frauds, took place in June and July, before I took command of the Department of Alabama.
    “I will state that I am acting under telegram orders from ■the President.
    “1 am, sir, very respectfully, your obd’t serv’t,
    “Chas. E. Woods,
    
      “JBJvH-Major General, OommcPg DepmH of Alabama.
    
    XIII. By direction of the Secretary of War, the Adjutant-•General, on the 1st day of December, 1865, transmitted $90,000 as the amount collected from said Carver on account of said fine to the Treasurer of the United States in Washington, and on the same day the assistant treasurer gave certificates of deposit therefor in triplicate, which were on the second of the same December sent to the Adjutant-General by the Treasurer. Said certificates were in the following form:
    “Treasury or the United States,
    
      “December 1st, 1865.
    “I certify that G-en. B. D. Townsend, Adjutant-General, has ’ ’this day deposited to the credit of Hon. F. E. Spinner, special agent, ninety thousand dollars, beiug amount of fine imposed upon Thomas J. Carver, late bonded agent of Treasury Department, U. S., for which I have signed triplicate receipts.
    “$90,000.
    “F. Barry,
    
      “Assistant Treasurer U. 8.”
    
    XIY. On the 2d January, I860, the Treasurer addressed the following letter to the Secretary of the Treasury:
    “Treasurer oe the United States,
    “Cash Division,
    “ Washington, January ‘2d, 1866.
    “Sir: In reference to the communication of the Acting Assistant Secretary of War, under date of the 27th ultimo, relative to the payment into the Treasury of $90,000, amount of fine paid by T. J. Carver, in compliance with the sentence of •a military commission at Mobile, Alabama, referred to me from your office for a report of the facts in the case, I have the honor to report that the amount was not paid into the Treasury, but was transferred on the 1st of December, by the Adjutant-General, to my credit as special agent for receiving the proceeds of captured and abandoned property of the late so-called Confederate States.
    “Very respectfully,
    “F. E. Spinner,
    “ Treasurer U. S.
    “Hon. Hugh McCullough,
    “ Secretary of the Treasury.”
    XV. The Secretary of the Treasury, in compliance with the recommendation in the letter of the commanding general of the department contained in the letter set forth in Finding XII, allowed the said Moulton, as informer, one-fourth of the said sum of $90,000, and on the 21st February, 1866, addressed the following letter to General Spinner, as special agent:
    “Treasury Department, February 21,1866.
    “F. E. Spinner, Esq.,
    “ TT. 8. Treasurer, Special Agent:
    
    “ Sir : Application is made to me by Mr. ffm. M. Moulton, as informer, etc., for the fourth part of certain ninety thousand dollars ($90,000) recently turned over to you by Adjutant-General Townsend, as the proceeds of captured property.
    “It appears that the money in question was collected in the form of a fine from one Thomas J. Carver (as the value of certain cotton of which he had fraudulently deprived the United States), iu accordance with the sentence passed by the military commission before which he was tried for the offense.
    “It is established to 7ny satisfaction by the certificate of Major-General Charles It. Wood, by whose order the commission was convened, and of the judge-advocate who tried the case, that the information and evidence upon which the conviction was had and the money secured were furnished mainly or through the efforts and at the expense of Mr. Moulton, the claimant, as General Woods recommends, also, that he ‘be paid one-fourth of the amount ($90,000) recovered, believing that he is fairly entitled to that amount, and that it is no more than a fair compensation for services rendered.’
    “In view of these facts, and not deeming the amount asked unreasonable, I have decided to allow the claim. You are therefore hereby authorized and instructed to pay to Mr. Moulton, or his only empowered attorney, the one-fourth part of the amount received by you as above, taking his proper receipts therefor, and referring to this letter by date as your authority for the payment. “You will also take the necessary steps to cover,the residue into the Treasury to the credit of the fund arising from captured and abandoned property, and report your action hereunder.
    “ Respectfully,
    “H. McCulloch,
    “ Secretary of the Treasury.”
    XYI. General Spinner thereupon, on the 24th February, 1866, paid to the said Moulton the sum of $22,500, being the one-fourth part of the said sum of $90,000 so allowed by the Secretary of the Treasury. Said sum was paid by a draft on. the Treasurer drawn by General Spinner as special agent, and the residue of the said sum, amounting to $67,500, was, on the 26th day of March, 1866, covered into the Treasury.
    X YII, On the 6th day of April, 1866, the general in command of said department addressed the following letter to the Secretary of the Treasury:
    “H’dq’rs Dep’t Alabama,
    
      “Mobile, Ala., Ap. 6, 1866.
    “Hon. Hugh McCullough,
    “ Secretary of the Treasury:
    
    “ Sir : You may recollect the case of 1J. S. vs. Tho’s J. Carver, tried in this department, in which the sum of $90,000 was collected as the equivalent of cottons proved to have been fraudulently appropriated by said Carver and his associates. His agency was Choctaw Co., in this State, and the commission demanded the recovery of all the cotton they could prove from that county. Since the trial this defendant, Carver, has been faithfully striving, through much persecution, both public & private, to make amends to the government even after his fine was paid. He is now a poor man and socially outlawed, but still proposes to make a full statement of the IT. S. cotton transactions in that county provided the above sum of $90,000 will be allowed as a credit on the acc’t. He guarantees the further recovery of from ten to fifteen thousand dollars to the government, but demands a fair interest, say one-third (J) for such recovery, which is to be made without suit or expense to the government.
    “Will you please direct me as to what course I shall pursue in the matter, and whether this credit will be allowed.
    “I am, sir, very respectfully, your ob’d’b serv’t,
    “Chas. R. Woods,
    “ JBv’t Maj.-GenH, Comm? Dept. Ala.”
    
    
      And the Secretary of the Treasury on the 17th of the same-April, made the following reply thereto:
    “Treasury Department,
    
      11 April nth, 1866.
    “General: I have received your letter of the 6th inst. relative to the proposition of Mr. T. J. Carver, to farther reimburse the gover’ment in the matter of certain cottons of which it has. been fraudulently deprived, either through his connivance or laches.
    “I am not certain that I clearly comprehend his plan; but, with the end suggested above in view, I will agree to consider the $90,000 collected from him in the form of a fine as a credit for that amount on any account the gover’ment may have against him, growing out of his connection with the cottons in Choctaw County, and to allow him for his services, exjmnses, etc., in the premises, thirty-three and one-third (33£) per cent, of any farther sum he may recover and pay over for the benefit of the. National Treasury on said account.
    “You are hereby authorized to so stipulate with him, on behalf of this department, and to receive from him any money so paid over, and, after returning him the one-third, as provided- . above, to forward the balance to my address.
    “For your services already rendered in the premises many obligations are due; and for any farther sums secured through, your efforts, you will have the additional thanks of the gover’ment.
    “Very respectfully, yours, &c.,
    “H. McCulloch,
    “ Secretary of the Treasttry.
    
    “Maj. Gen. Cha’s R. Woods,
    “ Oom’g, etc., etc., Mobile, Ala.”
    
    XVIII. Thereupon the said Carver addressed to the Secretary of the Treasury the two following papers, one dated May 15 and one May 17, 1866:
    “To the honorable Hugh McCulloch,
    “ Secretary of the Treasury :
    
    “The petition of-Thomas J. Carver, of Mobile, Alabama, respectfully represents that he was appointed local agent for the collection of government cotton in Choctaw .County, Alabama, on or about the day of July, 1865, by Duff Greene, who held the appointment of special assistant Treasury agent himself from T. C. A. Dexter, who was at the head of the 9th agency; that he entered on the discharge' of his duties immediately, and and while thus engaged he was arrested, and brought to trial in the city of Mobile, on a charge of buying-government cotton & was sentenced to pay a fine of $90,000» This fine was paid on or about the 8th of November, 1865, and petitioner was released from custody. Petitioner states that the facts connected with his said agency and his acts as such were not fully presented and brought to light on his trial, but subsequently this was done on the trial of T. O. A. Dexter. Now, notwithstanding petitioner has been fully discharged, he earnestly desires to put the government in possession of all the facts within his knowledge, so that justice may be done to it, and petitioner fully exonerated if, in the opinion of the government the facts are such as to warrant it; and petitioner is now here and respectfully asks a hearing for that purpose.
    “ Tho’s J. Carver.
    “Washington, May 15th, 1866.”
    “To the Hon. Hugh McCulloch,
    “ Secretary of the Treasury:
    
    Eeferring to an interview had with S. H. Kauffmann, esq’r, this morning, the undersigned begs more particularly to state, in addition to the statement already made, that he has, with great trouble, secured a list of the cotton subscribed to the so-called Confederate Government by the planters of Choctaw County, Alabama, the number of bales collected out of said county, and how disposed of; also a statement of account embracing 935 bales of said cotton, showing the value of said cotton in September, 1865; the actual cost accruing upon said cotton, embracing the internal-revenue tax, the freight, storage, &c., showing the nett value of said cotton to be $94,243.75, from which is deducted the $90,000 imposed upon the undersigned as a “ recovery of government property,” and leaving yet due on said cotton $4,243.75. That this statement does not include any expenses that was due to agents in getting out the cotton, and the undersigned submits that, being anxious to cause to be placed in the possession of the government these accounts, he requested Major-General Charles K>. Woods to secure from the Secretary of the Treasury full power to make final settlement, but- Gen’l Woods received, as the undersigned is advised, authority only to “ receive money,” which power did not appear fully to cover the case. Hence it appeared neceees-sary to make application direct to the Secretary of the Treasury.
    “Nowthe undersigned submits said statements and accounts, for the purpose of asking the judgment and decision of the Secretary as to whether said balance of $4,243shall be collected, or whether, under all the circumstances, said balance shall be relinquished, and for the Secretary to make such order as in his judgment maybe proper to be made.
    “The undersigned begs to state that the balance of $4,243-^ is not due from him. He also states that tins cotton was controlled by agents under whose orders he acted, and that he has been deprived of any and all commissions upon said cotton; and in addition, has suffered pecuniary losses, and would be glad, if in the judgment of the Secretary it is proper, to have an allowance made of $
    
      " He begs farther to state that he has been advised that, with proper diligence, he might secure a revocation of the acts of the military commission that imposed upon a fine of $90,000, and if turned over to the civil tribunals it would operate to his relief. But, he thinks and hopes, by the method now proi>osed of causing settlements to be made, he will be able, through the interposition of Major-Gen’l Charles li. Woods, to secure such an order as will afford entire relief from the odium that has been fastened upon him by corrupt men, and the real actors in these frauds upon the government.
    “ All of which is most respectfully submitted.
    “Ti-ios! J. Carved.
    "Washington, 11th May, 1866.”
    
      Statement of cotton claimed by the United States, and which was charged as being under the control of Thos. J. Carver, as Treasury agent, a/nd upon which said Carver was fined by a military commission, ordered by Major-General Charles It. Woods, in the sum of $90,000.
    M o' XJi =3 S. S'
    12,236
    53, 712 S:
    914 S
    107, 054 S-
    17, 016 £■
    13, 382 ~
    44, 452 m £
    935 Total. 388,428
    Quality from good ordinary to low middling, average value 34c.; less for repacked, 2c.; is 388,428 p’ds, @32 . 124,296 96
    Upon which accrued the following expenses:
    Hauling to landing, @ 3$ p. bale. 2, 805
    Freight per flat-boat, @ 20$. 18, 700
    Internal-revenue tax, @ 2c. 7, 768 56
    Storage, 50c. 467 50
    Weighing, 2J. 233 75
    Wharfage, 8c.,. 78 40
    30, 053 21
    Nett am’t. lO C— CO
    Amount paid as a fine o o o o o
    4,243 75
    
      XIX. Oil the 21st of the same May the Secretary of the Treasury made the foliowiug reply to the communications set forth in Finding XVIII:
    “Treasury Department,
    
      “May‘21st, 1866.
    “ Sir: I have received your letter of the 15th, and also .that of the 17th inst., enclosing a list of Government cotton located in Choctaw Co., Ala.; also a statement of cotton collected therein, together with a statement showing “the receipts from, and expenses on, certain nine hundred and thirty-five (935) bales thereof, in relation to which a fine of ninety-thousand dollars (90,000) was assessed upon and collected from you by a military commission, ordered by Maj. Gen. Woods, com’ng at. Mobile, and asking that you be authorized to collect from the really guilty parties in the transaction the sum of four thousand two hundred and forty-three dollars and seventy-five cents($4,243.75), that being the difference between the ninety thousand dollars (90,000) collected and the true net proceeds of, the nine hundred and thirty-five (935) bales referred to above.
    “This matter has already been the subject of correspondence between the Department and Gen. Woods; and it appears to me that, in my letter to him of the 17th of April last, I gave him all needful authority, so far as this Department is concerned, to compromise and close the matter; and in the absence of any further report from him on the subject, I do not think I can go beyond the arrangement contemplated therein.
    “ I know nothing of the facts in detail showing your connection with the case, and do not, therefore, feel authorized to indicate any course to be pursued by Gen. Woods; but if, as I infer from your statement, he is satisfied that you were not actually guilty, and is disposed to give you a certificate to that effect, in addition to receiving the balance found due, and remunerating you for collecting it, such proceeding on his part will be entirely agreeable to me. Inasmuch, however, as he is familiar with all the facts, and fully apj>reciates the weight and responsibility of his official acts, I must leave the whole matter in his hands.
    “You can, if you wish, show this letter to Gen. Woods for his information as to my views in the premises.
    “ Very respectfully,
    “H. McCulloch,
    “ Secretary of the Treasury.
    
    “ Thomas J. Carver, Esq., of Ala.,
    
      “'Washington,!). G.”
    
    XX. On or about the 14th June, 1866, the claimant paid to the provost-marshal of Alabama the said sum of $4,243.35, shown in the statement contained in Finding XVIII, and the said provost-marshal thereupon, by order of the Secretary of the Treasury, paid to the said Carver the sum of $1,414.45, being 331 per cent, of the said sum of $4,243.35. Such payment was made and received in accordance with the agreement made by the Secretary of the Treasury in his letter of April 17, to General Woods set forth in Finding XVII, and referred to by the Secretary in his letter to the claimant of May 21,1866, set forth in Finding XIX,
    
      Mr. 8. 8. Henlcle for the claimant:
    A military court in October, 1865, in the State of Alabama, had no jurisdiction to try a citizen in no way connected with the military service. {Ex parte Milligan, 4 Wall., at p. 127.)
    It will not be pretended that there was actual war in Alabama in October, 1865. Moreover, there was a United States-judge for the State of Alabama, and whose court was to convene, and did convene, in November, 1865, in which court Carver might have been indicted and tried if guilty of any offense against the laws of the United States. It,could scarcely be claimed that the conditions existed which would authorize the trial of a citizen not in any way connected with the military service, upon the authority of the Milligan case. But supposing the court was lawfully convened and had jurisdiction of the person of the defendant, do the charges and specifications describe any offense for which Carver was amenable to a criminal prosecution?
    The offense charged is simply a conspiracy to defraud the government. Conspiracies for unlawful or fraudulent purposes were indictable at common law as misdemeanors. But this was an offense against the United States, if an offense at all,, and would not have been cognizable in a State court. The commission was convened for this case alone, and was, therefore, sitting in the stead of a U. S. court.
    There are no common law offenses against the United States, and the United States courts have no power to try offenses, except such as are made so by act of Congress. (See 1 Bish. Crim. Law, 5th ed., sec. 199: United, States v. Hudson, 7 Crunch, 32; Same v. Goolidge, 1 Wheat., 145; SameY. Lancaster, 2 McLean, 431, 433; Same v. Lavara, 2 Dali., 297; Same v. Worrell, ibid., 386; Same v. New Bedford Bridge, 1 Woodb. & M., 401;. Same v. Babcock, 4 McL., 113, 115; Same v. Maurice, 2 Brock, 96; Anonymous, 1 Wash. c. c., 84.)
    There was no such an offense known to the criminal code of the United States in 1865 as a conspiracy to defraud the government. A military court, acting in the stead of a civil court,, could only exercise such power as the latter possessed.
    The sentence of the court was void. The money was paid under duress. (Devlin’s Case, 12 O. Cls. R., p. 266.)
    
      Mr. Assistant Attorney-General Simons for the defendants:
    The facts alleged present a cause of action founded on tort,, and so not within the jurisdiction of the court. (Gibbon’s Case,, 8 Wall., 269; Morgan’s Case, 14 ib., 531; Langford’s Case, 101U. S., 341.)
    Whatever part of the claimant’s demand was received by defendants is held by them under the judgment of a tribunal having lawful authority to render it, and whose action is not revisable here. The court will judicially notice that the proceedings of the military commission were taken in time of war in the enemy’s country, and the only question is whether they were authorized by the laws of war as recognized in the jus-gentium.
    
    Investigation of these.will show it to be well settled that in time of war an enemy’s country, while in military occupation' of a belligerent state, is governed by the law of war and not by the municipal law of either State; that by the law of war the' municipallawof the conqueredstatemaybesuspended, changed,. ■ or replaced by other laws at the will of those who, as military governors, represent the conqueror; that this authority includes plenary power to prevent and punish all offenses therein by whomsoever committed, guided and controlled only by the principles of universal public jurisprudence; that the trial of such offenses by special tribunals organized for that purpose by the government of military occupation is according to established usage. (Halleek, Int. Law, ch. 15, § 24; ch. 32, §§ 1, 5,. 6; Tres, Mil. Law, p. 10, 278.)
   Davis, J.,

delivered the opinion of the court:

These two suits are brought by the same claimant; were heard and submitted together; and have a common finding of facts.

On. tlie 25th August, 1865, the President informed Major-General Thomas that he had reason to believe that frauds were being- perpetrated in the collection of cotton in Alabama, and instructed him to make inquiries, and to deal in the most summary manner with all persons found guilty, whether connected with the Treasury or military.

On the 29th of August, 1865, the claimant was appointed a bonded agent for the collection of cotton in Choctaw County, Alabama. He entered upon his duties, but was suspended on the 16th of the next month, and a week later, on the 23d September, was arrested by military authority. On the 5th of the following October, by virtue of an order of the commanding-general of the department, a military commission was convened, before which the claimant was arraigned, charged with fraud in combining with others to purchase government cotton at a price far below its real value. He pleaded “ not guilty” to the charges and specifications and denied the jurisdiction of the court. On the 25th of October, after hearing and argument, he was found guilty, and was sentenced to pay a fine of $90,000, and to be imprisoned at hard labor for one year, and until the fine should be paid. On the 7th of November, 1865, he paid the* fine, and on the 8th of the same month the remainder of the sentence was remitted. The money collected on the fine was sent to the Adjutant-General, in Washington, and by him passed over to the Secretary of the Treasury. The Secretary of the Treasury allowed one Moulton 25 per cent, upon it as a commission for his services in securing it, and the balance remained in the captured and abandoned property fund in the hands of General Spinner as special agent, until February 24, 1866, when it was covered into the Treasury.

The military authorities intended to fix this fine at a sum which should place in the Treasury the exact value of the cotton which had been fraudulently sequestered with the connivance of the claimant. It turned out, however, that cotton was .-still missing and unaccounted for to the amount of $4,243.75. Through the instrumentality of the claimant, after he had paid his fine, this amount was also recovered, and the claimant was allowed by the Secretary of the Treasury a commission of 33J •per cent, upon it.

The first of these suits in date, No. 3612, is brought to recover -a commission of 25 per cent, upon the $90,000, on the ground that it represents cotton secured for the Treasury through the claimant. The second in date, though treated in argument as the first in importance, is brought to recover the fine of $90,000, which was, it alleges, collected without authority of law. The complaint demands the whole $90,000; but in his oral statement of his case the claimant’s counsel laid claim as of right only to the $57,500 which actually went into the Treasury; and further said that his client, whatever his legal rights may be, regards himself as morally entitled only to the amount of the commissions which he claims in the other suit, and only desires judgment for that sum.

In the elaborate and able argument of the case, on both sides, many points were presented which become unimportant in the view which we take of the facts. It is due to counsel, however,, that we should express our opinions on the points which they regard as essential. We shall do this as briefly as we can, consistently with the imimrtance of the subject.

I. We think that, when the facts warrant it, a contract can-be implied to refimd money paid into the Treasury in order to-satisfy a' fine imposed by a military commission on a conviction void for want of jurisdiction. (Devlin's Case, 12 C. Cls. R., 266.)

II. Assuming that the money was illegally collected from the claimant, we think no action could be maintained against the government for its recovery while it was in the hands of the-military authorities. The taking in such case would have been tortious, and could have entailed no liability on the part of the United States. (Gibbon's Case, 8 Wall., 269; Langford's Case, 101 U. S., 341.)

III. Nor could such an action have been maintained against-the government while the money was in the hands of General Spinner as special agent. His retention of the fund from the-Treasury was illegal, and was subsequently condemned by Congress (15 Stat. L., 251), and payments from the same except on judgments of this court were forbidden (ib., 244). The Consti'tution intrusts Congress with the custody of the public money,, and with the power to authorize obligations to be made to pay it out. The Treasurer is the official custodian for Congress, and unless money is in his custody, or in the hands of the persons authorized by law to receive it on behalf of the United States, it is not in the possession of the United States. The fact that in the early cotton cases many judgments were ren■dered against this fund before it was covered into the Treasury does not aifect our opinion upon this point. Those judgments were rendered on returns from the Treasury which indicated that the Secretary of the Treasury regarded the money as subject to judgments rendered by this court under the special act which requires the court to adjudicate the cases, and they directed the Secretary to pay such judgments as might be rendered against the fund. The proceedings under that special act have no bearing upon the general questiou discussed in this case.

IV. We are of opinion that the military commission had power to hear and determine the charges against the claimants.

It must be borne in mind that this commission was not a court-martial, and that, except in its forms for proceedings, it had little in common with one. A court-martial is one of the ordinary judicial institutions of the country, employed in time •of peace as well as in time of war to administer justice according to the articles of war upon persons actually or construct- • ■ively in the military or naval service. The claimant was a citizen, and the court took jurisdiction over him and his offenses by virtue of the war power vested in the commanding general by direction of the President, with the express or implied sanction of Congress.

Nor, on the other hand, was it an exercise of arbitrary power, to be excused by an overwhelming necessity in the presence of extreme danger caused by insurrection or invasion, and the insufficiency of ordinary law to secure public safety and protect life and property. It was the act of a military tribunal substituted in conquered territory by the conqueror for the ordinary ■courts of law, which had disappeared or been superseded.

Up to the outbreak of the Avar the constitutional rights of the citizen of a Southern State were identical with those enjoyed by persons domiciled in a Northern State. The proclamation of the President converted him into a public enemy, whose rights were defined by the laws of war. But when the actual conflict ceased, he was not at once restored to his full civil rights. Peace and the reign of civil law did not immediately folloAV the laying doAvn of arms. The conqueror liad first to decide many questions Avhich, had the struggle been be-•tAveen independent powers, would have been the subject of negotiation and treaty. It is well known that there was a great conflict of opinion as to the legal status of the conquered States, and that meanwhile and for some time after the surrender there was great need for the continued presence of an armed force to preserve order and society. This very case has given us glimpses of the disorganization — disbanded soldiers, camp followers, and disreputable adventurers stealing and plundering ; and civil courts, civil officers, and the oi’dinary civil machinery for the jirotection of property and life stricken down by the sword.

The Supreme Court, in solving such of these problems as it had to solve, proceeded with caution. In Anderson’s Case (9 Wall., 56) it held that the date of the President’s proclamation of August 20, 1866, should “be accepted as the day when the rebellion was suppressed, as respects the rights intended to be secured by the Captured and Abandoned Property Act.” In the case of The Protector (12 Wall., 700), modifying this statement, it said:

“ There were two proclamations declaring that the Avar had closed ; one issued on the 2d April, 1866, embracing the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas; aud the other issued on the 20th August, 1866, embracing the State of Texas. * * * We must take the dates of these proclamations in ascertaining * * * the close of the war in the States mentioned in them.”

In a still later ease that court showed its clear purpose to sustain belligerent authority up to the respective dates of the proclamations. It is said that from the time when the States were declared by the President to be in insurrection—

“The* war became a Avell-deflned territorial war. * * * The 'condition of hostility ’ remained impressed upon the insurrectionary districts until it was authoritatively removed by the proclamation of the President at the close of the war.” (Hamilton v. Dillon, 21 Wall., 95.)

This leaves no doubt that Avhen the events took place Avhich form the subject of the present controversy a state of Avar prevailed in the district in Avhich they occurred as absolute, in its consequences, as that Avhich existed before the surrender of the Confederate armies. What those consequences are upon a loyal citizen of the United States in the enemies’ country must ■be determined by the Constitution and laws of the United States as expounded by its court of bigliest authority. Elementary writers on jmblic law have been cited in argument; but while the opinion of a publicist may have weight in measuring the rights and duties of the United States as a belligerent in their relations with their enemies, it ceases to be of authority in questions between them and their officers on one side and their citizens on the other, except so far as in accord with their Constitution and laws, and the decisions of their courts.

The first important action of the Supreme Court- was in the Prize Oases (2 Black, 635), in which the legality of the blockade was -drawn in question. It there said:

“ When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have declared their independence; have cast off their allegiance; have organized armies; have commenced hostilities against-their former sovereign, the world acknowledges them to be belligerents, and the contest a war.”

In The Venice (2 Wall., 274), the court thus stated one consequence of a state of war:

“The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government and of all the citizens or subjects of the other, applies equally to civil and to international wars. (Prize Cases, 2 Black, 666; concurred in by dissenting justices, id., 687-8.) Either belligerent may modify or limit its operation as to persons or territory of the other; but, in the absence of such modification or restriction, judicial tribunals cannot discriminate in its application.”

In The Grapeshot (9 Wall., 129), the authority of a provisional court established in New Orleans after its capture was called in question. The court said:

“It became the duty of the National Government, wherever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the national forces, to provide as far as possible, so long as the war continued, for the security of persons and property, and for the administration of justice. The duty of the National Government in this respect was no other than that which devolves upon the government of a regular belligerent, occupying, during the war, the territory of another belligerent. It was a military duty, to be performed by the President as.commander-in-chief, and intrusted, as such, with the direction of the military force by which the occupation was held.”

In Milligan’s Case (4 Wall., 127) the court say:

“There are occasions when martial rule can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to anminister criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society, and, as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.** During the late rebellion it could have been enforced in Virginia where the national authority was overthrown, and the courts driven out.”

In Mechanics and Traders’ Bank v. Union Bank (22 Wall., 276), the court said:

“It has been determined thatthe power to establish by military authority courts for the administration of civil as well as criminal justice in portions of the insurgent States occupied by the national forces is precisely the same as that which exists when foreign territory has been conquered and is occupied by the conqueror.”

The learned judge who dissented based his dissent upon the absence of special authority from the President to establish the military court which had given the judgment; but in the present case it appears that there was a special order from the President to prosecute offenders like the claimant, and the objection therefore disappears.

In Leitensdorfer v. Webb (20 Howard, 176) the court held that the President could extend a judicial system over and create courts with civil and criminal jurisdiction in conquered foreign territory, which would remain in force after the cessation of actual hostilities.

In Dickelman’s Case (92 U. S., 520), the court say:

“ Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed.”

In Dow v. Johnson (100 U. S., 158) the court say that in case of conquest “ the municipal laws, that is, such as affect private rights of persons and property, and provide for the punishment of crime, * * * are considered as continuing, unless suspended or superseded,” which necessarily implies the right to suspend or supersede them; and the court refers with approval to the English case of Elphinstone v. Bedreechund to show that this right continues after the cessation of actual hostilities, so as to affect acts clone, “if not flagrante, yet nondum cesscmte bello.”

Thus it appears that the Supreme Court has settled several things which have a strong bearing upon the present case : 1st, that the right to administer justice by military courts acting under executive direction in the Southern States after conquest was the same in every respect that it would have been in a foreign country conquered by the United States; 2d, that that right extends both to the trial and determination of civil causes and to the trial and punishment of criminal offenders; 3d, that it is within the discretion of the conqueror either to exercise this power in accordance with the laws of. the conquered country or to supersede the whole or any part of those laws at its discretion; 4th, that these rights, as has already been noted, survived/intil the war was terminated by the President’s proclamations.

The question we are considering is now practically reduced to this: Whether a Treasury agent, appointed to collect and care for captured government property in a conquered country, who, during the time of war, whether foreign or civil, collusively permits that property to be secreted and carried away, commits an offense for which he can be tried, sentenced, and punished by a military court under executive direction in the absence of an act of Congress defining the offense.

To this question we can make but one answer — that he can. As the civil courts cannot interfere to prevent the conquest of enemies’ territory, so they cannot impose conditions upon its military possession and government during the continuance of war. They cannot curtail the war power of the United States. That power is defined in the cases we have cited, especially in Milligan’s case and in Diekelman’s case, and in Dow v. Johnson, in full accord with the law of nations. If an act of jurisdiction similar to that exercised on the claimant were performed on a citizen or subject of a foreign power in a conquered foreign country during time of war, we cannot doubt that it would be justified by the political department of the government and sustained in the courts. We can see no difference between the rights of the citizen and the alien in this respect. And further, the conquering ]>ower may supersede any or all the laws of the conquered. It would be most unreasonable to require prosecuting officers and the court, in the emergencies of war, to limit up justifying' statutes and laws and law authorities of the enemy to warrant prosecution and conviction. It would be equally unreasonably considering our form of government and how far it relegates the punishment of offenses against property and life and society to State authorities, to permit no offense to be punished except those defined in an act of Congress. The exigencies of a state of war demand that the conqueror should possess the power of punishing offenses against life and against projierty and against the peace, and other like crimes and misdemeanors, which have been the subject of criminal punishment in all times and among all nations. If he punishes needlessly or too severely the Executive will check and rebuke him, and if the Executive is a party to needless harshness or cruelty, or to any act whose aim or spirit is hostile to liberty, our institutions enable a free people to visit him with speedy condemnation. .

Y. It is immaterial whether the proceedings under which the claimant’s money was taken from him can or cannot be justified in law. It is clear that the money subsequently passed into the Treasury with his consent for the purpose of making good the losses which the government had suffered through his frauds. Having consented to that legal application of the money, it is of no consequence whether it was originally acquired legally or illegally, and he cannot now, in his suit to recover the fine, set up that the original act was illegal. Even if he were not estop-ped from such proceeding, it is perfectly clear that no contract can be implied from all the facts to repay any part of the money. This point is sufficient to support the judgment which we shall order to be entered in the defendant’s favor in the suit for the recovery of the fine, without regard to the jurisdiction of the court either to hear and determine the case or to impose the fine.

It appears from Finding XY that “ the money in question was collected in the form of a fine * * * as the value of certain cotton of which he [the claimant] had deprived the United States.” After the payment of the fine the claimant submitted to the Secretary of the Treasury a statement, which will be found in Finding XVIII, of the whole amount of such cotton, showing an aggregate of 935 bales, of the value of $94,243.75. In this statement the amount of the fine, $90,090, was deducted from this sum as a “recovery of government property” to that extent, and lie represented that there was yet “due on said cotton $4,243.75.” He asked to have that balance relinquished to him. The decision of the Secretary on this request will be found in Findings XYII and XIX. He authorized the commander of the department to pay the claimant one-third of this balance for his service. It appears by Finding XX that the military authorities paid to the claimant the sum of $1,414.45, being one-third of the sum of $4,243.35, and that the payment was made and received in accordance with the directions of the Secretary of the Treasury. In our opinion the claimant, by these proceedings, gave his assent to the application by the government of the money collected on the fine to the satisfaction of its losses by reason of the claimant’s frauds. The government made the application in accordance with the claimant’s assent and agreement. No cause of action was left to the claimant growing out of the acts of the military in Alabama. This view of the facts makes it unnecessary to consider the effect of the amendment to the Captured and Abandoned Property Act made in 1864.

VI. As to the suit to recover commissions, the claimant earned no commissions on the $90,000 worth of cotton. He attempted to defraud the government of this cotton, and the fraud was exposed and the money recovered through the instrumentality of Moulton, who was paid the usual commission for the recovery of so much cotton. The claimant has already received a commission of 33-J- per cent, upon the remainder, which is all he is entitled to.

The judgment of the court in No. 3612 is that the petition be dismissed.

And in No 6395 that the petition be dismissed.  