
    WALKER’S EXECUTORS’ CASE.
    S. P. Walker’s executors, &c., v. The United States.
    
      On the Proofs.
    
    
      The President, in March, 1865, gives Walker an order that producís of the insurrec-tionary districts sold by him to Treasury purchasing-agents be free from seizure or forfeiture, tfc. Subsequently, in Mobile, Walker buys planters’ bills of sale of cotton then on various plantations. It appears on the face of the bills that the cotton has been sold to and by the Confederate government. Mobile is captured, and in Pune Walker sells the cotton, still on the plantations, to a Treasury agent. It is captured before, delivery. Wallcer brings suit for iheproaeeds. When he bought, Ids domicile teas in Memphis and the vendor’s in Mobile.
    
    I. The President’s power to authorize commercial intercourse with the insur-rectionary districts was taken away by the Act 2d July, 1864, (13 Stat. L., 377, 5 9,) except in the limited cases mentioned in § 8.
    II. An order of the President that products of the insurrecionary districts owned by one W., which purchasing-agents of the Treasury had agreed to buy from him, be free from seizure and forfeiture, was not a permit to trade with the insurgents, but a mere passport from the President as commander-in-chief.
    III. The statutes and proclamations authorizing and prohibiting commercial intercourse with and in the insurrectionary districts during the rebellion examined and reviewed.
    IV. In March, 1865, one domiciled in Memphis was prohibited from commercial intercourse with another person domiciled in Mobile, by the Act 2d July, 1864, (13 Stat. L., 377, § 4,) which extended previous prohibitions to persons “residing or being tvithin districts within the present or future lines of national military occupation,” “whether with each other or with persons residing or being within districts declared in insurrection tvithin those lines.”
    
    Y. Where planters’ bills of sale to the Confederate government of certain cotton were indorsed over and transferred by the Confederate authorities to one who re-indorsed and transferred them to the claimant, no title to the cotton was acquired by either vendor or vendee. The transactions were void as against the United States, and the bills of sale were themselves-notice to the purchaser of the illegality of the title.
    
      The Reporters’ statement of tbe case:
    The following facts were found by the court:
    I. Before the year 1805 John Scott, who was chief agent of produce-loan for Alabama and East Mississippi of the Oonfed-erate States of America, so called, purchased 3,405 bales of cotton. for the Confederate government, in lots, at different times and of different planters, (among other purchases by him,) in the States of Alabama and Mississippi, and in each purchase took a receipt, certificate, and agreement from the planter, in the following form:
    “State oe Mississippi,
    “ County of-, town or post-office-;
    “November 27,1862.
    “The undersigned, having sold to the Confederate States of America, and received the value of the same in bonds, and receipt whereof is hereby acknowledged, one hundred and thirty-five bales of cotton, marked, numbered, and classed as in the margin, which is now deposited at-plantation, hereby agrees to take due care of said cotton whilst on his plantation, and to deliver the same, at his own expense, at-in the State of Mississippi, to the order of the secretary of the treasury or his agents, or their assigns.
    “Aberdeen, Nov. 27,1862.
    “The undersigned, as agent of the Government, certifies that the within cotton has been examined by him, or by a competent judge, and that its character will rank, according to the commercial scale, as middling; and, also, that the weights and marks are as described — the cotton being in good merchantable order, marked with the name of the planter, and on one end the initials C. S. A., and safely stored in a covered building.
    “ The undersigned certifies that the price agreed upon is a fair market-price at the present time.
    “GRAY A. CHANDLER, Af t.”
    
    There were' thirty-seven such certificates, to each of which were attached the number, weight, and marks of the bales purchased.
    II. The Confederate government, being in pressing need of raising large sums of money for the military department and tq, pay debts incurred and incurring, authorized and directed said Scott to sell said cotton, and other cotton purchased by him in like manner. On the 6th of April, 1865, said Scott, in pursuance of said direction, at Mobile,'in Alabama, where he resided and bad his place of business, sold to one O’Grady, who was also a citizen and resident of said Mobile, all of said cotton at the price of one dollar per pound in Confederate States money, and transferred to him said thirty-seven planters’ certificates, with his own certificate attached thereto or indorsed on each in the following form:
    “Confederate States of America,
    “Treasury Department,
    
      “April 6, 1865.
    “This is to certify that the within and above-described cotton has been sold to D. O’Grady,-bales, and. delivery is hereby ordered to be made to him, or his order, with license to export the same from the Confederate States to any neutral port, on complying with the requisitions of the law.
    “Given under my hand and the seal of the treasury department, on the year and day above mentioned.
    “JOHN SCOTT,
    “ Chief AgH Produce-Loan for Ala. & Past Miss.,
    
    “P’r J. G. ULRICH, AgH A
    
    III. On the 6th of March, I860, the President gave to Samuel P. Walker, a citizen and resident of Memphis, Tenn., (whose executors are claimants in this case,) an order, of which the following is a copy:
    “Executive Mansion,
    
      “March 6th, 1865.
    “Whereas Samuel P. Walker, of Memphis, Tenn., claims to own products of the insurrectionary States, near Grenada and Canton, Miss., and Montgomery and Selma, Alabama, and has arrangements with parties in the same vicinities for other products of the insurrectionary States, all which he proposes to sell and deliver to agents authorized to purchase for the United States the products of the insurrectionary States, under the act of Congress of July 2d, 1864, and the regulations of the Secretary of the Treasury, it is ordered that all such products which a purchasing-agent of the Government has agreed to purchase, and the said Walker has stipulated to deliver, as shown by the certificate of the purchasing-agent, authorized by Regulations YIII, Form No, 1, appended to regulations attached hereto by such agent, and being transported, or in store awaiting transportation, for fulfillment of stipulations and in pursu-anee of the regulations of the Secretary of the Treasury, shall be free from seizure, detention, or forfeiture to the United States; and officers of the Army and Kavy and civil officers of the Government will observe this order, and will give the said Walker, his agents, and means of transportation, and products, are free and unmolested passage through the lines, (other said blockade lines,) and safe conduct within the lines while going for or returning with said products, or while said products are in store awaiting transportation for the purposes aforesaid.
    “ABRAHAM LIHCOLK”
    TV. On tlíe 12th of April, 1865, at said Mobile, said Walker purchased of said O’Grady said 3,405 bales of cotton, and took from him a bill of sale of the same, of which the following is a copy, attached to a list specifying the number of bales, weight, and the names of the counties where originally purchased from the planters:
    “ For value received of Sam’l P. Walker, I hereby transfer, sell, and assign the above lots of cotton, amounting to 3,405 bales, without recourse upon me, & the holders thereof will please deliver the same to the said Walker, or his authorized agent.
    “D. O’GRADY.
    ' “April 12th, 1865.”
    At the same time said O’Grady indorsed and delivered said thirty-seven planters’ certificates to said Walker.
    The cotton all remained on the plantations, and the only delivery to Scott, or O’Grady, or Walker, was by the planters’ certificates and the transfers of the same, as herein before set forth.
    V. On the 1st of June, 1865, F. W. Kellogg, who was agent for the purchase of cotton in insurrectionary States, on behalf of the United States, entered into an agreement with said Walker, of which the following is a copy: . .
    “ [Form No. 1.]
    “Mobile, Alabama, June 1st, 1865.
    “I, Francis W. Kellogg, agent for the purchase of cotton of insurrectionary States, on behalf of the Government of the United States, at Mobile, Alabama, do hereby certify that I have agreed tó purchase from Samuel P. Walker, esq., of Memphis, Tennessee, thirty-five hundred hales of cotton, which, it is represented, are, or will be, stored at Green, Pickens, & Marengo Go’s, in State of Ala., & with planters in the counties of Lauderdale, Noxubee, Lowndes, & Monroe, in the State of Mississippi, and' which he stipulates shall be delivered to me, unless prevented from so doing by the authority of the United States.
    “I therefore request safe conduct for the said Samuel P. Walker and his means of transportation, and said cotton, from where it is stored to Mobile, where the cotton so transported is to be sold and delivered to me, under the stipulation referred to above, and pursuant to regulations prescribed by the Secretary of the Treasury.
    “ P. W. KELLOGG,
    “ United States Purchasing-Agent.
    
    “ Notice. — Cotton arriving at Mobile under this permit must, be promptly reported to the United States purchasing-agent.”
    YI. Between the 30fch of June and the 1st of December, 1865, l,922g bales of said cotton were seized on the plantations where they had continued to remain, in the county of Lowndes and in other counties in said State of Mississippi, by Treasury agents appointed by the Secretary of the Treasury to collect cotton which had been sold to the Confederate States, and were sent to New York, sold, and the net proceeds thereof covered into the United States Treasury, amounting to-.
    The following additional facts are found by request of claimants :
    VII. The city of Mobile, Ala., and also the city of Memphis, Tenn., were in the military occupation of the United States on the 12th of April, 1865, and remained so until the close of the war.
    VIII. The county of Lowndes and other counties in the State of Mississippi, where the cotton in question was stored, and where it was subsequently seized by the United States Treasury agents, were not in the military occupancy of the United States on the 12th day of April, 1865, but were held and occupied by the so-called confederates. IX. Mobile was invested by the Federal gun-boats continually from 1862 up to its capture on the 12th day of April, 1865.
    X. The negotiations for the sale of this cotton to O’Grady took place in the early part of the year I860, and the final conveyance delayed until April 6, 1S65, and finally completed on that day, by reason of the ill-health of Scott, and for other reasons.
    XI. It was the custom in making' sales of cotton in that section of the country, (Alabama and Mississippi,) as this cotton was, to transfer the planters’ certificates as if negotiable, and this was the usual and generally the only mode of delivery made or required.
    XII. On the 5th of May, 1865, by the surrender of General Taylor, commanding the Confederate forces in Alabama and Mississippi, the counties in which this cotton was located passed under the military control of Gen. E. E. S. Canby, commanding the United States forces at Mobile, and the United States military authorities seized all the lines of railway and steamboats in that section, and on the 10th of May, 1865, General Oanby issued Order Ho. 39, of which the following is a copy:
    “HEADQUARTERS ARMY AND
    “Division oe West Mississippi,
    “ Mobile, Alabama, May 10th, 1865.
    [General Field-Orders No. 39.]
    “The cotton belonging to the Confederate government in East Louisiana, Mississippi, Alabama, and West Florida having been surrendered to the'Government of the United States, its sale to private individuals, 'or its transfer to any persons, except the officers or agent of that Government, is prohibited. This order applies to all cotton procured by subscriptions to the cotton-loan, by the sale of Confederate bonds or notes, by the tax in kind, or by any other process by which the title was* vested in the Confederate government, whether in the possession of the agents of that government or still in the hands of the producers; and all persons in whose charge it may be will be held accountable for its delivery to the agents of the United States. Commanders of districts will be furnished with a transcript from the records of the cotton-agents, showing the quantity and location of the cotton within the limits of their commands, and will give the agent of the Treasury Department, appointed to receive it, such facilities as may be necessary to enable him to secure it.
    “ Any sales of this property, in violation of this order, will be treated as the embezzlement of public property.
    “By order of Major-General E. R. S. Oanby.
    (Signed) “0. T. CHRISTENSEN,
    “Lt. Colonel, Ass't Adjutant-General.
    
    “By order of Major-General E. R. S. Oanby.
    “0. H. DYER,
    “ Capt., Ass’t Adjutant-General.”
    
    
      Mr. M. S. Carpenter and Mr. John Pool for the claimants:
    We cite the following to show that the parties representing the Confederate government had authority to buy and sell. (1st Gong. Oonfed. States, 1st sess., ch. 61, p. 47.)
    The consideration was ample and .satisfactory. It was an executed contract, the consideration being paid, and the legal title passed. Under the laws of Mississippi, where the cottons-were stored, it was a valid transaction, and passed the complete title. The agreement was in writing. (Mississippi Code, chap. 44, art. 4, p. 359.)
    The Confederate secretary of the treasury was fully empowered to buy and sell, and equally as fully empowered to delegate his authority to agents to do both these things, which he did. These agents were created by force of the same authority,, and also empowered by it. The secretary had but to appoint, and .their authority to buy and sell followed, eo instcmti. They were statutory agents. (Vide the act of the Confederate congress already cited.) The United States, by claiming all the property they had when the surrender occurred, fully recognized, the authority of the Confederate government to acquire and-hold property. If theyamight acquire, they might well sell for a valid consideration, in good faith. But there is more than, this. It was a quasi government or government in fact.
    
    The Supreme Court, in Thorington & Smith, (3 Wall. E., 11,). recognizes and enforces this doctrine.
    The earlier case of Manran v. Insurance Co. (8 Wall. R., 1). is no less pronounced on this subject.
    
      In the case of The United States v. Anderson, (9 Wall., 66.) commenting upon the spirit of Congress in its legislation with respect to the right of the loyal citizen to assert title to his property, Justice Davis says:
    “Its policy was broad and' comprehensive, and embraced within its range all persons who adhered to the Union. It treated all alike, and did not discriminate in favor of the person who could trace his title through a loyal source, and against him when he was not so fortunate.”
    D. O’Grady, being a citizen of the Confederacy, could buy, and his purchase was legal. He paid for the property, and took the written assignment of the title; and he might well claim the possession of the property, and could maintain trover or replevin for it against the world, and more especially the Confederate government and their vendees. Having been made in good faith, in the usual course of business, and not for the purpose of aiding the rebellion, it is valid. (8 Wall., 1.) The sale from O’Grady to Walker was legal. The latter was empowered to buy by the purchasing permits of the President and the Treasury agents. The 8th section of the Act 2d July, 1864 (13 Stat. L., 377) empowers the Secretary, with the approval of the President, “ to authorize agents to purchase for the United States any products of States declared in insurrection at such places therein as he shall designate,” &c., is ample authority to warrant the issuing of permits, and confers the authority on the holder to buy “therein” and sell to the United States any of those products.
    The trade was consummated at Mobile, after the surrender of the city to the United States forces, and hence within our lines. The property was in the State of Mississippi at the time, but the parties were in Mobile. The city was taken possession of by the Federal forces on that day, the rebels having withdrawn their troops the days before.
    The President authorized Walker to bring into Federal lines the property which he controlled, then lying within rebel lines, and others which he expected to control, following the Treasury regulations and the act of Congress of the 2d of July, 1864, in all things. Walker’s purchase covered property within rebel lines, and Kellogg’s agreement was to purchase the same produce. But the purchase was made and consummated within our permanent lines of military occupation. The property was, at the time of the consummation of the purchase, on storage with the planters, and so continued up to some time after the 1st of June 1866. These various steps, being legal, vested the absolute title in Walker.
    He purchased in good faith, under the protection of the President’s permit and the law, the whole transaction being free from the influence of the acts of Congress forbidding trading with the enemy and the decisions of the Supreme Court on that subject. In the absence of the President’s permit and the trade permit of Kellogg the transaction was valid. It was a purchase made within Federal military lines, for a valid consideration,and in good faith. The situs of the property does not control, but the residence of the vendor does.
    Independently of this legislative authority, the general policy of the Government was to secure as many of these products as possible. From the earliest period in the war the power of the legislative and executive departments of the Federal Government was directed to that end. The Act July, 2, 1884, was passed in pursuance of this policy, and the permits of the President, and the agreements to purchase by the Treasury Department, through these purchasing permits, were in affirmance of it.
    These cottons were the property of Mr. Walker, free from all ' claim of the Government, free from any dereliction for violation of any law, and were bought in good faith, under the sanction of law. In seizing them the Government became a wrong-doer, subject to all the consequences which follow such an act. These cottons not being derelict, free from confiscation, held in his own right, it was unlawful to interfere with the right of possession of Walicer, and his free enjoyment of the property under the sanction of law. Congress, in the fifth section of the Act May 18,1872, (17 Stat. L., 134,) directs the Secretary of the Treasury to pay the lawful owners, or their legal representatives, of all cotton seized after the 30th day of June, 1865, unlawfully and in violationof these instructions,” &c. Here is the strong language of the legislature, recognizing the entire justness of this claim, and providing for payment of similar claims, prosecuted and worked out under the provisions and restrictions of that act. It admits and emphasizes the principle we here contend for, viz, that this was an unlawful seizure.
    
      
      Mr. William R. Bradley (with whom was the Assistant Attorney-General) for the defendants:
    The claimant has failed to prove ownership of any cotton of which there may bo net proceeds in the Treasury.
    It is expressly averred that the cotton (3,405 bales) concerning which the claim is made was the property of the Confederate government during the insurrection, and was sold before the surrender to the claimant’s grantor, from whom the purchase is alleged on April 12,1805; and the evidence sustains this deduction of alleged title.
    This transaction was void as against public policy, and no title was thereby acquired by the vendee of said government. (Sjorott’s Case, 20 Wall., 459.) He could therefore give none to the claimant, Walker, who moreover, by the very muniments of his allegetj title, is convicted of full knowledge of the immorality of his venture. (Whitfield’s Case, 92 TJ. S., 171.)
    The transaction as alleged and as appears by the evidence was in violation of the public law and statutes, (Act July 13, 1861, § 5; July 2,1864, § 4,) forbidding commercial transactions with the enemy, and for this reason also the claimants acquired no title that the courts will recognize. It appears that Walker domiciled at Memphis (within the Federal lines) during the rebellion, left that place after March 6, 1865, and proceeded within the Confederate lines, and there carried on operations with parties for the purchase and transfer to him of cotton; and, having made arrangements with said parties in Mobile, he proceeded there, and on April 12,1865, (the day the United States forces took that city,) he perfected the transaction here in question. The unlawfulness of this proceeding and the invalidity of any claim of title based thereon has been adjudged in the following among other cases : Filor’s Case, 3 C. Gis. R., 25 ; Billon’s Case, 5 id., 585; Montgomery’s Case, 5 id., 648; 8 id., 82, (S. C.;) Gur-ley’s Case, 6 id., 289; 9 id., 11, (S. C.;) Cutner’s Case, 6 id., 415; 9 id., 5, (S. C.;) Grossmayer’s Case, 7 id., 129, (S. C.;) Lapene’s Case, 9 id., 31, (S. C.;) MeClellaM’s Case, 10 id., 68, '(S. C.;) Mitchell’s Case, 10 id., 120, (S. C.;) Besmare’s Case, 10 id., 385; 93 U. S., 605; The Ouachita Cotton, 6 Wall., 521.
    The Executive license under which the claimants seek to justify and legalize the transaction cannot avail, it being wholly invalid and unauthorized by law for that purpose, since the repeal by § 9 Act July 2, 1804, of the authority to restore or permit commercial relations vested in the President by § 5 Act July 13,1861, as therein provided.
    By § 8 Act July 2,1864, a qualified commercial intercourse was provided for between the United States by its lawful agents and such persons, being within the hostile lines, who would bring out therefrom products of the insurrectionary districts to designated places, and sell the same to the United States for its benefit on stated terms; but this provision neither repealed nor in any respect modified the existing law prohibiting commercial intercourse between persons across the lines. Under this statute, and the regulations issued in pursuance of it, no purehasing-agentcould lawfully contract with one having thestatus of Walker for the purchase of the products in question; consequently the agreement of Kellogg of J une 1,1865, to purchase 3,500 bales, cannot of itself nor in couj unction with the previous license justify Walker’s violation of law in trading with the enemy, nor give rise to a causa of action against the defendants. (Lane’s Case, 8 Wall., 185, in which the material statutes and regulations are cited; Maddox’s Case, 15 Wall., 58; Noble's Case, 11 K. & H., 608.)
   Richardson, J.,

delivered the opinion of the court:

This action was commenced by petition filed August 17,1867, under the Abandoned or captured property Act, March 12, 1863, (12 Stat. L., 820,) to recover the proceeds of 3,405 bales of cotton, alleged to have' belonged to Samuel P. Walker, the claimants’ testator, when they were seized by an agent of the Treasury Department in Alabama and Mississippi, in 1865, sent to Eew York, sold, and the proceeds covered into the United States Treasury. On the 20th of November, 1876, an amended petition was filed, joining the administrator of Robertson Topp as a party with the executors of the original claimant, Samuel P. Walker, who had died, and setting forth the cause of action in a different form and more in detail. To this latter petition the defendants have filed a plea of the statute of limitations. As to Topp’s administrator the plea becomes immaterial, since the facts found do not show that Topp ever had any interest in the case, and the claimants’ attorney will have leave to strike out his name and claim from the petition, as suggested at the trial might be done in case his interest should not be proved. Walker’s executors are properly admitted as parties.As to the cause of action set forth in the amended petition^ and the allegations therein in support of the same, the claimants’ counsel present them as in the nature of a new count added to the original declaration, or as a bill of particulars more fully specifying the case, and not as introducing a new cause of action. They rest their whole case upon the Abandoned or captured property Act. We so treat the pleadings, and have incorporated into the findings no fact not material under the original petition, and therefore we overrule the plea of limitations.

Of the 3,405 bales claimed as the property of said Walker, 1,922§ bales were, by agents of the Treasury Department appointed to collect cotton belonging to Confederate States within insurrectionary territory, seized as such Confederate cotton between the 30th of June and the 1st of December, 1865, upon the plantations where the same had been raised, in the counties of Roxubee and Monroe, and in other counties in Mississippi, and were sent to Hew York, sold, and the proceeds covered into the Treasury. As the cotton was seized after the 30th of June, 1665, jurisdiction of the claim would have been transferred to the Secretary of the Treasury by the Act May 18, 1872, (17 Stat. L., 134, § 5, chap. 172,) but for the proviso therein excepting claims in cases then pending in this court.

The main point in controversy upon the findings is as to the ownership of the cotton by said Walker, the validity of his title by purchase, or his right to the same as against the United States, and this requires the determination of several important questions of law.

Walker was a citizen and resident of Memphis, Tenn., which was in the military occupation of the forces of the United States, while the whole State was declared to be in insurrection by the President’s proclamations, and so continued to the close of the war. (12 Stat. L., 1262; 13 id., 730.)

On the 6th of March, 1865, the President gave to Walker a written paper, of which the following is a copy:

“ Executive Mansion,
March 6th, 1865.
“ Whereas Samuel P. Walker, of Memphis, Tenn., claims to own products of the insurrectionary States near Drenada and Canton, Miss., and Montgomery and Selma, Alabama, and lias arrangements with parties in the same vicinities for other products of the insurrectionary States, all which he proposes to sell and deliver to agents authorized to purchase for the United States the products of the insurrectionary States, under the act of Congress of July 2d, 1864, and the regulations of the Secretary of the Treasury, it is ordered that all such products which a purchasing-agent of the Government has agreed to purchase, and the said Walker has stipulated to deliver, as shown by the certificate of the purchasing-agent, authorized by Regulations VIII, Form Ho. 1, appended to regulations, attached hereto by such agent, and being transported or in store awaiting transportation for fulfillment of stipulations and in pursuance of the regulations of the Secretary of the Treasury, shall be free from seizure, detention, or forfeiture to the United States ; and officers of the Army and Uavy, and civil officers of the Government, will observe this order, and will give the said Walker, his agents, and means of transportation, and said products, free and unmolested passage through the lines, (other than blockade lines,) and safe-conduct within the lines, while going for or returning with said products, or while said products are in store awaiting transportation for the purposes aforesaid.
(Signed) “ABRAHAM LIHCOLN.”

On the 12th of April, 1866, the day on which Mobile surrendered to the Federal arms, Walker was there and purchased of one O’Grady the 3,406 bales of cotton mentioned in the petition, and took a bill of sale of the same, and received from O’Grady, with his indorsement thereon, thirty-seven bills of sale, commonly called “ planters’ certificates,” given originally to said O’Grady’s vendors, and duly transferred to him. The cotton was first purchased by the Confederate States government of the different planters by whom it was raised, and whose bills of sale or certificates therefor, to the number of thirty-seven, were given to the confederate agent, in each of which the planter acknowledged payment in bonds for the cotton sold b,y him, certified that the same was on his plantation, and agreed “ to take care of said cotton while on his plantation' and to deliver the same at his own expense [at a place named] in the S'ate of Mississippi, to the order of the Secretary of the Treasury or his agent or their assigns.” The cotton was all on plantations within the rebel lines, and was never delivered otherwise than by the certificates and transfers thereof as before stated, and was never in the actual possession of Walker or either of the previous owners, except the planters, who still had the custody of the same up to the time of seizure.

Subsequently, on June 1, 1865, Walker made a contract with E. W. Kellogg, agent of the United States for the purchase of cotton in the insurrectionary States on Government account, to sell to him said 3,405 and other bales of cotton by an agreement of which, the following is a copy:

“Mobile, Alabama, June 1st, 1865.
“ I, Francis W. Kellogg, agent for the purchase of cotton of insurrectionary States, on behalf of the Government of the United States, at Mobile, Alabama, do hereby certify that I have agreed to purchase from Samuel P. Walker, of Memphis, Tennessee, twelve thousand (12,000) bales of cotton, which, it is represented, are or will be stored at Selma, & on the Warrior River, Ala., and with different planters in the counties of Monroe, Lowndes, & Noxubee, in the State of Mississippi, and which he stipulates shall be delivered to me, unless prevented from so doing by the authority of the United States.
“ I therefore request safe-conduct for the said S. P. Walker and his means of transportation and said cotton, from where it is stored to Mobile, where the cotton so transported is to be sold and delivered to me, under the stipulation referred to above, and pursuant to regulations prescribed by the Secretary of the Treasury.
“ P. W. KELLOGG,
United Stañs Purchasing-Agent.
Notice. — Cotton arriving at Mobile under this permit must be promptly reported to the United States purchasing-agent.”

It is maintained on the part of the claimants that the writing given by the President to Walker, on the 6th of March, was a permit or license for him to purchase within hostile territory, from the citizens thereof, the products of insurrectionary States, and so far removed the restrictions of the non-intercourse acts as to him and his purchases. We do not so regard it.

The Act July 13,1861, (12 Stat. L., 257, § 5, chap. 3,) authorized tlie President by proclamation to declare tlie inhabitants of any State, or any section or part thereof, to be in insurrection against the United States, and provided that 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.” The same section also provided “ that the President may, in his discretion, license and permit commercial intercourse with any such part.of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed-by the Secretary of the Treasurjr;” and power was given to the Secretary to appoint officers to carry into effect such licenses. Proclamations declaring what States and parts of States were in insurrection, and the prohibition of commercial intercourse therewith, were issued August 16,1861; May 12, 1862; and April 2, 1863. (12 Stat. L., 1262, 1263; 13 id., 730.) The Secretary of the Treasury made rules and regulations for conducting and carrying on the limited commercial intercourse which the President should license, and the President made and issued executive orders February 28, 1802, and March 31, 1863, giving notice of what intercourse he permitted and licensed. Por copies of orders see Hamilton v. Dillon, (21 Wall., 76, 77.)

On the 2d of July, 1864, by act of that date, (13 Stat. L., 377, § 9, chap. 225,) it was enacted “ that so much of section 5 of the act of July 13, 1861, aforesaid, as authorizes the President, in his discretion, to license or permit commercial relations in any State or section, the inhabitants of which are declared in a state of insurrection, is hereby repealed, except so far as may be necessary to authorize supplying the necessities of loyal persons residing in insurrectionary States, within the lines of actual occupation by the military forces of the United States, as indicated by published order of the com manding general of the department or district so occupied, and also excepting so far as may be necessary to authorize persons residing within such lines to bring or send to market in the loyal States any products which they shall have produced with their own labor, or the labor of freedmen or others employed and paid by them, pursuant to rules relating thereto which may be established under proper authority.” And by section 8 of the same act provisions were made for a new kind of commercial intercourse with the people in insurrection, by which agents were to be appointed by the Secretary of the Treasury, with the approval of the President, to purchase for the United States any products of the in-surrectionary territory, subject to the restrictions therein expressed.

Thus it will be seen that on the 2d of July, 1864, the President’s power to authorize commercial intercourse, and grant permits and license to trade with the insurgents, which had been conferred upon him by Congress, was taken away by statute, andlie had no right thereafter to issue a license to trade to anybody, with the limited exceptions mentioned in the section cited and not material in this case, (6 C. Cls. R., 420,) unless that right belonged to him as commander-in-chief of the Army and the supreme head of executive power.

In England, that right is unquestionably conceded to the sovereign, who, having the power to declare war and peace, may remove, in whole or in part, that incident of war by which the subjects are prohibited from having commercial intercourse with the inhabitants of hostile territory. (1 Ch. Robinson’s Admiralty R., 197.) But by the Constitution of the United States (Const., art. 1, sec. 8) Congress alone can declare war, and any right which is merely incident to that power, and which rests thereon exclusively for authority, would seem not to exist in the President without the consent or against the will of Congress. Nor would it seem to be possessed by the President as Commander-in-Chief of the Army and Navy, except so far as it might be necessary for the maintenance, movement, and supply of the forces under his control, and the military operations by him conducted, since, beyond that, great questions of commercial and political public policy would be involved, more appropriate for determination by Congress than by the Executive.

But it is not necessary to rest this case upon the power or want of power in the President to grant permits or license to trade with the subjects of the enemy, or within hostile territory, because, in our opinion, the writtén paper relied upon by the claimants, given to Walker on the 6th of March, was not a license or permit to trade •, and it is not so expressed and -was not so intended. It begins by reciting that Walker claimed to own products in the insurrectionary States, and had arrangements with parties therein for other such products, and that he proposed to sell the same to agents of the United States authorized to purchase such products for the Government, and then it proceeds to set forth what the President does grant thereby. He orders that all such products which a purchasing-agent has agreed to purchase shall be free from seizure, detention, and forfeiture, and all officers of the Army and Navy, and all civil officers of the Government, are directed to observe this order and give said Walker, his agents, and means of transportation, and said products, free and unmolested passage through the lines, and safe-conduct within the lines, while going for or returning with said products, and while said products are in store awaiting transportation. There are no words of license to trade in the document. It is a mere pass or order, cautiously limited to matters connected with the products which were owned or controlled by Walker, and granted to him nothing but for himself and his products “safe-conduct, unmolested passage, and freedom from seizure, detention, and forfeiture.” It was issued and is drawn up in language strictly with reference to the purchasing of products of insurrectionary States by the agents of the United States, and in aid of that object, and it conferred no authority or benefit which Walker did not have without it under the Act July 2, 1864, (13 Stat. L., 377, .§ 8,) and the regulations of trade made by the Secretary of the Treasury, except as an order and passport from the commander-in-chief, granting to him “free and unmolested passage through the lines and safe-conduct within the liues while going for and returning with said products,” and exemption from seizure of himself and his products.

It does not purport to give Walker a general license to purchase products, and cannot be so construed, even if the President had the power to confer such a privilege upon him. And when the language is read in the light of the important fact that Congress had taken away from the President by statute the power previously conferred upon him of granting licenses to carry on commercial intercourse, it seems conclusive that this document was not intended to and did not authorize commercial intercourse except as provided by the statutes, and that it only recognized Walker’s right to sell to the United States agents the products which he owned, or might control, and assured him protection and safe conduct for the same and for himself. As a passport and order for protection it was within the clear and unquestionable power of the commander-in-chief to grant, and was of great importance and might become of great value to Walker, who was an enemy residing in hostile territory occupied by the Union forces, claiming to own and control property within the lines of the enemy. To such a person, so situated, the order allowing him “free and unmolested passage through the lines, and safe conduct within the lines,” and protection for himself and his products, conferred upon him an exceptional privilege which sufficiently indicates the object and scope of the document, and renders it unnecessary to give to it any further effect in order to carry out the will of the President thus distinctly expressed, and to that extent exercised, within his legal and constitutional authority.

If then the claimants’ testator was not licensed by the order of the President to make the purchase which they rely upon to prove his title to the cotton, it is necessary to determine whether or not he was prohibited by the non-intercourse acts from thus acquiring title to such property so situated as against the United States.

As has been seen, the act of 1861 (12 Stat. L.,-257) prohibited all commercial intercourse between citizens of States and parts of States declared in insurrection by the President’s proclamation and the citizens of the rest of the United States. In July, 1861, the President issued his proclamation (12 Stat. L., 1262) declaring in insurrection the inhabitants of the States of Tennessee, Alabama, Mississippi, and other States, excepting such parts as “may, from time to time, be occupied and controlled by forces of the United States engaged in the dispersion of said insurgents.” By proclamation of April 2,1863, (13 Stat. L., 731,) the President revoked that exception, saving only the ports of Hew Orleans, Key West, Port Royal, and Beaufort, and some counties of Virginia. This left the parts of insurrectionary States occupied and controlled by the Federal forces declared to be in rebellion as the rest of the States to which they belonged. Then followed the act of 1864, (13 Stat. L., 376, chap. 225,) where by section 4 it was enacted as follows: “The prohibition and provisions of the act approved July 13,1861, and of the acts amendatory or supplementary thereto, shall apply to all commercial intercourse by and between persons residing or being within districts within the present or future line of national military occupation in the States or parts of States declared in. insurrection, whether with each other or with persons residing or being within districts declared in insurrection within those lines.”

It has been decided by the Supreme Court that a citizen of that part of an insurrectionary State held and controlled by the military forces of the United States could have commercial intercourse neither with the citizens of the loyal States, (Outner's Case, 17 Wall., 517,) nor with the citizens of disloyal States, outside of the territory so occupied. (Ensley’s Case, 9 C. Cls. R., 12.) The facts now before us present the case of a citizen of one place, occupied by the Union forces within an insurrection-ary State, having commercial intercourse with a citizen of another pl£\ce, held in like manner within another insurrection-ary State, the two places being separated by intervening territory and under the command of different military officers, General Canby at Mobile, and General Thomas at Memphis, and the property purchased being mostly in still another insurrec-tionary State and all within the rebel lines.

At the time of his purchases Walker was a citizen of Memphis, which had been occupied by the Federal forces since June 6, 1862, within the State of Tennessee, which was declared to be in rebellion. O’Grady was a citizen and resident of Mobile, Ala., which was similarly situated. On the very day that Mobile surrendered to the national arms Walker appeared in that place, and concluded his purchase from O’Grady of the large quantity of 3,405 bales of cotton on plantations in Alabama and Mississippi. The purchase and sale of property between such persons, so situated, and under such circumstances, would seem to be clearly prohibited by the Act July 13, 1861, (12 Stat. L., 257, § 5,) as amended and affected by the Act July 2,1864, (13 Stat. L., 376, 377, §§ 4-9,) and so rendered void' thereby as against the United States, according to the decisions of this court and of the Supreme Court heretofore rendered. Walker, being a •citizen of Memphis, could gain no rights of general commercial intercourse with the citizens of Mobile by going there with the Army when that city surrendered, or by remaining if he were there before the surrender. His rights depended upon the place of his domicile. (Desmare's Case, 10 C. Cls. R., 385; 93 U. S. R., 605.)

It appears to have been the policy of the law to shut out from general commercial intercourse with everybody the inhabitants of sections of insurrectionary territory occupied by the United States armies in the field; and the citizens of the different isolated sections so held did not, on account of being similarly situated, have a right to pass over intervening territory and trade with each other in places and States in which they did not reside. If they had possessed such right, they would have been privileged above all other citizens of both loyal and disloyal territory. The prohibition of commercial intercourse by •citizens of the occupied places applied to trade “ whether with •each other or with persons residing or being within districts declared in insurrection within those lines.”

The circumstances under which Walker made his purchase do not aid in rendering valid his title. It was consummated ou the very day Mobile fell into Federal power; when the hostile armies were exhausted and severely pressed on all sides; when the confederacy as an armed power was crumbling in pieces, and the territory within which the cotton was stored was about to be surrendered, and in less than a month, on the 5th of May, 1885, was surrendered to the Union Army. The transaction was purely a speculative one, not authorized nor encouraged even under the statute and regulations for the purchase of the products of insurrectionary States by the Rational Government through its authorized agents.

The claimants’ case is not altered by the fact that on the 1st of June, 1865, he entered into a written agreement with a Treasury agent to sell the cotton to the United States. If his title was not valid against the "United States the act of the piir-chasing-agent would not bind the Government to pay for what it had a better title to itself. He had no authority to waive any rights of the United States, and the proceedings authorized for the purpose of obtaining from the producers themselves the products of insurrectionary territory could not be used to cover a defective title, or aid a speculative transaction, or deprive the United States of their legal rights of conquest.

It has been said by the Supreme Court, “ Neither was the law nor were the regulations through which it was administered designed to protect a speculation wherein the products contracted to be sold were to be procured by contractors within the rebel lines after the contract was made. Besides this, we decided that private citizens were prohibited from trading at all in the insurrectionary districts; that the object of the law and the regulations made to carry it into effect was to encourage the insurgents themselves to bring their products to us.” (Maddox v. United States, 15 Wall., 62; United States v. Lane, 8 id., 185.)

It would be a clear evasion of the law to allow cotton purchased as this was by Walker to be sold to the United States through an agent appointed to encourage the insurgents themselves to bring in their own products for sale to the United States.

If we go behind the claimant Walker’s purchase, we shall find the title of his vendor also tainted with a fatal defect, of which Walker had notice, and subject to which he bought the cotton. O’Grady, who sold to Walker, purchased directly of the Confederate States, through an agent of that de facto government, who was authorized and directed to make sale of this and other cotton to raise money for the pressing needs of the armies in the field and to meet its other obligations, and who received payment at a dollar a pound in Confederate notes.. And this purchase was made at Mobile only five days before the rebels evacuated that city, and six days before it surrendered to the Union forces. The cotton was sold to aid the rebellion, by supplying the government with means to continue resistance to the national armies.

By the decision in Sprott’s Case, such a purchase was void as against the United States. (Sprott v. The United States, 20 Wall., 459.) That case and this cannot be distinguished in principle. Sprott was a citizen and resident of Mississippi, within the Confederate lines, and there purchased his cotton of an agent of the Confederate States, and paid for it in the currency of the United States. The only difference between the two cases is, that in Sprott’s case payment was made in United States currency, and in this case it was made in Confederate notes. These notes were of value to the Confederacy at that time, and they constituted tlie only currency througli which the rebel government conducted its domestic purchases, paid its officers and soldiers, and supported its armies in hostile resistance. To furnish that government with Confederate notes was aiding the rebellion as much as to furnish it with United States currency, the difference being only in the value of the money, and the difference in value was made up for by difference in quantity. In Sprott’s case the cotton sold for 10 cents a pound in United States currency, and in this case for SI a pound in Confederate notes.

If this purchase by O’Grady was void as against the United States, the purchase from him by Walker was equally void, for Walker knew the title of O’Grady, and took the same tainted with.all its illegality and defects. He not only took a bill of sale of the cotton without recourse to O’Grady, but he received from him the37 original planters’ certificates, receipts, and agreements, by which it appeared that the planters sold to the Confederacy and agreed to take care of the cotton and deliver it to the order of the secretary of the rebel treasury, or his agents or their assigns, to each of which the rebel cotton-agent attached a transfer under his hand and official title, with directions to the planters to deliver the cotton to O’Grady or his order, and accompanied by a license to export the same from the Confederate States. And these planters’ certificates, with the rebel agent’s transfer and license to export, were all indorsed by O’Grady and passed over to Walker at the time of purchase by him. They constituted more than notice to him of the illegality of the purchase by O’Grady as against the United States; they were the muniments of his title, and contained his authority to take possession of the cotton and remove it beyond the rebel lines, an authority granted by the Confederate government, and resting upon that power alone for its validity. Without these • certificates and orders and license Walker would have no claim even to the possession of the cotton while the Confederates held control of the territory, and he never did, in fact, obtain possession, because the rebel power was soon afterward forever broken and destroyed, and the officers of the United States, its conquerors, seized the cotton by right of conquest before Walker reached it to assert his title; and if to the Union military officers he had asserted title thereto, through the fallen power and the order of that hostile organization, it would have merited and'rightly received no more respect than is given by the courts of the Union to the contracts and orders of the rebel government, when their execution would be to the injury of the United States.

Walker’s title and right of possession, as against the United States, were trebly defective ; first, in his own purchase in violation of the non-intercourse acts; second, in the illegal purchase by O’Grady from the enemies of the Union in hostile organization, of which he had notice; and, third, in being himself obliged to claim through transfers, orders, and licenses from that hostile organization.

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, destroys every contract, makes void every purchase, and bars every claim into which.it enters. (Whitfield v. The United States, 92 U. S. R., 170, 171.)

The judgment of the court is that the petition be dismissed.

LobinGt, J., although absent at the time of entering judgment, was present at the trial of this case, took part in the decision, has read this opinion, and concurs in the conclusions.

Pecic, J., was of the opinion that the claimant should recover. 
      
       And 10 C. Cls. R., 78.
     
      
       9 C. Cls. R., 4.
     
      
       Ante, p. 26.
     
      
       C. Cls., R. 70.
     
      
       7 id., 97.
     
      
       10 id., 1.
     
      
       11 C. Cls., R. 444.
     