Department of the Treasury (and not, say, of war), expected them to concern, and to create revenue; and the Act of July 2, 1864, is only in furtherance of the same policy.

Mr. Justice Bradley delivered the opinion of the court: This was an action of assumpsit, brought by the plaintiffs in error against the defendant in error, to recover a charge of bonus of four cents per pound paid by the plaintiffs to the defendant as Surveyor of the Port of Nashville, Tennessee, from August, 1863, to July, 1864, for permits to purchase and ship to the loyal States certain lots of cotton amounting to over seven million pounds. This payment was one of the fees or charges required by the regulations of the Treasury Department, to be made as a condition of carrying on the said trade setween those portions of the insurrectionary States within the lines of occupation of the Union forces and the loyal States.

This is the fee or charge which was paid for the permit to purchase and transport the cotton in question, and which is sought to be recovered.

The plaintiff's insisted and requested the court to charge substantially as follows: that this exaction was illegal and void; that [*81 it was essentially a tax and not authorized by any Act of Congress, which alone has the power to impose taxes; that even if it were authorized by law, the law itself was to that extent unconstitutional and void, and that, under the cercumstances and state of facts agreed upon by the parties, the payment was involuntary and no protest was necessary to entitle the plaintiffs to recover back the money thus illegally exacted. The court refused to charge as requested by the plaintiffs, but charged as follows: First. That the Act of July 13, 1861, entitled "An Act Further to Provide for the Collection of Duties on Imports and for Other Purposes," conferred power upon the Secretary of the Treasury to authorize the exaction mentioned in said plaintiffs' declaration.

By the bill of exceptions it appears to have been admitted on the trial that the defendant was acting Surveyor of Customs at Nashville during the period in question, and was the only person that could grant the necessary permits, and that the plaintiffs had in their possession as owners or factors, various lots of cotton specified in the bill of exceptions, which had been purchased in pursuance of the license of the President and the regulations of the Secretary of the Treasury in that regard; that they applied to the defendant for permits to ship and transport said cotton from Nashville to a loyal State, and that the defendant, in obedience to said regulations and instructions, refused to grant such permits except on payment of the four cents per pound. It is also admitted that the regulations were well and publicly known at Nashville, and directed seizure and confiscation of all cotton shipped without such pay-ness of these propositions. 79*] ment and permit, and that the "plaintiffs made no formal protest against the pay ment of the charge, but paid the same; and that the same was paid by the defendant into the Treasury of the United States before the commencement of this action. It was also admitted that, during said period, Nashville was within the lines of military occupation of the United

Second. That whether said Act of July 13, 1861, conferred such power or not, the action of the Secretary of the Treasury in imposing, and of the defendant in making said exactions, was ratified and made valid by the Act of July 2, 1864, entitled "An Act in Addition to the Several Acts Concerning Commercial Intercourse between Loyal and Insurrectionary States, and to Provide for the Collection of Captured and Abandoned Property and the Prevention of Frauds in States Declared in Insurrection."

States.

Third. That plaintiffs could not maintain action to recover back said exactions, even if they had been illegal for want of having protested against them at the time of payment.

To this charge exceptions were taken, and we are called upon to decide as to the correct

That war was itself the opposing sections of the country. No cotton a suspension of commercial intercourse between or other merchandise could be lawfully purchased in the insurrectionary States and transported to the loyal States without the consent of the government. If such a course of dealing were to be permitted at all, it would necessarily such conditions as the government chose to prescribe. The war power vested in the government implied all this without any specific mention of it in the Constitution.

requiring the *payment of four cents per [*87 There can be no question that the condition pound for a permit to purchase cotton in, and transport it from, the insurrectionary States during the late civil war, was competent to the war power of the United States Government to The govimpose. The war was a public one. ernment in prosecuting it had at least all the The plaintiffs then put in evidence the treas-rights which any belligerent power has when ury regulations in force at the time of the ship- prosecuting a public war. ment of the cotton in question. These regulations prohibited the transportation of goods or merchandise to or 'from any State or part of a State in insurrection, except under permits, certificates and clearances as provided therein; and the Surveyors of the Customs at Nashville and other places were designated as the officers to grant such permits. Authority to purchase and transport goods was to be granted only to those who should make the prescribed affidavits and enter into bond to pay all fees required by the regulations; and no permit was to be granted for such purchase and transportation, except upon the payment of such fees or the giving of a bond to secure the same. The fee referred to and appended to the regulations and making part thereof, consisted of various items and charges to be paid, and among others "ror each permit to purchase cotton in an insurrectionary district and to transport the same to a loval State, per pound, four cents."

be

upon

In England this power to remit the restrictions on commercial intercourse with a hostile nation is exercised by the Crown. Lord Stowell says: "By the law and Constitution of this country, the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing a state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspen

requiring a full compliance with the regulations adopted by the Secretary of the Treasury, between whom and the President, as would be supposed, there was entire harmony and even unity of action.

to take it out of the rule as to voluntary payments. In our judgment, therefore, the defense in this case might have rested on this ground alone.

But we are also of opinion that the conditions imposed were authorized by the Act of July 13, 1861. Its language has been already quoted. The material part in reference to the question under discussion is the proviso of section 3, which is as follows: "The President may, in his discretion, license and permit commercial intercourse 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 shall be conducted, and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury."

The question then comes to this: under the supposed authority of the Act of July 13, 1861, the President and Secretary of the Treasury authorized and licensed cotton to be purchased in and transported from insurrectionary districts, on condition that the parties availing themselves of the license should pay to the government four cents per pound and all other fees. 91*] If we might offer a conjecture as to the motive for this regulation, it may have been this, namely: that such a bonus would help to counterbalance, in favor of our government, any benefit which the enemy might derive from a sale of the cotton instead of its destruction. But the actual motive is not material. The It is contended that the imposition of the government chose to impose this condition. It bonus of four cents per pound was not a "rule" supposed it had a right to do so. No one was or a "regulation" within the fair meaning of bound to accept it. No one was compelled to the Act; and it is conceded that in many cases engage in the trade. Not the least compulsion the power to make rules and regulations on a was exercised. The plaintiffs endeavor to put particular subject is a limited power, having the case as if they were obliged to pay this respect to mode and form, and time and circumexaction to save their property. This is not stance, and not to substance. But it must also a true view of it. It is admitted that the be conceded that in other cases the power is property was purchased under the license. If much more extensive and substantial. Thus, so it was also purchased in view of the regu- in the Constitution, the several powers "to lations to which the license referred. The regu-regulate commerce," "to establish a uniform lations themselves show that the permit to rule of naturalization," "to make all needful purchase and the permit to export were correla- | rules and regulations respecting the territory or tive to each other; that no one was permitted other property belonging to the United States," to purchase who did not enter into bond to are understood to give plenary control over pay all fees required by the regulations, those subjects. The power to regulate commerce amongst which the charge of four cents per has been held to include the power to suspend pound on cotton was expressly inserted. In *it (1 Kent, Com., 432), and the power [*93 short, the permit to purchase and export conto make rules and regulations respecting the stituted substantially one permit, and that was granted only on the condition of paying territory of the United States, has been held to include the power to legislate for and govern the prescribed fees, as before stated. The clearance of particular lots or cargoes resuch territory and establish governments therein. quired afterwards, when the property was acMcCulloch v. Md., 4 Wheat., 422; Story, tually shipped, was necessary to show that the Const., § 1328. The extensive effect given to stipulated conditions had been complied with, these clauses is undoubtedly largely due to the and that the particular articles specified were character of the instrument and that of the free for transportation. The whole series of donee of the powers, to wit: the Legislature of acts constituted, so far as the right to trade and the United States, to whom the grant of a powtransport was concerned, but one transaction; er means the grant of a branch of sovereignty. a conditional permission given on the part of It shows, however, that the rule of construction the government, and the acceptance of and depends, at least in some sort, upon the nature compliance with that condition on the part of of the subject-matter. In the case before us, the the trader. Power of the government to open and regulate

ferred upon the President and the Secretary of the Treasury. The power of regulation in such a case is to be taken in its broadest sense and, in our judgment, included the power to impose such conditions as the President and Secretary should see fit.

The position in which the plaintiffs put them-tade with the enemy was intended to be conselves, therefore, was an entirely voluntary one. They have no right now to say: "It is true we purchased the cotton under a license which required us to pay a certain bonus: but having purchased it, we were entitled to repudiate the condition, although we had no right to make the purchase except by virtue of the license." 92*] Much less have they now a right to say, after having complied with the condition without murmur or objection, that the bonus was extorted from them by compulsion.

Whether, therefore, the President and Secretary of the Treasury did or did not rightly judge as to their powers under the Act, the plaintiffs evidently agreed with them and voluntarily applied for permission to engage in the trade on the conditions imposed, and voluntar ily paid the bonus which is now sought to be recovered back. The case does not come within any class of cases on which the plaintiffs rely

The statutes relating to the internal revenue, passed July 1, 1862, and March 7, 1864, which have been referred to for the purpose of showing that Congress imposed a special tax upon cotton and, therefore, could not have intended by the Act of 1861 to sanction the regulations of the Treasury now in question, do not, in our The Act of 1862 judgment, have that effect. imposed a tax of a half a cent per pound on all cotton, to be paid before its removal from the place of production. The same Act and section imposed various taxes on a hundred other articles. The question is: did Congress intend, by the imposition of these taxes, to revoke, by im

especially as the insurrection was supported by state organizations and the actual state authorities. Thenceforth the war became a well defined territorial war, and was in great measure conducted as such. The further provision of the Act, that all commercial intercourse with the insurrectionary districts should cease "so long as such condition of hostility shall continue," could not be construed as allowing such intercourse to be resumed by individuals at will, as fast and as far as our armies succeeded in oc

hostility" remained impressed upon the insurrectionary districts until it was authoritatively removed by the Proclamation of the President at the close of the war.

plication, any power given to the Executive Department of imposing such regulations as it might see fit for the carrying on of trade with insurrectionary districts? We answer, certainly not. The two subjects were entirely distinct. No conflict or repugnancy could arise in relation thereto. When, in March, 1863, the President issued his license to trade in cotton and other articles in the insurrectionary districts, under and subject to the conditions contained 94*] in the regulations *adopted by the Secretary of the Treasury, his action was not incon-cupying insurgent territory. The "condition of sistent with or repugnant to the internal revenue law passed the year before. It had nothing to do with that law or the subject matter of it. The conditions exacted by him were not imposed in the exercise of the taxing power, but of the war power of the government. The exac tion itself was not properly a tax, but a bonus required as a condition precedent for engaging in the trade. Whether, when the condition was fulfilled, the cotton became subject to the internal revenue law, is a question we are not called upon to decide. There was no inconsistency between the regulations and the law any more than there is between a license tax for carrying on a particular trade and the excise imposed on the products of that trade. The Act of March 7, 1864, raised the internal revenue tax on cotton to two cents a pound where no duty had already been levied, paid or collected thereon. Neither does this Act present any inconsistency with the regulations in question. If it refers to them at all (when speaking of duties already paid) it contains an implied recognition of them. If it does not refer to them, it does not contravene them.

The position that Nashville, being within the National lines, was not hostile territory in 1863 and 1864 and, therefore, not within the prohibition of commercial intercourse contained in the Act of 1861, is not tenable. The State of Tennessee was named in the President's Proclamation as one of the States in insurrection; and, as we have seen, the exceptions made in his first Proclamation in favor of maintaining commercial intercourse with parts of such States remaining loyal, or occupied by the forces of the United States, were abrogated by the Proclamation of April 2d, 1863, except as to West Virginia and certain specified ports. There was nothing in this action of the President repugnant to or not in 'conformity with the Act of 1861. "This revocation," as remarked by this court in the case of The Venice, 2 Wall., 278, 17 L. ed., 868, “merely brought all 95*] parts of the insurgent States under the special licensing power of the President, conferred by the Act of July 13, 1861." The Act gave the President power, where a State or part of a State remained irreclaimable, to declare that the inhabitants of such State, or any section or part thereof where such insurrection existed, were in a state of insurrection. This power clearly gave the President a discretion to declare an entire State, where the insurrection was persisted in, or only a hostile district therein, in a state of insurrection. Finding the attempt to dscriminate between the different parts of a State (except in peculiar cases) impracticable, he abandoned the attempt, and declared the entire States in a state of insurrection. He clearly had authority so to do, more

This view of the meaning of the Act of 1861 is corroborated by the Act of March 12, 1863, respecting abandoned and captured property. On the first of July, 1862, the President had issued a Proclamation declaring what States and parts of States were in insurrection, with a view to the provisions of the Act imposing a land tax, and made no execption of any fractions of States, except the counties constituting West Virginia. Expressly referring to this Proclamation, Congress, in the 4th section of the Act referred to, enacted "That all property coming into any of the United States not declared in insurrection as aforesaid, from any of the States declared in insurrection, through or by any other person than any agent *duly appointed under the provisions of [*96 this Act, or under a lawful clearance by the proper officer of the Treasury Department, shall be confiscated." Act of March 12, 1863, 12 Stat. at L., 820, sec. 4. This is a clear recognition, on the part of Congress, of the President's demarcation of insurrectionary territory. It is also a recognition of the treasury regulations as to intercourse with that territory—not, perhaps, of any specific regulations, but of the applicability of such regulations to all portions of insurrectionary territory, whether under occupation of the Union forces or not.

But it is unnecessary to pursue this subject. We have frequently held that the civil war affected the status of the entire territory of the States declared to be in insurrection, except as modified by Declaratory Acts of Congress or Proclamations of the President; and nothing but the apparent earnestness with which the point has been urged, would have led to a further discussion of the point. See, Mrs. Alexander's Cotton, 2 Wall., 404, 17 L. ed., 915; Coppell v. Hall, 7 Wall., 542, 19 L. ed., 244; McKee v. U. S. 8 Wall. 163, 19 L. ed., 329, and numerous other cases.

We are also of opinion that the Act of July 2d, 1864, 13 Stat. at L., 375, recognized and confirmed the regulations in question. It is sufficient to quote a portion of the 3d section to evince the correctness of this conclusion. It enacts as follows: "That all moneys arising from the leasing of abandoned lands, houses and tenements, or from sales of captured and abandoned property collected and sold in pursuance of said Act or of this Act, or from fees collected under the rules and regulations made by the Secretary of the Treasury and approved by the President, dated respectively the 28th of August, 1862, 31st of March and 11th of September, 1863, or under any amendments or