1. The Act of July 13, 1861, "to provide
for the collection
of duties on imports, and for other purposes," and which by
one section, on a proclamation by the President, makes intercourse
between citizens of those parts of the United States in
insurrection against its government with citizens of the rest of
the United States unlawful "so long as such condition of
hostilities should continue" was not a temporary act, though passed
during the late rebellion; nor on the cessation of hostilities did
forfeitures, which had been incurred, after proclamation, under
that section, cease to be capable of enforcement.
2. The Act of 13 February, 1862, by which a sum of money was
appropriated
"for the purchase of cotton seed, under the superintendence of
the Secretary of the Interior, for general distribution, provided
that the said cotton shall be purchased from places where cotton is
grown as far north as practicable,"
did not give power to the Secretary of the Interior to authorize
an agent to transport merchandise to any district where the seed
was to be got, such district having been then declared by
proclamation, authorized by Congress, to be in a state of
insurrection against the authority of the United States, and all
intercourse with it prohibited, except where the President, in
his discretion, might allow it in pursuance of rules
prescribed by the Secretary of the
Treasury.
3. Nor was a letter from the Secretary of the Interior to a
person, which by its terms did no more than authorize and appoint
him to "procure" a cargo of such seed
"in" a prohibited or
partially prohibited district (Virginia), and to "bring
it
to" a place not prohibited (Baltimore), eyen in its terms,
such a license.
On the 13th July, 1861, Congress passed "An act further to
provide for the collection of duties on imports, and for other
purposes." The late rebellion was in its rise at this time, but the
act did not refer to it, nor was its operation declared, in any
part of it, to be temporary.
By the 5th section it was enacted that
"whenever" the
militia called forth by the President had failed to disperse
insurgents in any state against the national authority, it should
be lawful for the President, by proclamation, to declare that the
inhabitants of such state, or part of a state, were in "a state of
insurrection against the United States;" and thereupon the statute
proceeded,
"All commercial intercourse by and between the same and the
citizens thereof, and the citizens of the rest of the United
Page 70 U. S. 618
States, shall cease and be unlawful
so long as such
condition of hostility shall continue, and all goods and
chattels, wares and merchandise, coming from said state or section
into the other parts of the United States, and all proceeding to
such state or section by land or water, shall, together with the
vessel or vehicle conveying the same or conveying persons to or
from such state or section be
forfeited to the United
States. [
Footnote 1]"
The act contained, however, this proviso:
"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 a 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 Treasury."
Soon after the passage of this act, to-wit, on the 16th of
August, 1861, President Lincoln made such proclamation as the act
itself authorized, [
Footnote 2]
declaring that the inhabitants of several states, which he named,
including Virginia,
"except the inhabitants of that part of it lying west of the
Alleghany Mountains and of such other parts of that state and the
other states hereinbefore named as may maintain a lawful adhesion
to the Union and the Constitution or
may be from time to time
occupied and controlled by forces of the United States engaged in
the dispersion of such insurgents,"
"Are in a state of insurrection against the United States, and
that all commercial intercourse between the same and the
inhabitants thereof, with the exceptions aforesaid, and the
citizens of other states and other parts of the United States is
unlawful, and will remain unlawful until such insurrection shall
cease or has been suppressed;
that all goods and chattels,
wares and merchandise coming from any of said states,
with
the exceptions aforesaid, into other parts of the United
States without the special license and permission of the President,
through the Secretary of the Treasury, or
proceeding
to any of said states, with the exceptions
Page 70 U. S. 619
aforesaid, by land or water,
together with the vessel
or vehicle conveying the same, or conveying persons to or from said
states, with said exceptions, will be
forfeited to the United
States."
From an early date of the insurrection, certain persons in the
loyal states were desirous, it seemed, to get cotton seed from the
South. And some of the executive departments to which these persons
addressed themselves with a view of seeing how far northward this
national staple could be profitably cultivated had listened, it
appeared, on particular occasions, with favor to the idea. The
Treasury was apparently deterred, however, from giving much
cooperation to any project of the sort from its unwillingness to
grant either passes or requests for passes the effect of which
might be to violate the blockade by which the government was then
vigorously affecting the rebellious ports, and in January, 1862, an
authority, not long previously granted by the then Secretary of the
Treasury, upon the recommendation of high military persons, to one
Smith was on this account by him revoked.
Congress, however, a short time afterwards, to-wit, on the 13th
of February, 1862, passed:
"
An act making an appropriation for the purchase of cotton
seed for general distribution."
"Be it enacted &c., that there be and is hereby
appropriated, out of any money in the Treasury not otherwise
appropriated, the sum of $3,000 for the purchase of cotton seed,
and $1,000 for the purchase of tobacco seed, under the
superintendence of the Secretary of
the Interior, for
general distribution; provided that the said cotton seed shall be
purchased from places where cotton is grown as far north as
practicable."
Among the persons who wished to enter into this business of
getting cotton seed was Mr. William L. Hodge of Washington City. On
the 7th of March, 1862 --
after the passage of the
above-quoted act of Congress -- he obtained from the Secretary of
the Treasury a license
"to employ a vessel to carry cotton seed from any point on the
waters of Virginia emptying into the Chesapeake Bay to the port of
Baltimore,
Page 70 U. S. 620
provided that he, the said William, shall first execute
a bond, with one or more sureties, to be approved by the Solicitor
of the Treasury, in the penal sum of $20,000 conditioned that the
vessel so employed shall
not transport to or from Baltimore or
Virginia, any goods, wares, or merchandise, or supplies other than
those actually required for the use of the crew thereof for one
trip,"
and with a further proviso, among some others, "that one-half of
the cotton seed so obtained shall be furnished to the Secretary of
the Interior at the cost thereof."
Of this license for some reason Mr. Hodge never availed himself.
He gave no bond, and the document remained a dead letter. He did,
however, procure on the next day after the date of this license a
letter in these words from the Secretary of the Interior:
"DEPARTMENT OF THE INTERIOR"
"March 8, 1862"
"SIR: Congress having authorized this department to procure
[
Footnote 3] cotton seed for
planting in the loyal states, I hereby authorize and appoint you to
procure a cargo of the same in Virginia and bring it to
Baltimore &c."
"This letter will be your authority
to procure said
seed, and all parties in employ of the United States are
respectfully requested to allow you to pass freely for said
purpose."
"I am &c.,"
"C.B. SMITH, Secretary"
"W. L. HODGE, Esq.,"
"Washington City, D.C."
The Secretary of the Navy some time afterwards thus endorsed
this letter:
"NAVY DEPARTMENT"
"April 25, 1862"
"Naval officers in command of ships of war will respect the
enclosed and will afford protection in waters under their control
and jurisdiction inside the capes of Chesapeake Bay."
"G. WELLS"
Page 70 U. S. 621
In possession of the letter of the Secretary of the Interior
thus endorsed, Mr. Hodge entered into a contract with one Penniman,
who it seemed had been associated in the former enterprise of
Smith, to supply the Secretary with "cotton seed under the recent
act of Congress." In pursuance of this agreement, Penniman loaded
first a vessel called the
Hunter, with which he went into
prohibited districts, but brought back no cotton seed, though he
got some tobacco. He then loaded
The Reform, a schooner of
fifty-seven tons, at Baltimore, with a cargo of a miscellaneous
kind, well suited to a blockaded region -- several considerable
items of which it was alleged were not on the manifest, though this
document was sworn to as true. With this
cargo, the
Reform cleared for Alexandria, a lawful port, and then
set sail for Urbanna, in the Eastern District of Virginia,
a district then in insurrection against the United States and so
proclaimed by the President to be. [
Footnote 4] Before the vessel had got far she was seized
by the revenue officers, brought back and libeled for forfeiture in
the district court for Maryland.
The libel set forth the act of 1861, the President's
proclamation under it, and that this vessel was in the act of going
to a prohibited district.
The answer which was put in by the claimant of the vessel, one
Bailey, and by Penniman, owner of the cargo, admitted in the main
these allegations, defending by matter in avoidance chiefly. It
gave very interestingly a narrative of the project to get cotton
seed in the welfare of the country by different persons; of Smith
and Penniman's failure; alleging various confidential interviews
with officers of the government, military, naval, and civil; that
secrecy was understood by all to be a matter indispensable
to success; and also a diversion of public attention from what was
really doing; and this -- along with the fact that the respondents
were informed at the Treasury when Smith's license was revoked,
Page 70 U. S. 622
that it was revoked because too much publicity had been given to
his intention, and for no other reason -- was assigned as the cause
for the clearance to one port while the real destination was to
another, a matter which it was said the military commander of the
region, General Dix, was perfectly apprised of, though of course
others generally were not; that at the time of the passage of the
act of 1862, no part whatever of the cotton growing country was
occupied by forces of the United States; that the act, by its
express terms, contemplated a purchase from places as far north as
the staple grew; and that the point to which the voyage was
directed, Urbanna, did answer and was the only place that did
satisfy the requisitions by the act prescribed. A cargo was taken
aboard, it was said, because the only currency at this time common
to the northern and southern portions of the United States was
gold, and because -- there having been a universal suspension of
specie payments with an establishment of paper as a legal tender
for almost everything -- gold was an article of commerce as much as
anything else, and specially dangerous from its now sudden
mutations in market value to deal in at all; that it was necessary
to take
something which could be advantageously exchanged
for cotton seed; that the respondent, Penniman, selected such
articles as he supposed would best effect the object of obtaining
such seed. And the answer submitted that if the sending of such a
mission into Virginia by the Secretary of the Interior under the
authority of Congress was a lawful act, the enterprise had not
become unlawful, and the goods intended to be used therein
forfeited, because of a difference of opinion as to the details of
the execution of such mission between the officers of the customs
and the messenger of the government. The most that could be done
was to reform such mission according to what might be determined to
be its true object and scope, and not to impose a forfeiture for a
mistake in construction of an act of Congress, especially in a
matter where secrecy was of the essence and where the want of means
to have full and clear understandings was so conspicuous.
Page 70 U. S. 623
The district court dismissed the libel; and its decree was
confirmed on appeal to the circuit court. The case was now here for
review on appeal by the United States.
Between the time when the proceeding in the district court was
begun and that when the case came here to be heard on appeal, the
insurrection, in vigor when the libel was filed, had been in effect
suppressed. The rebel armies had everywhere surrendered. The civil
head of it was a prisoner of the United States in one of its
fortresses, and the whole insurrectionary combination was scattered
and destroyed. Military forces were, however, still kept in parts
of the rebellious region. The ancient order of things was not in
all matters renewed. From the states lately in rebellion members
were not yet received in Congress.
Page 70 U. S. 628
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Cause of seizure, as alleged in the libel of information, was
that the vessel with her cargo was, on the seventh day of May,
1862, proceeding from the port of Baltimore on a voyage to that
part of the State of Virginia which was in insurrection against the
United States and which had been so proclaimed to be by the
President of the United States. Allegations of the libel, so far as
the charge is concerned, are founded upon the provisions of the 5th
section of the act of the thirteenth of July, 1861, which, under
certain conditions, conferred authority upon the President to
declare by proclamation that the inhabitants of a state or part of
a state falling within the category therein described were in a
state of insurrection against the United States. Whenever a state
or part of a state was so proclaimed to be in a state of
insurrection, the provision was that thereupon all commercial
intercourse by and between the same and the citizens thereof and
the rest of the United States should cease and be unlawful so long
as such condition of hostility should continue. Purpose of the
section was in case of such insurrection not only to interdict
commercial intercourse, but to enforce the prohibition by
forfeiture. Provision was accordingly made that all goods and
chattels, wares and merchandise coming from said state or section
into the other parts of the United States, and all proceeding to
such state or section by land or water, should, together with the
vessel or vehicle conveying the same or conveying persons to or
from such state or section, be forfeited to the United States.
Defense of the vessel and cargo is placed upon the same ground, and
therefore it will not be necessary to give the respective claims a
separate examination.
Decree of the district court discharged the vessel and cargo and
dismissed the libel, and the circuit court, on
Page 70 U. S. 629
appeal, affirmed the decree. Libellants appealed to this Court,
and they now insist that the decree of the circuit court should be
reversed because, as they contend, the vessel and cargo are both
justly forfeited as alleged in the libel of information.
1. Before considering the merits of the controversy, however, it
becomes necessary to examine the motion filed by the respondents to
dismiss the appeal, which presents a preliminary question and
consequently should be first decided. Theory of the respondents is
that commercial intercourse with the states lately in insurrection
is no longer unlawful, and inasmuch as there is no reservation in
any act of Congress nor in any proclamation of the President
whereby a liability for former violations of the law is continued
and preserved, no condemnation of the vessel or cargo can now take
place, and that the appeal ought to be dismissed. They contend that
the act of Congress was a temporary act because the restrictions
upon commercial intercourse, as therein declared, were limited in
duration by the terms of the act to the existence and continuance
of actual hostilities, and the argument is that hostilities having
ceased, the act has expired, and consequently that the appeal
cannot be sustained.
Respondents are correct in supposing that a forfeiture incurred
under a penal statute temporary in its terms cannot be enforced
after the statute has expired, and that the repeal of a penal
statute has the same effect, unless the repealing law contains a
saving clause as to pending prosecutions. Many authorities were
cited in support of these propositions, but it does not seem to be
necessary to give them much examination, as the propositions are
elementary and undeniable. Granting all this, however, still it is
quite evident that the motion cannot prevail, because the act of
Congress under consideration was not a temporary act, as assumed by
the respondents, nor has it ever been repealed. On the contrary, it
is a general law without any limitation as to its duration, and is
still in full force for the recovery of penalties or for the
enforcement of forfeitures incurred during
Page 70 U. S. 630
the insurrection and before the termination of hostilities.
Restrictions upon commercial intercourse were limited to the period
of the continuance of hostilities, but there was no limitation as
to the duration of the act of Congress. Cessation of hostilities
restored the right of commercial intercourse, but the restoration
of such intercourse could not have the effect to repeal the act of
Congress which suspended such intercourse during the continuance of
hostilities or to exonerate a vessel or cargo from a forfeiture
incurred for a violation of the restrictions while they were in
full operation. Motion to dismiss the appeal is therefore
overruled.
2. Principal defense upon the merits was that the vessel, with
the cargo, was engaged at the time of the seizure in a lawful
voyage under a license from the Secretary of the Interior issued by
the express authority of the government. Claimants admit that the
vessel, with the cargo, was proceeding at the time of seizure to
the place specified in the libel of information, and that all
commercial intercourse not specially authorized by the government
between the states declared to be in rebellion and the rest of the
United States was prohibited and unlawful. Considering the nature
and extent of the admissions as exhibited in the answer, it is
clear beyond controversy that the burden of proof is upon the
respondents to establish their defense.
Such a defense unquestionably may be valid, and if fully proved,
the decree of the circuit court must be affirmed. Authority was
conferred upon the President by a proviso of the section under
consideration to license and permit in his discretion commercial
intercourse, in the interdicted states or places, in such articles,
and for such time, and by such persons, as he might think most
conducive to the public interest, but all such intercourse was to
be conducted and carried on only in pursuance of rules and
regulations prescribed by the Secretary of the Treasury. [
Footnote 5] Congress also, on the
thirteenth day of February, 1862, appropriated the sum
Page 70 U. S. 631
of three thousand dollars out of any money in the Treasury not
otherwise appropriated for the purchase of cotton seed, and one
thousand dollars for the purchase of tobacco seed, under the
superintendence of the Secretary of the Interior, for general
distribution, but the provision was that the cotton seed should be
purchased from places where cotton was grown, as far north as
possible.
3. Referring to those two acts of Congress, the claimants allege
that the Secretary of the Interior appointed William L. Hodge to
procure the cotton seed as authorized in the place for which the
vessel was embarked, and to which she was proceeding at the time of
the seizure. They plead the letter of the Secretary of the Interior
in their answer as a license and permit from the government, and as
a document affording a full defense to the allegations of the
libel. Substance of the letter is as follows:
"Congress having authorized this department to procure cotton
seed for planting in the loyal states, I hereby authorize and
appoint you to procure a cargo of the same in Virginia and bring it
to Baltimore, this department to have the privilege to take such
portion of said cargo as it may require, not exceeding one-half, at
the actual cost and charges."
Statement of the letter also was that it "will be your authority
to procure said seed," and contained a request to all parties in
the employment of the United States to allow the appointee to pass
freely for that purpose. Answer of the claimants also shows that
the Secretary of the Navy, on the twenty-fifth day of April
following, endorsed the letter of appointment in the terms
following, to-wit:
"Naval officers in command of ships of war will respect the
enclosed, and will afford protection in waters under their control
and jurisdiction inside the capes of Chesapeake Bay."
4. Sufficiency of the defense is denied by the United States
upon various grounds, but in the view taken of the case, there is
no necessity of examining more than two of the series. 1. They deny
that the Secretary of the Interior had any authority under the
appropriation act to license or permit the transportation of
merchandise from any loyal state
Page 70 U. S. 632
to any section of a state declared and being in insurrection in
order that the same might be there sold for the purpose specified
or for any other purpose. 2. Purport of the second proposition is
that the Secretary of the Interior, by his letter of appointment to
William L. Hodge, did not authorize and did not intend to authorize
him, or anyone, to transport merchandise for that or any other
purpose to any state or section of a state with which commercial
intercourse was prohibited.
1. Proclamation of the President of the sixteenth of August,
1861, which declared that certain states and parts of states were
in insurrection, expressly excepted from that condition those
districts or parts of the same which might be "from time to time
occupied and controlled by the forces of the United States engaged
in the dispersion of the insurgents." Intercourse for commercial
purposes was not prohibited with such places or districts while so
occupied and controlled. They were not regarded, as this Court
said, in the case of
The Venice, [
Footnote 6] "as in actual insurrection, or their
inhabitants as subject in most respects to treatment as
enemies."
Such intercourse, however, with any such state, place, or
district, so occupied and controlled, was absolutely forbidden
unless the person or persons conducting it were furnished with a
license and permit of the President and conformed in all respects
to the Treasury rules and regulations. Respondents do not pretend
that the Secretary of the Interior possessed any power under those
provisions to grant any license or permit for any such adventure as
that which is the subject of the present controversy, and it is
clear that the pretense, if set up, could not for a moment be
sustained, as the power is expressly vested in the President and
the requirement was that any commercial intercourse carried on
under such a license and permit should be conducted in conformity
to the regulations of the Treasury Department.
Want of power, therefore, in the Secretary of the Interior
Page 70 U. S. 633
is clearly shown unless it be made to appear that those
provisions had been modified or repealed before the date of the
letter under which the claimants attempt to justify. Express repeal
is not set up, and the pretense of implied repeal has no better
foundation. Repeal by implication, upon the ground that a
subsequent provision upon the same subject is repugnant to the
prior law, is not favored in any case; but where such repeal, if
admitted, would operate to the prejudice of the government, the
supposed repugnancy ought to be clear and controlling before it can
be held to have that effect. [
Footnote 7]
Instead of the last provision's being repugnant to the former,
the truth is that the two are entirely consistent. Whole effect of
the subsequent provision was that it appropriated the sum of three
thousand dollars for the purchase of cotton seed under the general
superintendence of the Secretary of the Interior for general
distribution. Purchase of the cotton seed, it is presumed, might
have been made in the districts or places within the
insurrectionary states, which were occupied and controlled by our
military forces, or at all events, the conclusion is a reasonable
one that such were the views of Congress when the appropriation was
made. Presumption is that Congress did not intend to relax the
existing restrictions upon commercial intercourse with the states
or districts declared to be in insurrection, because there is not a
word or phrase in the act indicating any such intention. Condition
of affairs was well known to Congress at that period, and it is to
be presumed that those who voted for the appropriation act and
directed the purchase of the cotton seed, if they had intended to
relax the commercial restrictions as a means of facilitating the
purchase, would have employed appropriate language to signify that
intention. Nothing of the kind is expressed in the appropriation
act, and consequently there is no repugnancy between that act and
the prior provision which established the commercial
Page 70 U. S. 634
restrictions, and prohibited commercial intercourse to the place
where the vessel in question with the cargo was bound at the time
of the seizure.
2. Second proposition of the appellants is that by the true
construction of the letter under which the claimants attempt to
justify, it did not give to the appointee or anyone else any
authority whatever to transport a cargo of merchandise from
Baltimore to the place where the vessel was bound at the time of
the seizure. Admission of the answer, it will be remembered, is
that the vessel was bound to the place alleged in the information,
and that the place, as there alleged, was one of the places
declared by the President to be in a state of insurrection.
Question here presented is one of construction, but the Court, in
determining it, may look at the surrounding circumstances and the
subject matter as well as at the language employed in the
instrument. Legal presumption is that the author of the letter,
inasmuch as he was a public officer, intended to perform his duty,
and that he did not intend to violate the law of the land. Three
thousand dollars, out of any money in the Treasury not otherwise
appropriated, were placed at his disposal for the purchase of
cotton seed for general distribution.
Directions in the act making the appropriation were that he
should make the purchase from places where cotton was grown, as far
north as possible, but the presumption is that he had full
knowledge of the then existing commercial restrictions, and that
the appropriation act under which all his authority was derived did
not in terms repeal or in any manner modify or relax those
restrictions. Satisfactory evidence that the Secretary of the
Interior and his appointee had such knowledge is exhibited in the
record. First application for the license was made to the
President. Pursuant to that application, the Secretary of the
Treasury, on the seventh day of March, 1862, granted a license and
permit to the same William L. Hodge, and the recital of the
document is that it was granted with the approbation of the
President and by virtue of the power conferred by the act under
which the forfeiture of the vessel and cargo is now
Page 70 U. S. 635
claimed. Power conferred was that the licensee might employ a
vessel to carry cotton seed from any point on the waters of
Virginia, emptying into Chesapeake Bay, to Baltimore, provided he
gave bond in the penal sum of twenty thousand dollars, conditioned
that the vessel so employed should not transport either way any
merchandise or supplies other than those actually required for the
use of the crew for one trip, or convey any person, letter, or
information, or in any way aid or comfort those in rebellion.
Although this license was never used by the licensee, still it is
proper to refer to it as showing the views of the government and as
affording conclusive evidence that the licensee knew that the
commercial restrictions established under the prior act were
unrepealed and in full force.
Dissatisfied with the license and permit granted by the
Secretary of the Treasury, with the approbation of the President,
the licensee proceeded to the Department of the Interior and there
obtained the letter under consideration. Introductory recital of
the letter is not quite correct, but in determining what is the
true construction of the document, it is proper to weigh the
language as it is written. Substantial statement of the author of
the letter is that he is "authorized to procure cotton seed for
planting in the loyal states," and that in consequence thereof he
authorizes and appoints the licensee to procure a cargo of the same
in Virginia and bring it to Baltimore on the conditions therein
named. He says nothing about transporting cargo to the place of
destination or about bringing back any other cargo than the cotton
seed. No allusion is made to the existing commercial restrictions,
nor any intimation given that they would be modified or repealed.
Applying the usual rules of construction to the letter, the
conclusion must be that it conferred no authority whatever upon the
licensee to transport any merchandise to the port or place where
the vessel was bound at the time of the seizure.
5. Evidence of authority in William L. Hodge to embark in any
such adventure being entirely wanting, it is unnecessary to examine
the question whether the license, if valid,
Page 70 U. S. 636
and sufficiently comprehensive in its terms to protect the
licensee, would afford any justification to the claimants.
6. Grounds of the decision, as already stated, render it
unnecessary, also, to examine the question of fraud, or to remark
upon the evidence respecting the prior voyage.
Decree of the circuit court is therefore reversed, and the cause
remanded, with directions to enter a decree of forfeiture against
both the vessel and cargo.
Decree accordingly.
[
Footnote 1]
12 Stat. at Large 257.
[
Footnote 2]
12
id. 1262.
[
Footnote 3]
The word in the statute, as the reader will have noted, is to
"purchase" cotton seed.
[
Footnote 4]
It did not appear that Mr. Hodge knew of the inconsistency of
the manifest with the complete items of the cargo, or indeed of the
clearance which had been made at the custom house.
[
Footnote 5]
12 Stat. at Large 257.
[
Footnote 6]
69 U. S. 2
Wall. 277.
[
Footnote 7]
United States v.
Walker, 24 How. 311;
Wood
v. United States, 16 Pet. 363.
