The citation for this case is 27 Fed. Cas. 284, Case No. 15,941. This case is from September of 1862 in the District Court for the Eastern District of Missouri. The judge presiding in this case was Federal Judge Samuel Treat. The case involved the seizure of contraband goods being sent into Tennessee. Judge Treat starts by going over the facts of the case: “The claimant, proposing to make a shipment of merchandise to Memphis in the state of Tennessee, applied to the surveyor of the port of St. Louis for a permit, under the regulations of the secretary of the treasury, pursuant to the act of July 13, 1861 [12 Stat. 255]. He represented that the proposed shipment contained, among other things, 100 barrels of cement A ‘permit’ having been granted for the specified goods, the claimant sent on board of a steamer, bound for Memphis, said 100 barrels and the 129 packages now in litigation. The surveyor caused said shipment to be examined after it was on board of said steamer, and whilst she still lay at the wharf here, and detected, that instead of 100 barrels of cement, there were 100 barrels of whiskey packed in cement for the purpose of concealing the same. Thereupon the whole shipment was seized.” [27 Fed. Cas. 284, 284-285] The claimant was trying to get back the 129 packages that didn’t contain any prohibited materials.
The first point his lawyer makes is that the statute in question was a penal statute–a statute which imposed a penalty on those who break it–and therefore had to be strictly construed. Judge Treat dismissed this assertion by saying the statute of July 13, 1861 was a revenue statute, and therefore it should be construed as liberally as possible in order to accomplish the objective of maximizing revenue. He continues, “But whatever rule of interpretation is adopted in this case, the same result will follow. The claimant admits that he undertook a fraud upon the law. If the act of July 13, 1861, was either an ordinary revenue act, or a simple penal act, he would still fall within its provisions. He chose for fraudulent purposes to mix up with unprohibited goods, those directly prohibited. He knew that the vast interests at stake, civil and military, would admit of no relaxation of the interdict against intercourse under the act of congress and the president’s proclamation, so far at least as the shipping of whiskey to the insurrectionary states, and to our camps there, was concerned; yet for his individual gain he was willing, not only to jeopardize those public interests, but to do so by a resort to falsehood and fraud. There can be no pretence that he was actuated by any higher motive than a sordid lust of gain, which ignored all considerations of law or justice. He knew that he was violating the law; and he attempted to defraud the government, not in the matter of dollars and cents alone. Still he appears before the court with the strange request to have it unravel for him the tangled skein of fraud which he has deliberately woven, and then restore to his possession such parts as would have been untainted if he had not wound them into one promiscuous mass. No principle known to law or equity tolerates such a procedure. He has mixed up the good with the bad, and the mass must be treated as he has voluntarily made it.” [27 Fed. Cas. 284, 285-286]
The next point the claimant’s lawyer makes is that because the vessel hadn’t left the port yet when the goods were seized, it hadn’t yet started on its voyage, and therefore the statute didn’t apply. Judge Treat again dismisses the claim. “The overt act is not confined to actual entrance into the interdicted district—the success of the fraudulent voyage. If the offence was not complete until success crowned the enterprise, the object of the law would be defeated. The design of the statute is to prevent supplies from reaching the foe. Any movement towards aiding him—any act in furtherance of such a purpose, whether on land or water, is within the spirit of the statute. ‘Proceeding to’ is a comprehensive phrase. If the prohibited intercourse is attempted on land, and a person loads a wagon and starts in furtherance of his illegal design, is he not proceeding in his fraudulent scheme—’proceeding to’ violate his duty to the government? At what point on the journey will the offence become complete, if not at the first start? Is the rule different if the contemplated intercourse is through the agency of a vessel—to be by transportation on water instead of land? The goods are within the territorial jurisdiction of the United States, and owned by a United States citizen, and consequently are subject to the intra-territorial law. Every act done intra-territorially is subject to that law.” [27 Fed. Cas. 284, 287] He concludes this point by writing, “The claimant had so far ‘proceeded’ in his fraudulent operations as to procure a permit and actually to ship his goods. He had entered upon the interdicted enterprise. It was an ‘attempt’ by which the penalty was incurred under the act of May 20, 1862, if not under the act of July 13, 1861. But there seems to be no difference in the true meaning of the terms employed between an ‘attempt’ to transport and ‘proceeding to’ transport The scope and object of the two acts are the same, viz.: to prevent the interdicted intercourse. If such, however, is not the true construction of the act of July 13th, the goods in question would be held under the act of May 20th, and the necessary amendment of the libel allowed. The act of July 13th, properly construed, forbids each and every act done towards the execution of a design to carry on, without a license or permit commercial intercourse between the interdicted and other states. It is violated not only when a vessel has actually sailed on the voyage with the goods on board, but the moment the goods are started, even on land, towards the forbidden destination. The application for the ‘permit’ is evidence of the intention to proceed, and the exhibition of fraudulent invoices in order to procure the needed permit, shows the intention to be fraudulent. The shipment of the goods under color of that permit is a step taken in execution of that fraudulent intent—is an overt act. Such goods, within the meaning of said statute, are ‘proceeding to’ the interdicted port; and the shipper, under the act of May 20th, is guilty of an ‘attempt’ to transport them in violation of the law.” [27 Fed. Cas. 284, 287-288]
A third point raised by the claimant’s lawyer is that the port of Memphis, which at the time was under control of US forces, was not in a condition of hostility to the United States, so by the language of the act of July 13th the prohibition on shipping prohibited goods to that port was no longer in effect. Judge Treat also dismisses this claim. The judiciary doesn’t declare war or make peace, and the power of one branch of the government cannot be exercised by another. He writes, “The condition of peace or war, public or civil, in a legal sense, must be determined by the political department, not the judicial. The latter is bound by the decision thus made.” [27 Fed. Cas. 284, 288] To sum up this point, he writes, “In short, the status of the country as to peace or war, is legally determined by the political and not the judicial department. When the decision is made the courts are concluded thereby, and bound to apply the legal rules which belong to that condition. The same power which determines the existence of war or insurrection, must also decide when hostilities have ceased,—that is, when peace is restored. In a legal sense, the state of war or peace is not a question in pais for courts to determine. It is a legal fact ascertainable only from the decision of the political department. … Under the act of July 13th, the president, on the 16th of August, 1861, proclaimed Tennessee in a state of insurrection. The legal status thus determined must remain so long as the condition of hostility continues. He has never made a counter proclamation, nor has peace been officially announced. As a legal condition that status is independent of actual daily strife in arms. A legal condition of hostilities may exist between this and a foreign nation, long after the last battle has been fought between the opposing armies. That condition ceases when peace is concluded through competent authority; not before. The distinction is between war flagrante, and nondum cessante. So far, however, is it from being true that the condition of hostilities does not still exist, that it is evident, even as a matter in pais, that Tennessee is still in an insurrectionary position. The presence of the United States armies in Memphis and elsewhere within that state, for the purpose of maintaining federal authority against armed insurgents, is a well-known necessity. There has been as yet no return of that state to a peaceful status under the constitution and laws; enabling the civil tribunals, by ordinary process, to enforce United States authority. Within any construction which could be fairly given to the president’s proclamation, no ‘part of that state maintains as yet a loyal adhesion to the Union and constitution.’ It is the duty of the president, however, to decide that point. Until he decides to the contrary, the court must hold that the legal condition of hostility continues.” [27 Fed. Cas. 284, 289]
He declared the packages forfeited and costs and expenses to be paid by the claimant.
This case established that revenue laws must be construed as liberally as possible to maximize the revenue collected, and taking steps to begin transporting prohibited goods is part of proceeding to the place where such goods are prohibited. It confirmed the doctrine that the judiciary doesn’t determine when war or peace are in place. Rather, that is done by the political branches–the President and the Congress. The courts don’t decide when an area is hostile. That’s done by the President.