United States v. One Hundred Barrels of Cement

The citation for this case is 27 Fed. Cas. 292, Case No. 15,945. This is another case of a seizure of property due to it being shipped with prohibited items, in this case also alcohol. This was again in the Federal District Court for the District of Missouri, with Judge Samuel Treat presiding. This comes to us from the September 1862 term.

Judge Treat begins with the facts of the case. “In July last, Messrs. Hicks & Cocke, copartners in a hotel business at Jackson, Tennessee, were residents and citizens of that state, and loyal to the United States. Messrs. Harman & Daily, of the same place, were copartners in a saloon. Early in that month, Messrs. Harman & Daily, with Mr. Cocke, visited St. Louis, Missouri, and purchased respectively the goods contained in lot No. 41. Messrs. Harman & Daily bought twenty-one half-barrels of whiskey, had the same packed in barrels of salt for concealment, and caused the same to be shipped on the steamer G. W. Graham, consigned to Messrs. Hicks & Cocke, at Jackson. Mr. Cocke bought the other goods in said lot No. 41, and had the same shipped on said steamer also. Mr. Harman applied at the custom-house, in the name of Hicks & Cocke, for the necessary permit for all the goods, filed what purported to be copies of the invoices, made the required oath, and received a permit for Hicks & Cocke to ship to Jackson the whole lot named, to be delivered to them at the latter place. After said goods were on board the steamer, they were seized, the whiskey concealed in the salt having been detected; all of the goods were included in the same permit, and shipped on the same steamer for the same destination, and consigned to the same persons.” [27 Fed. Cas. 292, 293] He writes, “As then all commercial intercourse with Tennessee was legally interdicted, all goods shipped to that state without a license were forfeited to the United States. By the terms of said act, the president was authorized to grant special licenses for trade, under Such regulations as might be prescribed therefore by the secretary of the treasury. The political department alone has the power to decide the status of a state, or rather of its inhabitants, as to ‘a condition of hostilities’ or ‘insurrection’ against the United States government; and when its decision is made, the courts must apply the rules applicable thereto. That status must remain, in a legal sense, until the same authority decides it to be at an end.” [Ibid.]

The first question in the case Judge Treat handled was the legal standing of the claimant, because if he was an “alien enemy,” he had no standing to be heard. He wrote, “The position of the insurrectionists towards the United States government, at this time, is one of open hostility, and all the inhabitants are quasi enemies, but not alien enemies. Like American citizens domiciled in England during the war of 1812, although they still owe paramount allegiance to the United States, and are, therefore, neither aliens nor enemies, technically, yet their personal property follows their domicil,—’mobilia sequuntur personam,’—and is, when afloat on the high seas, pronounced in law, ‘adherent to the enemy;’ for they are under the dominion of the insurrectionary forces, and within the territory over which hostile sway is maintained.” [27 Fed. Cas. 292, 294] In a lengthy treatise, he continues, “The act of 1861 and the proclamation recognize this as an organized insurrection, extending over the states and parts of states named; and the so-called Confederate government, at an early day, ordered all who did not adhere thereto, to leave those states within a prescribed period, under the penalty of being treated as alien enemies. The same general principles which regulate the status of persons, as to their personal property during foreign wars, were incorporated into this act of congress, so far as commercial intercourse is concerned. The reasons Of the rule, therefore, forbidding alien enemies to sue, are just as applicable to resident citizens of the insurrectionary states now, as to the subjects of an adverse belligerent during a foreign war, viz., the necessity of stopping intercourse with the insurgents, and of preventing them from drawing supplies from the loyal states. Two countries cannot carry on war against each other whilst the citizens of each maintain and pursue all the conditions and relations of peace. Two nations cannot, in other words, be at war, and their citizens at peace. The fact of War makes all the citizens of each belligerent power, in law, the enemies respectively of each other. So in an insurrection, every loyal citizen is, in a certain sense, in a legal condition of hostility towards every insurgent. He is bound, when duly called upon, to aid in suppressing the insurrection; just as, in times of peace, he must become part of the posse, when summoned therefor, to assist in the arrest of an offender, and in the dispersion of those who obstruct the Officer whilst at tempting to enforce process. Indeed, every citizen not only may arrest, but ought to arrest, a criminal, flagrante delicto; and as an insurgent is a traitor, why is not every citizen clothed with power to arrest him when caught in the act of treason? In every such case, the offender, when so arrested, would be turned over to the civil magistrate. But in belligerent operations the government, for essential and universally recognised reasons, commissions officers, and musters forces under their command, to conduct its military affairs, and confines the conduct of war to them.” [Ibid.]

Judge Treat considers the citizens of Tennessee: “They are not enemies in the full legal signification of the term; for no citizen or subject is technically an enemy. In the law of treason, a subject may be a traitor, but never an ‘enemy,’ for the moment he is pronounced an enemy, he owes no allegiance, and can not therefore be guilty of a breach of a nonexistent obligation. ‘Enemy,’ in a legal sense, is the equivalent of the Latin word ‘hostis,’ which implies that the person is a stranger to the country—a foreigner, an alien. Hence the rule, as laid down by publicists, that an alien enemy cannot sue, is so phrased because an alien may be in a state of amity as well as of enmity. As his persona standi depends on his friendly or hostile status, the term ‘enemy’ is used in connection with the word ‘alien,’ to designate that hostile status. The claimants here are not aliens; they are not technically enemies; they are only ‘enemies in a qualified sense,’ as Justice Nelson has correctly said. They still owe paramount allegiance to the United States—are not citizens of any other recognised power. They are de jure subject to the United States laws. Those laws forbid them to carry on commercial intercourse with the loyal states, except on the conditions named. The prohibition rests not on the law of nations, but on a municipal statute or act of sovereignty, and the exception to the general prohibition is created by the same act.” [27 Fed. Cas. 292, 295]

As to the status of the insurrection, Judge Treat wrote, “The position of foreign nations with respect to this insurrection, it must be remembered, does not determine its status in American courts. The latter follow exclusively the decision of the political department of the United States government on that question. Even if other nations had recognised the so-called Confederate government as an independent power, their recognition would bind themselves and their subjects alone not the United States. Those foreign nations which have recognised a state of belligerency, and assumed the position of neutrals, estop their subjects from disputing the lawfulness of captures on the high seas, according to the laws of maritime warfare. The ships and cargoes of their subjects are to be judged accordingly. But rebel property thus captured is amenable to municipal authority. All American courts are bound to treat the insurrectionary states as integral parts of the Union, and subject to its constitution and laws. In the adjudication of all such questions arising here, the United States statutes would furnish the rules of decisions. In other words, as to all foreign nations, the United States government is absolutely sovereign within its own territorial limits, and over its own subjects. Its internal constitution is a subject with which foreign powers have no right to intermeddle. The equality and independence of nations could not otherwise exist. However much the great powers of Europe have, in times past, violated that rule, they have so far recognised its rightfulness, as to offer always, in excuse for their violations of it some real or supposed emergency, which they claimed worked a legitimate exception to its otherwise universal application—thus doing homage to the principle even when practically assailing it.” [27 Fed. Cas. 292, 297-298]

The outcome of the case was the claim was dismissed with costs to be paid by the claimant, and all the goods were forfeited.

This is another case that shows unilateral state secession is not legal in the United States. If it were, the citizens of Tennessee would be legally enemy aliens. Because they were not legally enemy aliens, they remained United States citizens in insurrection.


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