This case appears twice because it was appealed from the District Court to the Circuit Court. The first citation is 27 Fed. Cas. 324, Case No. 15,957. It’s from the District Court for the Eastern District of Tennessee, and is from August of 1869. The second citation is 27 Fed. Cas. 325, Case No. 15,958. It’s from the Circuit Court for the Western District of Tennessee, May, 1872.
District Judge Connally F. Trigg presided over the first iteration of the case. The 1500 bales had been confiscated because, the government charged, they were being transported from a state that was part of the rebellion into a loyal state for the purpose of selling it in the loyal state in order to help the rebellion. Judge Trigg starts by laying out the charges: “The information charged, first, that the cotton (1,500 bales) had been sold or given, purchased or acquired, with the intent to be used in aiding, abetting and promoting the late insurrection, and that the same was used by the owners, or by their consent, in aiding, abetting and promoting said insurrection, in violation of the act of congress approved the 6th day of August, 1861 [12 Stat. 319], and thereby became a lawful subject of prize and capture; second, it was charged that the cotton had been purchased in and was being transported from a state or district in insurrection against the United States, into some one of the loyal states, and that the same became thereby forfeited to the United States, being in violation of the act of congress approved July 13, 1861 [Id. 255].” [27 Fed. Cas. 324] The jury found in favor of the claimant, who was the person transporting the cotton, on the first charge, primarily due to the Judge’s instructions. “The court charged the jury, substantially, that if the cotton in controversy had been sold or given, purchased or acquired, with the intent that the same should be used in aiding, abetting or promoting the insurrection in the spring of 1865, or if the owners consented that the same might be so used; that the proclamation aforesaid, of the 25th of December, 1868, had the effect to remove the guilt of the party thus selling or giving the cotton to be used, and also the guilt of the owner consenting to such use, and thereby relieved the property itself from being a lawful subject of prize, and capture under and by virtue of the said act of August 6, 1861.” [27 Fed. Cas. 324, 324-325] Since the trial happened after the blanket pardon of December 25, 1868, the jury, following the instructions of the judge, found for the claimant because the judge told them the pardon had the effect of removing any guilt. The jury found for the claimant on the second charge as well, also due to the judge’s charge to the jury, in which he said, “That the act last mentioned, commonly termed the ‘Non-Intercourse Act,’ prohibited all commercial intercourse between the inhabitants of the states or parts of states declared in insurrection and the rest of the United States, and such commercial intercourse should be unlawful as long ‘as such condition of hostility should continue.’ That the act, by its own limitation, would cease to be operative whenever the insurrectionary forces threw down their arms, surrendered to the authority of the United States, and their hostile demonstrations had ceased.” [27 Fed. Cas. 324, 325] As the ship with the cotton set sail on May 25, 1865, the jury believed the Non-Intercourse Act no longer applied, and thus the claimant would not be guilty of violating it. “It was contended on behalf of the government that the court could not judicially know that hostilities had ceased unless that fact had been brought to its attention by plea or motion, and not until the president had issued his proclamation so declaring. But the court being of the opinion that, inasmuch as no formal declaration was necessary in a domestic war, the courts would take judicial cognizance of the fact that war existed, so likewise when the war was ended and peace restored would the courts take judicial cognizance of the fact that it was ended. It could hardly be supposed that this court should affect ignorance of a great fact in the history of the country, which was known to every man, woman and child throughout the length and breadth of the land, and keep its eyes closed until they should be opened by the formality of a plea and the proclamation of the president. The court accordingly instructed the jury that the Rebel forces on the west side of the Mississippi river, being the last to do so, having surrendered to the authority of the United States on the 24th or 25th of May, 1865, if they should believe from the evidence that the cotton in controversy was not shipped from within the Rebel lines until after that time, that then the ‘Non-Intercourse Act,’ as it is called, had ceased by its own limitation to be operative, and the cotton was not forfeited under said act by coming from an insurrectionary state or district into a loyal state or part of a state not declared in insurrection.” [27 Fed. Cas. 324, 325]
The case was appealed to the Circuit Court for Western Tennessee, Circuit Judge H. H. Emmons presiding. He detailed the errors Judge Trigg made: “A single question will be considered, and upon its answer alone the reversal of the judgment will rest. Did his honor the district judge correctly lay down the law in the following portion of his charge? It was made in disregard of a carefully drawn request to give contrary instructions. After remarking that the courts without any congressional resolution or law, or presidential proclamation, or other governmental action, must take judicial notice, without proofs, that civil war existed, he said: ‘If the court will take judicial cognizance of the existence of the war, then they ought also to take cognizance of the fact of peace being restored. Will the court not take cognizance of the proof that Kirby Smith’s surrender took place on the 24th of May, 1865? The war was then over. There were then no organized bodies of men arrayed against the government. Prisoners were paroled and sent to their homes. Everybody knew this, and will it be said that this court will close its eyes to the fact and not know it until told so by the president?’ The jury having returned into court asked if the opinion of his honor as to the time when hostilities ceased, was binding upon the jury?’ His honor replied that it was—that hostilities ceased on the 24th or 25th of May, 1865, and that fact he took judicial notice of. A juror then said, Your honor did not charge us in relation to the count in the information in regard to gold and foreign bills of exchange. His honor stated that there was no proof to show that gold was used to pay for the cargo of the Decatur, and that he did not consider it necessary to charge in regard to that count, as the cessation of hostilities covered the case, and virtually repealed those laws.” [27 Fed. Cas. 325, 326-327] He tells us, “This charge embodies several substantial errors. The court will take judicial cognizance of the public history of the country. It is treated, in its modes of ascertainment, like a question of law, to be investigated in the same manner, in its own proper sources. Public documents and histories are to be consulted without deciding whether the court should have taken judicial cognizance of the precise date when the surrender occurred, or whether, when such accuracy becomes material, the documentary, historical, and other proof which parties chose to present must not be submitted to a jury, it is of course clear that if the judge assumes the duty of its determination, he must decide it correctly. It is as much an error for the court to mistake an historical fact of which it has taken cognizance, as to mistake a principle of law. That his honor was in error when he told the jury that General Kirby Smith surrendered on the 24th of May, 1865, is now conceded. It is unnecessary to refer to the original documentary proof which demonstrates his mistake. The common histories of the country and repeated judgments in the books show it The Annual Encyclopædia for 1865, p. 84, states it to be upon May 26. Phillips v. Hatch [Case No. 11,094] states it the same date. There is no difference of opinion anywhere. This was a turning point in the case below. The vessel left upon the 25th. It was conceded by his honor that if the surrender had not been until the 26th, so that within his own theories hostilities continued until that time, the cotton was forfeited to the government because it started on its transit before. The legal consequence which the learned judge deduced from this fact, thus erroneously assumed as taking place on the 24th, was no better grounded in the law than was the fact itself in the history of the country. Both were alike untrue. Trade and intercourse did not become lawful between Louisiana and Tennessee, and hostilities did not cease, upon the surrender of General Smith. The proclamation of the president, or other political recognition of the return of peace, was necessary to work such a consequence.” [27 Fed. Cas. 325, 327]
Judge Emmons continues, “It has not been seriously argued that this part of the charge is law. The conditions of war and peace, the political status of governments and people, is in our system one purely of political and not judicial determination. If there were, as there is not, any doubt of this necessary rule of general law, the entire legislative history and public action of the country in reference to the late rebellion conclusively shows such has been the theory upon which our courts and the government have proceeded in its suppression and in dealing with its consequences. In reference to a subject where repeated and literally applicable judgments of the supreme court of the United States set the matter wholly at rest, it could not ‘be useful or even in good taste to go behind them for reasons to justify what they so plainly say.’ In U. S. v. Anderson, 9 Wall. [76 U. S.] 56, the statute limited prosecutions in the court of claims to two years after the suppression of the rebellion. It was held that the limitation did not begin to run, and that the rebellion was not in a legal sense suppressed until the final proclamation of the president, August 20, 1806. The argument of the court shows most clearly that we must rely upon the action of the political department as the criterion in this class of eases. At page 70 it is said, ‘In a domestic war, like the late one, some proclamation or legislation’ would seem to be required to inform those whose private rights were to be affected by it of the time when it terminated.’ ” [27 Fed. Cas. 325, 327] He wrote, “The mistake of his honor consisted in supposing that the cessation of hostilities was synonymous with the surrender of organized armies; that peace meant the disbanding of military forces, instead of a full return of the masses of the people to loyalty and good citizenship. If armies disband only to disseminate their violence in private force or individual wrongs, governmental military rule may be necessarily continued, or restored after its discontinuance. The history of the country has shown that, in political opinion, this has been often necessary, and, whatever the judiciary may think, as citizens, of the policy of its exercise, the fact of its existence and duration must even be accepted by it as inexorably as it accepts any other political condition. The only resort for a tribunal, in any ease, is that sad one, of which we have had too much experience, when violence renders impossible the longer recognition of the sovereignty which created it.” [27 Fed. Cas. 325, 329]
Judge Emmons further tells us, “All, without exception, say the Confederate government could make no law. Its prescriptions imposed no obligations, political or moral, and the only justification for obedience which the citizen could make to his rightful sovereign was deadly coercion by violence or threats. No such proof appears upon this record. The charge which informed a jury that a mere law, without more, was an excuse for obeying it, was erroneous. The judgment is reversed, and a venire de novo will issue, returnable to this court.” [27 Fed. Cas. 325, 331] A venire de novo is a judicial order for a new trial due to errors in the original trial.
This case shows us the existence of hostilities is a political question, not a judicial question. A judge can’t determine on his or her own that hostilities exist. That is something for the political branches, Congress and/or the President, to determine. The courts follow that determination. Judge Emmons also confirmed the illegality of unilateral secession when he agreed the confederacy was an illegal organization.