The citation for this case is 27 Fed. Cas. 1087, Case No. 16,295. It was in the June, 1861 term of the District Court of the Southern District of Ohio, with Federal Judge Humphrey H. Leavitt presiding.
Two brothers, William and Samuel Syms, operated a shipping business out of New York called W. J. Syms & Brother. They were contracted with two commissioners from Arkansas on February 15, 1861 to ship arms to Arkansas. They shipped part of the cargo to Baltimore on April 3, 1861, and the rest on April 9. On May 10, 1861 six boxes with guns and other arms were shipped under this contract from Baltimore to Little Rock. That, of course, was after the inclusion of Arkansas in the group of states in rebellion and blockaded. Authorities seized the cargo when it was in Cincinnati.
In his charge to the jury, Judge Leavitt said, “The claimants allege that they are loyal citizens of the United States, and that at the date of said shipment there was no blockade of the ports or places within the state of Arkansas, and that none has yet been formally proclaimed, and they deny that the property, either when shipped or seized, was liable to condemnation as contraband of war. They also aver that on the 15th of February, the date of the contract, and for two months subsequently, the state of Arkansas was reputed and believed to be in favor of the Union, and that a convention of the state had voted against secession. They further allege that it was not until about the 25th of April that there were any marked indications of the purpose of the state to secede, and that the act of secession did not pass until the 7th of May, and that about the 25th of April their agent in Arkansas repaired to Cincinnati, countermanded the order for shipment to that state, and ordered all the property not delivered, to be returned to New York; and that the claimants thereupon made a contract with the Union defense committee of that city for the sale to them of such of the property as should be returned to that place.” [27 Fed. Cas. 1087]
Judge Leavitt continues, “The testimony of George P. Williams, in behalf of the claimants, is before the court. He was the clerk of Lyons & Brother at the time of the contract made with the Arkansas commissioners, and identifies the property libeled as a part of that furnished by the claimants, and shipped by them from New York on the 3d and 9th of April. He proceeded to Arkansas in the early part of that month, to receive and deliver the property as the agent of the claimants. He traveled a good deal through the state, and swears that while the sentiment of the people in the southern part of the state was favorable to secession, in other parts they were for the Union; and that assurances were made to him that the state would not secede. He also states that it was not until after the information was received of the proclamations of the president, of the 15th and 19th of April, that there were any decisive indications of the purpose of seceding; and that on the 25th of April he left Arkansas, and proceeded to Cincinnati for the purpose of stopping all further shipments to Arkansas, and that such an order was given, and no further shipments were made. He also states that the claimants agreed to sell the property to the Union defense committee of New York, when it should be returned to that place. The testimony of the witnesses to the state of things in Arkansas, prior to the 25th of April, is sustained by other witnesses offered by the claimants.” [27 Fed. Cas. 1087, 1087-1088]
The District Attorney claimed the seized weapons should be forfeited because “first, as having been shipped in violation of the president’s proclamation of blockade; and second, that the state of Arkansas was at war with the United States, and the property was, therefore, when seized, contraband of war.” [27 Fed. Cas. 1087, 1088]
In answer to this, Judge Leavitt said, “The first of these positions is clearly not sustained. The state of Arkansas was not embraced in the proclamations of the president of the 19th and 27th of April [12 Stat. 1259, 1260], declaring the ports of the seceded states under blockade. The formal act of secession by the state of Arkansas, as before stated, did not take place until the 7th of May. Until after that date the president could not properly declare the blockade of her ports; and trade with her was not, therefore, interdicted on that ground.” [27 Fed. Cas. 1087, 1088]
In discussing whether the goods are subject to seizure and forfeiture, Judge Leavitt tells us, “there is no question that, by the well-settled rule of the law of nations, where a war exists between two distinct and independent powers, there must necessarily be a suspension of all commercial intercourse between them. When two nations are arrayed in war against each other, every subject and citizen of the one is regarded and treated as the enemy of the other. But does this principle apply strictly to the so-called ‘Southern Confederacy,’ or to any of the individual states which have joined it? The president of the United States, in all his proclamations and public acts, has cautiously avoided the recognition of the Southern Confederacy, as an independent sovereignty, and has properly proceeded on the doctrine that the right of secession has no warrant in the constitution, and that the exercise of the right is simply a nullity; and when attempted to be sustained by arms, it places all who give aid or countenance to the movement in the attitude of rebels against the government. It results from this view, that every citizen of a seceding state is not necessarily to be regarded as an enemy, with whom all commercial intercourse is to be prohibited. The government of the United States has acted on the principle, in the case of western Virginia and eastern Tennessee, that the people of these sections, though within the geographical limits of seceded states, are to be viewed as loyal, and entitled to the sympathy and protection of the government.” [27 Fed. Cas. 1087, 1088]
Judge Leavitt continues, “There is, however, a view of the case before the court, which seems clearly to warrant the conclusion, that this properly was in no sense contraband of war, when seized as such at Cincinnati. The destination and the use intended to be made of the property at the time of its seizure, must furnish the tests of its status, as contraband or otherwise. If there were grounds for the presumption of a disloyal motive in the sale and shipment of the property, no such presumption is warranted in regard to it, when taken by the marshal on the 23d of May. The evidence already referred to clearly establishes the fact, that the agent of the claimants, upon the first intimation of a probability that Arkansas might adopt the ordinance of secession, repaired to Cincinnati, and promptly directed that the property should not be sent according to its original destination, but should be forwarded to New York. It was not then in transit to Arkansas, nor could it by possibility ever reach that state, as it was under an order for shipment for New York, to be there used in defense of the Union.” [27 Fed. Cas. 1087, 1088]
In summary and conclusion, Judge Leavitt says, “The case, then, before the court is that of a loyal citizen of a loyal state, whose property has been libeled for condemnation, and who has availed himself of his legal right to assert his claim, and to show that there is nothing in the facts to warrant a decree of forfeiture. In making this remark, I am not to be understood as intimating that the public officer at whose instance the seizure was made, is in any decree censurable. So far from this, it is probable that under the circumstances supposed to exist, the institution of this proceeding was a proper act of official duty. And I do not see any ground on which a certificate of probable cause of seizure, if applied for, could be refused by the court But this is a wholly different question from that involving the legal right to the property, and its liability to condemnation and forfeiture. There may be good reasons for the seizure of property; and yet upon a full investigation of the facts, no sufficient ground for holding that the owner has forfeited his right to it. With these views, I can do no otherwise than decree in favor of the claimants, and order the restoration of the property to them.” [27 Fed. Cas. 1087, 1089]
There are a couple of things of interest to us here. First, it demonstrates the operation of confiscation and how the loyal owner of goods can get those goods returned. Second, it reiterates the illegality of unilateral secession. Yet another Federal judge confirms a state has no power to unilaterally secede from the United States.