13 July 1861. Commercial in bited. Forfeitures of President may license restricted intercourse. declare that the inhabitants of such state, or any section or part thereof, where such insurrection exists, are in a state of insurrection against the United States; (a) and thereupon all commercial intercourse (b) by and between the same and the citizens thereof tercourse prohi and the citizens of the rest of the United States, shall cease and be unlawful so long as such condition of hostility shall continue; and all goods and chattels, wares and goods and vessels. 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; (c) Provided, however, That the president may, in his discretion, (d) 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 time, and by such persons as he, in his discretion, may think most conducive to the public interest; (e) 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.(g) And the secretary of the treasury may appoint officers to be ap- such officers, at places where officers of the customs are not now authorized by law, as may be needed to carry into effect such licenses, rules and regulations; and officers of the customs and other officers shall receive for services under this section, and under said rules and regulations, such fees and compensation as are now allowed for similar service under other provisions of law. Custom house pointed. Ibid. 26. Vessels belong 14. From and after fifteen days after the issuing of the said proclamation, as provided in the last foregoing section of this act, any ship or vessel belonging in whole or in part ing to insurgents to any citizen or inhabitant of said state or part of a state, whose inhabitants are so declared in a state of insurrection, (h) found at sea, or in any port of the rest of the United States, shall be forfeited to the United States. (i) to be forfeited. Ibid. 7. 15. In the execution of the provisions of this act, and of the other laws of the United Navy may be em- States providing for the collection of duties on imports and tonnage, it may and shall be ployed to enforce lawful for the president, in addition to the revenue cutters in service, to employ in aid thereof such other suitable vessels as may, in his judgment, be required. this law. Ibid. 28. Secretary may remit forfeitures and penalties. Ibid. 9. Jurisdiction of the federal courts. 31 July 1861 12 Stat. 284. Parts of states 1. may be proclaimed to be in insur rection. 20 May 18621. 12 Stat. 404. 16. The forfeitures and penalties incurred by virtue of this act may be mitigated or remitted in pursuance of the authority vested in the secretary of the treasury by the act entitled "An act providing for mitigating or remitting the forfeitures, penalties and disabilities accruing in certain cases therein mentioned," approved March 3d 1797; or in cases where special circumstances may seem to require it, according to regulations to be prescribed by the secretary of the treasury.(k) 17. Proceedings on seizures for forfeitures under this act may be pursued in the courts of the United States, in any district into which the property so seized may be taken and proceedings instituted; and such courts shall have and entertain as full jurisdiction over the same as if the seizure was made in that district. 18. The power of the president to declare the inhabitants of any state, or any part thereof, in a state of insurrection, as provided in the fifth section of the act to which this is an addition, (2) shall extend to and include the inhabitants of any state, or part thereof, where such insurrection against the United States shall be found by the president at any time to exist. 19. The secretary of the treasury, in addition to the powers conferred upon him by the act of the 13th July 1861, be and he is hereby authorized to refuse a clearance to (a) When the president has proclaimed a state to be in insur. rection, the courts must hold that this condition continues until he decides to the contrary. United States v. One Hundred and Twenty-nine Packages, 11 Am. L. R. 419. (b) The term "commercial intercourse" is to be considered as limited by the specifications in the act; and therefore must be taken to mean trading, trafficking, negotiating, conveying goods, &c. Allen v. Russell, 12 Am. L. R. 362. See Billgery v. Branch, 17 Am L. R. 334. Blakeley v. United States, 2 N. & II. 323. (c) This is not a penal but a revenue statute, and is to be liberally construed, so as to accomplish its proposed object. United States v. One Hundred and Twenty-nine Packages, 11 Am. L. R. 419. The goods are liable to forfeiture, only while in transit; and the vessel, only while the contraband cargo is on board. United States v. The Francis Hatch, 13 Am. L. R. 289. A cargo at sea assigned in good faith to a northern creditor to cover advances, prior to the proclamation of 10 August 1861, and actually imported into New York, was not forfeited under this act. United States v. One Hundred and Fifty-six Packages of Tea, 2 Int. R. Rec. 22. The acts of 13 July 1861, 6 August 1861 and 3 March 1863, relate to confiscations for intraterritorial offences. The Sally Magee. Blatch. Pr. Cas. 382. This act did not restrict the war powers of the president. The Sarah Starr, Blatch. Pr. Cas. 70. (d) The president alone had power to license such intercourse. The Sea Lion, 5 Wall. 630. The Ouachita Cotton, 6 Wall. 521. (e) See infra 26. If a party, for fraudulent purposes, mix up prohibited goods with those not prohibited, the whole will be forfeited. United States v. One Hundred and Twenty-nine Packages, 11 Am. L. R. 419. A license obtained through error, mistake or fraud, will not prevent a forfeiture United States v. One Hundred Barrels of Cement, 12 Am. L. R. 735. (g) The shipment of prohibited goods under a fraudulent invoice, incurs a forfeiture under this act. United States v. One Hundred and Twenty-nine Packages, 11 Am. L. R. 419. See United States v. The Francis Hatch, 13 Am. L. R. 289, as to the extent of this power. And see The Reform, 3 Wall. 617. United States v. Weed, 5 Wall. 62. United States v. Wolf, Rev. Cas. 3. United States v. Withenbury, Ibid. 66. United States v. McKee, Ibid. 70. A person holding a license under this act may be heard in the courts of the United States, notwithstanding the character of public enemy thereby impressed on him. United States v. One Hundred Barrels of Cement, 12 Am. L. R. 735. And see The David E. Wolf, 7 Int. R. Rec. 194. (h) See The Keeling, Blatch. Pr. Cas. 92. (i) This act is constitutional. The Ned, Blatch. Pr. Cas. 119 It was not a temporary act, though passed during the rebellion; forfeitures incurred did not cease to be enforceable on the cessation of hostilities. The Reform, 3 Wall. 617. The confiscations provided for by this section can be enforced in the prize courts, so far as respects property captured at sea. The Sarah Starr, Blatch. Pr. Cas. 70. (k) This does not reach the case of a vessel captured as prize of war, which was not, at the time of her capture, proceeding to a loyal state. The Gray Jacket, 5 Wall. 342. The act does not refer to captures jure belli. The Hampton, Ibid. 372. (1) Supra 13. suspicion that any vessel or other vehicle laden with goods, wares or merchandise, destined for a 20 May 1862. foreign or domestic port, whenever he shall have satisfactory reason to believe that such Clearances may goods, wares or merchandise, or any part thereof, whatever may be their ostensible des- be refused, on tination, are intended for ports or places in possession or under control of insurgents goods are desagainst the United States. And if any vessel or other vehicle for which a clearance or port. permit shall have been refused by the secretary of the treasury, or by his order, as Forfeiture for ataforesaid, shall depart or attempt to depart for a foreign or domestic port without being tempt to depart duly cleared or permitted, such vessel or other vehicle, with her tackle, apparel, furni- ance. ture and cargo, shall be forfeited to the United States. (a) tined for a rebel without clear goods shall not 20. Whenever a permit or clearance is granted for either a foreign or domestic port, Ibid. 2. it shall be lawful for the collector of the customs granting the same, if he shall deem Collector may reit necessary, under the circumstances of the case, to require a bond to be executed by quire bond, that the master or the owner of the vessel, in a penalty equal to the value of the cargo, and be used to aid inwith sureties to the satisfaction of such collector, that the said cargo shall be delivered surgents. at the destination for which it is cleared or permitted, and that no part thereof shall be used in affording aid or comfort to any person or parties in insurrection against the authority of the United States. Ibid. 23. cases. 21. That the secretary of the treasury be and he is hereby further empowered to prohibit and prevent the transportation in any vessel, or upon any railroad, turnpike or Transportation other road or means of transportation within the United States, of any goods, wares or of goods may be merchandise of whatever character, and whatever may be the ostensible destination of Prohibited in like the same, in all cases where there shall be satisfactory reasons to believe that such goods, wares or merchandise are intended for any place in the possession or under the control of insurgents against the United States; or that there is imminent danger that such goods, wares or merchandise will fall into the possession or under the control of such insurgents. And he is further authorized, in all cases where he shall deem it Securities may be expedient so to do, to require reasonable security to be given, that goods, wares or mer- required from chandise shall not be transported to any place under insurrectionary control, and shall not in any way be used to give aid or comfort to such insurgents; and he may establish all such general or special regulations as may be necessary or proper to carry into effect the purposes of this act. And if any goods, wares or merchandise shall be transported shippers. in violation of this act, or of any regulation of the secretary of the treasury, established Forfeiture in case in pursuance thereof, or if any attempt shall be made so to transport them, all goods, of violation. wares or merchandise so transported or attempted to be transported shall be forfeited to the United States. (b) 22. The proceedings for the penalties and forfeitures accruing under this act may be pursued, and the same may be mitigated or remitted by the secretary of the treasury, in the modes prescribed by the 8th and 9th sections of the act of July 13th 1861, to which this act is supplementary.(c) Ibid. 24. Proceedings for, and remission of penalties. Ibid. § 5. Distribution of 23. The proceeds of all penalties and forfeitures incurred under this act, or the act to which this is supplementary, shall be distributed in the manner provided by the 91st section of the act of March 2d 1799, entitled "An act to regulate the collection of duties penalties, &c. on imports and tonnage."(d) 13 Stat. 376. 24. The prohibitions and provisions of the act approved July 13th 1861, and of the 2 July 1864 34. acts amendatory or supplementary thereto, shall apply to all commercial intercourse by and between persons residing or being within districts within the present or future What territory and persons to be lines of national military occupation in the states or parts of states declared in insur- embraced in rerection, whether with each other or with persons residing or being within districts stricted interdeclared in insurrection and not within those lines; and all persons within the United States, not native or naturalized citizens thereof, shall be subject to the same prohibitions, in all commercial intercourse with inhabitants of states or parts of states declared in insurrection, as citizens of loyal states are subject to under the said act or acts. course. Ibid. § 5. When restric 25. Whenever any part of a loyal state shall be under the control of insurgents, or shall be in dangerous proximity to places under their control, all commercial intercourse therein and therewith shall be subject to the same prohibitions and conditions as are tions to apply to created by the said acts, as to such intercourse between loyal and insurrectionary states, states. parts of loyal for such time and to such extent as shall, from time to time, become necessary to protect the public interests, and be directed by the secretary of the treasury, with the approval of the president. 26. So much of section five of the act 13th of July 1861, aforesaid, as authorizes the president, in his discretion, to license or permit commercial relations in any state or (a) See United States v. One Hundred and Twenty-nine Packages. 11 Am. L. R. 419. (b) It seems, that the forfeiture is not incurred until the ves VOL. II.-19 Ibid. 29. sel is outside the limits of the harbor of her port of departure. (d) 1 vol. 412, pl. 398. 2 July 1864. licenses re stricted. section the inhabitants of which are declared in a state of insurrection, is hereby Power to grant repealed, except so far as may be necessary to authorize supplying the necessities of loyal persons residing in insurrectionary states, within the lines of actual occupation by the military forces of the United States, as indicated by published order of the commanding general of the department or district so occupied; and also, except so far as may be necessary to authorize persons residing within such lines to bring or send to market in the loyal states, any products which they shall have produced with their own labor or the labor of freedmen, or others employed and paid by them, pursuant to rules relating thereto, which may be established under proper authority. And no goods, wares or merchandise shall be taken into a state declared in insurrection, or transported therein, except to and from such places, and to such monthly amounts, as shall have been previously agreed upon, in writing, by the commanding general of the department in which such places are situated and an officer designated by the secretary of the treasury for that purpose.(a) Ibid. 11 27. The secretary of the treasury, with the approval of the president, shall make Secretary to pre- such rules and regulations as are necessary to secure the proper and economical execuscribe regulation of the provisions of this act, and shall defray all expenses of such execution from the proceeds of fees imposed by said rules and regulations, of sales of captured and abandoned property, and of sales hereinbefore authorized. tious. 3 March 1863 4. 12 Stat. 756. to be a full de III. EXONERATION OF CIVIL AND MILITARY OFFICERS. 28. Any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosePresident's order cution, civil or criminal, pending or to be commenced for any search, seizure, arrest or imprisonment, made, done or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of congress, and such defence may be made by special plea, or under the general issue.(b) fence to action for arrest, &c. Ibid. 27. Limitation of actions. 11 May 1866 21. 14 Stat. 46. rior officer to be a defence. 29. No suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act. 30. Any search, seizure, arrest or imprisonment made, or any acts done or omitted to be done during the said rebellion, by any officer or person, under and by virtue of any Orders of a supe- order, written or verbal, general or special, issued by the president or secretary of war, or by any military officer of the United States holding the command of the department, district or place within which such seizure, search, arrest or imprisonment was made, done or committed, or any acts were so done or omitted to be done, either by the person or officer to whom the order was addressed, or for whom it was intended, or by any other person aiding or assisting him therein, shall be held, and are hereby declared to come within the purview of the act to which this is amendatory, and within the purview of the fourth, fifth and sixth sections of the said act of March 3d 1863, for all the purposes of defence, transfer, appeal, error or limitation provided therein. (c) But no such order shall, by force of this act, or the act to which this is an amendment, be a defence to any suit or action for any act done or omitted to be done after the passage of this act. 31. When the said order is in writing, it shall be sufficient to produce in evidence the How such orders original, with proof of its authenticity, or a certified copy of the same; or if sent by telegraph, the production of the telegram purporting to emanate from such military officer shall be primâ facie evidence of its authenticity; or if the original of such order or telegram is lost or cannot be produced, secondary evidence thereof shall be admissible, as in other cases. Ibid. 2. to be proved. 6 August 1861 21. 12 Stat. 319. Property em ployed for insurrectionary pur poses to be forfeited. IV. GENERAL PROVISIONS. 32. If, during the present or any future insurrection against the government of the United States, after the president of the United States shall have declared, by proclamation, that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals by law, any person or in obedience to the command of his superior, not illegal on its face. McCall v. McDowell, 1 Pacific Law Mag. 360. (a) See Lane v. United States, 2 N. & H. 184. (b) See Hodgson v. Millward, 3 Grant 406. (c) A military officer is not civilly responsible for an act done persons, his, her or their agent, attorney or employee, shall purchase or acquire, sell 6 August 1861. or give, any property of whatsoever kind or description, (a) with intent to use or employ the same, or suffer the same to be used or employed, in aiding, abetting or promoting such insurrection or resistance to the laws, or any person or persons engaged therein; or if any person or persons, being the owner or owners of any such property, shall knowingly use or employ, or consent to the use or employment of the same as aforesaid, all such property is hereby declared to be lawful subject of prize and capture wherever found; and it shall be the duty of the president of the United States to cause the same to be seized, confiscated and condemned. (b) Ibid. ? 2. 33. Such prizes and capture shall be condemned in the district or circuit court of the United States having jurisdiction of the amount, or in admiralty, in any district in Jurisdiction of which the same may be seized, or into which they may be taken and proceedings first the courts. instituted. Ibid. 23. condemnation. 34. The attorney-general, or any district attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation, and in Proceedings for such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.(c) 12 Stat. 762 Bona fide claims of loyal citizens to be paid out of confiscated pro perty. 35. In all cases now or hereafter pending wherein any ship, vessel or other property 3 March 1863 2 1. shall be condemned, in any proceeding by virtue of the acts above mentioned, (d) or of any other laws on that subject, the court rendering judgment of condemnation shall, notwithstanding such condemnation, and before awarding such ship, vessel or other property, or the proceeds thereof, to the United States, or to any informer, first provide for the payment, out of the proceeds of such ship, vessel or other property, of any bonû fide claims which shall be filed by any loyal citizen of the United States, or of any foreign state or power at peace and amity with the United States, intervening in such proceeding, and which shall be duly established by evidence as a valid claim against such ship, vessel or other property, under the laws of the United States or of any loyal state thereof: Provided, That no such claim shall be allowed in any case where the claimant shall have knowingly participated in the illegal use of such ship, vessel or other property: And provided also, That this act shall extend to such claims only as might have been enforced specifically against such ship, vessel or other property in any loyal state wherein such claim arose. 12 Stat. 820. Agents for captured property, 36. It shall be lawful for the secretary of the treasury, from and after the passage of 12 Mar. 1863 ? 1. this act, as he shall from time to time see fit, to appoint a special agent or agents to receive and collect all abandoned or captured property in any state or territory, or any portion of any state or territory of the United States, designated as in insurrection &c. against the lawful government of the United States by the proclamation of the president of July 1st 1862: Provided, That such property shall not include any kind or description which has been used, or which was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance, ships, steamboats or other water craft, and the furniture, forage, military supplies or munitions of war.(e) Ibid. 22. How appropri 37. Any part of the goods or property received or collected by such agent or agents may be appropriated to public use, on due appraisement and certificate thereof, or forwarded to any place of sale within the loyal states, as the public interests may require; ated. and all sales of such property shall be at auction to the highest bidder, and the proceeds thereof shall be paid into the treasury of the United States. Ibid. 3. 38. The secretary of the treasury may require the special agents appointed under this act to give a bond, with such securities and in such amount as he shall deem necessary, Bonds of agents. and to require the increase of said amounts and the strengthening of said security, as circumstances may demand; and he shall also cause a book or books of account to be kept, showing from whom such property was received, the cost of transportation and proceeds of the sale thereof. And any person (g) claiming to have been the owner of When owner any such abandoned or captured property, may, at any time within two years after the suppression of the rebellion,(h) prefer his claim to the proceeds thereof in the court of Jurisdiction of claims; and on proof to the satisfaction of said court of his ownership of said pro (a) This act is constitutional: it applies as well to real as to personal property. United States v. Republican Banner Office, 11 Pitts. L. J. 153. It embraces all descriptions of property, real or personal, on land or on water. Union Insurance Co. v. United States, 6 Wall. 759. (b) Property captured at sea, if liable to confiscation under this act, can be proceeded against in the prize courts. The Sarah Starr, Blatch. Pr. Cas. 70. But property seized on land must be proceeded against at common law. Armstrong's Foundry, 6 Wall. 766. United States v. Athens Armory, 35 Geo. 344. may reclaim. court of claims. 12 March 1863. perty, (a) of his right to the proceeds thereof, (b) and that he has never given any aid or comfort to the present rebellion, (c) to receive the residue of such proceeds, after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expenses attending the disposition thereof.(d) Ibid. 24. Property surrectionary districts to be confiscated. Proceedings for condemnation. 39. All property coming into any of the United States not declared in insurrection as aforesaid, from within any of the states declared in insurrection, through or by any brought from in- other person than any agent duly appointed under the provisions of this act, or under a lawful clearance by the proper officer of the treasury department, shall be confiscated to the use of the government of the United States; and the proceedings for the condemnation and sale of any such property shall be instituted and conducted, under the direction of the secretary of the treasury, in the mode prescribed by the 89th and 90th sections of the act of March 2d 1799, entitled "An act to regulate the collection of duties on imports and tonnage." And any agent or agents, person or persons, by or through whom such property shall come within the lines of the United States unlawfully, as aforesaid, shall be judged guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not exceeding one thousand dollars, or imprisoned for any time not exceeding one year, or both, at the discretion of the court. And the fines, penalties and forfeitures accruing under this act may be mitigated or remitted in the mode prescribed by the act of March 3d 1797, or in such manner, in special cases, as the secretary of the treasury may prescribe. Punishment of agents. Remission of penalties. Ibid. 6. All captured property to be delivered up. Penalty for refusal or neglect. Ibid. 27. 2 July 1864 3 1. 13 Stat. 375. Sales of abandoned property. Ibid. § 2. estate to be leased. 40. It shall be the duty of every officer or private of the regular or volunteer forces of the United States, or any officer, sailor or marine in the naval service of the United States upon the inland waters of the United States, who may take or receive any such abandoned property, or cotton, sugar, rice or tobacco, from persons in such insurrectionary districts, or have it under his control, to turn the same over to an agent appointed as aforesaid, who shall give a receipt therefor; and in case he shall refuse or neglect so to do, he shall be tried by a court martial, and shall be dismissed from the service, or, if an officer, reduced to the ranks, or suffer such other punishment as said court shall order, with the approval of the president of the United States. 41. None of the provisions of this act shall apply to any lawful maritime prize by the naval forces of the United States. 42. Sales of captured and abandoned property, under the act approved March 12th 1863, may be made at such places, in states declared in insurrection, as may be designated by the secretary of the treasury, as well as at other places now authorized by said act. 43. In addition to the captured and abandoned property to be received, collected and Abandoned real disposed of, as provided in said act, the said agents shall take charge of and lease, for periods not exceeding twelve months, the abandoned lands, houses and tenements within the districts therein named, and shall also provide, in such leases or otherwise, for the employment and general welfare of all persons within the lines of national military occupation, within said insurrectionary states, formerly held as slaves, who are or shall become free. Property, real or personal, shall be regarded as abandoned, when the lawful owner thereof shall be voluntarily absent therefrom, and engaged, either in arms or otherwise, in aiding or encouraging the rebellion. When property to be deemed abandoned. Ibid. 23. Proceeds to be paid into the treasury. 44. All moneys arising from the leasing of abandoned lands, houses and tenements, or from sales of captured and abandoned property collected and sold in pursuance of said act, or of this act, or from fees collected under the rules and regulations made by the secretary of the treasury, and approved by the president, dated respectively the 28th day of August 1862, the 31st day of March and the 11th day of September 1863, or under any amendments or modifications thereof, which have been or shall be made by the secretary of the treasury, and approved by the president, for conducting the commercial intercourse which has been or shall be licensed and permitted by the president, with and in states declared in insurrection, shall, after satisfying therefrom all proper and necessary expenses, to be approved by the secretary of the treasury, be paid into the treasury of the United States; (e) and all accounts of moneys received or expended (a) Two parties, each claiming to be the true owner of the property, may be joined, and their conflicting claims settled in one suit. Turner v. United States, 2 N. & H. 390. (b) See Gaither v. United States, 3 N. & H. 191. Byrnes v. United States, Ibid. 195. (c) See Thomas v. United States, 3 N. & H. 52. Foley v. United States, Ibid. 53. Meyer v. United States, Ibid. 55. Reils v. United States, Ibid. 61. Oliver v. United States, Ibid. 62. Kuper v. United States, Ibid. 74. Graver v. United States, Ibid. 83. Koester v. United States, Ibid. 95. Hancock v. United States, Ibid. 177. McKay v. United States, Ibid. 181. Clark v. United States, Ibid. 228. Edmonds v. United States, Ibid. 179. If the owner die (d) See Alexander's Cotton, 2 Wall. 404. |