6 Ct. Cl. 282 | Ct. Cl. | 1870
Lead Opinion
delivered the opinion of the court:
In the spring of 1864 the claimant was a resident of the city of Memphis, Tennessee, which city was then in the military occupation of the United States. He claimed tb be the owner of certain slaves which were at Mobile, Alabama, and. he gave to Christian Dickmann, a subject of Denmark, a power of attorney to sell the said slaves and invest the proceeds in cotton, real estate, or anything Dickmann pleased. Mobile was then within the territory occupied by the rebel Confederacy. Dickmann passed through the military lines of the United States under a passport of the provost marshal at Memphis,
It seems to us.'that this case is essentially undistinguishable from Grossmeyer’s Case, (9 Wall., 72,) except that the claimant here is less entitled to recover than was the claimant in that case.
There the claimant, a resident of New Tork, was, when the war of the rebellion broke out, a creditor of one Einstein, a resident of Macon, Georgia; and while the war was in progress, a correspondence on the subject of the indebtedness of the latter was kept up, through the medium of a third person, who chanced to pass back and forth between Macon and New Tork. The communication between the parties resulted in Grossmeyer requesting Einstein to remit the amount due him in money or sterling exchange, or, if that were not possible, to invest the sum in cotton and hold it for him until the close of the war. Einstein purchased cotton for Grossmeyrer, and informed him of it, Grossmeyer expressing himself satisfied with the arrangement. The cotton was captured by the military forces of the United States at Savannah, and sent to New Tork and sold. Grossmeyer preferred a claim for the net proceeds in this court, and when the case went to the Supreme Court it was there held that he was prohibited during the war from having any dealings with his agent; that nothing which both or either of them did could have the effect to vest in Gross-meyer the title to the cotton; and that not being, therefore, the owner of the cotton, he had no claim against the United States.
Now, what is the difference, in substance, between that case and this? If there is any, it is against this claimant.
Here the claimant’s agent was not his debtor trying to pay his debt, but one appointed for a specific purpose.
Nor was the agent a resident of the insurrectionary States, with whom the claimant communicated by letter, but a resident of the territory occupied by the military forces of the United
He went, too, with authority to sell as slaves persons who, more than a year before, had been declared free by proclamation of the President of the United States, and to invest the proceeds in other property.
The whole transaction, therefore, was, in any point of view, much less meritorious than that between G-rossmeyer and Einstein.
It is, however, attempted to distinguish this case from that, upon the ground that Grossmeyer was resident in a loyal State, while the claimant in this case was resident in a State which had, by presidential proclamation, been declared in insurrection, and therefore constituted a part of the insurrec-tionary region within which it is claimed parties might lawfully hold commercial intercourse with each other. This distinction is not sound.
The proclamation of the President of August 16, 1861, declaring the people of certain States and parts of States in insurrection, excepted from its operations such parts of any of such.States as might “be, from time to time, occupied and controlled by forces of the United States engaged in the dispersion of said insurgents.” Among the States named in that proclamation was Tennessee.
On the 6th .of June, 1862, the city of Memphis was captured, and thenceforth was occupied and controlled by forces of the United States, and thereby came within the exception of that proclamation.
On the 2d of April, 1863, however, the President issued another proclamation, revoking that exception, and declaring the inhabitants of Tennessee, as well as those of the other rebel States, to be in a state of insurrection; and that all commercial intercourse not licensed and conducted as provided in the Act 13th July, 1861, between the said States and the inhabitants thereof, (with certain defined exceptions,) and the citizens of other States and other parts of the United States, was unlawful, and would remain unlawful until the insurrection should cease or be suppressed.
This position cannot, in our judgment, be maintained. Whatever might be said in support of the right of commercial intercourse between inhabitants of portions of Tennessee which were not Avithin the lines of the military forces of the United States and inhabitants of Alabama Avithin the enemy’s lines* there is no principle of law which would alloAv such intercourse between persons residing within the former lines and persons, residing in the region controlled and held by the enemy.
The act of the claimant in holding such intercourse is not,, as we understand, defended upon legal principles, but upon the simple ground that, technically, Memphis was in a State which had, as a whole, been declared in insurrection, though at that spot the insurrection was practically subdued through its occupation by the military forces of the government.
If the illegality of commercial intercourse between the inhabitants of Memphis and those of Mobile rested upon that proclamation alone, this position would be more plausible; but it had. a much broader foundation in the well-established rule of public law, announced by the Supreme Court in Grossmeyer’s case in these words:
“It has been found necessary, as soon as Avar is commenced, that business intercourse should cease between the citizens of the respective parties engaged in it, and this necessity is so great that all writers on public law agree that it is unlawful, loithout any express declaration of the sovereign on the subject.”
This rule is decisive. The claimant was a citizen of the United States, residing within lines of, and protected by, the military forces- thereof, and his sending an agent through thosé lines to trade with inhabitants of the rebel confederacy was unlawful “business intercourse ” Avith them, and gave him no rights which he can enforce here against the government whose laws he disregarded.
If it be asked what, then, was the object and intent of the-
Had the war been with a' foreign nation, there would have been no difficulty in all knowing that commercial intercourse with that nation was ■ suspended, and in knowing, too, the boundary line between us and that nation; but in an internal war, where the parties were of the same nation, and States were ■divided by imaginary lines, an official definition of the boundaries of the insurrection was indispensable. This was made in the proclamation, and was, we suppose, its principal object and intent.
Whether so or not, however, we have no difficulty in holding that, upon the principle of public law stated by the Supreme Court, the acts of the claimant and his agent were unlawful, and therefore no title to the cotton in question was by those acts vested in the claimant.
The claimant’s petition is therefore dismissed.
Dissenting Opinion
dissenting:
The proclamation of the President of 16th August, 1861, prohibited commercial intercourse between the inhabitants of the loyal States and the inhabitants of she States it declared in insurrection, except as to such parts of the latter “ as may be, from time to time, occupied and controlled by forces of the United States,” &c. Such parts so occupied and controlled were thus made loyal territory, and had its rights and disabilities under the proclamation, for their inhabitants could trade with the loyal and could not trade with the disloyal States. But this was the effect of the exception in the proclamation and not of the military occupation, because the exception attached this effect to the military occupation which it would not have had otherwise, for military occupation is mere force and has no power in itself to determine the political relations of the government or the civil rights and status of the people. For neither our law or the common law, or the law of nations, gives it any such power. When the G-erman armies occupied a French city, such military occupation did not make the inhabitants of that
' As the proclamation of 16th August, 1861, declared the State of Tennessee in insurrection, thereafter its inhabitants could not trade in the loyal States, and could trade in the States of insurrection, until June 6,1862, when the capture of Memphis brought it within the exception of the proclamation, and its inhabitants could then trade in the loyal States and could not trade in the disloyal States. But, as 1 have said, this was the effect of the exception as to military occupation; and by the proclamation of 1863 the exception was revoked, and (as it was expressly declared) ‘‘because it embarrassed the due enforcement of the act of 13th July, 1863, and the proper regulation of the commercial intercourse authorized by it.” And after the revocation of the exception for this cause, to give to military occupation any effect on commercial intercourse would be to disobey the proclamation of 1863 and defeat its purpose. And after the exception was revoked it was as utterly inefficient for all purposes as if it had never been made; and then the prohibition as to commercial intercourse between the loyal and disloyal States was absolute and unqualified. Moreover, the proclamation of 1863, after revoking the exception as to military occut>ation, in express terms reenacted the prohibition as to commercial intercourse between the loyal and disloyal States; so that under both
For the same reasons I think the case of The United States v.
Then, as to the sale of negroes for confederate money. It is-claimed that this proved and was an act of disloyalty within the third section of Act 12th March, 1863. Certainly no intent-to aid the rebellion can be inferred from such sale, because it was an ordinary business transaction of its locality, and entered into for profit, and, as the counsel for the defendants states, for speculative purposes. And so far as it was a sale, for confederate money, between two citizens of the Confederate States, in which property and price changed hands between them, it is obvious that it could no more- give aid and comfort to the rebellion than any other sale in the Confederacy, as, for instance, the sales of cotton for confederate money, which we adjudge good between citizens of the Confederate States every day.
• And so far as it was a sale of negroes, it was a valid sale when and where it was made; for slavery was not abolished till the 18th of December, 1865. Then the thirteenth amendment to the Constitution of the United States went into effect. And until 1865 slaves were property, and vendible in Alabama, where the vendee lived, and in Tennessee, where the vendor lived.
It is true that the President, by his proclamation of January 1^1863, declared that therefrom all slaves in States in insurrection were free, but I think it is not competent to executive or legislative power to abolish slavery, but that that is for the sovereign power exercised by the people and declared in the Constitution: and that, therefore, an amendment to the Constitution was necessary to abolish slavery, and that it was not abolished till the thirteenth amendment to the Constitution was made. And that that amendment was made to the Constitution of the United States, and that the States restored to the Union after the war were required to abolish slavery by provisions in their constitutions, are authoritative declarations that slavery could only be abolished by such constitutional provisions. And in the case of Prigg v. The Commonwealth of Pennsylvania, (16 Peters, 540,) the Supreme Court said that the Constitution contemplated “the existence of a positive, unqualified right on the part of the owner of a slave.” And a right recognized by the Constitution is maintained by it, and cannot
Our jurisprudence recognizes and declares the existence of certain absolute rights which are natural, inherent, and indefeasible; and among them is the right to acquire and enjoy property. And it is manifest that the power to say in what things this natural right may or may not subsist is the power to control and destroy it. For if legislative or executive authority may say it shall not subsist in any particular thing, it may say the same as to every other thing, and thus destroy the natural right altogether. And the power that may destroy one natural right may destroy all, and such a power the people had not delegated to the government.
, On the whole case, I am of opinion that the claimant is entitled to judgment for the net proceeds of the cotton claimed by him.