
    FAULKNER’S CASE. Asa Faulkner v. The United States.
    
      On the Proofs.
    
    
      The claimant is a resident of McMinnville, Tennessee. That place is captured by the Union forces in the spring of 1862. In the fall they retire to Nashville. From • this time to the close of the war McMinnville is.alternately in the hands of the Union and insurgent forces. When the army retreats, the claimant goes •with it to Nashville, and continues there till the end of the rebellion. Before leaving McMinnville, he employs one W., living in Winchester, Tennessee, to buy cotton, and leaves funds in his hands. The agent buys ten bales, and stores 
      
      it at Paint Bode, Alabama. It is captured, sold, and the proceeds, amounting to $2,301 15, paid into the Treasury. The defendants object that MeMinmiTle and Nashville, where the claimant resided, were within the Union lines, ‘and Paint Bock, where the cotton was bought, stored, and seized, was within the rebel lines, making its purchase a breach of the non-miercov,rse laws.
    
    Where in 1863 and 1864 an agent within the Confederate lines buys cotton, with funds previously placed in his hands, the principal then residing as a refugee in Nashville, the purchase is not in violation of the non-’interoourse acts, (13i/i July, 1861,12 Stat. L., p. 257, § 5,) (31si July, 1861, id., p. 1262.) The acts and proclamations relating to commercial intercourse enumerated and examined.
    
      Messrs. GarUsle & McPherson for the claimant:
    This cotton was purchased for the claimant by an agent, Ira G-. Wood, who was employed by the claimant to buy cotton for him during the years 1863 and 1864.
    The return of the Treasury Department shows the net proceeds of this cotton to have been $2,301 15.
    The claimant gave neither aid nor comfort to the late rebellion. The evidence by which this fact is proved is clear, satisfactory, and complete. There was not at any time even a suspicion of disloyalty to the United States existing against this claimant.
    Such is the record which this claimant submits to the court to establish his right to recover a judgment against the United States in this proceeding. He has established, beyond all doubt, his right to recover the net proceeds of the cotton taken from his possession and sold by the United States, and we respectfully, in his behalf, ask a judgment therefor, amounting, as has been shown, to the sum of $2,301 15.
    
      Mr. B. 8. Hale, special counsel of the Treasury, for the defendants:
    The claim is. for the proceeds of .ten bales of cotton, alleged to have been taken by Colonel Platter, of the Fourth Indiana Cavalry, of the Union Army, in Jackson County, Alabama, in the fall of *1862.
    The capture is proved, its transfer to and receipt by Mr. Mellen, Treasury agent at Cincinnati, and its sale and payment of proceeds into the Treasury.
    
      Claimant was a resident of McMinnville and Nashville, Tennessee, during tbe war; removing from McMinnville to Nashville in the fall of 1863, when the Federal troops left McMinn-ville.
    McMinnville, from the spring of 1862 to the end of the war, was alternately in the hands of the Federáis and Confederates. It came into the hands of the Union forces simultaneously with Nashville, 25th February, 1862. It was held by them against the rebel attack of March 26,1862, and it seems to have remained in our possession until the fall of 1863.
    Nashville remained in our possession from its capture, February, 1862, to the end of the war.
    The cotton in question was bought by claimant through Ira G. Wood, an agent in Jackson County, Alabama, in the year 1863 or 1864. The time of the purchase is not shown more definitely than this; but through the whole of that time claimant resided within the lines occupied and controlled by the United States forces, going from McMinnville to Nashville in the fall of the former year, when the Union forces left McMinn-ville, and then remaining at Nashville until the close of the year.
    His trading with residents of Alabama was therefore illegal, within the provisions of the 5th section of the act of 13th July, 1861, and of the proclamation of the President of the 16th August, 1861. No permit to trade is alleged or shown, and if it were, it could not avail for his trading with the enemy outside our lines.
   Casey, Oh. J.,

delivered the opinion of the court:

The claimant was a resident of McMinnville, Tennessee, and had a cotton factory there, which was destroyed in the spring of 1862, by order of General Bosecrans. From the spring of 1862 till the end of the war, McMinnville was alternately in the hands of the Union and insurgent forces. In the fall of 1863, he went to reside in Nashville, and continued to reside there till the end of the rebellion. He employed Ira G. Wood, who lived near Winchester, Tennessee, in 1863 and 1864, to buy cotton for him. Wood had this cotton, ten bales, bought for him, and stored at Point Bock, Jackson County, Alabama, and which were taken and seized by the military authorities and shipped. Other cotton belonging to the claimant was taken at the same time, but upon application by Mr. Faulkner to the military commander, and satisfying Him that he was a loyal’ man, the other cotton was delivered up to him. These ten bales were shipped to the Treasury agent and sold, and the net proceeds amount to the sum of $2,301 15, and these are claimed in this case.

The loyalty of Faulkner is abundantly proved. The ownership and seizure, and payment of the proceeds into the Treasury, are all fully made out. And the only defence set up is that McMinnville and Nashville, where the claimant resided, were within the Union lines, and Point Bock, where the cotton was bought, stored, and seized, was within the rebel lines, and so its purchase for the claimant was a breach of the non-intercourse laws, and rendered the property subject to capture and forfeiture.

Whether trade between the inhabitants of the places designated at the times referred to was illegal and interdicted, must depend upon the acts of Congress forbidding commercial intercourse between the belligerents, the proclamations of the President issued in pursuance of these acts, the actual occupation by the one or the other of the forces at any particular time, the nature of the occupation, and the true construction to be given to thé acts and proclamations on this subject.

By the proclamation of April 15,1861, it was declared that the laws of the United States were opposed by combinations too powerful to be suppressed by the ordinary course of judicial proceeding in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, and Louisiana, and the militia of the several States was called forth for that purpose. (See 12 Stat. L., p. 1258.) By another proclamation, on the 19th of the same -month, a blockade of all the ports of those States was declared; and vessels attempting to violate the blockade were declared to be subject to capture, and to be sent to the nearest and most convenient port for proceedings against them and their cargo, as prize of war. On the 27th April, 1861, the blockade was extended to the ports of Virginia and North Carolina.

By the act of July 13, 1861, sec. 5, it was provided “that it may and. shall be lawful for the President by proclamation to 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; and thereupon all commercial intercourse by and between the same and the citizens thereof, 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 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.” (12 Stat. L., p. 257.)

By an addition to this act passed on 31st July, 1861, it was further provided u that 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 in addition,-, 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.”

On the 16th August, 1861, the President issued his proclamation, declaring “that the inhabitants of the said States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, and Florida, (except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of suoh oilier parts of that State and the other States hereinbefore named as may maintain a loyal adhesion to the Union and the Constitution, or may be, from time to time, occupied and controlled by forces of the United States, engaged in the dispersion of such insurgents,) are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful, until such insurrection shall cease, or has been suppressed.” All goods passing to or fro in violation of this proclamation, and the vessel or vehicle conveying the same, were made liable to capture and forfeiture.

By the act 2d June, 1862, for collection of-direct taxes, Ssc., it was made the duty of the President, on or before the 1st July, 1862, to declare by proclamation in what States or parts of States insurrection exists. (12 Stat. L., p. 422.) On July 1, 1862, a proclamation was issued by the President, in pursuance of this statute, in which the entire States of Tennessee and Alabama, without exception, are included. (12 Stat. L., p. 1266.)

On the 12th May, 1862, the President by proclamation declared the ports of New Orleans, Port Boyal, and Beaufort open, and trade under certain regulations there allowed. (12 Stat. L., p. 1263.)

On the 2d April, 1863, President Lincoln issued a proclamation, reciting that “experience has shown that the exceptions made in and by said proclamation, (16th August, 1861,) embarrass the due enforcement of said act of 13th July, 1861, and the proper regulations of the commercial intercourse authorized by said act, with the loyal citizens of said States.” This proclamation then designates the States in insurrection, including Alabama and Tennessee, without exception. He then declares that the inhabitants of the.States named “ are in a state of insurrection against the United States, and that all commercial intercourse, not. licensed and-conducted as provided in said act, (13th July, 1861,) between the said States and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful, until such insurrection shall cease or has been suppressed, and notice thereof has been duly given by proclamation; and all cotton, tobacco, and other products, and all other goods and chattels, wares and merchandise, coming from any of said States, with the exceptions aforesaid, into other parts of the United States, or proceeding to any of said States, with the exceptions aforesaid, without the license and permission of the President, through the Secretary of the Treasury, will, together with the vessel or vehicle conveying the same, be forfeited to the United States.”

This proclamation clearly annulled and avoided all the previous exceptions not continued. There being none in this proclamation applicable to the States of Alabama and Tennessee, it follows that the entire territory of those States was included in the insurrectionary territory, and subject to the restrictions on commercial intercourse imposed by the act 13th July, 1861, and the proclamations issued in pursuance of it. This being so, there was no more restriction or restraint upon a loyal man residing in any part of either of those States from purchasing cotton either by himself or his agent, in any other portion of either of said States, whether the place where he resided, or that where the property was bought and was situated at the time of purchase, was occupied and controlled by the Union forces or not, than there was in relation to similar purchases in Charleston, Mobile, or Savannah, before the capture of those places by the Union Army. McMinnville, Tennessee, and Paint Bock, Alabama, being alike rebel territory, the restrictions on commercial intercourse did not apply to the purchase in this case. If this were at all doubtful on the acts and proclamations already recited, it is rendered entirely certain by subsequent enactments and proclamations.

The Joint Resolution of Congress, approved, 8th February, 1865, recites in the preamble: “Whereas the-inhabitants and local authorities of the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, and Tennessee, rebelled against the Government of the United States, and were in such condition on the 8th day of November, 1864, that no valid election for electors of President and Vice-President of the United States, according to the Constitution and laws thereof, was held therein on said day; therefore,” &c. And on the ground of the facts so recited, the electoral votes of those States were excluded.

The first act or proclamation I find removing the restrictions and changing the status of persons and things is the proclamation of 13th June, 1865. It contains this clause: “And I hereby proclaim and declare that the insurrection, so far as it relates to, and within the State of Tennessee, and the inhabitants of the said State of Tennessee, as reorganized and constituted under the recently adopted constitution and reorganization, and accepted by them, is suppressed; and therefore, also, that all the disabilities and disqualifications attaching to said State, and the inhabitants thereof, consequent upon any xsrocla-mation issued by virtue of the fifth section of the act entitled, ‘An act further to provide for the collection of duties on imports, and for other purposes,’ approved the 13th day of July, 1861,.are removed.”

These citations show very clearly that from the issuing of the proclamation of 2d April, 1803, withdrawing all the exceptions contained in the proclamation 16th August, 1861, until the date of the last-recited proclamation, 13th June, 1865, all-parts of tbe States of Tennessee and Alabama constituted a part of tbe insurrectionary territory; that there was no part or portion of either to which the non-intercourse laws applied, as regarded the inhabitants and residents of those States. And as that period of time covers all these transactions of the purchase and storage of this cotton by Mr. Faulkner and its capture, the defence must fail. It is but the ordinary case of a loyal man residing in the insurrectionary territory, purchasing property and dealing within that territory. The cases both in this court and the Supreme Court recognized the right of parties so situated to buy and acquire property, and, if captured, and they make the requisite proof of loyalty, ownership, and payment of proceeds into the Treasury, they are entitled to recover. These proofs are clear and ample in this case as to ten bales, and he should recover the net proceeds, amounting to $2,301 15.

Nott, J.,

concurring:

The finding of the court does not draw from the evidence what I deem to be its material facts. As I deduce them, the cotton was bought on the other side of the fixed military lines of the United States, while the claimant was residing on this; the purchase was made by an agent under an authority, and with funds previously given; no 1 communications passed between the principal and agent after the military lines came between them; nor was aught done by either, which the law, as declared by the Supreme Court, forbade.

These facts make the case,- in my j udgment, precisely like that' of Bernheimer, as to the non-intercourse acts, and it should abide by the ruling in that case.

I do not agree to the construction given to the non-intercourse act and to the proclamation thereunder. It was intended by Congress that no person on one side of our fixed military lines should hold commercial intercourse with any person on the other. Whether the fixed military lines ran with the fixed political and geographical lines of States, or otherwise, I deem to be immaterial. Nor do I believe that it was intended that persons residing within portions of the seceded States which our armies might reconquer, were to retain privileges and immunities of commercial intercourse with the enemy denied to loyal citizens of States never guilty of rebellion. The object of the statute was to preclude from, aiding- the rebellion the wealth and products of the loyal territory. Commercial intercourse lost none of its power by starting from Nashville instead of New York.  