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 o F I Ni o ]sr 
 
 
 AS TO THE CONSTRUCTION OF 
 
 THE NON-INTERCOURSE ACTS 
 
 CAPTURED PROPERTY ACTS 
 
 UKLATIVELY TO 
 
 THE PRIZE ACTS 
 
 WASHINGTON: 
 
 1866. 
 
 
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o p I isr I o N 
 
 AS TO THE CONSTRUCTIOISi OF 
 
 THE NON-INTERCOURSE ACTS 
 
 CAPTURED PROPERTY ACTS 
 
 RELATIVELY TO 
 
 THE PRIZE ACTS 
 
 WASHINGTON: 
 
 . 1866. 
 

 NOV 23 mh 
 
 U'6 
 
^ OFiisrioN^. 
 
 Washington, April 11, 1866. 
 
 Sir: The following observations on the construction and legal effect of 
 the act of July 13, 1861, ch. 3, entitled "An act further to provide for 
 the collection of duties on imports, and for other purposes," and especially 
 sections 4, 5, 6, 7, 8, and 9 of that act, and on the act of May 20, 1862, ch. 
 81, supplementary to the foregoing, are respectfully submitted, not as 
 argument on this or that side of any question, but in the sense prescribed 
 to me by your instructions, to wit, as impartial opinion, to aid, so far as 
 such opinion may contribute to this end, in the practical solution of the 
 doubts arising in the administrative construction of those acts. 
 
 Permit me prefatorily to say that the Government of the United 
 States, meaning thereby the Legislative as well as the Executive Powers, 
 would seem, at the time of these enactments, not fully to have deter- 
 mined for itself how far its relation to the people and territory of the 
 United States, wherein opposition to the laws was either flagrant or im- 
 pending, should continue to be conducted within the limits of municipal 
 sovereignty, and how far that relation was to fall into the domain of the 
 jus belli. 
 
 The President's proclamation of April 18, 1861, did but call out militia, 
 to withstand insurrectionary combinations too powerful to be suppressed 
 by the ordinary course of judicial proceedings, in the States of South 
 Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas. 
 
 The proclamation of May 3, 1861, calls out a volunteer force for the 
 same objects, and with the same inducements. 
 
 To be sure, the intermediate proclamations of April 19 and April 27 
 propose "to set on foot a blockade" of the ports within the above-men- 
 tioned States, and those of Virginia and ISTorth Carolina ; but these pro- 
 clamations are founded in part on the fact, that "the laws of the United 
 States for the collection of the revenue cannot be effectually executed 
 
therein, conformably to that portion of the Constitution, which requires 
 duties to be uniform throughout the United States;" these proclamations 
 profess only to provide provisionally for the interval j)i"eceding the 
 assembly of Congress; and the clause v^hich they contain declaring 
 that vessels, approaching or attempting to leave either of the occluded 
 ports, shall be warned specially, and have their papers endorsed, and 
 captured only in case of thereafter again attempting to enter or leave 
 such ports, and which form of special notice the law of war does not re- 
 quire, would seem to indicate that the President had in his mind the idea 
 of a pacific, rather than a belligerent, blockade of the coasts of the dis- 
 turbed parts of the United States. 
 
 This impression is confirmed by the consideration that, in his message 
 to Congress, when it assembled, the President spoke of what had been 
 done as being " proceedings in the nature of a blockade." 
 
 The thought of a non-belligerent blockade might well have presented 
 itself to the mind of the President, seeing that, in recognized authorities 
 of the law of nations, it is laid down that neither embargo nor blockade 
 necessarily constitutes a state of regular war; that these often precede 
 the opening of hostilities, and have at start for object only provisional 
 seizure, and may or may not assume the definitive character of war 
 according to the progress of events; that modern history furnishes not 
 a few examples of such pacific blockades, excluding of course belligerent 
 capture and prize of war, and intending only municipal confiscation. 
 (See Heffter, Droit International public de I'Europe, ed. 1857, p. 220, 232.) 
 Correspondent with this thought would have been the strenuous de- 
 nial on our part, which pervades the diplomatic correspondence of the 
 Government, of the existence, at the time, of such a state of belligerency, 
 between the United States and the insurgents, as justified the recogni- 
 tion of them as belligerents by foreign Powers ; and the numerous acts 
 of Congress, asserting and regulating the continued exercise, notwith- 
 standing the current hostilities, of municipal sovereignty of the Govern- 
 ment throughout the United States. 
 
 The disclosures of time will probably show that less forceful and 
 more beneficent purposes of the President in this respect were thwarted 
 by unwise and unseasonable intimations from the ministers of foreign 
 Powers. 
 
The adjudication of the Supreme Court of the United States in the 
 " Prize Cases," so called, (2 Blach, 635,) determined that the blockade was 
 a blockade jure belli, as against neutrals, and in certain cases as against 
 citizens; but, say the Court, "it is a proposition never doubted, that the 
 belligerent party, who claims to be sovereign, may exercise both bellig- 
 erent and sovereign rights." — Ibid, p. 673, referring to Hose v. Himely, 
 4 Cranch, 272. 
 
 Hence, in the light of all subsequent knowledge and matured expe- 
 rience, as well as in that of the imperfect, and, as it were, formative con- 
 ceptions of the actual time, we see that, war or no war, the enactments 
 of July 13, 1861, and May 20, 1862, were made in the full and justifiable 
 assertion of the permanency and completeness of the municipal sove- 
 reignty of the United States. 
 
 And thus we approach the two acts, justly assuming tliat, at the 
 time of their enactment, and afterwards, first, the Government might 
 rightfully do, as respects all pro^^erty within the insurgent States, what- 
 soever it belongs to sovereign power to do ; and, secondly, that by these 
 acts, and those in addition of August 6, 1861, July 17, 1862, March 12, 
 1863, and July 2, 1864, the Government did rightfully do whatsoever in 
 its supreme discretion as a sovereign power it saw fit to do. Whether 
 or no the law of nations imposes any quahfication in this respect, we 
 shall have occasion to consider in the sequel. 
 
 I observe only in this latter relation, now, that a sovereign, engaged 
 in suppressing hostilities on the part of insurgent subjects, possesses 
 larger powers than a sovereign engaged in hostilities against another 
 sovereign; for the latter exercises only the powers belonging to the jus 
 belli, while the former superadds thereto the powers belonging to the jus 
 majestatis. — Hose v. Himely, 4 Cranch, 241 ; Hudson v. Gicestier, 4 Cranch, 
 293 ; Cherriot v. Foussat, 3 Binney, 252 ; 1 East's P. C, 104 ; Rycui's case, 
 2 Woodeson, 427, note a; Malleck's International Laio, p. 344; Upton's 
 Maritime War, 212 ; The Revere, 24 Law Rep., 276 ; The Amy Warwick, 
 24 Laio Rep., 344; Smith's Trial, 96; The Savannah, 368; Ayala, De Jure 
 ' et Officiis Bellicis, ch. 2. 
 
 We are now prepared to consider what Congress purports to have 
 enacted by these acts. 
 
The act of July 13, 18G1, is, according to its title, to provide for the 
 collection of duties on imports, and for other puri)oses, and is throughout 
 in general terms applicable to all time, and not merely to the existing 
 disturbances in certain of the United States. 
 
 Sections 1, 2, and 3 enact that if, by reason of unlawful combinations, 
 the revenue laws ■ cannot be executed at any statute port of entry, the 
 President may transfer the collection to any port of delivery in the same 
 collection district ; which provisions require no further remark here than 
 that their municipal character is evinced by their similitude to the enact- 
 ments provided for the familiar case of the old nullification controversy 
 in South Carolina. ' (Compare act of March 2, 1833, ch. 57.) 
 
 In the present act, section 4 enacts that any such ports of entry may 
 be declared closed by proclamation of the President, and if, while said 
 ports are So closed, any ship or vessel from beyond the United States, or 
 having on board any articles subject to duties, shall enter or attempt to 
 enter any such port, the same, together with its tackle, apparel, furni- 
 ture, and cargo, shall be forfeited to the United States. Here we have 
 the full assertion of a purely municipal occlusion of ports, applicable to 
 the case of a closed pox-t, in the possession of the United States, notwith- 
 standing the contemporaneous fact of insurrection flagrant, and of the 
 Federal laws maintained by Federal armed force organized as for war. 
 
 Section 5 enacts the conditions of fact on which the President may jDro- 
 
 claim the inhabitants of a State, or any part thereof, to be in a state of 
 
 insurrection against the United States, and then proceeds to enact that, 
 
 after such proclamation regarding such state — 
 
 " 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 hostilities shall con- 
 tinue; 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." 
 
 Here the language is definite, explicit, and clear as to the case and 
 subject of forfeiture, to wit, illegality of any commercial intercourse be- 
 tween the citizens of the insurgent States and those of the rest of the 
 United States (without special permission of the Government,) and con- 
 sequent forfeiture of all vehicles and goods in transitu by land or water 
 
between the so-discriminated parts of the United States. It is in terms 
 municipal forfeiture, not prize of war. 
 
 And it is presumable that, considering the scope and spirit of the whole 
 act, such property in transitu would be forfeitable, although belonging to 
 a person not technically a "citizen," but commercially domiciled in the 
 insurgent States. — See authorities collected in Laurent's Case, U. S. and 
 Ci. B. Claims Commission, p. 120. 
 
 The proclamation contemplated by the enactments of this section was 
 duly issued by the President, August 16, 1861, and gave initiatory effect 
 to the acts. — U. S. JLaivs, vol. 12, p. 1262. 
 
 Section 6 enacts that " from and after fifteen days after the issuing of 
 such proclamation, as provided in the last foregoing section of this act, 
 any ship or vessel belonging in whole or in part to any citizen or inhabi- 
 tant of said State or part of a State, whose inhabitants are so declared in 
 a state of insurrection, found at sea, or in any port of the rest of the 
 United States, shall be forfeited to the United States." 
 
 Here question arises : Do or not the words of the sixth section involve 
 inquiry of the destination of the vessel? Does the cargo, as well as the 
 vessel, become forfeited ? Are the conditions of the case to be the same 
 as those of the preceding section? 
 
 Looking at the letter of this section, it would seem that, by it, Con- 
 gress intended to comprehend not only any ship or vessel of such own- 
 ership, in ports of the United States, regardless of any proposed voyage, 
 or at sea, whithersoever bound. But, as to the latter case, of ships at sea, 
 it might be the safer construction to comprehend them only when in 
 form or in true purpose destined to some port of the United States. 
 
 However this may be, yet the cargo of such ship or vessel, or any part 
 thereof, having the same ownership, would, although not expressed, likewise 
 be comprehended by construction. For it is difficult to see why, as rebel 
 property, the vessel should be forfeited for undertaking an unlawful voy- 
 age, and not her contents, for the same unlawftil voyage. General rules of 
 law would make both subject to the same fate, where the inducements are 
 the same, and under the same circumstances. 
 
 Nothing occurs to the contrary of this, except a decision of the Suj^reme 
 Coiirt on the Embargo Acts, (act of April 25, 1808, ch. 66, s. 14, 2 U. S. 
 Laws, 501,) to the effect that the detention of a vessel authorized by that 
 
8 
 
 act does not require the detention of the cargo, if it be separable from 
 the vessel, and it be the will of the owner to make the separation, (Slocum 
 V. Mayberry, 8 Cranch, 1 ;) because, the object of the law being to prevent 
 the prohibited voyage, this object did not require detention of the goods. 
 The voyage was broken up effectually by the detention of the vessel : 
 hence the cargo might well be surrendered to the custody of the owner. 
 For, say the Court, "The cargoes thus arrested and detained were gener- 
 ally of a perishable nature, and it would have been wanton oppression to 
 expose them to loss by unlimited detention, in a case where the owner 
 was willing to remove all danger of exportation," (p. 11.) 'No such con- 
 siderations apply to the case of rebel property confiscable as such. And 
 the cargo, equally with the ship, is forfeited by the Non-intercourse Acts 
 of the early history of the Government. 
 
 Certain it is, meanwhile, that, as to cases of municipal forfeiture, it lies 
 in the discretion of Congress to jironounce forfeiture, either of the vessel 
 alone, or of the cargo alone, or of both together; and therefore the ques- 
 tion is one stricti juris, on the construction of statutes. But there is at 
 least plausible cause to think that the intention here was to forfeit cargo 
 as well as vessel. 
 
 And hence, at any rate, although the true meaning of this section be 
 not so perfectly limpid as that of the fifth section, still it is prudent and 
 safe to say, that the construction here suggested is one, which, in the 
 ordinary course of justice, counsel would regard as of sufiicient gravity 
 and apparent force to warrant suspension of opinion and action until it 
 could be submitted to the determination of the proper courts of law. 
 
 That a municipal seizure of property, belonging to a citizen or subject, 
 (and in certain cases even foreign property,) may be made on the high 
 seas, is indubitable. — JjCI Jeune Eugenie, 2 Mason, 409, 413. 
 
 Section 7 enacts that "in the execution of this act, and of the other 
 laws of the United States providing for the collection of duties on im- 
 ports and tonnage, it may and shall be lawful for the President, in addi- 
 tion to the revenue cutters in service, to employ in aid thereof such other 
 suitable vessels as may, in his judgment, be required." 
 
 Section 8 enacts that " the forfeitures and penalties incurred by virtue 
 of this'?ict may be mitigated or remitted in pursuance of the authority 
 vested in the Secretary of the Treasury by the act entitled ' An act pro- 
 
9 
 
 viding for mitigating or remitting the forfeitures, penalties, and disabili- 
 ties accruing in certain cases therein mentioned, approved March 3, 
 1797,' or, in cases where sj)ecial circumstances seem to require it, accord- 
 ing to regulations to be prescribed by the Secretary of the Treasury." 
 
 This enactment, it is manifest, confers on the Secretary not merely the 
 power he had in similar matters by previous laws, (Comp. Acts of March 
 3, 1797, and of February 11, 1800,) bat also large additional powers. 
 According to the former acts, he could remit only on the report of the 
 district judge, before whom the case might be pending, and on the facts 
 reported by such judge, (The Margaj-etta, 2 Gallison, 515.) According 
 to the present act, he may, when special circumstances se^m to him to 
 requii'e it, proceed without judicial report, and in pursuance of regulations 
 of the Treasury Department. 
 
 In either case, conformably with established rules of law, the Secre- 
 tary's power to remit applies at any time before or after final condemna- 
 tion until the proceeds shall have been actually distributed, and such 
 remission extends to shares of the proceeds accruing to individuals, as 
 well as to the interest of the United States. — United States v. Morris, 10 
 Wheaton, 246 ; McLane v. United States, 6 Peters, 404. 
 
 Section 9 enacts that proceedings on seizures for forfeitures under the 
 act may be prosecuted in the Courts of the United States in any district 
 iuto which the property so seized may be taken, (or in which it may be 
 seized.) 
 
 So much as to the tenor of the act of July 13, 1861. 
 
 The proclamation of the President construes and executes all the pro- 
 visions of the act, in the following words, namely : 
 
 " I hereby enjoin all marshals and ofiicers of the revenue and of the 
 military and naval forces of the United States, to be vigilant in the 
 enforcement of the said act, and in the enforcement of the penalties and 
 foi'feitures imposed or declared by it, leaving any party who may think 
 himself aggrieved thereby to his application to the Secretary of the 
 Treasury for the remission of any penalty or forfeiture, which the said 
 Secretary is authorized by law to grant, if, in his judgment, the special 
 circumstances of any case shall require such remission." — U. S. Statutes, 
 vol. 12,^. 1262. 
 
 Here we see that the officers of the ISTavy, and of the Army, as well 
 
 as of the Treasury, are to aid in making the seizures contemplated by 
 
 the act, although such seizures are purely municipal, and that all persons 
 
 2 
 
10 
 
 aggrieved thereby arc to present their grievances to the Secretary of the 
 Treasury. 
 
 Next in order of relation comes the siipplementary act of May 20, 
 1862, which empowers the Secretary of the Treasury to grant or to 
 refuse clearance to any vessel or other vehicle laden with goods, wares, 
 or merchandise, destined to a foreign or domestic port, whenever he shall 
 have satisfactory reason to believe that such goods, wares, or merchan- 
 dise, or any part thereof, whatever may be their ostensible destination, 
 are intended for ports or places in possession or under control of insur- 
 gents against the United States; and any vessel or vehicle so departing, 
 or attempting to depart, without such clearance, is, with her tackle, ap- 
 parel, furniture, and cargo, forfeited to the United States. • 
 
 The same act empowers the Secretary of the Treasury to prohibit and 
 prevent the transportation, in any vessel, or upon any railroad, turnj)ike, 
 or other means of transportation in the United States, of any goods, 
 wares, and merchandise, of whatever character, and whatever may be 
 the ostensible destination of the same, in all cases where there shall be 
 satisfactory reason to believe that such goods, wares, or merchandise are 
 intended for any place in the possession or under the control of insur- 
 gents against the United States; and any goods, wares, or merchandise 
 transported, or attempted to be transported, in violation of this provision 
 shall be forfeited to the United States. 
 
 Section 4 enacts that proceedings for the penalties and forfeitures 
 accruing under this act, and for the mitigation and remission of the same, 
 shall conform to the provisions of the act of July 13, 1861, to which this 
 act is supplementary. 
 
 Finally, section 5 enacts that " the proceeds of all penalties and forfeit- 
 ures, 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 2, 1799, entitled 'An act to regulate the collection of duties on 
 imports and tonnage.' " 
 
 This act is important, not merely because it adds to the scope of for- 
 feitures, but for the greater reason that it makes express grant of a share 
 of the forfeitures, accruing as well under the act itself as under that of 
 July 13, 1861, as for revenue seizure, thus suj^plying a deficiency in that 
 act, and rendering still more positive and clear the purpose of Congress 
 
11 
 
 to enact a foi-feiture, not as condemnation jure belli, but by municipal 
 right, for the use of the Treasury and the seizing officers of the Treasury. 
 
 JSTow, pausing at this stage of the investigation, and reverting to the 
 single inquiry, — what is the true meaning of the two cognate acts of July 
 13, 1861, and May 20, 1862? — it would seem rightful to assume, as a thing 
 beyond peradventure or doubt, that these acts, in express terms, inten- 
 tion, and spirit, do enact mere municipal forfeitures, subject to the admin- 
 istration of the Secretary of the Treasury. 
 
 In justification of the assumption of the Government to retain and ex- 
 ercise complete municipal sovereignty over insurgents against the United 
 States, general authorities were cited at the commencement of this Opin- 
 ion. Confirmation of the doctrine, as applied specially to the two acts of 
 Congress before us, occurs in a judicial opinion entitled to deference, that 
 of Judge Treat, of the District of Missouri, in the case of the United 
 States V. Barrels of Cement, (3 American Law Register, N. S., 735, 747.) 
 His words are as follows : 
 
 " Considering the statute (of July 13, 1861) as the exercise of muni- 
 cipal or intra-territorial sovereignty, prohibiting certain commercial 
 operations, the claimants, no matter where residing within the territorial 
 jurisdiction of the United States, were bound thereby, irrespective of 
 State citizenship or residence. All citizens, loyal or disloyal, are alike 
 subject to the law. Hence a decision of the question as to such citizen- 
 ship or residence on the one hand, or as to the loyalty or disloyalty of 
 claimants on the other, is not necessary in this case. The analogies 
 drawn from the laws of war, as laid down by publicists, may assist in 
 solving the constitutional questions which arise concerning the power of 
 the Federal Government in suj)pressing insurrections, and may also aid 
 in the interpretation of the statutes passed concerning such a condition 
 of hostilities ; but the case before the Court is not one to be decided by 
 international law, but by municipal statutes. The .voyage was not be- 
 tween this and a foreign country during a foreign war, does not affect 
 any supposed neutral right, and necessarily involves, therefore, no doc- 
 ti-ine of international law, regulating warlike operations between foreign 
 belligerents. The questions are intra-territorial entirely, and relate solely 
 to the powers and duties of the Federal Government, intra-territorially, 
 under the Constitution. * * * * fpi^e position of foreign nations 
 with respect to this insurrection, it must be remembered, does not deter- 
 mine its status in American courts. The latter follow exclusively the 
 decision of the political department of the United States Government on 
 that question. Even if other nations had recognized the so-called Con- 
 federate Government as an independent Power, their recognition would 
 bind themselves and their subjects alone, not the United States, Those 
 foreign nations which have recognized a state of belligerency, and as- 
 sumed the position of neutrals, estop their subjects from disputing the 
 lawfulness of captures on the high seas, according to the laws of mari- 
 
12 
 
 time warfare. The ships and cargoes of their subjects are to be judged 
 accordingly. But rebel property thus captured is amenable to municipal 
 authority. All American courts are bound to treat the insurrectionary 
 States as integral parts of the Union, and subject to its Constitution and 
 laws. In the adjudication of all such questions arising here, the United 
 States statutes would furnish the rules of decision. In other Avords, as 
 to all foreign nations, the United States Government is absolutely sov- 
 ereign Avithin its own territorial limits, and over its own subjects. Its 
 internal constitution is a subject Avith Avhich foreign PoAvers have no right 
 to intermeddle. The equality and independence of nations could not 
 otherwise exist." 
 
 The same learned Judge, in another case, that of the United States 
 against Certain Packages, (2 American Laio Megister, N. S., 419,) makes 
 the folloAving observations : 
 
 " The act of July 13, 1861, is a municipal and revenue statute. 
 
 " Waiving all discussions of the constitutional question, (which is purely 
 municipal or intra-territorial,) and looking only to the international laAA'S 
 of blockade, neutrals cannot sail on a voyage Avith the intent to enter a 
 blockaded port Avithout becoming lawful prize under the laAv of nations. 
 A citizen of the United States subject to the municipal laAA'' may be for- 
 bidden by that laAV to do what a neutral would haA-e a right to do on the 
 high seas. A neutral, for instance, may laAvfully enter any unblockaded 
 port of the adverse belligerent Avith a cargo not contraband, and depart 
 therefrom. But if an American citizen (the United States being the other 
 belligerent) should attempt to do so, the United States might subject him 
 to severe penalties personally, and confiscate his vessel and cargo, if thus 
 found ' adherent to the enemy,' as Avas done by the act of July 6, 1812. 
 He is subject both to the laAv of nations and to the municipal laAv of his 
 OAvn domicil." 
 
 Further reference, in support of the same opinion, may be made to the 
 cases of the United States v. The Steamboat Hannibal, and of the United 
 States V. The Champion, (2 American Law Register, N. S., 421.) 
 
 If there were nothing else to affect the question, Ave might Avell stop 
 here, and conclude that, in virtue of the provisions of the act of July 13, 
 1861, and of May 20, 1862, the jurisdiction of the Secretary of the Treas- 
 ury is complete, in regard to all the cases comprehended within the pur- 
 view of those acts. 
 
 ISTor could any question be raised in this respect, but for the fact, that, 
 on seizures made in cases Avhere the subject-matter and the circumstances 
 Avere such as those acts define, proceedings have been instituted and con- 
 demnations had on the prize side of the admiralty courts as for captures 
 jure belli, instead of on the instance side as for seizures by municipal 
 authority; and that, in consequence of this, the proceeds are noAV claimed 
 
13 
 
 for distribution as prize money, lialf to the captors, and half to the pen- 
 sion fund of the l!^avy. 
 
 Hence the ultimate question may be one of conflict of law between 
 revenue acts and prize acts. 
 
 At the time when most of the takings and of the proceedings for con- 
 demnation occurred, the question of prize stood on old acts, namely, that 
 of April 23, 1800, and its supplements, especially those of January 22, 
 1813, April 26, 1816, and March 3, 1849, together with certain amenda- 
 tory provisions in the more recent acts of March 25, 1862, July 17, 1862, 
 and March 3, 1863, in so far as regards the provisional custody of prize 
 money and its ultimate distribution. All these acts are now superseded 
 by the later act of June 30, 1861, which constitutes the existing statute 
 prize law of the United States. 
 
 Although the late acts, including that now in force, are all subsequent 
 in date to the revenue act of July 13, 1861, and most of them to that of 
 May 20, 1862, yet, in view of the tenor of the pre-existing acts, that fact 
 is not decisive as to any matter of present consideration. 
 
 Still the circumstance has some weight. These forfeitures were ex- 
 pressly granted to the Treasury and its officers by the Eevenue Acts of 
 July 13, 1861, and May 20, 1862 ; and what good reason is there to pre- 
 tend that the grants were revoked by mere implication of subsequent 
 Prize Acts, and this, in many cases, even after the forfeitures had actually 
 in right or fact accrued to the Treasury ? 
 
 According to the Prize Acts, the proceeds of all captured property, ad- 
 judged good prize, shall, when the vessels captured are of equal or supe- 
 rior force to the vessels making the capture, be the sole property of the 
 captors, and when of inferior force shall be divided equally betAveen the 
 United States and the officers and men making the capture, in certain 
 defined proportions ; and all prize money arising from captures made by 
 the vessels of the Navy of the United States is, in the interval of time 
 between the sale of the prizes and the final distribution of the question 
 of prize in due form of law, deposited with proper officers of the Treas- 
 ury.— TAe Porpoise, 2 Curtis, 0. G. B., 307. 
 
 Now the critical question is, — Do the Prize Acts supersede the acts of 
 municipal forfeiture? Is every provision of revenue law to be deemed 
 and taken as absorbed and extinguished by prize law ? 
 
14 
 
 The assumption that it is so is based upon the opinion of the Supreme 
 Court in the case of " The Sally," (8 Cranch, 382,) which is to the effect: 
 1. That, in pursuance of adjudications of the prize courts of Great Britain, 
 property engaged in illegal intercourse with the enemy is deemed enemy 
 property, and so must be condemned as prize to the captors, notwith- 
 standing any antecedent municipal forfeiture ; 2. That the municipal 
 forfeiture was absorbed in the more general operation of the laws of 
 war ; 3. That " the property of an enemy seems hardly to be within the 
 purview of mere municipal regulations, but is confiscable under the jus 
 gentium;'' and, 4. That if the doctrine were otherwise, still the Prize 
 Act " operates as a lawful grant of all property rightfully captured by 
 commissioned privateers as prize of war." 
 
 As to the first of these four propositions, to wit, that the property en- 
 gaged in illegal intercourse with the enemy is to be deemed enemy proj)- 
 erty, it is immaterial whether we deny that absolutely, or consider it as 
 true, under certain conditions ; for it is but the assertion of a mere legal 
 fiction, advanced for the purpose of subjecting different things to the 
 same legal consequences by fictitious and artificial assimilation. 
 
 As to the second proposition, to wit, that municipal forfeitures are ab- 
 sorbed by the general operation of the laws of war, that again is not only 
 a legal fiction, but a metaphorical form of words to disguise a thought, 
 which, if expressed in simple language, would not be admitted by any 
 save interested parties. It amounts to this : — No matter what disposition 
 you, the Government, may, in the exercise of your sovereign power, ex- 
 pressly make of property subject to municipal forfeiture, — whatever that 
 may be, Ave, the prize courts, -undertake to defeat your sovereign and 
 positive laws on this subject, by setting up against them the legal fiction 
 of an all-devouring general operation of the laws of war, which means 
 our own construction of rules of maritime prize wrought out by us in 
 the interest of prize captors ! How can the prize courts rightfully assert 
 any such power, in a purely domestic question, to overrule the statute 
 law of their own Government? 
 
 The third proposition, doubtingly enunciated by the Court, and in the 
 form of a semble, not of a positive assertion of truth, is the groundwork 
 of the decision. " iSemhle" [in effect say the Court] that the property of 
 an enemy, being confiscable by the jus gentium, is hardly within the pur- 
 
15 
 
 view of a mere municipal regulation. Perhaps -'yes,' and perhaps "no," 
 as to the property of enemies in fact. Bat, in the matter before us, it 
 is not the property of enemies in fact, but of Americans. And it is very 
 debateable whether the decision has any application to cases like this ; 
 because it must be admitted that insurgents are only enemies in a quali- 
 fied sense, and by fiction, construction, artificial assimilation treated as 
 identity ; since they do always continue subject de jure to the municipal 
 sovereignty of the legitimate Government. 
 
 Finally, as to the fourth proposition of the Court, — that is altogether 
 fallacious. 
 
 In virtue of what established rule of construction does the Court assert 
 that a grant of prize forfeitures to prize captors annuls a grant of reve- 
 nue forfeitures previously vested in the Treasury ? That is not apparent 
 as general doctrine. Least of all is it apparent, if such were a general 
 doctrine, how it would apply to the present matter, as to which not only 
 does the statute vest the forfeiture in the Treasury, but the express ex- 
 ecutive command of the President, as constitutional " Commander-in- 
 Chief of the Army and IsTavy of the United States," plainly and peremp- 
 torily orders all ofiicers, military, naval, and civil, to deal with the proj)- 
 erty, described in these acts, not as prize, but as Treasury forfeitures, 
 subject to remission by the Secretary. 
 
 Why may not "the property of an enemy" be within the purview of 
 mere municipal regulations, when the party is but a constructive or ficti- 
 tious enemy, and is in fact and in truth a subject, and so amenable to the 
 municipal law ? It seems, on the contrary, evidently just that the prop- 
 erty of an enemy subject should, in certain conditions, be within the 
 purview of mere municipal regulations. It is the peculiarity of the legal 
 predicament of a rebel, 'as we have already seen, to be responsible both 
 to the municipal law and the jus gentium. 
 
 Neither in the opinion of the Court in the case of " The Sally," nor in 
 the argument of counsel in the twin case of " The Eapid," (8 Crancli, 
 154,) is the present contingency touched; although in " The Eapid" the 
 Court does argumentatively consider and decide that property of a 
 citizen of the United States may be prize of war to the United States. 
 
 In "The Sally," the Court loosely and upon hasty presentation of some- 
 
16 
 
 thing which in its opinion " hardly seems to be," comes to a conQjusion, 
 certainly erroneous in its generality of "statement, and which as argu- 
 ment stands upon the equally cursory statement of opinion attributed to 
 the prize courts of Great Britain. 
 
 While, in the early part of the present century, the political depart- 
 ment of the American Government was engaged in steadily combatting 
 the over-strained constructions of the laws of maritime war, set up by 
 the courts and publicists of England, it is remarkable that not a few of 
 the most exceptionable of those constructions were at the same time 
 being transported one by one into our own jurisprudence by the judicial 
 department of our Government, with a prevailing tendency to exaggerate 
 the rights of prize, in the interest of captors, that is, of maritime depre- 
 dation. One of the marked manifestations of that tendency is the pri- 
 vateer decision in the case of "The Sally." 
 
 It may be too late now to undo that which is ah^eady done in this re- 
 spect; but the occasion is a good one to stop going on in that direction, 
 and to begin to act on a wiser and better policy of our own, and ceasing, 
 in a purely domestic question, to submit the rights of our own sovereignty 
 to the imaginary pression of hostile or foreign prize law. 
 
 The opinion of the Court, in the case of " The Sally," exhibits no in- 
 trinsic claims to respect. It is the curtest possible, and furnishes very 
 scanty and imperfect reasons for the decision. 
 
 The Court half apologizes for this unsatisfactory brevity, by referring 
 to the previous case of " The Eapid." But in that case no opinion what- 
 ever is given on these points. 
 
 "The Eapid" and "The Sally" were both war-captures, made during 
 the late war between Great Britain and the United States. But for the 
 occurrence of a foreign war, those vessels would have been confiscable 
 under the Non-intercourse Acts, and they ceased to be so because of that 
 war: which consideration may serve to sustain these two decisions, but 
 fails to reach the present question. 
 
 The English prize case of "The Nelly," (1 C. Eob., 219, note,) on 
 on which our Supreme Court relied in the case of " The Sally," is quite 
 as unsatisfactory as the latter ; and although it is pertinent to the latter 
 case, because in "The Nelly," as well as "The Sally," the property was 
 
17, 
 
 affected by foreign war, yet, morever^ a decision the other way, that of 
 " The Etrusco," was very summarily cast aside by Sir Wilham Scott. 
 
 If foreign prize law is to decide tne question, it is not easy to see why 
 that of England should be accepted as conclusive, rather than the con- 
 trary law of France and Spain, as cited in the case of " The JSTelly." 
 
 The nearest analogous case to the present is that of " The Dickinson," 
 (Becisions of Hay and Marriott, p. 1,) which was an incident of the 
 American Eevolution. There the forfeiture did not go to the captors, 
 but to the Lord High Admiral. 
 
 In G-reat Britain, the Crown has power to limit the operation of hos- 
 tilities, and to exempt from prize, generally or specially ( The JElsebe, 5 C, 
 Bob. 173;) it may restore prize as against the interest of captors, (The 
 St. Ivan, Edwards, 377;) it may at any time before distribution alter or 
 revoke a grant of prize money, (Alexander v. I>uke of Wellington, 2 Russ. 
 & M. 35;) and emergencies of public policy in particular cases suffice to 
 divert condemnation from the captors, and award it to the Crown, (Ships 
 taken at Genoa, 4 C. Bob. 388.) 
 
 These considerations serve, at least, to show how unsafe it is to 
 transfer to our admiralty jurisprudence some detached dictum of the 
 English prize cases, as that in "The Nelly," without regard to the 
 temperaments and qualifications attaching to English prize law by 
 reason of its complex relations to the Crown, to the Lord High Admiral, 
 and to the Exchequer. 
 
 It IS much to be regretted, said a statesman of the last generation, 
 speaking of the decisions of the time and temper of that of " The Sally," — 
 it is much to be regretted that "so great a passion for prizes" * * * 
 fascinated and seduced our courts, and contaminated our code with a 
 "craving for condemnations." 
 
 In fine, the decision itself in the case of "The Sally" is a debate- 
 able one; and, if sound, stiU it does not, either in fact or in terms, cover 
 the eases before us, and is not entitled to be regarded as dictating what 
 decision shall be made of them. It is wide of the question before us. 
 
 That question is a new one, and it is this: 
 
 May not the United States, in the exercise of their sovereignty as such, 
 determine what shall be done with property taken by the United States from 
 Americans, legitimate subjects of the Uiited States? By what rule of right 
 .3 
 
18 
 
 or reason is it, that, in regard to the property of such Americans, prize 
 law should assume to override municipal law? It is in the mere discre- 
 tion of the Government whether it will or not allow any prize money to 
 maritime captors, even in time of foreign war; just as it is in the dis- 
 cretion of the sovereign to allow or not to allow booty to land captors 
 in time of foreign war. All that, in the United States, stands absolutely 
 upon statute law, enacted in virtue of the power given by the Constitu- 
 tion to Congress to "make rules concerning captures on land and water." 
 
 In the present case, the statute does undoubtedly, in express terms, 
 enact that certain property shall be forfeited and distributed as revenue 
 forfeiture. Surely Congress has the power so to enact. That is not a ques- 
 tion of international law, jus inter gentes, but of domestic policy and do- 
 mestic law, with which the international law has no concern. And it is 
 begging the whole question to pretend that the law of prize, enacted by 
 Congress, abrogates, extinguishes, and annuls the law of revenue forfeit- 
 ure enacted by the same Congress. 
 
 There is one important adjudication, that of Judge Betts, of the south- 
 ern district of New York, the case of "The Sarah Starr," in which, 
 while commenting on the provisions of the act of July 13, 1861, and de- 
 ciding that the case before him was one of prize, yet he concludes that 
 "there is no incompatibility in inforcing the forfeiture, through the 
 power of the Court under the process of prize, or in proceedings for con- 
 demnation on the instance side of the Court, on motion of the district 
 attorney in the same suit." — 3£S. Opinion in the case of the brig Sarah 
 Starr and cargo, and the schooner Aighurth and cargo. 
 
 In his discussion of these cases, Judge Betts appears to assume that 
 the sixth section of the act of July 13, 1861, comprehends cargo as well as 
 vessel. 
 
 In the case of "The Amazon," and in other cases from the eastern district 
 of Pennsylvania, heretofore acted on by the Treasury Department, it has 
 been distinctly maintained by Judge Cadwalader, that seizures, coming 
 within the letter of the act of July 13, 1861, even although proceeded 
 against as prize, are nevertheless treatable as revenue forfeitures, within 
 the jurisdiction of the Secretary of the Treasury. 
 
 Admitting, as ruled by Judge Betts, that a case may come within the 
 purview both of the Prize Acts and the Eevenue Acts, and so be proceeded 
 
 i 
 
19 
 
 against by double process at the same time, on the instance and the prize 
 side of the' admiralty court, then it would follow that the district attor- 
 ney might sue on the instance side alone, and, at the outset, with as 
 much propriety as to sue on the prize side alone. 
 
 In other words, a true determination of the present question cannot 
 be precluded by the mere fact of the district attorney having, in his dis- 
 cretion, and it may be erroneously, elected to sue on the prize side of the 
 Court, instead of the instance side. 
 
 It is no more competent here to say, that the captors in prize have a 
 vested right to a distributive share of the proceeds in the cases under 
 consideration, by reason of statute promise, than it is to say that the 
 revenue officers have a vested right by similar statute promise; for the 
 statute engagement of distribution to the revenue officers in the fifth sec- 
 tion of the act of May 20, 1860, is just as positive and explicit, as the 
 statute engagement to naval captors in the act of April 23, 1800, or that 
 of July 17, 1862. 
 
 Which of these acts, if either, is paramount and exclusive, — which, if 
 either, is to take and dispose of the property in dispute, — is a question of 
 statute construction, and of public law, which, regarding as well the 
 amount of money at stake as the momentous character of the legal prin- 
 ciples involved, seems to be pre-eminently fit to receive its final determina- 
 tion at the hands of the Supreme Court of the United States. 
 
 It is understood that the question arises formally, and awaits decision, 
 in the case of "The Gray Jacket," now pending in the Supreme Court. 
 
 In the Circuit Courts of the United States, and, indeed, in the courts 
 of the States, when a class of cases, more or less numerous, happens to 
 be pending, and one of them shall have been taken up to the highest 
 Court for final decision, it is the ordinary practice, and the received 
 exercise of judicial discretion, to continue and suspend all the cases of 
 the same class, until the test case shall have been finally determined. 
 
 It seems to me that the practice of the courts in this respect furnishes 
 a rule of action here, which may well be followed by the Treasury De- 
 partment. 
 
 Applicable to the main question there is another class of considerations, 
 which, although not involving so. much debate of technical law as the 
 issue of conflict between revenue forfeiture and prize forfeiture, yet is 
 
20 
 
 more important, perhaps, in its influences on the determination of the 
 true effect of these acts. 
 
 The acts affect in terms only the property of Americans, whether such 
 by nationality or by domicil : Americans personally loyal, it may be, as 
 well as Americans disloyal, and Americans inhabiting the loyal States, as 
 well as Americans inhabiting the insurgent States. In order to stop the 
 commercial intercourse between the two divisions of the Union and their 
 respective inhabitants, it was necessary to enact general laws compre- 
 hensive in their purview. But, in the execution of such laws, cases are 
 prone to occur where technical violation of the statute may be attended 
 by mitigating circumstances, or may be altogether innocent in spirit or 
 intention, nay, may be absolutely meritorious and praiseworthy. It 
 would be in accordance to all the traditions of the Government, and in 
 congeniality with received usages of legislation, to provide for the pun- 
 ishment of such illegal intercourse by forms of law admitting remission 
 or mitigation of penalties and forfeitures. To do this, would not imply 
 special or undue regard for inhabitants of the insurgent States: it would 
 be dictated still more by tenderness towards inhabitants of the loyal 
 States, equally subject to the penal operation of the acts. Such is mani- 
 festly the inducement of these acts . In order that they mi^ht not oper- 
 ate oppressively, and in order to enable the 'Government to afford relief 
 in particular cases deserving it. Congress enacted, not a law of prize, but 
 a law of revenue forfeitures, subject to the jurisdiction of the Secretary 
 of the Treasury. ' 
 
 Confirmation of this view of the subject is found in that provision of 
 these acts, which empowers the Secretary of the Treasury to grant 
 licenses or clearances for the intercourse otherwise prohibited, and to 
 make general regulations in this behalf Thereupon it would follow con- 
 sistently, as the acts in fact provide, that the Secretary should have 
 power to mitigate or remit the consequences of things done, or omitted 
 to be done, either in violation of or according to the regulations of the 
 Department. 
 
 Eevenue forfeiture would accomplish all possible objects of public poHcy 
 contemplated by the acts. Prize forfeiture could be no more effective 
 towards the attainment of the end sought than revenue forfeiture. 
 Prize money to captors, and nothing else, makes difference between the 
 
21 
 
 two forms of forfeiture. And whether to grant prize money to captors 
 or not, and if granting it, then in what cases, is, we repeat, a question of 
 pubhc policy not depending on any supposed laws of war, but on the sole 
 discretion of the Government. 
 
 Congress might have subjected all these cases to the law of war-prize, 
 if it had seen fit so to do ; but it did not ; it chose to subject them to the 
 municipal law, apparently for the express purpose of bringing them 
 within the scope of remission or mitigation, according to the accustomed 
 forms of statute. 
 
 If, by construction of the supposed absorbing qualities of the laws of 
 war, these revenue forfeitures are perverted into prize forfeitures, then 
 all the wise and beneficent purposes of Congress in this respect are frus- 
 trated. For there is no convenient statute routine, if indeed there be 
 any statute means, whereby either a loyal inhabitant of the insurgent 
 States or a feal inhabitant of the loyal States, can obtain relief in the 
 case of the unjust forfeiture of his property as prize of war. To be sure, 
 the President may, perhaps, have jurisdiction over the question of prize, 
 just as the Crown has in Great Britain ; for the statute or other grant of 
 prize to captors in Great Britain is just as effectual in terms of donation 
 as it is in -the United States. But, we repeat, no convenient statute 
 means for prize remission esist as with revenue forfeitures. 
 
 Whether the construction of prize law shall be allowed to frustrate the 
 declared will of Congress in the present matter is a consideration, inde- 
 pendently of all the other considerations suggested, which would seem 
 to justify suspension of distribution of prize, that is, of administrative 
 action adverse to the express terms of these acts, until the question of 
 law involved shall have been adjudicated by the Supreme Court. 
 
 These considerations appeal with peculiar force to the Secretary of the 
 Treasury. Disobedience to his regulations constitutes the offence which 
 these acts punish. The acts, in terms, require him to take complete 
 jurisdiction of the subject; to receive the forfeitures into the Treasury; 
 to remit or to mitigate in his discretion ; and to distribute a share of for- 
 feitures among ofiicers of the Treasury. Shall he repudiate and renounce 
 this jurisdiction, which includes, not only his own official duties, but also 
 the right of the Treasurj^, which he administers ? And if so, why shall 
 he do this ? Is he compelled thus to pretermit the performance of a 
 
22 
 
 statute duty, merely because some district attorney has, for good or bad 
 cause, or noue at all, instituted proceedings on the prize side of the district 
 court, instead of the instance side, as required by the letter of statute 
 and the express command of the President. Surely such a step, on the 
 part of a subordinate officer, does not determine the power or regulate 
 the duties of the Secretary of the Treasury. 
 
 Nothing less than a declaratory act of Congress, or a decision of the 
 Supreme Court, can suffice to unloose the hand of the Department in this 
 behalf, and take from it either power or money committed to it by un- 
 equivocal provisions of acts of Congress. 
 
 There is one other act, intermediate between those of July 13, 1861, 
 and May 20, 1862, which demands attention. It is the strange one of 
 August 6, 1861, entitled "An act to confiscate property used for insurrec- 
 tionary purposes." 
 
 Section 1 sets forth the conditions of such illegal uses, involving the 
 consequence of liability of the property to confiscation, and then enacts 
 that " all such property is hereby declared to be lawful subject of j;;7'~e 
 and capture } and it shall be the duty of the President of the United 
 States to cause the same to be seized, confiscated, and condemned." 
 
 Section 2 enacts that "such prizes and captures 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 which the same may be 
 seized, or into which they may be taken and proceedings first instituted." 
 
 Section 3 enacts that "the Attorney General or any district attorney 
 of the United States in which said property may at the time he, may in- 
 stitute the proceedings of condemnation, and in 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." 
 
 Section 4 provides for the emancipation of slaves employed by their 
 masters in any service against the Government, and is irrelevant to any 
 present question. 
 
 This anomalous act, with its inaccurate language, confusion of liabili- 
 ties, remedies, and jurisdictions, its omissions as singular as its commis- 
 sions, offers a very striking illustration of the embarrassments which 
 sometimes occur in the exposition of acts of Congress; 
 
23 
 
 In the absence of any authoritative judicial commentaries on this act, 
 we may possibly determine its legal effect by liberal resort to conjectural 
 supplement of its deficiencies, and discretionarj^ redistribution of its un- 
 assorted elements. 
 
 "When the act speaks of "'prize and capture," without discrimination of 
 place, as whether by sea or land, we are not to suppose it intends to create 
 a new law of land-prize, that is, military booty or loot. There is not in 
 this act or any other, provision for applying'the rules of prize process and 
 distribution to land captures by land forces. Nay, according to a recent 
 opinion of the Supreme Court, capture on the land cannot be regarded as 
 prize, in any sense. (3Irs. Alexanders Cotton, 2 Wallace, 404.) All such 
 captures, except as they may be included within the purview of the acts 
 of July 13 1861, and of May 20, 1862, or of other provisions of this act of 
 August 6, 1861, belong to the category of the Confiscation Act (July 17, 
 1862) or that of the Captured Property Acts (March 12, 1863, and July 2, 
 1864.) 
 
 And the general tenor of the Captured Property Acts seems to require 
 that all insurgent property captured within the United States shall be 
 turned over to the Treasury Department. That is especially required of 
 all oflacers and privates of the army, and of all officers, sailors, and ma- 
 rines of the navy, as to any property upon the inland waters of the 
 United States. — See U. S. Statutes, vol. 12, p. 821. 
 
 To return to the act of August 6, 1861: There may be cases of mari- 
 time capture, and so of possible prize, comprehended within the condi- 
 tions of forfeiture prescribed by this act. 
 
 The unskilful framers of the act seem to have supposed so ; for the second 
 section gives cognizance of cases to "admiralty" in language of contra- 
 distinction from the district court, as if these were distinct and separate 
 courts. And yet, on the other hand, this fact is inconclusive, because 
 jurisdiction in admiralty does not necessarily imply jJi'ize, since revenue 
 seizures are equally cognizable in admiralty. . 
 
 Moreover, the third section expressly enacts, that condemnation under 
 this act shall be either for the benefit of the United States, or on qui tarn 
 information, half to the informer, and half to the United States. With 
 reference to which, the second section gives jurisdiction to the circuit and 
 district courts as in civil matters, according to the amount in controversy. 
 
24' 
 
 This provision is of universal terms, and seems to exclude all questions 
 of prize (in the sense of prize law) from the purview of the act. 
 
 Note, however, that this act contains no express grant of power to the 
 Secretaiy of the Treasury to mitigate or remit forfeiture, nor any clause 
 for the distribution of forfeiture or any part of it among officers of the 
 Treasury. 
 
 In fine, the act stands by itself, with apparently little, if any, practical 
 importance, except as it may have served to support here and there a 
 qui tarn information for the forfeiture of some stray piece of insurgent 
 property, seized in places where the functions of the courts of the United 
 States were going on without interruption. If any property captured on 
 the high seas were so conditioned as to come within its purview, the cap- 
 tor, nevertheless, probably caused it to be libelled as prize of war, and so 
 the relation of it to this act may have passed without notice ; and if any 
 such property were captured on land, or upon the inland waters of the 
 United States, it is embraced within the provisions of other acts, either 
 the two Non-intercourse Acts or the Confiscation or the Captured Prop- 
 erty Acts. 
 
 I say the Captured Property Acts, because, whatever question might 
 exist as to the validity of the first of the acts, by reason of its having 
 been approved after the expiration of the Congress, (March 12, 1863;) as to 
 which there certainly may be question, (^dishing, Lex Pari iame^it aria, j). 
 920, s. 2378 ;) still that act is saved by the force of the subsequent act 
 (July 21, 1864) on the same subject. 
 
 Hence, upon examination of all the cases pending, it may not appear 
 that any exist, which present the same conflict of law and right, between 
 the act of August 6, 1861, and the Prize Acts, as that between these and 
 and the Non-intercourse Acts. If any such cases of conflict do exist, then 
 the reasons for suspension of distribution are similar to those which apply 
 to the cases of conflict under the Non-intercourse Acts. 
 
 All the conflict attaches to the condition of American property, and 
 such only, that is, American by citizenship, or American by commercial 
 domicil, whether in the loyal or the insurgent States. It does not apply 
 to foreign property captured jwre belli, as belonging to persons not subject 
 to the municipal jurisdiction of the United States. 
 
 To resume : If you determine to act on the hypothesis of discriminative 
 
25 
 
 suspension in order to await decision of the Supreme Court, then the 
 first thing to do will be to classify the pending cases, according to the 
 several categories into which they respectively fall. 
 
 The cases, on which distribution might be suspended, are all such as 
 are comprehended within the letter of the acts of July 13, 1861, and May 
 20, 1862, and of that of August 6, 1861, as they are severally explained 
 in the foregoing observations. It would comprehend only Americans by 
 nationality or domicil, and their property, whether a vehicle and its con- 
 tents, or other property in transitu, by land or water, contrary to the 
 non-intercourse provisions of these acts, or a ship (and her cargo) found 
 in a port of the United States, or at sea under certain circumstances, 
 or the specific property employed in aid of the rebellion. 
 
 Such suspension would not cover prize money due on foreign property 
 captured for breach of blockade or other cause appertaining to the jus 
 belli, and so condemnable as prize; nor property of Americans proceeded 
 against under the Confiscation Acts; nor such property held in virtue of 
 the two Abandoned Property Acts. 
 
 The next thing to do would be to establish regulations and forms of 
 examination on notice, for cases as to which the Secretary of the Treas- 
 ury intends to assume to remit in his discretion, as he lawfully may, with- 
 out waiting for the certificate of a district judge. And, as the power of 
 regulation, conferred on the Department by these Non-intercourse Acts, 
 is ample in other respects, it might, perhaps, be well to make provision 
 as to the institution of proceedings in these cases on the instance side of 
 the admiralty courts, and as to needful appeals to the Supreme Court. 
 
 I have the honor, in conclusion, to state, as the legitimate result of the 
 foregoing reflections, that — 
 
 Inasmuch as by the express terms of the acts of July 13, 1861, May 
 20, 1862, and August 6, 1861, and of the proclamation of the President 
 of August 16, 1861, the Secretary of the Treasury is charged specially 
 with the execution of these acts; 
 
 And inasmuch as the forfeitures pronounced by these acts are in and 
 by the same expressly declared to accrue to the Treasury, with power of 
 remission or mitigation in certain cases ; 
 
 And inasmuch as these acts still remain unrepealed, and of full force, 
 except in so far as they may have been modified by the acts of March 12, 
 
20 
 
 1863, and July 21, 1864, which also give exclusive jurisdiction to the 
 Treasury Department ; 
 
 Therefore, if any condemnations in prize have taken place, attaching 
 to property and cases coming within the apparent purview of these acts, 
 it is my opinion that, in the mere and plain discharge of his administra- 
 tive duties, and in the judicious exercise of a sound and wise discretion, 
 the Secretary of the Treasury may well and lawfully suspend the distri- 
 bution of the proceeds of all such condemnations, until whatever there • 
 be of questionable, if any thing, in the true construction of the acts, 
 shall have been definitively determined, in a proper case or cases before 
 it, by the Supreme Court of the United States. 
 
 I am, very respectfully. 
 
 Your obedient servant, 
 
 C. Gushing. 
 The Hon. Hugh McCulloch. 
 
 Secretary of the Treasury. 
 
LIBRARY OF CONGRESS 
 
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