H^6 f REPORT OF THE SPECIAL COMMITTEE ©hambcv of ©omrnf vce «f i\\t ^tiitc »i §[ew-|jofl{, CONFISCATION OF COTTON SOUTHERN STATES BY THE GOVERNMENT JOHN W , A M E R M A N , P R I N T"E R , ^^^^ 47 Cedar Strekt. aass t '^SO Book . Uu REPORT OF THE SPECIAL COMMITTEE mmwhx of €mm\tx(t of the ^tate of im-fotfe, 'V •i CONFISCATION OF. COTTON SOUTHERN STATES BY THE GOVERNMENT. i^fa-gork: JOHN W . A M E R M A N , PRINTER^ No. 47 Cedar Street. 18G5. 56 REPOET OF THE SPECIAL COMMITTEE OF THK Chmwlr^v t>t (ffi^ntmatc of the ^kk of §ieiv-f ^jvlt, ON TUB CO]:^FISOATIO]^ OF COTTOjS" IN THE SOUTHERN STATES BY THE GOVERNMENT. SUBMITTED TO THE CHAMBER AT AN ADJOURNED REGULAR MEETING ON APRIL 2-Tn, ISCo, WHEN IT WAS ORDERED THAT FIVE HUNDRED COPIES BE PRINTED FOR THE USE OF THE MEMBERS, AND THE SUBJECT BE POSTPONED FOR CONSIDERATION AT A SPECIAL MEETING, TO BE HELD THURSDAY, MAY 11, 1865. The committee appointed to take into consideration and report to the Chamber, at an early day, what course ought, in their judgment, to be pursued by the Government of the United States, in reference to the confiscation of cotton in the Southern States, respect- fully submit the following REPORT: At the outbreak of the rebellion, the inhabitants of the insurrectionary States were largely indebted to the merchants of the northern cities. The debt owing to the merchants of this city alone, it is believed, amounted to not less than one hundred and fifty mil- • 4 lion dollars ; and it is hardly necessary to remark, that very little, if any of it, has since been liquidated. At present the chief, if not the sole, means of discharg- ing this indebtedness, consists of the cotton and other products of the soil, which have been accumulated by the debtors during the last four years. With a view to determine whether the northern creditor may, rea- sonably, hope to realize any portion of his demands from this source, the committee have examined the several acts of Congress which affect the question. By the sixth section of an act approved July l7th, 1862, and the proclamation of the President of the United States, issued under it, dated the 25th day of July, 1862, all the estate and property, moneys, stocks and credits^ belonging to any person engaged in armed rebellion against the Government of the United States, or aiding or abetting such rebellion, sixty days after the publication of the proclamation, shall be liable to seizure and condemnation for the use of the United States ; and all sales and transfers of any such pro- perty, made any time after the lapse of the sixty days' warning required by the proclamation, are declared to be null and void. This act requires proceedings to be instituted against the property seized, in some District Court of the United States ; which proceedings arc^ required to be conducted, as near as may be, according to the practice of the courts in admiralty and revenue cases. According to this practice, public notice of the seizure is required to be given, and the time and place of hearing the cause ; and the claimant has the right to appear and interjjose his claim, and contest the fact of his having been engaged in the rebellion, or of having aided or abetted it.' Under the operation of this act, which secures a trial in court, it is plainly- intended that none but the guilty shall be made to suffer. It is to be observed, in regard to the act, that it ren- ders liable to seizure and confiscation all the property of persons aiding and abetting the rebellion, as well the property located in the insurrectionary States as in the loyal States; yet, notwithstanding, Congress, by an act approved July 2, 1864, authorized the Sec- retary of the Treasury, with the approval of the Pres- ident,- to appoint agents to imrchase for the United States, any products of the insurrectionary States in such States, without regard to the question of whether such products were liable to seizure and confiscation or not ; thus implying that the act was obsolete or in- operative in the insurrectionary States. The attention of the committee has been particu- larly directed to the case of the cotton lately taken at Savannah. They believe that judicial proceedings have not been instituted by the government against that cotton, under the act first above referred to, nor are they informed that such proceedings are likely to be instituted. It is s|)oken of as " captured " cotton ; and it appears to be in the hands of an agent of the government, who holds it as captured cotton. Ac- cordingly, the committee have been led to examine another and later law on this subject, which is supposed to be more particularly applicable to the case under consideration. By the act of March 12, 1863, the Secretary of the Treasury is authorized, as he shall from time to time see fit, to appoint an agent or agents to receive and collect all abandoned and captured property, being in any State in insurrection, except munitions of war, which, on an appraisement, may be appropriated to public use, or forwarded to a loyal State for sale by public auction. Any person claiming to have been the owner of any such abandoned or captured property, may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims ; and on proof to the satisfaction ©f the court of his ownership of the property or its proceeds, and that he has never given any aid or com- fort to the rebellion, he may receive the proceeds, after deducting the expenses of transportation and other charges. This act devolves on the claimant the burden of proving his innocence. It is not probable that any considerable part of the cotton taken at Savannah is what may properly be called "abandoned" cotton. With the exception of the portion belonging to the rebel authorities, it was no doubt, at the time it was taken, in the possession of the owner or his agent. To bring it, therefore, within the scope of the act, it must be considered as " captured " cotton. It is to be observed, that neither this nor any other act of Congress declares when or under what cir- cumstances the property on land of the inhabitants of the insurrectionary States may be lawfully captured. The act in question only provides for the collection, custody and disposition of captured and abandoned property, without specifying whose, or the cause for which, property shall be captured. The government is left, therefore, to the analogies of law to determine whether the Savannah cotton, and other cotton simi- larly situated, was liable to capture. The government, in its external relations to all the inhabitants of the insurrectionary States, without regard to their loyalty or disloyalty, has hitherto considered them as alien enemies, with whom the United States were at war. Hence the blockade of their ports, and the capture and confiscation of their property on the ocean, as prize of war. But nothing has yet occurred in the prosecution, of the war, touching the internal relations of the different sections of the one nation, to indicate that the inhabitants of the insurrectionary States are considered to be alien enemies. On the con- trary, they have constantly been considered as citizens of the United States, owing allegiance thereto, subject to its penal laws, and entitled to the protection of the constitution and laws, so flir as that protection has not been forfeited by personal acts of treason or other viola- tions of law. In this aspect of the question, it is difiicult to perceive upon what principle their property can be liable to capture and confiscation, without a regular trial, and without proof of individual and personal acts of violation of law. Without doubt, many of the in- habitants of those States are innocent of any such violations,not having committed them at all, or if, having committed them, then under such circumstances of fear for their lives or for their liberty, as would very much lessen, if not destroy, their moral or legal liability. If we consider the people of the Southern States as having become, by their ordinances of secession, and the war inaugurated by them against the government, alien enemies, then the inquiry properly arises, under 8 what circumstances is their property on the land liable to capture and confiscation. "By the modern usage of nations," says Mr. Wheaton, "which has now ac- quired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art and repositories of science, are exempted from the general operations of war. Private property on land is also exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to the case of an absolute and unqualified conquest of the enemy's country." " The property belonging to the government of the vanquished nation passes to the victorious State." "It is very unusual," says Chief Justice Marshall, "even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated ; that sense of justice and right, which is acknowledged and felt by the whole civilized world, would be outraged if private property should be generally confiscated and private rights annulled." The right of an army in the field to forage upon the enemy and to destroy private property, and even, in extreme cases, to desolate the enemy's country, is admitted to be a lawful exercise of belligerent rights, when such destruction or desolation is necessary to subdue the enemy. But this is a very different thing from the general seizure of the private property of the enemy, and its confiscation for the use of the National Treasury. The one is justified by present urgent iioct'ssity, of Avhich the commanding general is the judge ; the other is or may be the act of the government, done with a view to replenish its Treasury. Even when besieged cities arc taken by assault, it is not, as we have seen, the practice of the government to confiscate private property ; though in such cases, private property is sometimes permitted by the commanding general to be taken by the soldiery as booty, and as a reward for their gallant services. Indeed, it is believed that modern public law knows of no such term as a capture made on land. The word capture is as technical in public law as the word prize, and means the takinc: of vessels and a'oods on the ocean. The City of Savannah having been evacuated by the rebel forces, and occupied by the forces under General Sherman, without battle and without siege, and with the concurrence of many of its inhabitants, it is hardly probable that the government will confiscate any more of the cotton found there, than shall appear to belong to the rebel government or to convicted traitors. In addition to such an act being unprecedented in modern times, and unjust to many innocent owners, it is mani- festly unfair, unless some provision be made for the payment of the just debts, due by their owners to their northern creditors. The produce of the country, as has been already remarked, is the chief, if not the sole, remaining fund out of which these debts can be paid ; and in equity and good conscience it ought to be held for the payment of them. By the act of March 3, 1863, Congress substantially recognises this equity, by protecting all claims which can be specifically en- forced by law against property made subject to confisca- 10 tion under the act of July 17, 1862, such as mortgages and other liens. In a broad, equitable view of the matter, it can make but little difference, so far as the claim of the government is concerned, whether the debt was secured by a legal mortgage upon the specific pro- perty, or whether it was secured by equity and good conscience upon the property of the debtor generally, his whole property being the basis upon which the credit was originally given, and which the law would appropriate, in peaceful times, to the payment of his just debts. The merchants of New-York have an interest, in common with the whole American people, that the government shall observe the established principles of public law and the usages of nations, in prose- cuting the war against the rebels ; and the committee have unqualified confidence to believe that it will do so, not only on account of its own sense of honor and justice, but on account of the ancient and well-earned renown of the country. They trust that the public authorities will not sell the cotton taken at Savannah, or any other property taken by the army in its pro- gress through the insurrectionary States, and appropri- ate the proceeds, without first proceeding to a decree of confiscation and sale, in the courts of justice, where the rights of the claimants and of mortgage creditors can be protected under the law. Furthermore, they indulge the hope that, although Congress has been pleased to use the word " captured" in a new and ex- traordinary sense, the executive will not feel itself authorized to consider private property taken on land as " captured," and so prize of war, without also con- 11 sidering that captures and prizes of war imply prize regulations, prize proceedings, prize courts, and fixed rules of public law. They cannot believe that the government will overlook the large interest which the patriotic merchants of this and other northern cities have, beyond those of other persons, in having some way opened whereby the cotton, tobacco, rice and other products of the insurrectionary States, may be made available in the payment of the debts justly due to them. To adopt a different course, it must be ob- vious, will be to deprive the northern merchant of all power to collect his demands, and will, in effect, inflict upon the whole class of northern creditors a penalty due only to traitors in arms against the government. Aside from the legal and equitable aspects of the subject, the committee submit that there are questions of expediency involved which cannot properly be dis- regarded, and which, in their view, render it a matter of the highest importance that the government should publicly declare the policy of recognising the rights of private property in the insurrectionary States. This is in itself not only just and right, but, at a time like the present, it is eminently befitting a great and mag- nanimous people. Besides, the omission to make such a declaration will, almost inevitably, in the present condition of affairs, impel the inhabitants of those States to destroy their property, or, at least, to per- mit its destruction by the rebel soldiery. On the other hand, if the government shall enunciate a policy which shall prove to the people of the south that their rights of private property will be respected, a powerful mo- tive will be presented to them to return to their allegi- 12 ance as citizens ; and, at the same time, an important step will be taken towards the re-establishment of peaceful and profitable commerce between the two sections of the country. [Signed,] F. A. CONKLING, ^ A. A. LOW, WM. MARVIN, JOHN AUSTIN STEVENS, Jr., ARCH. BAXTER, GEORGE OPDYKE. LIBRARY OF CONGRESS 013 701 743 A •