Lapeyre v. United States

• Decision Date: 01 December 1872
• Citation: 21 L.Ed. 606,17 Wall. 191,84 U.S. 191
• Parties: LAPEYRE v. UNITED STATES
• Court: U.S. Supreme Court

84 U.S. 191

21 L.Ed. 606

17 Wall. 191

LAPEYRE v. UNITED STATES.

December Term, 1872

APPEAL from the Court of Claims; the case being thus:

By the act of 13th July, 1861,¹ the President was authorized to proclaim, 'that the inhabitants of a State, or any part thereof, where such insurrection exists, are in state of insurrection against the United States;' and thereupon, 'all commercial intercourse,' between such inhabitants and the citizens of the rest of the United States; 'shall cease and be unlawful, so long as such condition of hostility shall continue.'

By the act of July 2d, 1864,² provision was made for the transmission and sale of cotton from the insurrectionary States. Among other things it was provided that a person having cotton in the States west of the Mississippi, might transport the same through the lines of the armies of the United States to the city of New Orleans, and there deliver the same to an agent of the United States, who should buy the same and return to the person producing the cotton three-fourths of the market value thereof in the city of New York. In substance this act permitted the introduction and sale of cotton from an enemy's country, subject to a tax of 25 per cent. on the value thereof.

On the 6th of April, 1865, Lee, commanding the body of the rebel forces at Richmond, surrendered. Johnson, with another part of them, surrendered on the 26th of the same month; and Kirby Smith, who commanded west of the Mississippi, did the same on the 26th of May following.

On the 10th of May, 1865, the President issued his proclamation that 'armed resistance to the authority of this government may be regarded as virtually at an end.'³

On the 18th of June, 1865, one Lapeyre caused to be shipped to New Orleans, from some point west of the Mississippi River, 476 bales of cotton, and consigned the same to the purchasing agent of the government. This cotton reached New Orleans on the 24th day of June. On the 26th the owner executed a bill of sale of the same to the government agent, who returned to him 367 bales, being three-fourths thereof, and retained 119 bales, being one-fourth, under the provisions of the act referred to. At this time neither the claimant nor the agent had any knowledge of the proclamation now to be mentioned.

This proclamation, following one which had been issued on the 13th of June, 1865,⁴ removing all restrictions on 'internal domestic and coastwise trade, and upon the removal of products of States heretofore declared in insurrection east of the Mississippi River,' removed the restrictions upon the trade and intercourse from the States west of it,⁵ and restored the former relations between the States. It was an instrument by the President, bearing date June 24th, 1865, in the usual form of a proclamation, and was made by authority of the Congress of the United States. It was headed:

'BY THE PRESIDENT OF THE UNITED STATES:

A PROCLAMATION.'

After making various recitals it proceeded:

'Now, therefore, be it known that I, Andrew Johnson, President of the United States, do hereby declare,' &c.

It closed thus:

'In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this twenty-fourth day of June, in the year of our Lord one thousand eight hundred and sixty-five, and of the independence of the United States of America the eighty-ninth.

'ANDREW JOHNSON.

'By the President:

'W. HUNTER, Acting Secretary of State.'

It was a fact undisputed, and was found by the Court of Claims, in one of its findings—the third——

'That this proclamation of the President, of June 24th, 1865, was not published in the newspapers until the morning of the 27th of the month, nor was it published or promulgated anywhere or in any form prior to said last-named day, unless its being sealed with the seal of the United States in the Department of State was a publication or promulgation thereof.'

It was equally undisputed and found that the Secretary of the Treasury sent a telegram to the treasury agent in New Orleans, on the 27th June, and also a letter on the 28th June, informing him that the exaction of 25 per cent. on cotton had been rescinded.

The transaction now under consideration had been entered into by both parties ignorant of the removal of the restrictions.

On a suit brought by Lapeyre in the Court of Claims, to recover the proceeds of the 119 bales which had been sold by the United States, the question arose whether this instrument, prior to its being published anywhere, or in form otherwise than as mentioned, had the force and effect of a proclamation. The Court of Claims was of opinion that it had not; and decided against Lapeyre. He now brought the case here for review.

Mr. P. Phillips, for the appellant; a brief of Messrs. H. H. Blackburn, W. H. Lamon, and C. E. Hovey, being filed on the same side:

The prohibition of commercial intercourse provided for by the act of 1861, continued only so long as hostilities existed, and was to end when they ceased. The proclamation of the President declared that they had ended on 10th May, 1865.

The ground for taking from owners of property the one-fourth of its value, was, that the condition of hostilities deprived them of the right to sell it, and the one-fourth was the consideration for the special privilege to do so. As soon as hostilities ceased, the rights of commercial intercourse returned, and there was no longer any consideration upon which the claim of the one-fourth could be rested. The two proclamations were issued but to give full effect to this result of the law of July 2d, 1864. They were a formal notification that the prohibition under that act no longer remained.

The department, charged with the execution of the laws respecting such purchases, has given its construction, and holds that these proclamations operate from their date.

The judgment should in any event be reversed, for the parties acted under a mistake of fact against which equity will relieve.⁶

Independently of all this, the present is not a case where a penalty is imposed, and where natural feelings of justice would influence the court to seek escape from inflicting punishment on parties for an act which they believed to be innocent. To the contrary, giving effect to this act from its date restores the party to a right which, in justice, he is entitled to, and which the law of the land intended to confer upon him.

If the matter is placed on technical grounds, the wellknown case of Marbury v. Madison,⁷ may be relied on.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice SWAYNE delivered the judgment of the court.

The only inquiry presented for our consideration is, when the proclamation, which is the hinge of the controversy, took effect. The question arises on the third finding of the Court of Claims, which is as follows: 'The proclamation of the President of June 24th, 1865, was not published in the newspapers until the morning of the 27th of that month; nor was it published or promulgated anywhere, or in any form, prior to said last-named day, unless its being sealed with the seal of the United States, in the Department of State, was a publication or promulgation thereof.'

There is no act of Congress, and nothing to be found in American jurisprudence, which bears very directly on the subject. In the English law the instrument is thus defined: 'Proclamation proclamatio—is a notice publicly given of anything whereof the king thinks fit to advertise his subjects. And so it is used, 7th Richard II, chap. 6.'⁸

Proclamations for various purposes are mentioned in the English authorities, but it could serve no useful end particularly to refer to them.⁹ In England they must be under the great seal.¹⁰ If their existence is intended to be denied, the proper plea is nul tiel record.¹¹ It is a part of the king's prerogative to issue them.¹² It is a criminal offence to issue them without authority.¹³ By the 31st of Henry VIII, chap. 8, it was enacted that the king, with the advice of his council, might issue proclamations denouncing pains and penalties, and that such proclamations should have the force of acts of Parliament. This statute, so fraught with evil to the liberties of the subject, was repealed a few years later in the succeeding reign of Edward VI, and during his minority. A very careful and learned writer says: 'A proclamation must be under the great seal, and if denied is to be tried by the record thereof. It is of course necessary to be published, in order that the people may be apprised of its existence and may be enabled to perform the injunctions it contains. In the absence of any express authorities it should seem that if the proclamation be under the great seal it need not be made by any particular class of individuals or in any particular manner or place, and that it would suffice if it were made by any one under the king's authority in the market-place or public street of each large town. It always appears in the gazette.'¹⁴ This is the only authority on the subject here under consideration which our researches have enabled us to find. The writer refers to no other author and to no adjudicated cases in support of his views. The third section of the Documentary Evidence Act,¹⁵ declares that the copy of a proclamation purporting to be printed by the queen's printer shall be sufficient proof of the existence of the original. Under the circumstances it may be well to look to the analogy afforded by the promulgation of statutes. At the common law every act of Parliament, unless a different time were fixed, took effect from the first day of the session, no matter how long the session or when the act was passed. This rule was applied to acts punishing offences of all grades, including those which were capital and even attaints. The authorities on the subject are learnedly collected by Mr. Justice Story in...