1. The third section of the Act of May 20, 1802, 12 Stat. 404,
authorized the Secretary of the Treasury to require reasonable
security that goods should not be transported in vessels to any
place under insurrectionary control nor in any way be used in
giving aid or comfort to the enemy, and to establish such general
regulations as he should deem necessary and proper to carry into
effect the purposes of the act.
Held that a bond taken by
the collector of the port of New York, under regulations
established by the Secretary of the Treasury, from a shipper and
two sureties, in double the value of the goods shipped, to prevent
such transportation and use comes within the reasonable security
specified in said third section.
2. The right of the collector to refuse a clearance altogether
included that to exact a bond. Such bond, when duly executed, is
prima facie evidence that it was voluntarily entered
into.
3. Where the conditions of a bond which are not sustainable are
severable from those which are, the latter hold good
pro
tanto, and evidence to show a breach of them is
admissible.
This is a suit by the United States on a bond dated and executed
March 4, 1863, exacted by the collector of the port of New York, as
a condition precedent to granting a clearance to the vessel
Sarah Marsh, laden with a cargo of merchandise, bound to
the port of Matamoras, in Mexico.
To support the issues on its part, the plaintiff proved that on
the twenty-third day of May, 1862, the then Secretary of the
Treasury had instructed the then collector of customs at the port
of New York as follows:
"TREASURY DEPARTMENT"
"WASHINGTON, D. C., May 23, 1862"
"SIR -- In pursuance of the provisions of the proclamation of
the President modifying the blockade of the ports of Beaufort, Port
Royal, and New Orleans, and of the regulations of the Secretary of
the Treasury relating to trade with those ports, no articles
contraband of war will be permitted to enter at either of said
ports, and you will accordingly refuse clearance to vessels bound
for those ports, or either of them, with any such articles on
board."
"Until further instructed, you will regard as contraband of war
the following articles,
viz., cannons, mortars, firearms,
pistols, bombs, grenades, firelocks, flints, matches, powder,
saltpeter, balls, bullets,
Page 97 U. S. 414
pikes, swords, sulphur, helmets, or boarding caps, sword belts,
saddles and bridles (always excepting the quantity of the said
articles which may be necessary for the defense of the ships and of
those who compose the crew), cartridge bag material, percussion and
other caps, clothing adapted for uniforms, resin, sail cloth of all
kinds, hemp and cordage, masts, ship timber, tar and pitch, ardent
spirits, military persons in the service of the enemy, dispatches
of the enemy, and articles of like character with those specially
enumerated."
"You will also refuse clearance to all vessels which (whatever
the ostensible destination) are believed by you on satisfactory
ground to be intended for ports or places in possession or under
control of insurgents against the United States, or that there is
imminent danger that the goods, wares, and merchandise, of whatever
description, laden on such vessels, will fall into the possession
or under the control of such insurgents, and in all cases where, in
your judgment, there is ground for apprehension that any goods,
wares, or merchandise shipped at your port will be used in any way
for the aid of the insurgents or the insurrection, you will require
substantial security to be given that such goods, wares, or
merchandise shall not be transported to any place under
insurrectionary control, and shall not in any way be used to give
aid or comfort to such insurgents."
"You will be especially careful, upon application for
clearances, to require bonds with sufficient sureties, conditioned
for fulfilling faithfully all the conditions imposed by law or
departmental regulations from shippers of the following articles,
to the ports opened, or to any other ports from which they may
easily be and are probably intended to be reshipped in aid of the
existing insurrection -- namely, liquors of all kinds, coals, iron,
lead, copper, tin, brass, telegraphic instruments, wires, porous
caps, platina, sulphuric acid, zinc, and all other telegraphic
materials, marine engines, screw propellers, paddlewheels,
cylinders, cranks, shafts, boilers, tubes for boilers, fire bars,
and every article, or any other component part of an engine or
boiler, or any article whatever which is, can, or may become
applicable for the manufacture of marine machinery, or for the
armor of vessels."
"I am, &c.,"
"S. P. CHASE"
"
Sec't'y of the Treasury"
"HIRAM BARNEY,"
"
Coll. of N. York"
That the following bond was taken by the said collector of
customs as the condition upon which he had granted a clearance
Page 97 U. S. 415
to the
Sarah Marsh to proceed from the port of New York
to the port of Matamoras, in Mexico:
"Know all men by these presents, that we, Leon Haas, Jr., as
principal, and Foster Mora and W. M. Congreve, all residing and
owning real estate in the City of New York, are held and firmly
bound unto the United States of America in the sum of twenty one
thousand eighty one 74/100 ($21,081.74) dollars, lawful money of
the United States of America, to be paid to the said United States
of America or their assigns, for which payment, well and truly to
be made, we bind ourselves, our heirs, executors, and
administrators, firmly by these presents; sealed with our seals,
dated the fourth day of March, one thousand eight hundred and sixty
three."
"Now, the condition of this obligation is such that if the ship
or vessel called the
Sarah Marsh, laden with various
packages of merchandise , value $10,540.87, enumerated in the
shipper's manifest of said Leon Haas, Jr., shall proceed from the
port of New York to Matamoras, in Mexico, and shall land the same
at the last mentioned port of Matamoras for consumption, and if the
same shall be consumed within the Republic of Mexico, and if the
said shippers shall, within seven months from the date hereof,
produce satisfactory proof to the collector of the port of New
York, by consular certificate or otherwise, that the same has been
landed and entered for consumption, and actually converted to
domestic use, within the Republic of Mexico, and the duties thereon
paid, and if all laws and departmental regulations shall be
strictly obeyed; and if all the conditions of the clearance of said
merchandise shall be performed, and specially if said merchandise
or any part thereof shall not be transported to any place under
insurrectionary control, and if none of said merchandise shall be
used in any way, with the consent or knowledge of the shippers or
their agents, to give aid or comfort to parties now in rebellion
against the United States, then this obligation to be void;
otherwise to be and remain in full force and virtue."
The plaintiff having offered in evidence a partial manifest of
the cargo of the
Sarah Marsh relative to the goods
represented by the bond -- which manifest showed the portion of the
cargo in question to be of the value of $10,540.87, and also proved
that she was a general ship, and that other parts of her cargo were
owned by others than the principal and sureties on
Page 97 U. S. 416
the bond in question -- offered to prove that the
Sarah
Marsh proceeded out of the port of New York toward Matamoras,
which was conceded by the defendant. The plaintiff then offered to
prove that that part of her cargo referred to in the bond, and
marked , value stated at $10,540.87, enumerated in the shipper's
manifest of Leon Haas, Jr., was carried in her in March or April,
1863, to the mouth of the Rio Grande; that it was not landed at
Matamoras for consumption, nor consumed within the Republic of
Mexico; that the shippers did not, within seven months from the
date of said obligation, produce satisfactory proof to the
collector of the port of New York, by consular certificate or in
any manner whatever that said merchandise had been landed and
entered for consumption and actually appropriated to domestic use
within said republic, or that the duties thereon had been paid;
that the laws and departmental regulations in respect to non
intercourse with portions of the United States in rebellion, and
particularly in respect to Texas, were not strictly or in any
manner obeyed in respect to said goods, and that none of the
conditions of the clearance were performed, and especially that
said merchandise, and large parts thereof, were transported by the
principal in the bond, and by his authorized agents, directly to
places under insurrectionary control, and were used with his
consent and knowledge, and with the consent and knowledge of his
agents, to give aid and comfort to parties then in rebellion
against the United States, and specially that part of the cargo
represented by the bond was sold to the military authorities of the
so called Confederate States in Brownsville, Texas, sometime in the
month of April, 1863, but the defendant objected, the objection was
sustained, and the plaintiff excepted.
Upon motion of the defendant, the court then directed a verdict
for the defendant, to which direction the plaintiff excepted.
Thereupon the jury rendered a verdict for the defendant, and the
plaintiff sued out this writ.
The statutes bearing on the question of the collector's
authority to require the bond are referred to in the opinion of the
Court.
Page 97 U. S. 418
MR. JUSTICE BRADLEY delivered the opinion of the Court.
We think the judgment in this case should be reversed. The
objection that the bond does not correspond with the form
prescribed by the second section of the Act of May 20, 1862, 12
Stat. 404, does not meet the case. It is supported by the third
section, if not by the second, in connection with the Treasury
circular issued under it May 23, 1862.
To understand the force of the objection and the answer to it,
it is necessary to look at the general scope of the act.
The first section authorized the Secretary of the Treasury to
refuse a clearance to any vessel or other vehicle laden with goods
destined for a foreign or domestic port whenever he should have
satisfactory reason to believe that any of the goods, whatever
their ostensible destination, were intended for parts or places in
the possession or under the control of the insurgents. The second
section empowered the collector of customs, in granting a clearance
of any vessel for a foreign or domestic port, if he should deem it
necessary under the circumstances of the case, to require a bond
from the master or owner of the vessel in a penalty equal to the
value of the cargo, that the cargo should be delivered at its
destination and that no part of it should be used to aid any
persons in insurrection. This authority given to the collector was
independent of any instructions which he might receive from the
Secretary, and in no sense conflicted with what the Secretary might
do or require to be done under the other portions of the act.
The third section gave the Secretary of the Treasury
discretionary power to prevent the transportation in any way of any
goods, whatever their ostensible destination, in all cases where
there should be satisfactory reason to believe that they were
intended for any place in possession of the insurgents or
Page 97 U. S. 419
that there was imminent danger of their falling into their
possession or control, and also power, in all cases where he should
deem it expedient, to require reasonable security that the goods
should not be transported to any place under insurrectionary
control, and should not in any way be used to give aid or comfort
to the insurgents, and he was authorized to establish such general
regulations as he should deem necessary and proper to carry into
effect the purposes of the act.
The first and second sections related more particularly to
clearances of vessels, and the third to goods to be transported in
vessels and other vehicles. The security specified in the second
section was required to be given by the master or owner of the
vessel, and as already stated, was to be taken at the discretion of
the collector, without further instructions on the subject. The
security specified in the third section was not limited to any
particular penalty, and it was not stated by whom it should be
given. It was to be reasonable security, and would, as a matter of
course have to be furnished by the person who should desire to have
the goods transported.
By virtue of the powers conferred by the third section, the
Secretary of the Treasury issued instructions to the collector of
New York to refuse clearances to all vessels (whatever their
ostensible destination) which were believed by him on satisfactory
grounds to be intended for ports or places in possession or under
control of the insurgents, or where there was imminent danger that
the goods laden therein should fall into the possession or under
the control of the insurgents, and in all cases where in his
judgment there was ground of apprehension that any goods shipped
would be used in any way for the aid of the insurgents, the
collector was directed to require substantial security that such
goods should not be transported to any place under insurrectionary
control, and should not in any way be used to give aid or comfort
to the insurgents.
It cannot be pretended that the Secretary of the Treasury
exceeded his authority in giving these instructions. They are fully
authorized by the third section of the act. We are of opinion that
the powers given to the collector by these instructions were
sufficient to authorize him to take the bond in
Page 97 U. S. 420
question. It is in double the value of the goods, and is
executed by the shipper and two sureties. It is not shown that this
was anything more than "reasonable security." It is conditioned
that the vessel in which the goods were laden (which was bound for
Matamoras) should proceed to that place and should land the goods
there for consumption; that the same should be consumed in the
Republic of Mexico; that the shippers should within seven months
produce satisfactory proof to the collector, by consular
certificate or otherwise, that the same had been landed and entered
for consumption and actually converted to domestic use within the
Republic of Mexico and the duties thereon paid; that all laws and
departmental regulations should be strictly obeyed; that all the
conditions of the clearance of said merchandise should be
performed; and, specially, that no part of said merchandise should
be transported to any place under insurrectionary control, and that
none of it should be used in any way, with the consent or knowledge
of the shippers or their agents, to give aid or comfort to parties
then in rebellion against the United States.
Now although the condition of the bond is an amplification of
the condition prescribed in the instructions of the Secretary, yet
the amplification is in line with, and intended more effectually to
secure the performance of, the condition prescribed. The
instructions authorized the collector to stop the vessel and the
goods from clearing at all if he believed on satisfactory ground
that the latter were intended for places in the possession of the
insurgents or that there was imminent danger of their falling into
their hands. Now though he might have grounds deemed by him
satisfactory for believing that the goods were intended for the use
of the insurgents, yet, on assurances given by the shipper that
they were really and truly intended for consumption in Mexico, he
might be willing to let them go forward, if the shipper would give
security that they should be landed and used in Mexico and should
not, with his consent or allowance or that of his agents, be used
to give aid and comfort to the insurgents. This is substantially
what the condition of the bond amounts to. And it cannot be denied
that it is in general conformity with the purpose and
Page 97 U. S. 421
object intended to be secured by the act and the instructions of
the Secretary. This purpose and this object were to prevent vessels
and goods whose destination was suspicious from getting into the
hands of the insurgents. To effect this object, power was given to
the Secretary, and by his instructions like power was given to the
collector, to refuse a clearance to a vessel or goods absolutely,
where there was good ground to believe that they were really
destined for the use of the insurgents.
Now under certain circumstances, specified in the second section
of the act, the collector had authority to take a certain bond
without being instructed thereto by the Secretary of the Treasury.
By virtue of instructions given by the Secretary under the third
section, the collector had authority and was required to take a
certain other bond, and he was further authorized to refuse a
clearance altogether. Under this last power of refusing a
clearance, what was there to prevent him, or to make it unlawful
for him, to take such a bond as was given in this case if the owner
of the goods chose to enter into it for the purpose of inducing the
collector to grant the clearance? It only requires what the law
sought to secure. If the shipper chose to give the bond in order to
get his goods cleared, it was a voluntary act on his part, and what
ground has he or his sureties to complain? The only complaint they
could make, if they could make any, was that the circumstances did
not exist which would have justified the collector in refusing a
clearance, and that the taking of the bond was therefore an act of
duress. But this the defendant did not attempt to prove. He put
himself at the trial on the sheer ground that the collector had no
right to take such a bond at all as the one in question. But the
right to take the bond, so far as the shipper and his sureties are
concerned, was included in the greater right to refuse the
clearance altogether. And the bond itself, duly executed by them,
is
prima facie evidence that it was voluntarily entered
into.
United States v.
Bradley, 10 Pet. 343.
The government, however, did not rest upon the bond alone, but
offered to prove that the goods were not landed at Matamoras,
according to their destination, but that after the
Page 97 U. S. 422
vessel arrived in the mouth of the Rio Grande, they were, with
the consent and knowledge of the shipper's agents, actually sold to
the military authorities of the Confederate States. This would have
been strong presumptive evidence (if any evidence were needed on
the subject) that the collector had satisfactory ground of belief
that the goods were intended for the use of the insurgents and that
although, as between him and the government, he may have exercised
too great indulgence to the shipper in taking the bond and letting
the goods go forward, yet that the shipper and his sureties had no
ground of complaint on that score.
Our opinion is that, considering the powers which were conferred
upon the collector by virtue of the instructions issued by the
Secretary of the Treasury under the third section of the act, he
had authority to take such a bond as that which is the subject to
this suit.
But even if the first condition of the bond, which required the
goods to be consumed in the Republic of Mexico, were not
sustainable, the latter condition, which provided that no part of
the goods should be transported to any place under insurrectionary
control and that none of them should be used in any way, with the
consent or allowance of the shippers or their agents, to give aid
or comfort to parties in rebellion against the United States is in
exact conformity with the instructions, and is severable from the
rest. On the authority of
United States v.
Hodson, 10 Wall. 395, and the cases there relied
on, the bond would be good
pro tanto, and as the evidence
offered by the government tended to show a breach of this
condition, which is free from objection, it should have been
received.
In either aspect of the case, therefore, whether we consider the
bond as in general conformity with the object of the act and
voluntarily given by the shipper to obtain a clearance of his goods
or whether we consider it as strictly conformable to the
instructions issued under the third section, with only a superadded
condition which may be disregarded, the court below was in error in
rejecting the evidence offered by the plaintiff and directing a
verdict for the defendant.
We think the case is covered by the decision in
United
Page 97 U. S. 423
States v. Hodson and other cases of recent
consideration which might be referred to.
The judgment of the circuit court will be reversed and the cause
remanded for a new trial, and it is
So ordered.
