1. The principle that personal dispositions of the individual
inhabitants of enemy territory as distinguished from those of the
enemy people generally, cannot, in questions of capture, be
inquired into applies in civil wars as in international. Hence, all
the people of any district that was in insurrection against the
United States in the Southern rebellion are to be regarded as
enemies except insofar as by action of the government itself that
relation may have been changed.
2. Our government, by its Act of Congress of March 12, 1863, 12
Stat. at Large 591, to provide for the collection of abandoned
property &c., does make distinction between those whom the rule
of international law would class as enemies and, through forms
which it prescribes, protects the rights of property of all persons
in rebel regions who, during the rebellion, have in fact maintained
a loyal adhesion to the government, the general policy of our
legislation during the rebellion having been to preserve, for loyal
owners obliged by circumstances to remain in rebel states, all
property or its proceeds which has come to the possession of the
government or its officers.
3. Cotton in the Southern rebel districts -- constituting as it
did the chief reliance of the rebels for means to purchase
munitions of war, an element of strength to the rebellion -- was a
proper subject of capture by the government during the rebellion on
general principles of public law relating to war, though private
property, and the legislation of Congress during the rebellion
authorized such captures.
4. Property captured on land by the officers and crews of a
naval force of the United States is not "maritime prize," even
though, like cotton, it may have been a proper subject of capture
generally, as an element of strength to the enemy. Under the Act of
Congress of March 12, 1863, such property captured during the
rebellion should be turned over to the Treasury Department, by it
to be sold and the proceeds deposited in the national Treasury, so
that any person asserting ownership of it may prefer his claim in
the Court of Claims under the said act, and on making proof to the
satisfaction of that tribunal that he has never given aid or
comfort to the rebellion, have a return of the net proceeds decreed
to him.
In the spring of 1864, a conjoint expedition of forces of the
United States, consisting of the
Ouachita and other
gunboats, with their officers and crews, under Rear Admiral Porter,
and a body of troops under Major General Banks, proceeded up the
Red River, a tributary of the Mississippi, and which empties into
that river three hundred and thirty-four
Page 69 U. S. 405
miles above its mouth, as far as Shreveport, in the northwestern
corner of Louisiana. The Southern insurgents were at this time in
complete occupation of the district. About the 15th of March, these
government forces captured Fort De Russy, a strong fort which the
insurgents had built about half way between Alexandria and the
mouth of Red Rever. The insurgents now evacuated the district in
such a way that most of that part of it on the river fell under the
control of the Union arms. This control, however, did not become
permanent. The insurgents rallied, and returning, reinstated
themselves. The Union troops fell back, leaving the district
occupied as it had been before they came. The actual presence and
control of the government forces lasted from the middle of March to
near the end of April -- something less than eight weeks. During
it, an election of delegates to a Union Convention appeared to have
been held in or about Alexandria, under the orders and protection
of General Banks, though the evidence of what was done in the
matter was not clear. "The community," one witness testified, "was
almost unanimous against secession when it commenced, and have so
continued." But of this they gave no overt proofs -- none at least
that reached this Court.
During the advance of the federal forces and about the 26th of
March, a party from the
Ouachita -- acting under orders
from the naval commander -- landed on the plantation of Mrs.
Elizabeth Alexander in the Parish of Avoyelles, a part of the
region thus temporarily occupied, and upon the river. They here
took possession of seventy-two bales of cotton which had been
raised by Mrs. Alexander on the plantation and which, having
escaped a conflagration which the rebels, on the advance of the
government forces, had made of the crop of the preceding year, were
stored in a cotton gin house about a mile from the river. The
cotton was hauled by teams to the river bank and shipped to Cairo,
in Illinois. Being libeled there as prize of war in the District
Court of the United States for the Southern District of Illinois,
and sold
pendente lite, Mrs. Alexander put in a claim for
the proceeds, and the court made a decree giving them
Page 69 U. S. 406
to her. This decree being confirmed in the circuit court, the
United States appealed here.
The question raised before this Court was whether this cotton
was or was not properly to be considered as maritime prize, subject
to the prize jurisdiction of the courts of the United States.
As respected the nature of the Red River and the character of
the vessels used in the conjoint expedition, it appeared that
seagoing vessels do not navigate it, the same not affording
sufficient water for them; that no other vessels than steamboats of
light draft engaged in the transportation of passengers and freight
usually navigate it; that the gunboats so called, used on this
expedition, were of light draft, similar in many particulars to
steamboats, many of them having been steamboats altered to carry
guns and munitions of war generally, though not previously used,
nor well capable of being used at sea for any purpose; that guns
were mounted on them in order that such guns might be used in
connection with and in subordination to the army in its active
operations against the enemy in the small streams of the West and
Southwest, away from the seaboard.
As regarded Mrs. Alexander's personal loyalty the evidence was
not very full. She had assisted somewhat to build Fort De Russy,
which was within a few miles of her own plantation, but, according
to the testimony, did this only on compulsion. She was equally
kind, it was testified, to loyal persons and to rebels, when either
were sick or wounded. She had particular friends among persons of
known loyalty, but there were one or two Confederate officers who
came to her house -- the testimony being, however, that they were
perhaps attracted thither neither by Mrs. Alexander's politics nor
by her cotton, but by the beauty of some "young ladies" who resided
with her, and whom they went to "visit."
Three weeks
after, the cotton had been seized, Mrs.
Alexander took the oath required by the President's proclamation of
amnesty, of December 8, 1863, a proclamation which gives to persons
who took the oath "full pardon," "with
Page 69 U. S. 407
restoration of all rights," except as to slaves and "property,
cases where rights of third persons shall have intervened." But it
was upon the condition that persons should thenceforward "keep
their oath inviolate." [
Footnote
1] Mrs. Alexander never left the territory on which her
plantation was situated, nor it. The estate was her own, and she
had resided on it since 1835. She was about sixty-five years old at
the time of these events.
Such were the facts. In order, however, perfectly to
comprehend the case as it stood before the court, it is necessary
to make mention of certain acts of Congress bearing on it.
Congress, by Act of August 6, 1861, [
Footnote 2] to confiscate property used for
insurrectionary purposes, declared, that if any person should use
or employ any property in aiding, abetting or promoting the
insurrection, or consent to such use or employment, such property
should "be lawful subject of prize and
capture wherever
found."
And by Act of July 17, 1862, [
Footnote 3] to suppress insurrection, to punish treason
and rebellion, to seize and confiscate the property of rebels
&c., it declared (§ 6), that "all the estate and property"
of persons in rebellion, and who, after sixty days public warning
[which warning the President gave by proclamation] did not return
to their allegiance,
liable to seizure, and made it the
duty of the President to
"seize" it prescribing the mode
in which it should be condemned.
And by a third Act, that of March 12, 1863, [
Footnote 4] "to provide for the collection of
abandoned property, and for the prevention of frauds in
insurrectionary districts," &c., made
Page 69 U. S. 408
it the duty, under penalty of dismission &c. (§ 6),
of
"every officer or private of the regular or volunteer forces of
the United States,
or any officer, sailor or marine in the
naval service of the United States who may take or receive any
such abandoned property, or
cotton, sugar, rice or tobacco
from persons in such insurrectionary districts or have it under his
control to
turn the same over to an agent"
to be appointed by the Secretary of the Treasury, under whose
charge the matter is put by the act and who accordingly issued
regulations in regard to such property. The act provides, however,
that none of its provisions shall apply "to any lawful maritime
prize by the naval force of the United States." This act, it may be
added (§ 3), provides that
"Any person claiming to have been the owner of 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 of
the said court of his ownership &c., and that he has never
given any aid or comfort to the present rebellion, receive the
residue of such proceeds after the deduction of any purchase money
which may have been paid, together with the expense of
transportation and sale."
With these acts there may perhaps, for the sake of absolute
completeness, be presented the Act of July 17, 1862, for the better
government of the navy, [
Footnote
5] enacting (§ 2),
"That the proceeds of all ships and vessels, and the goods taken
on them, which shall be adjudged good prize, shall, when of equal
or superior force to the vessel making the capture, be the sole
property of the captors, and when of inferior force be divided
equally between the United States and the officers and men making
the capture,"
and also that of 2 July, 1864, [
Footnote 6]
passed after this capture, declaring
"That no property, seized or taken upon any of the
inland
waters of the United States by the naval forces thereof, shall be
deemed maritime prize," but shall be turned over, as provided in
the already mentioned Act of March 12, 1863.
Page 69 U. S. 417
THE CHIEF JUSTICE delivered the opinion of the Court.
This controversy concerns seventy-two bales of cotton captured
in May, 1864, on the plantation of Mrs. Elizabeth Alexander, on the
Red River, by a party sent from the
Ouachita, a gunboat
belonging to Admiral Porter's expedition. The United States insist
on the condemnation of the cotton as lawful maritime prize. Mrs.
Alexander claims it as her private property. The facts may be
briefly stated.
In the spring of 1864, a naval force of the United States under
Rear Admiral Porter, cooperating with a military force on land
under Major General Banks, proceeded up Red River towards
Shreveport, in Louisiana. The whole region at the time was in rebel
occupation and under rebel rule. Fort De Russy, about midway
between the mouth of the river and Alexandria, was captured by the
Union troops about the middle of March. The insurgent troops
gradually retired until a considerable district of country on Red
River came under the control of the national forces. This control,
however, was of brief continuance. An unexpected reverse befell the
expedition. The army under General Banks was defeated, and was soon
after entirely withdrawn from the Red River country. The naval
force, under Admiral Porter,
Page 69 U. S. 418
necessarily followed, and rebel rule and ascendancy were again
complete and absolute. The military occupation by the Union troops
lasted rather less than eight weeks. Its duration was measured by
the time required for the advance and retreat of the army and navy.
The Parish of Avoyelles was a part of the district thus temporarily
occupied, and the plantation of Mrs. Alexander was in this parish
and upon the river. The seventy-two bales of cotton in controversy
were raised on the plantation and were stored in a warehouse about
a mile from the river bank. A party from the
Ouachita,
under orders from the naval commander, landed on the plantation
about the 26th of March and took possession of the cotton. It was
sent to Cairo, libeled as prize of war in the district court for
the Southern District of Illinois, claimed by Mrs. Alexander, and,
by decree of the district court, restored to her. The United States
now ask for the reversal of this decree and the condemnation of the
property as maritime prize.
After the seizure of the cotton, Mrs. Alexander took the oath
required by the President's proclamation of amnesty. The evidence
in relation to her previous personal loyalty is somewhat
conflicting. She had furnished mules and slaves, involuntarily as
alleged, to aid in the construction of the rebel Fort De Russy. She
now remains in the rebel territory. Before the retreat of the Union
troops, elections are stated to have been held, under military
auspices, for delegates to a constitutional convention about to
meet in New Orleans.
These facts present the question was this cotton lawful maritime
prize, subject to the prize jurisdiction of the courts of the
United States?
There can be no doubt, we think, that it was enemies' property.
The military occupation by the national military forces was too
limited, too imperfect, too brief, and too precarious to change the
enemy relation created for the country and its inhabitants by three
years of continuous rebellion, interrupted, at last, for a few
weeks, but immediately renewed and ever since maintained. The
Parish of Avoyelles,
Page 69 U. S. 419
which included the cotton plantation of Mrs. Alexander, included
also Fort De Russy, constructed in part by labor from the
plantation. The rebels reoccupied the fort as soon as it was
evacuated by the Union troops, and have since kept possession.
It is said that though remaining in rebel territory, Mrs.
Alexander has no personal sympathy with the rebel cause, and that
her property therefore cannot be regarded as enemy property; but
this Court cannot inquire into the personal character and
dispositions of individual inhabitants of enemy territory. We must
be governed by the principle of public law, so often announced from
this bench as applicable alike to civil and international wars,
that all the people of each state or district in insurrection
against the United States must be regarded as enemies until by the
action of the legislature and the executive or otherwise that
relation is thoroughly and permanently changed.
We attach no importance under the circumstances to the elections
said to have been held for delegates to the constitutional
convention.
Being enemies' property, the cotton was liable to capture and
confiscation by the adverse party. [
Footnote 7] It is true that this rule, as to property on
land, has received very important qualifications from usage, from
the reasonings of enlightened publicists, and from judicial
decisions. It may now be regarded as substantially restricted "to
special cases dictated by the necessary operation of the war,"
[
Footnote 8] and as excluding
in general "the seizure of the private property of pacific persons
for the sake of gain." [
Footnote
9] The commanding general may determine in what special cases
its more stringent application is required by military emergencies,
while considerations of public policy and positive provisions of
law and the general spirit of legislation must indicate the cases
in which it application may be properly denied to the property of
noncombatant enemies.
In the case before us, the capture seems to have been
justified
Page 69 U. S. 420
by the peculiar character of the property and by legislation. It
is well known that cotton has constituted the chief reliance of the
rebels for means to purchase the munitions of war in Europe. It is
matter of history that rather than permit it to come into the
possession of the national troops, the rebel government has
everywhere devoted it, however owned, to destruction. The value of
that destroyed at New Orleans just before its capture has been
estimated at eighty millions of dollars. It is in the record before
us that on this very plantation of Mrs. Alexander, one year's crop
was destroyed in apprehension of an advance of the Union forces.
The rebels regard it as one of their main sinews of war, and no
principle of equity or just policy required, when the national
occupation was itself precarious, that it should be spared from
capture and allowed to remain, in case of the withdrawal of the
Union troops, an element of strength to the rebellion.
And the capture was justified by legislation as well as by
public policy. The Act of Congress to confiscate property used for
insurrectionary purposes, approved August 6, 1861, declares all
property employed in aid of the rebellion, with consent of the
owners to be lawful subject of prize and capture wherever found.
[
Footnote 10] And it further
provided by the Act to suppress insurrection and for other
purposes, approved July 17, 1862, [
Footnote 11] that the property of persons who had aided
the rebellion and should not return to allegiance after the
President's warning should be seized and confiscated. It is in
evidence that Mrs. Alexander was a rebel enemy at the time of the
enactment of this act; that she contributed to the erection of Fort
De Russy, after the passage of the act of July, 1862, and so comes
within the spirit, if not within the letter, of the provisions of
both.
If, in connection with these acts, the provisions of the
Captured and Abandoned Property Act of March 12, 1863, [
Footnote 12] be considered, it will
be difficult to conclude that the capture under consideration was
not warranted by law. This
Page 69 U. S. 421
last-named act evidently contemplated captures by the naval
forces distinct from maritime prize, for the Secretary of the Navy,
by his order of March 31, 1863, directed all officers and sailors
to turn over to the agents of the Treasury Department all property
captured or seized in any insurrectionary district excepting lawful
maritime prize. [
Footnote
13]
Were this otherwise, the result would not be different, for Mrs.
Alexander, being now a resident in enemy territory and in law an
enemy, can have no standing in any court of the United States so
long as that relation shall exist. Whatever might have been the
effect of the amnesty had she removed to a loyal state after taking
the oath, it can have none on her relation as enemy voluntarily
resumed by continued residence and interest.
But this reasoning, while it supports the lawfulness of the
capture, by no means warrants the conclusion that the property
captured was maritime prize. We have carefully considered all the
cases cited by the learned counsel for the captors, and are
satisfied that none of them is an authority for that conclusion. In
no one of these cases does it appear that private property on land
was held to be maritime prize, and on the other hand we have met
with no case in which the capture of such private property was held
unlawful except that of
Thorshaven. [
Footnote 14] In this case, such a capture was
held unlawful not because the property was private, but because it
was protected by the terms of a capitulation. The rule in the
British Court of Admiralty seems to have been that the court would
take jurisdiction of the capture, whether of public or private
property, and condemn the former for the benefit of the captors
under the prize acts of Parliament, but retain the latter till
claimed, or condemn it to the Crown, to be disposed of as justice
might require. But it is hardly necessary to go into the
examination of these English adjudications, as our own legislation
supplies all needed guidance in the decision of this case.
Page 69 U. S. 422
There is certainly no authority to condemn any property as prize
for the benefit of the captors except under the law of the country
in whose service the capture is made, and the whole authority found
in our legislation is contained in the act for the better
government of the navy, approved July 17, 1862. By the second
section of the act, [
Footnote
15] it is provided that the proceeds of all ships and vessels,
and the goods taken on board of them, which shall be adjudged good
prize shall be the sole property of the captors, or in certain
cases divided equally between the captors and the United States. By
the twentieth section, all provisions of previous acts inconsistent
with this act are repealed. This act excludes property on land from
the category of prize for the benefit of captors, and seems to be
decisive of the case so far as the claims of captors are
concerned.
As a case of lawfully captured property not for the benefit of
captors, its disposition is controlled by the laws relating to such
property. By these laws and the orders under them, all officers,
military and naval, and all soldiers and sailors are strictly
enjoined, under severe penalties, to turn over any such property
which may come to their possession to the agents of the Treasury
Department, and these agents are required to sell all such property
to the best advantage and pay the proceeds into the national
Treasury. Any claimant of the property may, at any time within two
years after the suppression of the rebellion, bring suit in the
Court of Claims, and on proof of ownership of the property or of
title to the proceeds and that the claimant has never given aid or
comfort to the rebellion, have a decree for the proceeds, deducting
lawful charges. In this war, by this liberal and beneficent
legislation, a distinction is made between those whom the rule of
international law classes as enemies. All who have in fact
maintained a loyal adhesion to the Union are protected in their
rights to captured as well as abandoned property.
It seems that in further pursuance of the same views, by
Page 69 U. S. 423
an act of the next session, Congress abolished maritime prize on
inland waters and required captured vessels and goods on board, as
well as all other captured property, to be turned over to the
Treasury agents or to the proper officers of the courts. This act
became a law a few weeks after the capture now under consideration,
and does not apply to it. It is cited only in illustration of the
general policy of legislation to mitigate as far as practicable the
harshness of the rules of war and preserve for loyal owners,
obliged by circumstances to remain in rebel states, all property or
its proceeds to which they have just claims and which may in any
way come to the possession of the government or its officers.
We think it clear that the cotton in controversy was not
maritime prize, but should have been turned over to the agents of
the Treasury Department, to be disposed of under the Act of March
12, 1863. Not having been so turned over, but having been sold by
order of the district court, its proceeds should now be paid into
the Treasury of the United States in order that the claimant, when
the rebellion is suppressed or she has been able to leave the rebel
region, may have the opportunity to bring her suit in the Court of
Claims and, on making the proof required by the act, have the
proper decree.
The decree of the district court is reversed, and the cause
remanded, with directions to dismiss the libel.
[
Footnote 1]
The oath now made by Mrs. Alexander, April 19, 1864, was that
she would "henceforth faithfully support, protect, and defend the
Constitution of the United States, and the Union of the states
thereunder," and would
"in like manner abide by and faithfully support all acts of
Congress passed during the existing rebellion with reference to
slaves, so long and so far as not repealed, modified, or held void
by Congress or by decision of the Supreme Court,"
and would
"in like manner abide by and faithfully support all
proclamations of the President made during the existing rebellion
having reference to slaves so long and so far as not modified or
declared void by decision of the Supreme Court."
[
Footnote 2]
12 Stat. at Large 319.
[
Footnote 3]
Ibid., 591.
[
Footnote 4]
Ibid., 821.
[
Footnote 5]
12 Stat. at Large 606.
[
Footnote 6]
13
id. 377.
[
Footnote 7]
Prize
Cases, 2 Black 687.
[
Footnote 8]
1 Kent 92.
[
Footnote 9]
Ibid., 93.
[
Footnote 10]
12 Stat. at Large 319.
[
Footnote 11]
Ibid., 591
[
Footnote 12]
Ibid., 820.
[
Footnote 13]
Report of the Secretary of the Treasury on the Finances,
December 10, 1863, p. 438.
[
Footnote 14]
Edwards 107.
[
Footnote 15]
12 Stat. at Large 606.
