Statement of the case. had been previously distributed to individuals, but it was not made known generally until thus published.* To Calcasieu p. 475 On this same 6th of May, Flag-officer Farragut made a report to the Government confirming a previous account of his, and stating the arrival of General Butler, on the 29th of April, at New Orleans; the recital of events terminating with the hauling down of the Louisiana State flag from the City Hall, and the hoisting of the American flag on the Custom House on that day, the report closing with this statement: "Thus, sir, I have endeavored to give you an account of my attack upon New Orleans from our first movement to the sur * See the work entitled "General Butler in New Orleans," by Parton: New York, 1864; pp. 182-3. Statement of the case. render of the city to General Butler, whose troops are Now in full occupation." The proclamation above referred to declared the city to be under martial law, and announced.the principles by which the commanding general would be guided in its administration. One clause is in these words: "All the rights of property of whatever kind will be held inviolate, subject only to the laws of the United States." The other is thus expressed: "All foreigners not naturalized, claiming allegiance to their respective governments, and not having made oath of allegiance to the government of the Confederate States, will be protected in their persons and property as heretofore under the laws of the United States." From whatever date the city was held in subjection, it was so held only by severe discipline; and both it and the region around it was largely hostile. The rebel army was hovering in the neighborhood. Such were the facts. But to understand the arguments in the case, it is necessary to make mention of certain acts of Congress, proclamations, &c., as follows: Congress, by act of July 13, 1861,* made it lawful for the President, by proclamation, to declare the inhabitants of any State, or section of it, where insurrection existed, in a state of insurrection against the United States: and "thereupon," the statute proceeds: "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 hostility shall continue; 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 * 85; 12 Stat. at Large, 257. Statement of the case. vehicle conveying the same, be forfeited to the United States. Provided, that the President may in his discretion license and permit commercial intercourse, &c., as he in his discretion may think most conducive to the public welfare," &c. The statute enacts also:* "That . . . any ship or vessel belonging in whole or in part to any citizen or inhabitant of said State, or part of a State, whose inhabitants are so declared in a state of insurrection, found at sea or in any part of the United States, shall be forfeited to the United States." In pursuance of the authority given by this act, the President, by proclamation of 16th August, 1862,† did declare "Louisiana"-along with several other Southern States-in a state of insurrection against the United States, with interdiction of commerce; excepting, however, the inhabitants of such States "as may maintain a legal adhesion to the Union and the Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the said insurgents.' By a subsequent proclamation,‡ reciting that experience had shown that the exceptions made as above, embarrassed the execution of the act of July 13, 1861 (already mentioned), they were revoked, and the inhabitants of several States, including "Louisiana," "except the ports of New Orleans, &c.," were declared "in a state of insurrection," &c., and all commercial intercourse not licensed, &c., declared unlawful, "until such insurrection shall cease or be suppressed, and notice thereof has been duly given by proclamation." On the 12th May, 1862,-that is to say two days before the capture,—the President issued his proclamation, reciting that "as the blockade of the same ports may now safely be relaxed with advantage to the interests of commerce," therefore he declared that the blockade of the port of New * 86; 12 Stat. at Large, 257. 31 March, 1863; 13 Stat. at Large. † Id. 1262. Argument for the Government. Orleans, shall so far cease and determine from and after the 1st day of June, 1862, that commercial intercourse with it might be carried on except as to persons, things, and information contraband of war. The question now before this court, on the appeal, was, whether upon the state of facts above presented, the cotton had been properly restored. Mr. Assistant Attorney-General Ashton, and Mr. Eames, for the appellant: I. Cooke having been permanently established in New Orleans, and having had uninterrupted commercial and personal domicile there, for ten years previous to the capture, without having either property or residence, actual or constructive, anywhere else, or even any purpose of abandoning his domicile or business at that city, was an enemy, and his property was liable to confiscation if New Orleans, when the capture of the property was effected, was enemy territory.* II. Was New Orleans then enemies' territory? Were her people enemies of the United States? That is the question now for this court. 1. In adjudicating the public status, at any particular point of time, of territory within a State once involved in the general hostile relation, the court will follow the acts and declarations, touching and respecting such territory, of the political department of the Government. It can do nothing else. The Government is waging war against organized hostile bodies of men, who assert that they act under the authority of the government of "sovereign States," and who are contending for an alleged right of exclusive jurisdiction and control over the whole extent of territory embraced by such States. The duty of the political power is to pursue the struggle until the rebel organization is destroyed, and the supremacy of the Government is everywhere re-established. But who is to judge where and when the power of The Indian Chief, 3 Robinson, 18; The Gerasimo, 11 Moore's P. C. 96; The Venus, 8 Cranch, 280. Argument for the Government. the enemy has been so broken as that, with safety to the whole cause, the people and property once subject to hostile control may be released from the law of war, and restored to their rights under the Government? The "line of insurgent bayonets," as Grier, J., denominates it,* forced back today, may advance to-morrow. Who but the President, whose duty it is to plant the standard of the nation on this hostile soil, can know what measures of war may serve to keep that standard fixed where it may once be planted? Now, on the 14th of May, the date of this capture, New Oricans was, indeed, in the possession of the United States, but the claim of the de facto power, which had been dispossessed, was still actively asserted. Every part of the case,— the language of the chief municipal officer of New Orleans, who declared that he would surrender nothing; that the people would not transfer their allegiance "from the government of their choice to one which they have deliberately repudiated;" the "applauded" insult to the flag of the Union; in short, the whole history,-shows defiance and malignity. There is nothing like it in the history of any conquered city whatever. Among our own cities, most, like Savannah, have submitted with grace. In the city was the whole of the late city corporation, hundreds of so-called "citizens,”—foreign adventurers, many of them, who had risked all that they had or hoped for in the success of their own rebellion,-all ready to consign the city to the traitor Lovell and his army. That army, on the day of this capture, was still in array at the gates of the city, and was there asserting its right to exclude the United States from that soil. Indeed, the enemy's army has never, to this day, been driven from Louisiana. There was no certainty that General Butler could hold possession even if he had it firmly; which, on the day of this capture, he had not. General Banks, in the same State, at a later day, after having been fully in possession on the Red River, was compelled to retire, and the district went right back to the enemy's control. This is matter of history; a history * 2 Black, 647. |