The Venice, 69 U.S. 258 (1864)
U.S. Supreme CourtThe Venice, 69 U.S. 2 Wall. 258 258 (1864)
69 U.S. (2 Wall.) 258
1. The military occupation of the City of New Orleans by the forces of the United States after the dispossession of the rebels from that immediate region in May, 1862, may be considered as having been substantially complete from the publication of General Butler's proclamation of the 6th (dated on the 1st) of that month, and all the rights and obligations resulting from such occupation, or from the terms of the proclamation, existed from the date of that publication.
2. This proclamation, in announcing, as it did, that "all rights of property" would be held "inviolate, subject only to the laws of the United
States," and that
"all foreigners not naturalized, claiming allegiance to their respective governments and not having made oath of allegiance to the government of the Confederate States"
would be "protected in their persons and property as heretofore under the laws of the United States," did but reiterate the rules established by the legislative and executive action of the national government, and which may also be inferred from the policy of the war, in respect to the portions of the states in insurrection occupied and controlled by the troops of the Union. It was the manifestation of a general purpose, which seeks the reestablishment of the national authority and the ultimate restoration of states and citizens to their national relations under better forms and firmer guarantees, without any view of subjugation by conquest.
3. Substantial, complete, and permanent military occupation and control, as distinguished from one that is illusory, imperfect, and transitory, works the exception made in the Act of July 13, 1861 (§ 5), which excepts from the rebellious condition those parts of rebellious states "from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgents," and such military occupation draws after it the full measure of protection to persons and property consistent with a necessary subjection to military government.
4. The President's proclamation of 31st of March, 1863, affected in no respect the general principles of protection to rights and property under temporary government, established after the restoration of national authority.
5. Vessels and their cargoes belonging to citizens of New Orleans, or neutrals residing there and not affected by any attempts to run the blockade, or by any act of hostility against the United States, were protected after the publication of General Butler's proclamation, dated May 1, 1862, and published on the 6th, though such persons, by being identified by long voluntary residence and by relations of active business with the enemy, may have themselves been "enemies" within the meaning of the expression as used in public law.
The schooner Venice, with a cargo of cotton, was captured in Lake Pontchartrain, Louisiana by the United States ship of war Calhoun on the 15th of May, 1862; was taken to Key West, libeled as a prize of war in the district court, but was restored, with her cargo, to the claimant, Cooke, by its decree. The United States appealed.
The case, as appearing from the proofs, [Footnote 1] and from the public history of the country, was in substance thus:
The claimant, Cooke, was a native British subject, and had resided and been engaged in business in New Orleans, without being naturalized as a citizen of the United States, for nearly ten years previously to the capture. About the 1st of April, 1862, he purchased, in the interior of the state of Mississippi, two hundred and five bales of cotton. This cotton, as he alleged, was bought as an investment for "Confederate notes," which he had become possessed of in previous employments in New Orleans, his intention being to let the cotton remain in the interior, away from the seaboard, until the rebellion should be over and the cotton could be shipped and sold for gold or its equivalent. To prevent the threatened destruction of it under rebel order in Mississippi, he shipped it to New Orleans, where it arrived about the 7th of April. The same danger awaited it there. General Lovell, the rebel commanding general, gave him notice that his cotton must be immediately removed or prepared for complete destruction in the event of the capture of the city. The schooner Venice was then lying near New Orleans in the basin of the Pontchartrain Canal. This vessel the claimant purchased from her New Orleans owner, and about the 12th of April stowed the cotton, purchased as above stated, on board of her, together with twenty other bales of the same article, which were purchased in New Orleans and put on board to complete the lading of the vessel, in order that it might be out of danger of burning in case of the capture of New Orleans by the United States forces. After being thus loaded, the Venice, on the 17th April, was towed out into Lake Pontchartrain.
During all this time, New Orleans and the surrounding region was in open rebellion and war against the United States, and the port of New Orleans and Lake Pontchartrain under blockade.
The Venice remained at anchor in the lake from the time she was taken there, April 17, 1862, till her capture on May 15, 1862, being unfit for service, and though undergoing repairs, having had no intention of breaking the blockade.
Between these two dates, however, important naval and military events took place at New Orleans. The government fleet, under Flag-officer Farragut, reached New Orleans on the 25th April, and on the 26th, the flag-officer sent one of his commanders to demand of the mayor the surrender of the city. The reply of the mayor was "that the city was under martial law, and that he would consult General Lovell." General Lovell declared in turn that "he would surrender nothing," but at the same time that he would retire and leave the mayor unembarrassed. On the 26th, the flag-officer sent a letter, No. 2, to the mayor, in which he says:
"I came here to reduce New Orleans to obedience to the laws and to vindicate the offended majesty of the government. The rights of persons and property shall be secured. I therefore demand the unqualified surrender of the city, and that the emblem of sovereignty of the United States be hoisted upon the city hall, mint, and custom house by meridian of this day. And all emblems of sovereignty other than those of the United States must be removed from all public buildings from that hour."
To this the mayor transmitted on the same day an answer, which he says "is the universal sense of my constituents no less than the prompting of my own heart." After announcing that "out of regard for the lives of the women and children who crowd this metropolis," General Lovell had evacuated it with his troops and "restored to me the custody of its power," he continues:
"The city is without the means of defense. To surrender such a place were an idle and an unmeaning ceremony. The place is yours by the power of brutal force, not by any choice or consent of its inhabitants. As to hoisting any flag other than the flag of our own adoption and allegiance, let me say to you that the man lives not in our midst whose hand and heart would not be paralyzed at the mere thought of such an act; nor can I find in my entire constituency so wretched and desperate a renegade as would dare to profane with his hand the sacred emblem of our aspirations. . . . Your occupying the city does not transfer allegiance from the government
of their choice to one which they have deliberately repudiated, and they yield the obedience which the conqueror is entitled to extort from the conquered."
At 6 A.M. of the 27th, the national flag was hoisted, under directions of Flag-officer Farragut, on the mint, which building lay under the guns of the government fleet; but at 10 A.M. of the same day an attempt to hoist it on the custom house was abandoned; "the excitement of the crowd was so great that the mayor and councilmen thought that it would produce a conflict and cause great loss of life."
On the 29th, General Butler reports that he finds the city under the dominion of the mob. "They have insulted," he says, "our flag; torn it down with indignity. . . . I send a marked copy of a New Orleans paper containing an applauding account of the outrage."
On the same day, that General reported thus:
"The rebels have abandoned all their defensive works in and around New Orleans, including Forts Pike and Wood on Lake Pontchartrain, and Fort Livingston on Barataria Bay. They have retired in the direction of Corinth, beyond Manchac Pass, and abandoned everything in the river as far as Donaldsonville, some seventy miles beyond New Orleans."
Transports conveying troops under General Butler reached New Orleans on the 1st of May, and the actual occupation of the city was begun. There was no armed resistance, but there were constant exhibitions of a malignant spirit and temper both by the people and the authorities. On the 2d of May, the landing of troops was completed, and on the 6th a proclamation of General Butler, which had been prepared and dated on the 1st and printed on the 2d by some soldiers, in an office seized for the purpose, was published in the newspapers of the city. Some copies of the proclamation
had been previously distributed to individuals, but it was not make known generally until thus published. [Footnote 2]
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 surrender
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, [Footnote 3] 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
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,"
The statute enacts also: [Footnote 4]
"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, [Footnote 5] 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, [Footnote 6] 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
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.