The Ouachita Cotton

by Noah Haynes Swayne

United States Supreme Court

73 U.S. 521

The Ouachita Cotton

THE case thus entitled was a matter of three appeals from the Circuit Court of the United States for Illinois in a question of 395 bales of cotton which had been seized during the rebellion by a flotilla of the United States. The matter was thus:

An act of Congress of July 13th, 1861, passed soon after the outbreak of the late rebellion, enacts (§ 5) that

'It may and shall be lawful for the President, by proclamation, to declare that the inhabitants of such State, or any section or part thereof where such insurrection exists, are in a state of insurrection against the United States, and thereupon 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.'

The act proceeds:

'And all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United Stats, and all proceeding to such State or section by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or sections, be forfeited to the United States.'

The same section also contained this proviso:

'That the President may, in his discretion, license and permit commercial intercourse with any such part of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest, and such intercourse, so far as by him licensed, shall be conducted and carried on in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

On the 16th of August, 1861, the President issued a proclamation, declaring 'that the inhabitants of Louisiana and some other States named (except the inhabitants of that part of the State of Virginia lying west of the Alleghany Mountains, and of such other parts of that State and the other States hereinbefore mentioned as might maintain a loyal adhesion to the Union and Constitution, or might be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents), were in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and shall remain unlawful, until such insurrection shall cease or has been suppressed.'

With this statute and this proclamation in force, three distinct parties, American citizens or subjects,-namely, Withenbury & Doyle, The New Orleans Bank, and one Leon Queyrous, purchased during the rebellion, but after New Orleans was restored, by capture, May 6th, 1862, to the Federal jurisdiction, a quantity of cotton from the late rebel confederation. The cotton had been raised on the Ouachita, in Louisiana, and in 1862 sold by its owners to the confederation, who left it stored on the plantation where it was raised.

The circumstances under which the three parties above-named purchased respectively from the Confederate government were these:

1. Withenbury & Doyle were citizens of Ohio. The outbreak of the rebellion found them in Louisiana owners and masters there of two steamers running in lawful commerce between New Orleans and Upper Louisiana. Before very long the boats were in the service of the rebel confederacy,-wholly by compulsion, as was asserted by Withenbury & Doyle, and against every loyal ef ort on their part to keep their boats from it. The Confederacy, as in time of war, had seized them, it was alleged, meaning to pay what it deemed a fair price. Being thus indebted to Withenbury & Doyle for the use of the boats, these persons took the cotton (still on the plantation where it was raised) in payment, making the negotiation by which they became owners, with one McKee, an agent of the Confederate government. Such was their title to the cotton bought by them.

2. The title of the Bank was thus: On the capture of New Orleans by the forces of the United States, the Louisiana State Bank, a moneyed corporation in that city, found itself with a large amount of Confederate currency on hand, which, as was said, it had been compelled by the rebel confederacy to receive on deposit. It being valueless at New Orleans after the capture, and its effect-if it could be put into circulation in the regions yet under rebel control-being likely to be the yet further discrediting of the rebel credit-while if cotton could be got for it and brought into loyal regions-that would add to the resources of these last, the commander of the United States forces in New Orleans, in December, 1862, authorized the bank at its desire to dispose of this currency in the purchase of cotton within the rebel lines. Under this permission, an agent of the bank passed through the United States lines into Upper Louisiana, and purchased the cotton in question (or some other which to facilitate transfer he exchanged for it) of a sub-agent of McKee, the agent already named, in August, 1863.

3. Queyrous's purchase was thus: He was a naturalized citizen of the United States, residing in New Orleans, and, in March, 1864, purchased the cotton of Buckner, an agent of the Confederate States.

Soon after all this, to wit, in April, 1864, a flotilla of gunboats of the United States sailed up the Ouachita River, found the cotton still upon the plantation, where it had been raised, and which was in a part of Louisiana then, as, from the origin of the rebellion, it had been, subject to the power of the rebel confederacy-and seizing 935 bales of it, transported it to Cairo, where it was libelled in the District Court there, as prize of war.

Withenbury & Doyle intervened as claimants, on sale of it, to its proceeds, under their title as stated, for the whole 935 bales. A firm named Grieff & Zunts, who had purchased from the bank, came in as succeeding to its title for the same total amount; while a French firm, foreigners, resident in France, Le More & Co., who had purchased 830 bales from Queyrous, intervened for that proportion of the capture.

By order of the court the claims were consolidated, and having been considered, were dismissed on the ground that the transactions of the original parties, Withenbury & Doyle, the Bank and Queyrous, were 'void;' the inhabitants of the loyal and disloyal districts having been rendered incapable of any dealing with each other, so long as the rebellion continued; prohibition being the rule, and license the exception; and the license in this case not having been by the President, who alone was capable of giving one. None of the original parties, therefore, who dealt with the rebels, had any title, and neither Grieff & Zunts, nor the house of Le More in France, who stood in the shoes of two of them, could get through them one that should be different.

The claims of all three intervenors were accordingly dismissed, and without the question between the captors and the United States having been disposed of, the correctness of this decree of dismissal was made by this appeal the question now before the court.

The appeals were argued elaborately in this court, by Mr. R. M. Corwine, representing Withenbury & Doyle; Mr. Goold, representing Grieff & Zunts; and Messrs. Louis Janin and J. A. McClernand, representing Le More. These counsel made common case as against the United States and the captors, and particular case as against each oh er. The disposition of the court against all the appellants in common, dispenses with any note of the argument on the latter heads. As against the United States it was argued—

1. That the property libelled being the property of loyal citizens of the United States, and within their territorial jurisdiction, inland, could not lawfully be the subject of capture by the naval forces of the United States as prize of war or otherwise.

2. As long as the rebels held, with the strong hand of war, any of the territory of the United States, to the exclusion of the laws and officers of the United States, that citizens thereof, then in such territory, might lawfully sell to or buy property of those rebels, whether the latter had such transaction individually or under the assumed name of a government; provided, it did not appear that the same was done with the intention and for the purpose of aiding such assumed government in its unlawful usurpations.

3. That it was lawful for any parties having licenses granted to them by the proper authorities of the United States for that purpose, to carry on trade in the region where this cotton was; and that two of these purchasers had such licenses.

4. That whatever loyal citizens did, in aid of the rebel cause, by compulsion, or in order to avoid military conscription, would not deprive them of their legal and constitutional rights as citizens of the United States.

5. That property acquired as this was, although it remained within the lines of the insurgents, was not stamped with the disabilities of enemy's property, but was entitled to the care of the government so soon as removed beyond the enemy's lines.

6. That the Non-intercourse Act of July 13th, 1861, being in violation of the general rights of the citizens of one State to trade with those of every other, is to be construed strictly; that it forfeits no goods but those 'coming from said State or section INTO the other parts of the United States, and all proceeding TO such State.' The property must, therefore, be caught in the predicament of passing from one State to an other.

7. That as respected the case of Le More & Co., especially, it was obvious that whatever might be the case if the cotton had been yet owned by Queyrous, that Le More & Co. being citizens of a foreign and neutral state and purchasers bona fide for value, held the property discharged of all liability; that certainly as a neutral they could have purchased of the Confederacy directly, and that their right was not impaired by its coming through the channel that it did.

Mr. Stanbery, A. G., and Mr. Ashton, special counsel of the United States, with Mr. L. Weldon, for the captors, placed the matter chiefly on the broad principle declared in Griswold v. Waddington, ^[1] as well as in later and in earlier cases. ^[2] In the case named, Chancellor Kent thus expressed himself:

'There is no authority in law, whether that law be national, maritime, or municipal, for any kind of private, voluntary, unlicensed business communication or intercourse with an enemy. It is all noxious, and in a greater or less degree it is criminal. Every attempt at drawing distinctions has failed; all kinds of intercours, except that which is hostile, is illegal. The law has put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without the special permission of the government. There is wisdom and policy, patriotism and safety, in this principle, and every relaxation of it tends to corrupt the allegiance of the citizen, and prolong the calamities of war.'

The act of Congress and the Proclamation were yet over and above this general principle of law.

2. The President alone had power to license; a matter twice decided by this court. ^[3]

3. Queyrous having thus had no title whatever, Le More, who got no more than he had, could not have a good one.

Mr. Justice SWAYNE delivered the opinion of the court.

Notes

1. Johnson, 483.
2. See specially Brown v. United States, 8 Cranch, 136; Scholefield v. Eichelberger, 7 Peters, 592.
3. The Reform, 3 Wallace, 632; The Sea Lion, 5 Id. 647.