U.S. Supreme Court Mrs. Alexander's Cotton, 69 U.S. 2 Wall. 404 404 (1864)
Mrs. Alexander's Cotton
69 U.S. (2 Wall.) 404
APPEAL FROM THE DISTRICT FOR
THE SOUTHERN DISTRICT OF ILLINOIS
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
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
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
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
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.
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,
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,
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
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
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.
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
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,"
"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 ]
[ Footnote 4 ]
[ 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 ]
[ Footnote 10 ]
12 Stat. at Large 319.
[ Footnote 11 ]
[ Footnote 12 ]
[ Footnote 13 ]
Report of the Secretary of the Treasury on the Finances, December 10, 1863, p. 438.
[ Footnote 14 ]
[ Footnote 15 ]
12 Stat. at Large 606.