The Ouachita Cotton/Opinion of the Court

These three cases relate to the same cotton. The several appellants are conflicting claimants, and it will conduce to brevity and clearness in the expression of our views as to the merits of their respective claims, to dispose of all the cases together.

The cotton was seized on the bank of the Ouachita River, in the State of Louisiana, by the naval forces of the United States, in April, 1864. It was sent to Cairo, and libelled as prize of war in the District Court of the United States for the Southern District of Illinois. The court, by an interlocutory decree, directed the cotton to be sold, and the proceeds to be held subject to its order. The decree was executed, and the proceeds are so held. The appellants intervened in that court by filing their petitions. The claim of Withenbury & Doyle, and that of Grieff & Zunts, each, covers all the cotton. Le More & Co. claim 830 bales.

The court below decreed against all the claimants, and ordered their petitions, respectively, to be dismissed. From these decrees the several parties appealed, and the cases are now before this court for final decision.

The original case is still pending in the District Court. No further step in it has been taken. It is there awaiting adjudication. It is not in this court, and we can do nothing which will affect it, further than to dispose of the cases before us. Neither the captors nor the United States have yet been heard in the main case. All questions between them, relating to it, are still in abeyance. If this court should decree in favor of either of the two larger claims in the cases before us, there would be nothing left for the original parties to contend for. The entire res of the controversy would be lost to both. If we should sustain the smaller claim and exclude the others, the proceeds of 105 bales of the cotton will remain undisposed of. But if the decrees below shall be affirmed, the effect will be only to remove from the original case the grafts which have been placed upon it by the parties before us, and thereby to leave it in all respects as it was before they intervened.

The place where the cotton was seized was, at the time of the seizure, and had been from the commencement of the war, insurgent territory. It was raised near the place of seizure, upon the plantation of Simmons & Tatem, and was sold by Simmons-who had become the sole owner-to the rebel government, in the fall of 1862. Payment was made in Confederate bonds.

Withenbury & Doyle were citizens of the State of Ohio, but were in Louisiana at the breaking out of the rebellion. They owned two steamboats, and were engaged in running them upon the waters of that State. They remained there, and their boats were largely employed in the rebel service. They claim to have been thoroughly loyal to the United States all the time, and that such use of their boats was, on their part, the result of fear and compulsion, and was inevitable.

They bought the cotton in controversy of McKee, the cotton agent of the rebel government, in August, 1863. The consideration of the purchase was the indebtedness of that government for the service of the boats. Withenbury says in his deposition: 'The so-called Confederate government owed me largely for the services of my steamboat, and I received from their agent, A. W. McKee, cotton in preference to Confederate money. This cotton was situated on the Ouachita and Red Rivers, about equally divided. The largest quantity in any one place was nine hundred and thirty-five bales (935), which was stored on the plantation of Dr. John T. Simmons, on the Ouachita River, below Monroe.' The testimony of McKee, the rebel agent, is to the same effect. He says: 'The services of their boats ended in 1863, in the month of April. I then agreed to pay them in cotton if money was not soon forthcoming. . . . I paid them in the Simmonsc rop of cotton, on the Ouachita River. . . There was no contract or bargain made how they were to be paid, or how much they were to be paid. The boats were required to do the work with the understanding that they would be paid the customary prices. . . . On settlement in the spring of 1863, there was a balance due them, for services rendered under my direction, of between eighty and ninety thousand dollars.'

Doyle procured permission from the proper military authorities of the United States, to bring to New Orleans, upon government transports, from Upper Louisiana, 2500 bales of cotton, then lying there, which he claimed belonged to him. The cotton in controversy was a part of it. Before this could be done the cotton in question was seized, removed to Cairo, and libelled as before stated.

Le More & Co. are a commercial house of Havre, in France. They claim 830 bales of the cotton. They purchased through their agent, Jules Le More, on the 1st of March, 1864. The purchase was made of Leon Queyrous, a naturalized citizen, residing in New Orleans. He bought of Buckner, an agent of the rebel government, in the preceding month of February. Possession was delivered by Buckner to Queyrous, and by Queyrous to the agent of Le More & Co.

Grieff & Zunts claim through the Bank of the State of Louisiana. In the fall of 1862, after the capture of New Orleans by the land and naval forces of the United States, the bank having on hand upwards of a million dollars of Confederate money, applied to the military authorities there for permission to send it within the rebel lines, and invest it in cotton. Permission was accordingly given, and an agent was sent to Upper Louisiana with the money. He made large purchases in the country upon the Red River. Finding it impossible to remove the cotton, he exchanged it with the rebel authorities for cotton in the Ouachita District, including, as is alleged, the cotton in controversy. This arrangement was made in 1863. The bank sold to Grieff & Zunts in March, 1864. It is strenuously insisted by the counsel for the other claimants that the proof shows that the contract of exchange did not include the cotton in controversy, that it was conditional, and was subsequently rescinded by the parties, and that the bank took no title under it. However these things may be, they are immaterial in the view which we have taken of the case. We have, therefore, not found it necessary fully to examine the testimony relating to them. For the purposes of this opinion, it is assumed that the facts are, as they are claimed to be by the counsel of Grieff & Zunts.

The fifth section of the act of July 13th, 1861, authorized the President, under the circumstances mentioned, to declare any State, or part of a State, to be 'in a state of insurrection against the United States,' and it enacts that 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:. . . Provided, however, that the President may, in his discretion, license and permit commercial intercourse with any such part of such State, the inhabitants whereof 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 only 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 the rebel States, including Louisiana, to be in a state of insurrection. It excepted several localities from its operation. Among them were such parts of the States mentioned 'as may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of the insurgents.' By another proclamation of the 2d of April, 1863, the President declared the same Stae s to be in insurrection, and revoked all the exceptions contained in the former proclamation, but again made certain local exceptions, of which 'the port of New Orleans' was one. This proclamation declares 'that all commercial intercourse, not licensed and conducted as is provided in said act, between the said States and the inhabitants thereof, with the exceptions aforesaid, is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed, and notice thereof has been given by proclamation.' The date of this proclamation was prior to either of the purchases of the cotton from the rebel agents, to which the claimants, respectively, trace their titles.

The subjugation of New Orleans and the restoration of the national authority there are regarded as having become complete on the 6th of May, 1862. From that time its citizens were clothed with the same rights of property, and were subject to the same inhibitions and disabilities as to commercial intercourse with the territory declared to be in insurrection, as the inhabitants of the loyal States. Such is the result of the application of well-settled principles of public law. The proclamation of the 2d of April, 1863, recognized but did not change the existing condition of things. It was the same afterwards as before. The effect of the proclamation was cumulative.

The language of the act of 1861, and of the proclamation of 1863, is clear and explicit. There is no room for doubt as to their meaning, nor as to their effect in these cases. Commercial intercourse between the inhabitants of territory in insurrection and those of territory not in insurrection, except under the license of the President, and according to regulations prescribed by the Secretary of the Treasury, was entirely prohibited. As was well remarked in the able opinion of the court below, 'Prohibition was the rule, and license the exception.' No such license was given by the President to either of the parties by whom the purchases of the cotton were made from the agents of the rebel government. Those given by the military authorities were nullities. They conferred no rights whatever. No one could give them but the President. From any other source they were void. The law-making power, in its wisdom and caution, confided this important authority, so liable to be abused, to the Chief Magistrate alone.

Withenbury & Doyle being citizens and residents of Ohio; Queyrous being a citizen of Louisiana, and a resident of New Orleans, and the Bank of the State of Louisiana being a local institution of that city when they purchased, their purchases were all illegal and void, and passed no title to the vendees. Withenbury & Doyle, therefore, never had any title. Queyrous took none, and, therefore, could convey none to Le More & Co. The bank acquired none, and nothing passed by the sale to Grieff & Zunts.

All the parties in this litigation stand before us without any right or interest in the cotton which this court can recognize.

Other questions of fact and of law have been argued with great ability; but as we have found the statute and the proclamation conclusive in every aspect of the cases which can be presented, we have deemed it unnecessary further to examine the subject.

We have found no error in the record.

This conclusion is not in conflict with the ruling in the case of Mrs. Alexander's Cotton. Upon that subject it is sufficient to remark that there, the whole case was not, as here, before us.

The several decrees of the District Court are

AFFIRMED.