Statement of the case.

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."

Statement of the case.

To the reader who does not recall these places in their re lations to New Orleans, the diagram on the page preceding will present them.

A small body of Federal troops began to occupy New Orleans on the 1st of May. On the 2d, the landing was completed. The rebel mayor and council were not deposed. There was no armed resistance, but the city was bitterly disaffected, and was kept in order only by severe military discipline, and the rebel army was still organized and in the vicinity.*

The blockade in question, as already mentioned, was declared by proclamation of President Lincoln in April, 1861; and was a blockade of the whole coast of the rebel States. No action to terminate it was taken by the Executive until the 12th of May, 1862, when, after the success of Flag-officer Farragut, the President issued a proclamation that the blockade of the port of New Orleans might be dispensed with, except as to contraband of war, on and after July 1st following.

* The state of things was thus described by the commanding general, at a later date, in justification of some severe measures adopted by him:

"We were two thousand five hundred men in a city seven miles long, by two to four wide, of a hundred and fifty thousand inhabitants, all hostile, bitter, defiant, explosive; standing, literally, on a magazine, a spark only needed for destruction." (General Butler in New Orleans, by Parton, 342.)

In the record in this case, there was a copy of a proclamation by General Butler at New Orleans, dated May 1st, 1862, reciting that the city of New Orleans and its environs, with all its interior and exterior defences, had surrendered, and making known the purposes of the United States in thus taking possession, &c., and the rules and regulations by which the laws of the United States would, for the present, and during the state of war, be enforced and maintained. It appears (see infra, p. 258, The Venice) that, though dated on the 1st, this paper was not published so early. The printing offices of the city were still under rebel management, and would not print it. The True Delta, the chief one, on the 2d, positively refused to do so, even as a handbill, no request having been ventured to have it printed in the columns of the paper. Some of General Butler's troops having been printers, half a dozen of them were sent to the office; and while a file of soldiers stood beside, a few copies were printed as a handbill, "enough for the general's immediate purpose." It did not appear in the paper till the 6th, and then with a defiant protest. (See Parton, 282.)

Argument for the claimants.

The case thus presented two principal questions:

1. Was the port of New Orleans, on the 4th of May, under blockade?

2. If it was, was the Circassian, with a cargo destined to that place, then sailing with an intent to violate it?

Supposing the cargo generally guilty, a minor question was, as to a particular part of it, asserted to have been shipped by Leech & Co., of Liverpool, British subjects, and of which a certain William Burrows was really, or in appearance, "supercargo."

Burrows himself swore-his own testimony being the only evidence on the subject-that he did not know of any charter-party for the voyage; that he received the bills of lading (which, like all the bills, were in French) from Messrs. Desbordes & Co., the ship's agents at Bordeaux; that he knew nothing about any papers relating to other portions of the cargo; that he was going to Havana to sell this merchandise, shipped by Leech, Harrison & Co., and was to return to Liverpool, either by the way of St. Thomas or New York; that he knew of no instructions to break the blockade; had heard nothing about the vessel's entering or breaking the blockade of any port, either before sailing or on the voyage, from any person as owner or agent, or connected with the vessel or cargo. No letters or other papers were found compromising this portion of the cargo other than as above stated.

The statutory port of New Orleans, as distinguished from the city of New Orleans itself, it may here be said, includes an extended region along the Mississippi above the city, parts of which were, at this date and afterwards, in complete possession of the rebels.

Messrs. A. F. Smith and Larocque, for the claimants of the ship and cargo:

I. A blockade is an interruption, by one belligerent, of communication, by any persons whatever, with a place occupied by another belligerent. No right exists in a belligerent,

Argument for the claimants.

as against a neutral, to blockade his own ports. That would be war upon the neutral. Blockade is a right of war against the enemy, and affects the neutral only incidentally, and from the necessity of the case. It is a right burdensome to neutrals, and is strict in its character. It is one which is claimed by the belligerent and yielded by the neutral, so long, and 'only so long, as a blockade is maintained which is in accordance with and recognized by the law of nations. The blockade of his own ports would be an embargo, an act of war against the neutral, thereby made and treated as an enemy. The embargo draws after it belligerent rights, and of a character entirely different from those that belong to a blockade; which are peaceful.

Now, was New Orleans, on the 4th of May, an enemy's port? Plainly not. The United States v. Rice,* in this court, some years since, is in point. In A.D. 1814, a place called Castine, on the south coast of the State of Maine, was captured by the British, then at war with us; and remained under the control of their military and naval forces until peace, in 1815. They established a custom-house under ordinary British laws. Certain goods were imported into the place during this interval; and, on the repossession of the place by the American Government, the question was, whether the goods were liable to duty under the laws of the United States. This court held that they were not. "By the conquest and military occupation of Castine," say the court, "the enemy acquired that firm possession which euabled him to exercise the fullest rights of sovereignty over the place. The sovereignty of the United States was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory on the inhabitants, who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose." Our case is stronger than this. In the case

* 4 Wheaton, 253.

Argument for the complainants.

just cited, the port was an American port, which fell under really foreign rule. This rule was an unnatural, exceptional. and temporary one. It was never regarded by any party as otherwise, or other than as an occupation during war, to be relinquished when peace should come. Great Britain, of course, never expected to hold permanently an isolated point in our country. With peace, the port was surrendered to us. Here, however, New Orleans had been seized by an insurrectionary faction only; certain Americans in temporary and mad revolt. We never ceased to regard New Orleans as a city of the United States. We never acknowledged her as belonging to any State but a State of this Union; a State then, as now, part of our one common country. In due time, and in a short time, the mob was brought, by the power of the Government, under its actual control, as the Government has always considered it to be under its constitutional right. The people were, at all times, American citizens; and at any moment, had they laid down their arms, these rights would have been conceded to them. With the suppression of the insurgent organization, law and order resumed the throne; the place became, in fact and in form, what it was always in law,-a port of the United States. Everything was remitted to its former condition. The case is one where the fiction of postliminy happens to be a fact; the just and benignant fiction of the Roman law, quæ fingit eum qui captus est in civitate semper fuisse.

Very likely the presence of the Federal army was odious enough to both mob and gentry of New Orleans, to men and women alike, "neutrals" and rebels as well. The population may have been all hostile, bitter, defiant, explosive. Still, the Federal army did keep its possession there, and with no other opposition than that of offensive words, gestures, and looks. Probably it was never in any danger; for if it had been insufficient, the Federal fleet lay beside the town, and could have destroyed it in a day. Here is the fact. From the hour that General Butler landed till this day, New Orleans has been under the Government control.