Argument for the Government.

Poonah was kept in order only by letting every one see that there was an overwhelming force on account of their being a disaffected population, and the fact of one government having been overturned and another set up, and the character of the people being turbulent. Proclamations, too, had been issued at Poonah as at New Orleans. The case was much like ours. The question in the suit was one of jurisdiction, i. e. whether the case belonged to the civil or to the military courts? This depended on the nature of the seizure, whether it was what is technically called a "hostile” seizure, or not. Very able counsel, Sir Thomas Denman and others, contended, as the other side would contend here. Speaking of the nature of the war, and the proclamation which had been made, they say:

"It is a war of conquest and annexation, and its sole and avowed object was to place the principality under the dominion of the East India Company. From the moment the proclamation was issued, every part of the country that was conquered became, at the time of its conquest, part and parcel of its dominion and of the crown. On the 16th of November, 1817, the capital was taken possession of by us, and has ever since remained in our possession. It is said that the country was unsettled, or in a state of passage from one settlement to another. Such a state is unknown to our laws. A country must either be in a state of war or a state of peace; although it is sometimes difficult to define the actual boundaries between them. The distinction between the day and the night is perfectly clear, but who can ascertain the exact point where one ends and the other begins. It cannot be disputed that in point of fact, at least, Poonah was perfectly subdued and tranquil."

But Sir Edward Sugden, then solicitor-general, arguing in support of the seizure, thus gives the answer:

"No country can ever be thoroughly brought under subjection if it is to be held that where there has been a conquest and no capitulation, the mere publication of a proclamation desiring the people to be quiet, and telling them what means would be re

Argument for the Government.

sorted to if they did not, so far reduces the country under the civil rule that the army loses its control, and the municipal courts acquire altogether jurisdiction."

Of this view was the Privy Council, which, through Lord Tenterden, declared that "the proper character of the transaction was that of a hostile seizure made, if not flagrante, yet nondum cessante bello," and judgment went accordingly.

The result of the British prize adjudications on this point is, that where the question is as to the national character of a place in an enemy's country, it is not sufficient to show, that possession or occupation of the place was taken, and that, at the time in question, the captor was in control. It must be shown, either that the possession was given in pursuance of a capitulation, the terms of which contemplated a change of national character, or that the possession was subsequently confirmed by a formal cession or by a long lapse of time.*

III. Is the property, then, relieved from liability to confiscation by General Butler's proclamation?

It will be contended that this proclamation is, in effect, a convention between the Government and the rebels.

1. But General Butler was without authority to make any such convention. "To exempt the property of enemies from the effects of hostilities," says Lord Stowell,† "is a very high act of sovereign authority. If at any time delegated to persons in a subordinate station, it must be exercised either by those who have special commissions granted to them for the particular business, or by persons in whom such a power is vested by virtue of any situation to which it may be considered incidental." The office of General Butler, after the

The Negotie en Zeevaart, in the House of Lords, July 18, 1782; cited in The Danckebar, C. Robinson, 111; The Boletta, Edwards, 174; The Edel Catharina, 1 Dobson, 56; The Dart and Iappy Couple, in the House of Lords, 17 March, 1805; cited in The Manilla, Edwards, 3; The Gerasimo, 11 Moore's Privy Council, 101.

† The Hope, 1 Dodson, 227; see also the Elsebee, 5 Robinson, 173; or 155 American edition of 1807.

Argument for the Government.

reduction of the city, was to devise and execute measures for the preservation of the peace in the city. The power of setting aside the law of war, of defeating the right of capture given by that law, as well as by statute, to the naval vessels of the nation, and of repealing, in effect, all grants of prize interest, were not powers incidental to the situation and office of a commander of land forces in occupation of an enemy's city.

2. Even if General Butler possessed sufficient authority to give the exemption claimed, he did not by the proclamation, rightly interpreted, attempt to exercise it as respected ships and cargo afloat. Ships and cargo afloat do not come under such expressions as he used. This is settled law. The case of the Ships taken at Genoa is in point.* In that case one of the articles gave the inhabitants permission "to withdraw themselves, their money, merchandise, movables, or effects, by sea or land," and another stipulated for "freedom of trade." On a question of seizure, it was contended that on these articles the intention of the parties was plain to exempt the shipping from seizure, and that it would be nugatory to grant "freedom of trade," and at the same time seize the vehicles in which trade was carried on. Sir William Scott, however, says:

"If the court was to abstract itself from the consideration of what has usually been,understood and done, the terms-themselves, their money, movables, and effects'-are perhaps large enough to admit this interpretation; although it is an acknowledged rule, that ships-themselves being property of a peculiar species-do not necessarily pass under such a description. It is impossible not to refer to the practice of commanders of other fortunate expeditions, by whom a broad distinction has usually been taken between property afloat and property on land."

And with respect to the argument made from the expression "freedom of trade," he remarks:

"To this observation I can only say that nugatory as such a clause might be, it is every day's practice to seize all property

* 4 Robinson, 388.

Opinion of the court.

afloat, and yet to allow a general 'freedom of trade,' exclusive of such particular seizure."

3. General Butler's proclamation did, in fact, but express an intention to protect the persons named from the army of the United States, for which alone he had authority to speak.

4. The idea of protection, considered with reference to a vessel in the situation of the Venice, involves nothing, if not ability to sail on the seas without molestation. But up to the 12th of May, 1862, the blockade of New Orleans was in full force and effectually maintained. It so remained, in fact, till June. General Butler possessed no power to license any vessel to violate the blockade; and yet, what avail was a guaranty of protection to this vessel and cargo, unless they would have been permitted to sail on any destination out of the port of New Orleans?

The Government, therefore, has not only not ratified or confirmed in any way the supposed action of General Butler, but it has, by the proclamation of May 12, 1862, repudiated whatever act of his is susceptible of the interpretation contended for by the claimant.

IV. Even if the neutral character of the claimant be sustained, the vessel and cargo must be condemned. In a blockaded port, Cooke bought from the enemy an enemy commercial vessel, and then loaded her during the blockade, with property purchased from the enemy, in the enemy country.*

Messrs. Reverdy Johnson and Gillet, contra, for the claimant Cooke.

The CHIEF JUSTICE delivered the opinion,of the court. This cause comes before us upon appeal from a decree of the District Court of the United States for the Southern District of Florida.

The schooner Venice, with a cargo of two hundred and

The General Hamilton, 6 Robinson, 61; The Vigilantia, 6 id. 124; The Potsdam, 4 id. 89; The Negotie en Zeevaart 1 id. 111, et cas. cit.

Opinion of the court.

twenty-five bales of cotton, was captured in Lake Pontchartrain by the United States ship-of-war Calhoun, on the 15th of May, 1862; was taken to Key West; was libelled as prize of war in the District Court; and was restored with her cargo, to the claimant, David G. Cooke, by its decree. The United States appealed. The claimant, Cooke, was a British subject, but had resided in New Orleans nearly all the time for ten years preceding the capture. He was a clerk in a large mercantile establishment until June, 1861, when the firm closed its affairs, and he turned his attention to other business, particularly to the collection of planters' acceptances which he had purchased, and to the investment of their proceeds in cotton. Early in April, 1862, he bought two hundred and five bales in Mississippi; and had them brought to New Orleans, where he purchased the Venice on the 9th of April. Finding that the two hundred and five bales would not fully complete the lading of the schooner, Cooke bought twenty bales more about the 12th of April. The whole was put on board with as little delay as possible, and on the 17th of April, the schooner was towed out into Lake Pontchartrain, and taken to the head of the lake, where she was anchored, and remained, with only such change of position as was necessary to obtain a supply of water, until the capture. In the meantime the vessel was undergoing repairs.

While these transactions were in progress, the war was flagrant. The States of Louisiana and Mississippi were wholly under rebel dominion, and all the people of each State were enemies of the United States. The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the Government and of all the citizens or subjects of the other, applies equally to civil and to international wars.* Either belligerent may modify or limit its operation as to persons or territory of the other; but in the absence of such modification or restriction judicial tribunals cannot discriminate in its application.

* Prize Cases 2 Black, 666; concurred in by dissenting Justices, Id

687-8.