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sion seems to be regarded as binding upon the circuit and district courts, and they have applied the law as announced by the Supreme Court as applicable to persons claiming under the captured and abandoned property act to suits between citizens where "private rights" are involved.

The next question presented for our consideration and decision is, what effect did the occupation of the city of New Orleans, on the 6th of May, 1862, by the forces-of the United States, have upon the rights of the parties to this action? By the 5th section of the act of Congress of the 13th of July, 1861, it was enacted, that "whenever" the militia called forth by the President had failed to disperse insurgents in any state against the national authority, it should be lawful for the President, by proclamation, to declare that the inhabitants of such state, or part of a state, were in a "state of insurrection against the United States;" and thereupon the statute proceeded:

"All commercial intercourse by and between the same and 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; and all goods and chattels, wares and merchandise, coming from said state or section into the other parts of the United States, 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 section, be forfeited to the United States."

The section contained, however, 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 only in pursuance of rules and regulations prescribed by the Secretary of the Treasury."

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President Lincoln, on the 16th of August, 1861, made such proclamation as the act itself authorized, declaring that the inhabitants of several states, which he named, including Louisiana, "except the inhabitants of that part of Virginia lying west of the Alleghany mountains, and such other parts of that state, and the other states hereinbefore named, as may maintain a loyal adhesion to the union and constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of such insurgents, are 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 will remain unlawful until such insurrection shall cease or has been suppressed," &c.

The proclamation of the President embraced the entire State of Louisiana, and included all the inhabitants thereof. There were no exceptions made as to places or persons in the said state. The Supreme Court of the United States, in the matter of The Venice, 2 Wal. 258, say:

"While these transactions were in progress (April, 1862), 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."

The inhabitants of the States of Lousiana and of Indiana were enemies, and all commercial intercourse between them was prohibited and unlawful, unless they came within the exceptions named in the proclamation of the President above quoted. It is not claimed that any part of the State of Louisiana or of the inhabitants thereof, except the city of New Orleans and its inhabitants, came within the exception named in the proclamation. The occupation of the city of

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New Orleans by the forces of the United States became complete on the 6th day of May, 1862.

The question arises, what was the legal effect of such occupation? This depends upon the construction to be placed upon the proviso to the fifth section of the act of Congress of 13th of July, 1861, and the exceptions contained in the proclamation of the President on the 16th of August, 1861. It will be perceived that the decisions of the Supreme, circuit, and district courts of the United States have not been uniform and consistent, and this will render necessary an examination of all these decisions, with the view of ascertaining the recognized and established doctrine on this subject. The want of uniformity and the apparent conflict in the decisions of the federal courts seem to have resulted from the fact that some of the decisions are based upon the proclamation of the President, while others are based on the fifth section of the act of Congress of 13th of July, 1861. The proclamation does not conform to the act of Congress. The proviso to the 5th section refers solely and expressly to commercial intercourse between the inhabitans of a state or part of a state that may be declared to be in a state of insurrection. The act of Congress makes it the duty of the President, in a certain contingency therein named, "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;" and the President having declared such state and inhabitants to be in a state of insurrection, he is invested by the proviso with the discretionary power to "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

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as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury." The evident purpose of Congress was to place all the inhabitants in a state of insurrection and render unlawful all intercourse, except as the President might by special license, or permit, allow trading. The exception does not apply to anything except trading by special license, and does not release the inhabitants from any other disability produced by a state of war. The proclamation of the President applies the exception to the condition of insurrection, and not to commercial. intercourse by special license after the inhabitants are declared to be in a state of insurrection. The construction of the act of Congress and proclamation of the President was first involved in the matter of The Venice, 2 Wal. 258, where the court say:

"This legislative and executive action relates, indeed, mainly to trade and intercourse between the inhabitants of loyal, and the inhabitants of insurgent parts of the country, but by excepting districts occupied and controlled by national troops from the general prohibition of trade, it indicated the policy of the government not to regard such districts as in actual insurrection, or their inhabitants as subject, in most respects, to treatment as enemies. Military occupation and control, to work this exception, must be actual; that is to say, not illusory, not imperfect, not transient; but substantial, complete, and permanent. Being such, it draws after it the full measure of protection to person and property consistent with a necessary subjection to military government. It does not, indeed, restore peace, or in all respects, former relations, but it replaces rebel by national authority, and recognizes, to some extent, the conditions and responsibilities of national citizenship."

This is the earliest decision of the Supreme Court on the question under consideration. It is not full, accurate, or perspicuous. It decides that the occupation of New Orleans by the forces of the United States did not restore peace or the former relation, but that it recognized to some extent the

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conditions and responsibilities of national citizenship. But we are not informed what condition and responsibilities are recognized, or to what extent they are so recognized. If there is anything that is clearly settled by this decision, it is that a permanent occupation draws after it "the full measure of protection of persons and property."

The same court, at the same term, in the matter of The Circassian, held that the capture of the forts and occupation of the city of New Orleans did not terminate the blockade of New Orleans, but, on the contrary, made it more complete and absolute. See 2 Wal. 135.

In the subsequent case of The Reform, 3 Wal. 617, the principal defense upon the merits was, that the vessel, with the cargo, was engaged, at the time of the seizure, in a lawful voyage under a license from the Secretary of the Interior, issued by the express authority of the government. The court say:

“Such a defense, unquestionably, may be valid, and if fully proved, the decree of the circuit court must be affirmed. Authority was conferred upon the President, by a proviso of the section under consideration, to license and permit, in his discretion, commercial intercourse, in the interdicted states or places, in such articles, and for such time, and by such persons, as he might think most conducive to the public interests; but all such intercourse was to be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury."

Again, it is said by the court: "Proclamation of the President, of the sixteenth of August, 1861, which declared that certain states and parts of states were in insurrection, expressly excepted from that condition those districts, or parts of the same, which might be 'from time to time occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents.' Intercourse for commercial purposes was not prohibited with such places or districts while so occupied and controlled. They were not regarded, as this court said in the case of The Venice, 'as in