EXPOSITION
OF THE
CLAIM OF G. A. LEMORE & CO.,
TO
EIGHT HUNDRED AND THIRTY BALES OF COTTON
DETAINED BY THE UNITED STATES AS PRIZE OF
WAR.
BY JOHN A. McCLERNAND.
IACGiLL & WITHEROW, Printers & Stereotypers, Washington. D.)








EXPOSITION
OFr THE CLAIM OF G. A. LMORE & CO. TO EIGHT HUNDRED AND
THIRTY BALES OF COTTON DETAINED BY TIHE UNITED STATES
A.S PRIZE OF WAR.
BY JOHN A. McCLER,NAND.
FACT'S.
Gustave.A. LeMore and Leontine LeMore, citizens of
France, composing the firm  of G. A. LeMore & Co., of
Havre, on the first of March, A.D.  1864, by their agent,
Jules LeMore, also a French citizen, purchased of Leon
Quegrouze, a naturalized citizenof the United States, within
a district of Louisiana then, in fact, under the military and
civil jurisdiction of the revolutionary government of the
Confederate States of America, eight hundred and thirty
bales of cotton.  For these cottons, LeMore & Co. paid
T160 per bale, actually took possession of them, (by their
agent,) and without delay rermoved them to the bank of the
Ouachita river, within the same jurisdiction.  Here, while
their agent was marking them with the initials of his principals, preparatory to shipment, they  were seized by the
United States.Navy as prize of war.  Subsequently, the cottons were carried to Cairo and libelled in the United States
court, of the southern district of Illinois, and sold under an
interlocutory decree as perishable property; the proceeds of
which sale, still in the hands of the court, remain to be disposed of.
LeMore & Co., having filed their answer to the libel, praying restitution of the cottons, and denying that they are
lawful p.rize, the cause came on to be heard, and the court
made an order dismissing their claim, but left the question




of prize and confiscation undetermined.  From that order,
LeMore & Co. have appealed to the Supreme Court of the
United States, and it now  remains for that Court, in the
ordinary course of procedure, either to affirm  thte order
and condemn the goods as lawful prize, or to disaffirm it,
and distribute the funds according to right among the claimants, or to disaffirnm it, and remand the cause and direct the
court below to make such distribution.
LAW OF THE CASE.
The character of the late war in the United States must
be considered in determining the legal principles by which
this cause nmust be governed.  The war'was a domestic one,
and had been prosecuted for the full period of four years
when these cottons were seized.  Meantime, eleven States,
extending from the Potomac more than three thousand miles
along the Atlantic coast to the Rio Grande, had formally
seceded from the American Union.  These States embraced
an area of 707,548 square miles, a population of 9,103,383
souls, and were many times larger in extent than the empire
of France.  After having seceded, they formned a distinct
confederation and instituted an elective government, which
passed laws, administered public justice, raised and supported
armies, appointed foreign ministers, and exercised all the sov
ereignty, and performed all the acts, common to free and
independent governments.
The people of these States arrayed themselves in hostility
to the old Union, and marshaled hosts for the purpose of
gaining their independence.  Millions of combatants on one
side and the other were brought into the field, and fought
over an extended empire, with alternating success, the most
sanguinary battles known to modern times. Several of these
battles occurred near the Federal capital, a-nd one of the
most important of them in a loyal State.  Two hundred and
seventy live vessels, public and private, sailing under Federal colors, were captured by Confederate privateers, and probably a million of men perished in the field, in hospitals,
and otherwise, as a consequence of the war.  The debt entailed by it on the Federal Government must amount to
some four thousand millions of dollars, and that incurred on
on the other side is quite as large.  The Confederates,
although not recognized by foreign governments as an independent nation, were nevertheless recognized by France,




England, and Spain, as a belligerent power; entitled as such
to all the rights accorded to its adversary.
Was this war an insurrection or a rebellion, amenable as
a state crime to the municipal law?  It would be an abuse
of terms to say so.  It was a war falling essentially within
the reason and definition of a civil war, and as such must, as
to both the belligerents and to neutral nations, be viewed
in the light of the public law, as applicable to foreign belligerent States. The same laws are applicable to the one as
to the other.
France, England, and Spain have so declared, by recognizing the Confederates as a belligerent power.
Publicists, in treating of the qualities of such a war, and of
the legal relations growing out of it, lay it down that, "war
between the different members of the same society is a"
" civil" or " mixed war," but the general usage of nations
regards such a war as entitling both of the contending parties to all the rights of war as against each other, and even
as respects neutral nations."  (Grotius, de jur., Bel. ac Pac.,
lib. 3, chap. 9, sec. 3; Rutherford's Inst., b. 2, c. 10, sec. 12,
13; Lawrence's Wheaton on Intern. Law, Part 4, chap. 1,
pp. 522, 3.)
Again, "a civil war is where a party arises in a State which
no longer obeys the sovereign, and is sufficiently strong to
make head against him, or when, in a republic, the nation is
divided into two opposite factions, and both sides take up
arms.  It is sufficient that the malcontents have some reason to take up arms, in order that the disturbances should be
called civil war, and not rebellion."
The prince never fails to call rebels all his subjects who
openly resist him; but when the latter become sufficiently
strong to make head against him, to compel him to carry
on war regularly against them, he must be contented with
the term " civil war."
Civil war breaks the bonds of society and of the government; it gives rise in a nation to two independent parties,
who acknowledge no common judge.  They are in the position of two nations who engage in disputes, and not being
able to reconcile them, have recourse to arms.  The common
laws of war are in civil wars to be observed on both sides.
The same reasons which make, them  obligatory between
foreign States, render them more necessary in the unhappy
circumstances where two exasperated parties are destroying
their common country.
If the sovereign considers himself authorized to hang




4
prisoners as rebels, the opposite party will have recourse to
reprisals; if he burns and devastates, they will do the same;
war will become cruel, terrible, and always more destructive
to the nation.
When a nation becomes divided into two parties absolutely
independent, and no longer acknoxwledging a common superior, the State is dissolved, and the war betwixt the two parties, in every respect, is the same as that of a public war
between different nations.  The obligation of observing the
common law of war, is, therefore, absolutelyindispensable to
both parties, and the same which the law of nature obliges all
nations to observe between State and State."  (Vattel, Droit
des Gens, liv. 3, chap. 18, sec. 290-295.)
Riguelme says: "As true civil war breaks the bonds of
society by dividing it, in fact, into two independent societies,
it is for this consideration that we treat of it in international
law; since each party forms, as it were, a separate nation,
both  should be regarded as subject to the laws of war.'
(Elementos de Derecho Publico, cap. 14, tor. 1, p. 172.)
Bello says: "When a faction is formed in a State, which
takes up arms agaiinst the sovereign, in order to wrest fromn
him the supreme power, or impose conditions on him; or
when a republic is divided into two parties, nwhich mutually
treat each other as enemies, this war is called civil war, which
means war between fellow-citizens.' Civil wars frequently commenced by popular tumults'
which in nowise concern foreign nations; but when one faction
or party obtains dominion over an extensive territory, gives
laws to it, establishes a government in it, administers justice,
and, in a word, exercises acts of sovereignty, it is a person in
the law of nations; and however so much one of the two parties gives to the other the title of rebel or tyrant, the foreign
powers which desire to maintain their neutrality ought to
consider both as two States, independent as respects one
another and other States, and who recognize no judge of
their differences."  (Principios de Derecho Internacional,
cap. 10, p. 267.)
This recital of these facts and authorities establishes two
positions: Ist. That the belligerent parties in the late civil
war in America were, as to each other and to foreign powers,
in contemplation of the public law, independent nations.
2d. That their rights and responsibilities, as belligerents,
relatively to each other, and to neutral nations, and of the
latter to the former, are fixed and determined by that law,
and are the same applicable to belligerent foreign powers.




In other words, that the rule of reciprocity, fundamental in
the law of nations, obtains in this case, according to the relations of the different parties to each other.
The question now arises, what were the commercial relations and rights existing between the Federalists and Confederates, respectively, as belligerent powers, and the French
empire and its citizens as a neutral nation?  Clearly, the
same rights existed between either of these belligerents and
France.  If LeMiore &  Co., as neutrals, had the right to
trade with the Federalists, they had an equal right to trade
with  the Confederates.  Had they the right to trade with
either?  The answer to this question turns, first, on the
nationality of these parties, wh-ich is conclusively proven to
have been French, not only by their nativity, but by their
actual residence at the date of their purchase of these cottons.  Secondly, as Frenchmen and neutrals, were they authorized by the law of nations to make the particular purchase?
Wheaton says  " The primitive law, independently of inl
ternational compact, rests on the simple principle, that war.
gives a right to capture the goods of an enemy, but gives no
right to capture the goods of a friend.  The exemption on.
neutral property from  capture has no other exceptions than
those arising from  the carryi-ng of contraband, breach of
blockade, and other analogous cases, where the conduct of
the neutral gives to the belligerent a right to treat his property as enemy's property."  (Lawxrence's Wheaton, Part TV,
ch. 3, p. 739.)
"' The public law of Europe has established the principle,
that, in time of war, countries no parties to the war, nor interposing in it, shall not be materially affected by its actionl 
but they shall be permitted to carry out their accustomed
trade, under the few  necessary restrictions which we shall
hereafter consider."  (Kent's Corn's, vol. 1, p. 124, 10th
edition.)
These restrictions are those above enumerated.
Now, it is not pretended that these cottons were contraband of war, or were in any way obnoxious to the law of
blockade; and, if it were so pretended, it would be in the
face of all reason and all facts.  On the contrary, they stand
as lawful goods, upon the recognized and solid foundations
of lawful neutral trade.
It is objected, however, that they are obnoxious to the
operation of certain municipal statutes and proclamations.
Iow so?  The first of these statutes is entitled " An Act




to provide for the collection of duties on imports, and for
other purposes," approved July 13, 1861, and provides in the
fifth section,
"That whenever the President, in pursuance of the provisions of the second section of the act, entitled'tAn Act to
provide for calling' forth the militia to execute the laws of
the Union, suppress insurrections, and repel invasions, and
to  repeal the act now  in force for that purpose,' approved
February 28, 1795, shall have called forth  the militia to
suppress combinations against the laws of the United States,
and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by
the President, and when said insurgents claim to act under
the authority of any State or States, and such claim is not
disclaimed or repudiated by the persons exercising the funco
tions of government in such State or States, or in the parts
thereof in which: said combination exists, nor such insurrec-,
tion suppressed by such  State or States, then, and in sucl
case, it may and shall be lawful for the President, by proclamation, to declare that the inhabitants of such State, or an y
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 all goods
and  chattels, wares and  mnerchandise, coming from  said
State or section into the other Darts 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: Provided, however, That the
President may, in his discretion, license or permit comnlercial intercourse with any such part of said State or section,
the inhabitants of which are so declared in a state of insurrection, in suchl 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 te conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of
the Treasury.  And the Secretary of the Treasury may appoint such officers, at places where officers of the customs
are not now  lauthorized by law, as may be needed to carry
into effect such licenses, rules, and regulations," &c. (United
States Stats. at Large, vol. 12, p. 257.)




7
The proclamation made by the President pursuant to this
act is in material part as follows:
"Now, therefore, I, Abraham  Lincoln, President of the
United States,  *  do hereby declare, that the inhabitants
of the said  States of Georgia, South Carolina, Virginia,
North Carolina, Tennessee, Alabarna, Louisiana, Texas, Arkansas, Mississippi, and Florida, excepting certain loyal parlts
of disloyal States and their inhabitants, and such other parts
of such States that may become occupied and controlled by
the forces of the United States, are in a state of insurrection
against the United States; and that all commnercial intercourse
between tlhe same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States, and other
parts of the United States, is unlawful, until such insurreetion shall cease or has been suppressed; that all goods ald
chattels, wares  and merchandise, coming from  anly.of the
said States, with the exceptions aforesaid, into other parts of
the United States, without the special license and per-mission
of the President, through the Secretary of the Treasury, or
proceeding to any of said States, with the exceptions aforesaid, by land or by water, together with the vessel or vehicle
conveying the same, or conveying persons to or from sai(
States, with said exceptions, will be forfeited to tlhe United
States."  (Dated August 16,1861, I. p..)
It will be observed that tlese portions of this statute and
of this proclamation were addressed either to loyal localities
and loyal citizens, or to disloyal localities and to disloyal inhabitants.  Both persons and places are described.  Did LeMore & Co. fall. within either class of tlese persons?  Were
they either loyal citizens or disloyal inhabitants?  There is
no semblance of proof that they were.  Tlhey were simply
neutrals, both in fact and in law.  Again, were these cottons
obnoxious to the prohibitions of commercial intercourse between the loyal and disloyal sections?  Were they seized in
transitu between such sections?  Not so.  They were deposited on the bank of the Ouachita, and were in the peaceable
and lawful possession of neutrals wlen they were forcibly
seized.  Hence, by no sort of construction can they be lawfully subjected to confiscation.  Moreover, botli the statute
and  the  proclamation distinguish persons-calling  those
adhering to the Union citizens, and those adhering to the Confederate States inhacbitants, thus conceding, at least by implication, that the latter were members vf a hostile State, an
implication carrying with it belligerent rights.
Another of these statutes, entitled "An Act to confiscate




8
property used for insurrectionary purposes," approved August 6, 1861, enacts, in its first section,
"'That if, during the present rebellion,   * * * any person
or persons, his, her, or their agent, attorney or employee,
shall purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the
same, or suffer the same t1 be used or employed, in aiding,
abetting, or promoting such insurrection or resistance to the
laws, or any person or persons engaged therein; or if any
pekrson or persons, being the owner or owners of any such
property, shall knowingly use or employ, or consent to the
use or employment, of the same, as aforesaid, all such property is hereby declared to be lawful subject of prize and
capture wherever found; and it shall be the duty of the President of the United States to cause the same to be seized,
confiscated, and colldemned."  (Vide U. S. Stats. at Large,
vol. 12, p 319.)
It has been contended by the law officers of the United
States, and may be contended by others, that these cottons
are obnoxious to the penalty provided by this act.  This
assumption proceeds upon these facts, viz: That LeMore
& Co. purchased the cottons from  Quegrouze, he from  the
Confederate Government. and it from John T. Simmons, in
consideration of $50,000 paid in Confederate bonds.  But
this position is assailable on several grounds:
1st. Because neither the penalty prescribed by the act
of July 13, nor that prescribed by the act of August 6,
attaches to artificial, but only to natural persons.  The
former act expressly names "citizens" and "inhabitants"
as the subjects of its operation.  The latter, without being
so explicit, names "persons," meaning.unmistakably, in
the sense of its context, natural persons.  Both acts are in
p:ari  cateria, and therefore ought, as respects the persons
affected, as in all other points of similitude, to receive,
according to established rules, a consistent and harmonious
construction.
2d. Because both statutes were powerless to inflict penalties, either upon artificial or natural persons, actually withdrawn from their operation, and who were in fact amenable
to an existing hostile jurisdiction.  As to such persons both
statutes were a mere broUtum j'ulmnen; as much so, as to the
insurgents and the insurgent government, as to the subjects
and government of the British empire.
3d. Because these cottons were exempted from the operation of these statutes, as of a local and municipal character,




by the public law, unless it appears that they were obnoxious to certain exceptions made by that law,
Kent says that "the general usage now is not to touch
private property upon land without making necessary compensation, unless in special cases, dictated by the necessary
operations of war, or when captured in places carried by
storm, and which repelled all overtures for a capitulation.
Contributions are sometimes levied upon a conquered country in lieu of confiscation of property and as some indemnity for the expense of maintaining order and affording
protection. If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just
purposes of war, and seizes private property of pacific persons for the sake ofgain, *  *          he violates the modern
usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation
of the world." (Kent's Corn's., vol. 1, pp. 102, 103, 104,
10th edit. Vattel, b. 2, c. 8, sec. 147; c. 9, sec. 165.)
The exceptions here enumerated are few in number and
very limited in their nature. Can it be said that the cottons in question fall within the terms or spirit of any of
them?  There is a total absence of proof and presumption
to that effect. They were unquestionably not in any place
carried by storm; nor was their seizure called for by any
necessary operation of war; nor has any compensation been
made for them. In no appreciable way could or did their
seizure facilitate or retard the success of the Federal arms.
Whether left or taken, as private property in the hands of
neutrals, they could not add to or take from the resources
of the enemy, who had received a consideration for them
from a previous purchaser.  Their spoliation was simply a
wrong inflicted on a neutral and friend.
"Contributions,'  according to the authorities last cited,' are sometimes levied" upon a conquered country, in lieu
of confiscations of property, and as some indemnity for the
expense of maintaining order and affording protection."
But even this condition as an authority for levying contributions did not exist in this case, for the country in which
the cottons were seized was not conquered. The spoliation
was the fruit of a hasty invasion, as hastily repelled by the
disaster which befel the Federal arms at the " Sabine Cross
Roads," and which immediately restored the Confederate
jurisdiction over an extensive region, including the spot on
which this act of spoliation was committed.
Therefore, in no sense, whether in virtue of conquest, or
2




10
of maintaining order or affording protection to the conquered,
was the exaction of contributions, mnuch less the spoliation
of private property, authorized.
A third act has sometimes been referred to as legalizing
this seizure: "'An act to suppress insurrection, to punishtreason and rebellion, to seize and confiscate the property of
rebels, and for other purposes," approved July 17, 1862.
The sixth section of this act provides.' that if any person'
within any State or Territory of the United States, other
than those (persons) named, as aforesaid, after the passage of
this act, being engaged in armed rebellion against the Government of the United States, or aiding or abetting such
rebellion, shall not, within sixty days after public warning
and proclamation, duly given and made by the President of
the United States,           * *   all the estate and property,
moneys, stocks, and credits of such person shall be liable to
seizure as aforesaid, and it shall be the duty of the President
to seize and use them  as aforesaid, (for the support of the
army,) or the proceeds thereof.  And all sales, transfers, and
conveyances, of any such property, after the expiration of
sixty days from  the date of such warning and proclamation,
shall be null and void," &c.
SEC. 7. " That to secure the condemnation and sale of such
property, after the same shall have been seized, *        *   *
proceedings in, remn  shall be instituted in the name of the
United States," &c.. ( S. Stats. at Large, vol. 12, p. 591.)
This is an extraordinary statute, perhaps without a parallel in the whole range of Christian legislation.  It assumes,
nine millions of people, inhabiting the territory of eleven
great States, both being almost entirely under the actual
jurisdiction: of a de facto government, to be absolutely amenable to another hostile authority.  Is this assumption at all
tenable?  Is it not antagonistic to long-established principles and usage?  It has been held in England that the statute of treason applies to a king de facto and not de,ilre;
that a superior that has got possession of the throne is a
king within the meaning of the statute, as there is a temporary allegiance due him  for his administration of the government and temporary protection of the public, and, therefore, treasons so committed against Henry VI were punished
under Edward IV, though all the line of Lancaster had been
previously declared usurpers by act of parliament.  And
Hale carries the point of possession so far, that he holds a
king out of possession is so far from having any right to our
allegiance by any other title that he may set up against the




II
king in being, that we are bound by the cluty of our allegiance to resist him."  (Hale's Pleas of the Crown, p. 104.)
"The true distinction, however, seems to be, that the statute
of Henry VII does by no means command any opposition
to a king ce jtre, but excuses the obedience paid to a king de
facto.  When, therefore, an usurper is in possession, th/e subject is excused in obeying and giving him assistance; otherwise, under an usurpation, no man would be safe, if the
lawful prince had a right to hang him for obedience to the
powers in being, as the usurper would certainly do so for
disobedience." (Stephens's (Blackstone's) Commentaries on
the Law of England, vol. 4, p. 221.)
Grotius says   " The acts of sovereignty which an usurper
exercises, even before he has acquired an established right
by long possession or convention, and while his possessory
title is unjust, may be obligatory, not in virtue of his right,
for he has none, but because there is every reason to suppose
that the legitimate sovereign, whether people, king, or senate, would prefer that the usurper should be temporarily
obeyed, than that the administration of the laws and justice
should be interrupted, and the State exposed to all the disorders of anarchy."  (De Jur. Bello ac Paco, lib. I, cap. 4,
sec. 15.)
"Although there is a broad and obvious distinction between
an insurrection of a conquered city or province against the
conqueror and a revolution against an established government, yet it will be found on examination that both rest
upon the same general principle-the relation of protection
and allegiance, or the reciprocity of right and obligation."
(Halleck Intern. Law, p. 792.)
"Neutrals are bound to take notice of the military right
possession gives, and which is the only evidence of right
acquired by military force, as contradistinguished from civil
rights and titles.  They are bound to take the fact for the
law."  (Kent's Corn., vol. 1, p. 120.)
Returning, however, to the act of July 17, 1862, we find
that it confounds the loyal with the disloyal, the innocent
with the guilty, and subjects the property of both, as common enemies, to confiscation.  Such is necessarily the effect,
because every man who aided the rebellion, whether by contributing taxes, by service in the ranks, or in any civil or
military post, or otherwise, although unwillingly, is made
obnoxious, to its penalties. Thus belligerent consequences
are sought to be added to municipal punishment, and the
subjects of both  at the same treated as public enemies




12
and private malefactors.  Is this admissible?  Is it not contrary to authority and natural justice?  If, indeed, such
persons are public enemies, they are, by the laws of war,
excepted from the category of domestic traitors.  If, on the
other hand, some are traitors and others are loyal, a distinction should be drawn, and the one punished and the other
spared by the municipal law.
In the case of civil war, it has been said by a justice of
the Supreme Court of the United States, that " the citizens
or subjects residing within the insurrectionary district, not
implicated in the rebellion, but adhering to their allegiance,
are not enemies, nor to be regarded as such.  This distinction was constantly observed by the English government in
the disturbances in Scotland under the Pretender and his
son, in the years 1715 and 1745.  It modifies the condition
of the citizens or subjects residing in the limits of the
revolted district who remain  loyal to the government."
(Justice Nelson's Charge to the Grand Jury, 2 Circuit, 1862.)
And it may be added, that this charge was given in view
of the fact that many of the inhabitants within the Confederate limits, notwithstanding  their actual situation, still
remained loyal to the United States. And what evidence is
there that Quegrouze, from  whom LeMore & Co. derived
their right to these cottons, was not a loyal citizen, although
found within the Confederate limits?
The constitution of most, if not all, civilized countries,
pronounce such penalties void.  The Spanish constitution
(article 10) provides that "the penalty of confiscation shall
never be imposed."  (Cas Gayon Diccionario de Derecho
Administrativo Espafiol, p. 360.)
The twelfth article of the constitution of Belgium declares
that "the punishment of confiscation of property can never
be established." (Code Civil Belge, p. 2.)
The French charter of 1814 (article 66) declares that " the
punishment by confiscation of property is abolished, and
shall never be re-established." The fifty-seventh article of
the constitution of August 14, 1830, is expressed in the same
terms, as also the twelfth article of the constitution of 1848,
which remains in force so far as it is not altered bv the constitution of 7th (10) of November, 1852.  (Tripier Code
Politique, pp. 244, 272, 319, 398.)
Another clause of the statute of July 17, 1865, provides
that " all sales, transfers, or conveyances of any such property, after the expiration of the said sixty days, *  *  *  *
shall be null and void."




13
Understood in its plain and  natural sense, what is the
legal effect of thiis clause?  In prohibiting the sale or purchase of bread, meat, raiment, and all the necessaries of life,
as constituting part of the subjects of contract, it denounced
the penalties of starvation against all whose condition required them to become vendors or purchasers of such articles.  Is such an enactment valid?  Is it not unprecedented?
WVill not the moral sense of the world repudiate it, not only
in the respect mentioned, but in respect to all subjects of
lawful trade?  There can hardly be a doubt of it.
Again, is such an enactment-legaally capable to disturb the
private relations existing  between such persons, whatever
their character as to loyalty or disloyalty?  On this point
Chief Justice Marshall (U. S.) says: " It may not be unworthy to remark, that it is very unusual, even in cases of
conquest, for the conqueror to do more than to displace tihe
sovereign and assume dominion over the country.  The
modern usage of nations, which has become law, would be
violated; that sense of justice and of right, which* is acknowledged and felt by the whole civilized world, would be
outraged, if private property should be generally coifiscated and
private rights annulled.  The people change their allegiance
*, *but their relations to each other, and their private
rights of property, remain  undisturbed."  (Peters' Reports,
vol. 7, page 86; Unlited States vs. Percheman.)
The decisions of other American jurists go still further.
The circuit court of the fifth circuit of Kentucky has declared that a private soldier of the rebel army lmay rely
upon the belligerent rights conceded to the late so-called
Confederacy as a defense in a civil suit for property taken
according to the usages of war.  The court adds:'"Another
view of' the facts of this case tends to strengthen the conclusion that the rights and responsibilities of the defendant
*  *  *  must be determined by the laws of war regulating
public wars between foreign States.  The defendant, before
the commencement of this war, was a citizen and resident
of the State of Texas, and owed to that State a true and
faithful allegiance, recognized by the fundamental laws of
both State and Federal Government.  This allegiance to his
State, it is true, was subordinate to the allegiance which he
owed to the Federal Government, which is supreme in its
sphere; but it was nevertheless an allegiance properly owing
to that State, which gave him  protection for his life and
property.        * *            *
"Notwithstanding the State of Texas had by its ordinance




14
seceded from  the Union, it was the duty of the defendant
to adhere to the Federal Government, especially as there
was no sufficient cause to justify the revolution.  But allegiance and prolection are correlative ternms or dIties."
"And where the Federal Government, as is averred in this
ease, did not and could not, protect the defendant in refusing
to submit to the civil and military power of the State of
Texas, it surely would be unjust to exact from him the full
and complete discharge of his allegiance and duties to the
Federal Government, and deny him-especially in a State
court-a defense based upon these rights, which the law of
nations and of war confer upon the people of a de facto State
in revolt against the established Government."  (Am. Law
Reg., Jan. 1866, vol. 4, No. 3, H-Iuhes vs. Litsey, et al., p.
148; U. S. vs. Rice, 4 Wheat.'s Reps., p. 251; U. S. vs.
Hayward, 2 Gall. Rep.,.p. 500.)
Substituting the United States and LeMore &  Co. as
parties, for the preceding parties, this decision would be
equally conclusive, at least with respect to the principles
enunciated, with this advantage of facts in favor of LeMore
&  Co., that they were friends and neutrals; that neither
Simmons nor Quegrouze are shown to have been armed
rebels; and if the Confederate Government, an intermediate
owner of the cottons, swas, in fact, an offender, so were'Litsey and his co-defendants.
So late as September, 1865, the Circuit Court of the fifth
circuit of Arkansas decided that the rights and obligations
of private contracts, entered into by private persons, although
actually and constructively rebels, were not invalidated, but
capable of being enforced, even by the loyal tribunals now
established in that State.  (Filkins vs. Hawkins, Am. Law
Register, Jan., 1866, Vol. 4, No. 3.)
The fifth article of the Amendment to the Constitution of
the United States provides that " no person shall  *  * 
be deprived of life, liberty or property, without due process
of law," &c.
Story says this clause is but an enlargement of the langua.ge of Magna Charta, "nec super cum mnittinmus, nisi per
legale judicium pariunm suorum vel per legem. terrce;"  neither
will he pass upon him or condemnl him, but bV the lawful
judgment of his peers, or by the law of the land.  Lord
Coke says that these words, per legenz terroe, mean by due
process of law, that is, without due presentment or indictment, and being brought in to answer thereto by the due
process of the common law.  (Story's Corn's on the Const.
UT. S., vol. 3, p. 661.)




15
Kent says " it may be received as a proposition, universally
understood and acknowledged throughout this country, (U.
S.,) that no person can be taken or imprisoned or dissqized
of his freehold or estate, or exiled or condemned, or deprived
of life, liberty or property, unless by the law of the land or
the judgment of his peers.  The words by the law of the
land, as used originally in Magna lChartt in reference to this
subject, are understood to mean due process of law,'that
is, by indictment or presentment of good and lawful men;'
and this, says Lord Coke, is the true sense and exposition
of these words.  The latter and larger definition  of due
process of law is, that it means law  in its regular course of
administration, through the courts of  justice."  (Kient's
Corn's., vol., pp. 623, 624, 625; Murray's Lessee vs. Hoboken L. & T. Co., 18 Howard's U. S., 272; Wynehamer
vs. The People, 3 Kern, 378; People vs. Berberrich, 11 Howard Pr. Rep., 289.)
"The law of the land," in bills of right, Ch. J. Ruffin, in
an elaborate opinion, says, "does not mean merely an act
of the legislature, for that construction would abrogate all
restrictions on legislative authority.  The clause means, that
statutes that would deprive a citizen of the rights of person
or property, without a regular trial, according to the course and
usage of the common law, would not be the law of the
land in the sense of the Constitution."  (Hoke vs. Ienderson, 4 Dev. N. C. Rep. Justice Branson adopts the same
construction, 4 Hill N. Y. Rep., pp. 146, 147.)
The courts in Tennessee have held that the terms " the
judgqment of his peers" means trial by a jury of twelve men,
according to the course of the common law, and even in
private suits at common law, the right of trial by jury is
preserved in the Constitution of the United States, where
the value in controversy exceeds twenty dollars."  (Budd vs.
The State, 3 Hump. Tenn. Rep., 483; Amendments Consto
U. S., art. 7, sec. 2.)
"The United States cannot deprive a party of the right
of trial by jury of issues of fact, by referring such issues to
referees."  (U. S. vs. Rathbone, 2 Paine, C. C., 578.)
What is the import of these authorities?  What their
bearing upon the present case?  Clearly, that the United
States cannot lawfully confiscate these cottons, except as a
consequence of a previous trial and conviction of their owners.  No legislative assumption as to the culpability, either
of the cottons or their owners, can operate an avoidance of
this prerequisite.  No statutory artifice  of a proceeding




16
Mn rem, founded on such assumption, will avail for that purpose.  Nor is such a proceeding competent upon the assumption that the cottons are, according to the public law, lawful prize or spoil of war, for they were not captured upon the
high seas, or implicated in any act of hostility on land, or
in any act violative of the law of contraband or of blockade.
But pursuing this line of argument still further, what is the
]anguage of the Constitution on this point?  The last member of the first clause, of the 3d section, of the 3d article of
that instrument, declares that " no person shall be convicted
of treason,  unless on the testimony of two witnesses to the
same overt act," or on "' confession in open court."
The second clause of the same section provides that'" the
Congress shall have power to declare the punishment of
treason; but no attainder of treason shall work corruption
of blood or forfeiture, except during the life of the person
attain tedl
And the 5th and 6th articles of the Amendmnents of that
instrument, provide, among other things, that "no person
shall be held, or answer for a capital or otherwise infamous
crime,'unless on presentment or indictment of a gralnd jury,"
&c.  In all criminal prosecutions the accused shall enjoy the
right of a speedy trial, by an impartial jury of the State and
district wherein the crime shall have been committed, and
to be infornled of the nature and cause of the accusation;
to have compulsory process for obtainiinog witnesses in his
favor; and to have the assistance of counsel."
Now, has there been any conviction " of treason," in this
cause,'1 on- the testimony of two witnesses," or " on confessiown," of that offence?  Has there been any " attainder of
treason " or " forfeiture " as the consequence of such attainder?  HIave any of the successive owners of these cottons
been "held to answer for a capital, or otherwise infamous
crime," on presentment or indictment?  Have any of tliem
been permitted to "enjoy the right of" "trial by an impartial jury," or by any jury any where, for the crime supposed?
Have they been "inforbmed of the niature and cause of any
accusation, "  confronted with the witnesses against them,"
or had " compulsory process for obtaining witnesses in their
favor."  Not so.  Not one of these conditions has been
complied  with.  Not one of these sacred and inviolable
runimentts and safeguards thrown around the individual by
the Constitution for his protection has been respected.  On
the contrary, they have been disregarded, and the subterfuge
of a proceeding in rem  to confiscation is substituted for the




17
proceeding in personam to the same end.  Is this not an
overthrow of the Constitution in its vital properties; in its
essential conditions?  What survives of security for personal
liberty or property rights under a usurpation so gross and
complete?  The hostile passions of the populace may justify or excuse it for the moment, but the sober and enlightened verdict of justice and posterity will repudiate it.
The coincidence of the common law  of England with
the Constitution of the United States but adds to the force
of this argument.  The common law of England is in force
here as well as there; and it declares that "lands are forfeited upon attainder, and not before; goods and chattels are
forfeited by conviction, because in many of the cases where
goods are forfeited, there never is any attainder; which happens only where judgment of death or outlawry is given;
therefore, in those cases the forfeiture must be upon conviction or not at all."  (Chitty's Blackstone, vol. 2, b. 4, p.
287.)
Th'us, under the common law of England, as under the
Constitution of the United States, there can be no forfeiture
without attainder or conviction, and there can be no conviction without previous indictment of the accused, his trial by
his peers, and the strict observance of all other solemnities
and forms required.
Aside from these explicit and peremptory texts, the United
States are estopped by former political and judicial precedents established by themselves in analogous cases.  Take
the controversy between the United States and Peru, growing out of the capture and confiscation by the latter of two
American vessels, for taking guano under the authority of
some of the revolted provinces of Peru from  certain seaports and guano deposits within those provinces, contrary
to the laws of Peru.  In this case the President of the United
States (Mr. Buchanan) maintained that the citizens or subjects of a foreign nation may carry on trade with the portions of a country in the hands of either of the parties to a
civil war, and without awaiting any action on the part of
their own government; nor in such case can they be subjected
to capture or detention by the other party, unless for the violation of neutral obligations.
He adds:' When a portion of one nation is taken possession of by the forces of another, with which it is at wvar,
the conquering party has an undoubted right to declare the
law of the place as long as this occupation continues, and
all the rights of the previous sovereign are suspended until
3




18
his possession is resumed. It is equally well settled, that,
when the former government resumes its possession of the
territory, whether by force or under a treaty, it cannot call
the citizens or subjects of a third nation to account for obeying the authority which was temporarily supreme during the
enemy's occupation of the place.
Thejuspostliminii has no sort-of application to such a case.
When the people of a republic are divided into two hostile
parties, who take up arms and oppose one another by military force, this is civil war. Supposing, however, that the
rebellion is partially successful, and the old government
maintains itself in one part of its territory, wvhile it is obliged
to surrender another, shall it then give law where it has no
power to enforce obedience, or shall its authority be confined
to the territory which it occupies?  A  revolutionary party,
like a foreign belligerent power, is supreme over the country
it conquers, as far and as long as its arms can maintain it."
(Opinion of Mr. Black, Attorney General of the United
States, May 15, 1858; Congressional Doe., 35th Coang., 1st
Ses.; Senate Ex. Doc. No. 69, pp. 28, 29.)
In answer to the statement of the Peruvian Minister, it
was said by Mr. Cass, U. S. Secretary of State: " Mr. Ozma
insists that the existence or non-existence of civil war is a
question  not of fact, but of law, which no private person
has a right to decide for himself.  That foreigners must
regard the former state of things still existing, unless their
respective governments have recognized the change.  I am
clearly of the opinion that an American citizen who goes to
Peru may safely act upon the evidence of his own senses.
He has no choice.  The government deftcto will compel his
obedience. If he resists the authority of the party in possession, on the ground that another has a right of possession,
he departs from his neutrality, and so violates the duty he
owes to both the belligerents as well as to the laws of his
own country."  (Mr. Cass to Mr. Clay, Minister to Peru,
Nov. 26, 1858.)
What authority could be fuller or more definite on all
points involved in the present controversy? Let us consider.
It is here mentioned, "that citizens or subjects of a foreign nation may carry on commerce with the portions of a
country in the hands of either of the parties to a civil war,
and without awaiting any action on the part of their own governments, nor in such case can they be suzbjected to capture or
detention by the other party, unless for a violation of neutral
obligations,"




19
What more or less have LeMore & Co. done?  Were they
not the citizens of a foreign nation?  Were they not carrying on trade with one of the parties to a civil war within a
portion of country within its hands?  Did they violate any
neutral obligations?  Can they be subjected to capture or
detention; still less to confiscation?  Surely not, consistently with the proofs they have adduced, and the reasoning
and determination of the United States in the above case.
The authority of this case extends still further.  It establishes the position that, upon the resumption by a government de jure of a territory temporarily wrested fromn it by
insurrection, it cannot lawfully call the citizens or subjects
of a third nation to account for obeying the authority which
was temporarily supreme during the enemy's occupation.
It asserts that thejus postliminii has no sort of application to
such a case.  The United States, therefore, having resumed
possession of Louisiana, cannot, in virtue of that fact, lawfully call LeMore & Co., as citizens of a third nation, to
answer for recognizing the hostile authority thus displaced.
Nor can they, while claiming to be restored to their rights
as they existed before the rebellion, lawfully claim to create
new rights through the operation of legal penalties which
were incapable of being enforced, and which, for that reason,
were null when they were enacted.  As the Attorney General has justly said, "can the government de jure give law
where it has no power to enforce obedience."  Could it give
law to LeMore & Co., as neutrals, or to Simmons or Quegrouze, as actual or constructive rebels; or as loyal citizens
locally subject to a revolutionary Power; or to that Power
itself, which was for the time defiant and triumphant?
If, in fact, Simmons and Quegrouze had been loyal citizens domiciled in a loyal State, or in a loyal part of a disloyal State, the statute of July 13, 1861, prohibiting trade
between such citizens, and such States or parts of States,
and the inhabitants of the insurrectionary States, or of insurrectionary parts of States, would not have applied to them,
under the circumstances; for by quitting their domicils and
going into the enemy's jurisdiction, and sojourning  and
trading there without the President's license, they ipsofacto
violated their allegiance and became rebels in the eye of the
public as well as the municipal law-taking all the rights
and incurring all the responsibilities of that character. Even
if they had gone into a neutral country, without competent
license, during the war, they would have been offenders;
much more so, going into, sojourning and trading in a belligerent country without such license.




26
In truth, Simmons was an inhabitant of Louisiana; there
firmly domiciled; and as such, by force of recent adjudications, was, if not actually, at least constructively, a rebel.
The Supreme Court of the'United States say "all persons;
residing within the territory occupied by the hostile party
in this contest are liable to be treated as enemies, though
not foreigners."  (U. S. vs. Amy Warwick, on prize; 2
Black's Rep., p. 636.)
" It said, that though remaining in the rebel territory,
Mrs. Alexander has no personal sympathy with the rebel
cause, and that her property, therefore, cannot be regarded
as enemy's property; but this Court cannot inquire into the
personal character and dispositions of individual inhabitants
of every 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 legislative and the executive, or otherwise, that relation
is thoroughly and permanently changed."  (Mrs. Alexander's cotton, 2 Wallace, p. 419.)
The pertinency of the reasoning of the Court in these
cases will appear by reference to certain facts.  Quegrouze
(although it does not appear in the evidence) had been a
rebel officer, wounded in the battle of Shiloh, and returned
in consequence to his home in New Orleans, where he was
registered by the Federal authorities as a rebel, and whence
he was banished, because he would not take an oath of allegiance to the United States.  He left New  Orleans as a
refugee in November, 1862, and on the 14th of July, 1865,
after the failure of the rebellion, took the required oath of
allegiance, styling himself " a citizen of Louisiana, C. S."
In August of the same year, after an absence of nearly three
years, he returned to New Orleans.
Thus, in every possible view, the political staltus of Simmons and Quegrouze, places them  beyond the Federal jurisdiction, exempted them  from  the commercial disabilities
attaching to loyal citizens under the municipal law, and
clothed them with the capacity to receive and transmit title
under the laws of nations.
In  1817 certain  Spanish American provinces revolted
against the Spanish crown, and, under the title of United
Provinces of "_Rio de la Palata," proclaimed their independence, and resorted to war to maintain it.  During the war
two Spanish vessels, carrying nine bales of cochineal, two




21
bales of jalap, and one box of vanilla, belonging to Spanish
subjects, were captured by the naval force of the revolutionary gQvernment.  These goods were taken on board of
the capturing vessels and brought into the port of Norfolk,
Virginia, as prize of war.  Whilst there they were libelled in
the United States District Court of that State by the Spanish consul in behalf of their original Spanish owners, and
sentence was passed.  An appeal was taken to the Supreme
Court of the United States, and, on the hearing of the appeal,
it was held that "the Government of the United States
recognized the existence of civil war between Spain and her
colonies, and has avowed a determination to remain neutral
between the parties, and to allow to each the same. rights of
asylum  and hospitality and intercourse. Each party is,
therefore, deemed by us as a belligerent nation, having, so
far as concerns us, the same sovereign rights of war, and
entitled to be respected in the exercise of these rights.  We
cannot interfere to the prejudice of either belligerent without making ourselves a party to the contest, and departing
from the posture of neutrality. All captures made by each
must be considered as having the same validity," &c. (7
Wheaton, pp. 284, 5, 6.)
The parity of this case with that of LeMore & Co., in all
the essential qualities of both, is most striking.  The United
States was a neutral in one case, allowed the same rights of
intercourse and of war, and the same validity to the captures
of each of the belligerents.  France was. a neutral in the
other, and did the same thing; recognizing the same right
of a rebel to buy and sell that was freely attributed to a
loyalist.
With what right or justice, therefore, can the United
States claim  at this time to confiscate property sold by a
rebel to a neutral?  With what consistency can it, as a party
to a civil war, repudiate its own former solemn political and
judicial decisions in a parallel case, in which it was no party?
Can it do so because it would lose in the one case what it
would gain in the other?  Who will say so?
Moreover, the doctrine of institutional writers, no less
than the custonl of civilized nations. exempts certain persons from the direct effect of military operations; these persons are the sovereign and his family, the members of the
civil government, women and children, cultivators of the
soil, artisans, laborers, merchants, men of science and letters, and generally all other public or private persons engaged
in the ordinary civil pursuits of life, unless actually taken in




22
arms, or guilty of some other misconduct violative of the
usages of war, by  which  they  forfeit their immulity."
(Lawrence's Wheaton Intern. L., pp. 593, 594, 595, 596.
Are not Simmons, Quegrouze and LeMore & Co. exempted
by the operation of this rule?  Were they, or either of
them, actually taken in arms or guilty of any misconduct
violative of the usages of war?  HIad they, either as inhabitants of the Confederate States or as neutrals, forfeited
these immunities?  It will scarcely be so regarded in the.face of facts and the authority here cited.
Next: Whatst are the legal consequences of the peace which
has followed the overthrow  of the  rebellion?  Are  the
vanquished to be regarded as a subjugated people, and the
victors as conquerors?  This would imply that the war had
been waged for conquest between foreign nations, which is
not true.  As we have seen, it was a civil war-a war between members of the same State, waged on the one side to
establisl a separate nationality; on the other td' maintain
an undivided one.  The object of the victors.was not to
gain  a new title, but to retain an old one; to re-establish
their superiority where it had been displaced; to preserve
the lUnion, not to destroy it.
It is true that conquest carries with it absolute and unlimited sovereign rights over the conquered country, but no
nation ever makes such a conquest over its own territory.
No heresy could be more dangerous and deplorable than the
supposition that such rights have inured to the United States
as a consequence of the suppression of the late rebellion;
atd that both the States and the people over whom their
arms have prevailed, have no longer any political rights or
existence.  Such a dcoctrine would be but an aggravation ol
rebellion, the legaiization and confirmation of disunion.
Peace having supervened, belligerent rights can no longei
be exercised, simply because these are no longer belligerents
The public law  ceases to operate, and the right which it
gives to proceed in rem, except as to offending property,
ceases with it.  The municipal law now takes its place, and
under it there can be no confiscation of property, under the
limitations imposed  by  the Federal Constitution, except
incidentally to the conviction of its owner, in the manner
prescribed by that instrument.  In short, confiscation, except
of offending property, as one of the means provided by municipal law  to put an end to the rebellion, ceases with the
rebellion itself.
It only remains to inquire how  far the sentence of the




judicial tribunals of the United States is binding upon the
parties to this controversy.  It is binding on the captors
as citizens of the United States, because these tribunals
have a competent jurisdiction over their persons. But LeMore & Co. are not bound to submit to it, as citizens of
France, because the tribunals pronouncing it have no jurisdiction over them, either in respect to their persons or the
goods in controversy.  Hence, ifjustice is not done to them,
they may apply to their own sovereign for a remedy, who
may, consistently with the law of nations, give them a remredy either by solemn war or reprisals.  The King of Prussia, in 1753, acted on this well established right, and made
reprisals by stopping the interest upon a loan due to British
subjects, and secured by hypothecation upon the revenues of
Silesia, until he actually obtained from  the British Government an indemnity for certain vessels unjustly captured from
Prussian subjects by the British navy, and condemned by
the British Admiralty.  (Vattel, Droit des Gens, liv. 2, ch.
7, s. 84; Wheaton's Hist. Law of Nat., pp. 206-217.)
So, also, under the treaty of 1794, between the United
States and Great Britain, a mixed commission was appointed
to determine the claims of American citizens, arising from
the capture of their property by British cruisers during the
then existing war with France, acording to justice, equity
and the law of nations. In the course of the proceedings
of this board, objections were made by the British Government against the commissioners proceeding to hear and
determine any case where sentence of condemnation had
been affirmed by the Lords of Appeal in prize causes, upon
the ground that full and entire credit was to be given to
their sentence, inasmuch as, according to the general law
of nations, it was to be presumed that justice had been administered by this, the competent and supreme tribunal in
matters of prize. But this objection was overruled by the
board, upon the grounds and principles already stated, and
a full and satisfactory  indemnity was awarded in many
causes where there had been a final sentence of condemnation.  (Lawrence's Wheaton's Intern. L., pp. 679, 680.)
JOHN A. McCLERNAND.
For McCLERNAND, BROADWELL & SPRINGER,
Attorneys and Counsellors at Law.