Francis v. United States. [Sup. O', 72 U.S. (5 Wall.) 338

338 Francis v. United States. [Sup. O'.

the Supreme Court of California, was decided in the same way with it: the Chief Justice delivering the judgment of this

Affirming the judgment below.

Francis v. United States.

Although, under the act of 6th August, 1861, “to confiscate property used for insurrectionary purposes,” an informer may file an information along with the Attorney-General, and so make the proceeding enure, under the act, to his own benefit equally as to the benefit of the United States, yet, after the proceeding has been instituted by the Attorney-General alone, and wholly for the benefit of the United States, and after issue has been joined and proofs furnished by other parties, no person can come in asserting himself to have been the informer, and so share the benefit of the proceeding.

Error to the Circuit Court of the United States for the District of Missouri.

The record showed a libel of information against certain bales of cotton marked C. S. A., as belonging to persons in insurrection against the United States, and the confiscation of which was demanded under the act of 6th August, 1861, entitled “ An act to confiscate property used for insurrectionary purposes.” [For the sake or distinction this case was numbered 939.] The act just referred to provides (by its third section, which indicates the persons who may institute proceedings)—

“ That the Attorney-General or any District Attorney of the United States in which said property may at the time be, may institute the proceedings of condemnation; and in such case they shall be wholly for the benefit of the United States. Or any person may file an information with such attorney, in which case the proceeding shall be for the use of such informer and the Unite States, in equal parts.”

had previously arrested the said property. He was therefore ordered to detain it to answer the information now filed in No. 939. During the month of November and December some three or four claimants came forward and were permitted to file their several claims, take exceptions, plead and take issue as to ownership of the cotton.

On the 22d of January, 1863, the plaintiff in error, Francis, for the first time appeared and filed a petition, not as owner or claimant of any portion of the cotton, but “ that he may be admitted to appear in said case No. 939, as a party to the record as informer ”

His petition set forth, as a foundation of his claim, that he gave information to the Board of Trade at Memphis on the 2d October, 1862, and also sent a written statement to H. S. Howard, collector of the port of St. Louis, containing information on which the said cotton was seized by the said collector in the case No. 934, and on the Aftth October filed an information in writing with the District Attorney, upon which information the said cotton was subsequently libelled in case No. 939.

The District Attorney moved to strike this petition from the files of the court. The motion was overruled, and the petitioner was allowed to make proof of his right to be admitted as informer. A hearing was then had by witnesses, ore tenus, before the court, by request of the proctor of Francis.

Mr. Howard, collector of the port, resisted the claim of t e petitioner. After hearing witnesses the petition was dismissed, and the petitioner ordered to pay costs.

“ Whereupon the court declared the law to be, that the taking of said written statement, by the said Francis, to the United States Attorney, at the request of said Howard, after the same had been addressed to the surveyor of the port, and delivered to said surveyor, did not constitute the said Francis an informer under the act of 6th August, 1861.”

The question here was accordingly the correctness of this view of the court below, as stated in this exception.

The case was submitted by Messrs. Knight and Krum, for Francis, the plaintiff in error, and by Mr. Stanbery, A.-G., arm Mr. Ashton, Assistant A.-G., contra.

Mr. Justice GRIER delivered the opinion of the court.

Although the consideration of this case might be dismissed, as the plaintiff in error is no party to the record, yet it may not be improper to notice the decision of the court below as stated in the exception taken.

In reference to that, it is to be observed, that the proceedings in this case were not instituted for the joint benefit of the informer and the United States. Francis did not offer to interpose in the case till three months after the proceedings had been instituted “ wholly for the benefit of the United States,” after issue joined with the claimants on proof minished by others. An unofficial informer is liable for costs and damages in case of judgment in favor of the claiman s. The informer should come forward and have the information made in his own name. He cannot thus intrude himself on the record after the case is prepared and about to be trie by a j ury, and when a condemnation is imminent, and when be has avoided responsibility for costs in thus keeping hac

If the claimants had succeeded they could have no judgment against the United States for costs, nor against him as not being a party to the suit.

The information given to the collector of the port is under the act of July 13, 1861, which is an act for the collection of duties on imports. By the supplement of May 20, 1862, to that act, the penalties are to be distributed according to the 91st section of the act of March 2, 1799, an act to regulate the collection of duties on imports.

Now, the act of August 6,1861, differs entirely in its scope and character from that of July 13th, in the same year. It is not an act for the collection of revenue. The collector of customs is not the seizing officer, nor as such entitled to a share in the fines and penalties inflicted by the act and its supplement.

In this case the property is seized as liable to capture; and it is made the duty of the President to cause “ the same to be seized.”

The act for regulating process in the courts of the United States, passed May 8, 1792, sections 5 and 6, provides for the taxation and payment of costs by informers.

So the act of 28th of February, 1799, section 8, providing oi compensation of marshals, &c., provides for cases of in-ormers on penal statutes, as to payment of fees and costs.

11 the laws on the subject are based upon the supposimn that the informer should be a party to the original pro-cee ing. He cannot thrust himself into a proceeding instiute by the Attorney-General, for the sole use of the government, when it is resisted by such officer, who denies all his egations, and refuses any further partnership with him. ,iV n P^intiff in error had been a party to the liti-1 æM he was not, and entitled to be heard, it is eviat he could not support his case.

The Gray Jacket.

1. The proclamation of President Lincoln made December 8th, 1863, granting to all persons (with certain exceptions) who had participated in the then existing rebellion, a full pardon, with restoration of all rights of property except in slaves and in property cases, where rights of third persons shall have intervened, has no application to cases of maritime capture, and therefore does not extinguish the liability of a vessel and cargo seized flagrante delicto, while running the blockade then declared against our southern coast, from the consequences of condemnation by a prize court.

2. A claimant’s own affidavit that he is not within the exceptions of the proclamation, is insufficient to establish the fact in setting up the proclamation as an extinguishment of the liability above described.

8. A remission by tne Secretary of the Treasury under the act of July 13th, 1861, providing (§5) that all goods, &c., coming from a State declared to be in insurrection “into the other parts of the United States,” by land or water, shall, together with the vessel conveying the same, be forfeited to the United States; and also (g 6) any vessel belonging in whole or in part to any citizen or inhabitant of such State, “found at sea;” but enacting also (§ 8) that the forfeitures and penalties incurred by virtue of the act may be mitigated or remitted in pursuance of the authority vested in the said Secretary by an act approved 3d March, 1797, or in cases where special circumstances may seem to require it, &c., does not reach a case where the vessel and cargo were not proceeding to a loyal State.

4. The statute does not give the Secretary power to remit in any case of property captured as maritime prize of war.

5. The liability of property, the product of an enemy country, and coming from it during war, is irrespective of the status domicilii, guilt or innocence of the owner. If it come from enemy territory, it bears the impress of enemy property. If it belong to a loyal citizen or the c try of the captors, it is nevertheless as much liable to condemnation a. if owned by a citizen or subject of the hostile country or by the hosti e government itself. The only qualification of these rules is, that where^ upon the breaking out of hostilities or as soon after as possib e, owner escapes with such property as he can take with him, or i g faith thus early removes his property, with the view of putting it ® yond the dominion of the hostile power, the property in such cases exempt from the liability which would otherwise attend it.

6. Where the war (a civil war) broke out in April, 1861, a removal on 30th December, 1863, said to be too late.

caution, and only where the ends of justice clearly require it. A claimant forfeits the right to ask it, by any guilty concealments previously made in the case.

Appeal from the District Court of the United States for the Eastern District of Louisiana, the case being thus:

The steamer Gray Jacket, and her cargo, consisting of 513 bales of cotton, 25 barrels of rosin, some turpentine and tobacco, were captured during the late rebellion, by the United States war vessel Kennebec, on the morning of 31st December, 1863, on the high seas, about forty miles south of Mobile Bay and beyond the limits of the blockade then established of that port, by the Federal government. The steamer had gone out of Mobile Bay on the previous night in the dark, and endeavoring, as the captors alleged, to escape, was pursued and on the next morning captured by the Kennebec for breach of blockade. She was, at this time, in a disabled condition owing to a storm in the night, and on the firing of a gun across her bows hove to, without resistance, and without having changed her course.

Being sent into New Orleans for adjudication, her captain (one Meaher), who owned her; the mate, named Flynn, and her chief engineer, were examined in preparatory, on the standing interrogatories. These were all the witnesses thus examined.

n reply to these interrogatories, Meaher, the captain, stated t at he was born in Maine, but had lived thirty years in Mo-1 e« “I am a citizen,” he continued, “of the State of Alaatna, to which I owe my allegiance.” He stated that the ves-

tl C^Tne Out hai'bor with the American flag flying;

at e was owner of the vessel and of the cargo; “ that the voyage began at Mobile, and was to have ended at Havana;”

a m case the vessel had arrived there, he thought that he °a i.^ave reshipped the cargo to some place where he u ave received a better price for it than he could in

Havana.

English colors and had no other.” As to their ownership, he said:

“ The owners of the vessel were Captain Meaher and brother. They also owned half the cargo. The balance was for Confederate government account. The greatest part of the cotton was produced upon Meaher’s lands. I understood they had built the Gray Jacket expressly to carry their own cotton to Havana, but they had to allow the government an interest of one-half; otherwise they would not have been permitted to leave Mobile. The Gray Jacket on the trip in which she was taken had attempted to sail covertly from the port of Mobile, then under blockade. She could not have left it otherwise than secretly.”

The cotton, it appeared, was the product of Alabama.

The depositions in which these statements were made, were taken on the 26th of February, 1864. About a month afterwards, Meaher filed what he called a “claim, and answer to the libel.” It presented a narrative in its material parts, as follows:

“ That he, the said Timothy, is the true and bond fide owner of the said steamer, and of the cargo thereon, and that no other person is the owner thereof.

“ That he was living in Mobile, at the time the rebellion broke out, and that he had resided there for upwards of thirty years prior thereto; that after the breaking out of the said rebellion he gave no aid to the same; that he had previously, by a life of industry and economy, and the prosecution of legitimate business, acquired a large amount of property; that after the breaking out of the rebellion he became anxious to adopt some measure by which he might be able to withdraw the same to a place of security; that with that object he built the said steamer with his own means, and loaded her with the goods constituting her cargo, and then procured a clearance from the so-called Confederate authorities, exercising all the powers of a government de facto in Mobile, State of Alabama, from the said port of Mo bile to the port of Havana, in the island of Cuba, then and now a port of a country in amity with the United States, as the only means by which he could be enabled to effect the withdraws of hia property from the limits of the so-called Confederacy.

“And he now avers the truth to be that his right of property in the said steamer and in her cargo, which was/WZ and complete while the same were in the port of Mobile, continued to be full and complete after he had gotten upon the high seas with the intent of escaping from the power and control of the States in rebellion to a port in a country in amity with the United States, and that the said steamer and cargo were not at any time after their escape from the said port of Mobile, rightfully subject to capture, &c.

“ And further answering, he says that the President by a proclamation dated the Sth December, A. D. 1863, declared to all persons who had participated in the existing rebellion except as thereinafter excepted, that a full pardon is granted to them and each of them, with restoration of all rights of property except as to slaves and in property cases where rights of third parties shall have intervened, upon the condition that every such person shall take and subscribe an oath, as prescribed in the said proclamation, and shall thenceforward keep and maintain said oath inviolate; that he, the defendant, is not embraced in the exceptions made by the said proclamation ; that on the 18th day of March, 1864, he took and subscribed the oath, as prescribed. That in the premises a full pardon is extended to him, even if he had directly or by implication participated in the existing rebellion, and that he therefore now pleads the pardon as a bar to any further proceedings.”

On a subsequent day the court, on motion of the District Attorney of the United States, ordered so much of the claim and answer as was in the nature of an answer to be stricken from the record. The captors then offered in evidence the

proofs in preparatorio and a paper found on board the captured vessel, as follows:

Memo, of agreements made between Messrs. Meaher & Bro., owners of the st r Gray Jacket, and Henry Meyers, major and ch'f ord.

•Fhc gover t will furnish the whole cargo of cotton, and i make over to the owners of the vessel one-half of the cot-

further charge, except the one-half of the expenses of compressing and storing incurred at Mobile.

“ It is understood and agreed that the said steamer is to return to Mobile, if practicable; if not, then to some other confederate port; and the gover’t is to be allowed at least one-half of the carrying capacity of the steamer in the return voyage, at a freight of £25 per ton, and for any excess over the one-half required by the gover’t, at £30 per ton, payable in cotton, at the rate of Gd. per pound for middling, and other grades in proportion, on delivery of the freight.

“ It is further understood and agreed that in the event of a partial loss of the outward cargo, the portion of cotton saved is to be equally divided between the parties at the port of destination, and any loss on the inward cargo is to be settled on the princi. pie of general average, as far as the cargo is concerned.

“ Henry Meyers,

Major and Ch’f Ord. Officer, Dep’t of the Gulf.

“Mobile, Oct. 22, ’63.”

On the other side, the claimant put in evidence the oath referred to in his claim and answer. It was an oath of loyalty, promising thereafter faithfully to support the Constitution of the United States, &c., being an oath prescribed in the proclamation of President Lincoln of December 8th, 1863, referred to in the answer, and by which the said President, reciting that it was desired by7 some persons heretofore engaged in rebellion, to resume their allegiance to the United States, “ proclaimed and made known to all persons who had directly, or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is granted to them, and each of them, with restoration of all rights of property, except as to slaves, and tn property cases where rights of third parties shall have intervened, and upon the condition that every such person shall take an subscribe an oath,” &c. Certain classes of persons were excepted. After the giving of this oath in evidence the claimant moved for an order to take further proof. The matter was held open.

“ That he, the said Timothy, is a loyal citizen of the United States, born in the State of Maine; that he was late of the city of Mobile, in the State of Alabama, and that he is the true, lawful, and sole owner of the steamer Gray Jacket, and of the cotton constituting her cargo; that he was living in the city of Mobile at the time the existing rebellion broke out, and that he had resided there upwards of thirty years prior thereto; that during the period which preceded the breaking out of the rebellion he opposed secession and did all in his power to prevent the same, and to preserve and maintain the Union; and that after the said rebellion broke out he gave it no aid or assistance in any way whatever.

of action, and could only by his manner manifest his repugnance to any proposal without venturing on an absolute refusal to it; that he did manifest great dissatisfaction to the proposed arrangement, and that no such contract was entered into by him with the rebel authorities, and that no such arrangement by them with him was carried into effect, either wholly or in part; that although the said rebel authorities had seemed to abandon the attempt of carrying out the said proposal, not having found any cotton to be laded aboard of the said steamer, yet he found that when he was ready to begin to lade his own cotton aboard of her that the said rebel authorities had not abandoned all idea of deriving an advantage from exercising a forced control over his property.

“ That an officer exercising authority at Mobile visited him and said that he, Meaher, could not take the cargo out unless he consented that one-half of the cargo to be put on board of the steamer should be for the account of the so-called Confederate government, and that if he, Meaher, did not comply, he, the officer, would take possession of the steamer and put a government crew on board of her; that he, Meaher, finding that it was impossible for him to have any control over his property if he refused to comply with the requisition on the part of one armed with physical power to despoil him altogether, apparently submitted to and complied with the requisition, with the secret determination to assert and maintain his real rights over the entire cargo so soon as he had escaped beyond the authority and control of the rebel States; that all the cotton laden on said steamer at the time of beginning her voyage, and found on board of her at the time of her capture, was his own property, and had been produced on his own plantation, or had been bought and paid for by him, with a view to its being laded on board of said steamer for transportation to Havana on the contemplated voyage, on his own account, and that before he obtained a clearance of the said steamer Gray Jacket and her cargo, he was required to pay and did pay the export duty imposed on all cotton exported, by authority of an act of the Congress of the so-called Confederacy, upon the entire amount of cargo embarked on the said steamer.

“ That it was at first his intention to have taken his wife and children with him on board the said steamer on the said proposed voyage to Havana, but that he was afterwards deterred from attempting to do so lest it should strengthen the suspicion which already existed against him in the minds of the rebel authorities, and prevent bis getting away at all, and that he at last unwillingly abandoned the idea and left them after having made an arrangement with his brother, J. M. Meaher, to send them as soon afterwards as he could find a suitable opportunity, to Havana, where they were to place themselves under the care of the commercial house of Santa Maria, with whom he, Timothy Meaher, was to have made an arrangement.

“That after lading the steamer, he procured a clearance from the so-called Confederate authorities, exercising all the powers of a government de facto in the said city of Mobile, in the State of Alabama, from the port of Mobile to the port of Havana, as the only means by which he could be enabled to effect the withdrawal of his said steamer with its cargo from the limits of the so-called Confederacy and beyond the powers and control of the States in rebellion against the government of the United States. And he further says that the President of the United States, by a proclamation, dated the 8th day of December, 1863, declared,” &c. [setting forth the proclamation and pardon, as in the former affidavit on pp. 344-5.]

The court condemned the vessel and cargo.

The case being now in this court, Mr. B. F. Butler, in behalf of the claimant Meaher, moved for an ord si to take urther proof; its purpose being, in effect, to establish the truth of the facts set forth in the second affidavit of the

c aimant; to show also in substance-—

ke sailed out past Fort Morgan, in the evening of the

, December, with the full intent to deliver himself up to e ockading squadron, if he met it, or, failing to so do, to go abl d&^na ’• during the night his vessel was partially dis-

although, owing to the storm, he had difficulty in keeping off shore, and was obliged to make all the offing he could.

“ That, seeing the Kennebec, he did not alter his course or attempt to get away from her, although he might have run ten knots, his machinery being repaired, but kept at the rate of four knots till the Kennebec came up.

“ That he was sailing under the American flag hoisted on his vessel, being the only one he had on board, and one which he had preserved through the war, at the hazard of his life or liberty, before he was captured.

“ That when boarded he told the officer why his vessel was in this predicament, and demanded protection for himself and property, but was seized as prize.

“ That he answered the interrogatories put to him without any knowledge of the object, and before he had any opportunity to make any explanations or statements in his own behalf.

“ That as soon as he was permitted, to wit, on the 18th of March, 1864, he went before the proper officer and took the oath of amnesty prescribed by the President’s proclamation of December 8,1863, with full intention to keep the same, and has ever kept his oath inviolate; that this was more than a year before the war ended, and would have precluded his return to Mobile w’hile the Confederacy existed.

“ That he has proved all these facts to the satisfaction of the Secretary of the Treasury, who has remitted to him all the forfeitures prescribed by the act of Congress of July 13, 1861, and acquited him of all intention of violating the laws of the United States or of aiding or abetting the rebellion.”

Under the form of further proof he desired also to bring before the court the remission by the Secretary of the Treasury above referred to, and made under the act of July 1861.

The act, however, declared (§ 8) that the forfeitures incurred by virtue of it might be remitted in pursuance of the authority vested in the Secretary of the Treasury by an act entitled, &c.

The act of remission under the seal of the Secretary, and sought to be put in proof, bore date March 21st, 1866, and ran thus:

“ Whereas a petition has been made before me by Timothy Meaher, a citizen of the State of Alabama, for the remission of the forfeiture of the steamer Gray Jacket, and her tackle and cargo, incurred under the statute of the United States entitled, &c., approved July 13, 1861:

“ And ... it appearing to my satisfaction that the said forfeiture was incurred without any intent on the part of the petitioner to violate the laws of the United States, or to aid or abet the insurrection against the government of the United States, and that the petitioner is a loyal citizen, and that said steamer and cargo were condemned by the United States District Court for the Eastern District of Louisiana as prize of war:

“Now therefore know ye, that I, the Secretary of the Treasury, m consideration of the premises, and by virtue of the power and authority to me given by the said eighth section of the said act of July 13,1861, do hereby decide to remit to the petitioner all the right, claim, and demand of the United States to the said forfeiture, upon payment, &e., so far as such forfeiture was incurred under the provisions of the act of July 13, 1861, but not otherwise.”*

It appeared that as originally drawn, Meaher’s petition to the Secretary of the Treasury recited in the foregoing act of lemission, set forth that Meaher “ would satisfy the honorable ecretary of the Treasury that he was a loyal man, attemptlngto escape from the Confederacy, which he had never aided With his property [and to take the same into the loyal States, by

way of Havana, if his vessel should prove fit for the. voyage], in order to meet his wife and family, whom he had sent out of the Confederacy by another channel, and for whom he had arranged to live at the house of his mother, in the State of Maine; ” that the petition thus drawn, and without the words in italics and brackets, was filed and submitted by the Secretary of the Treasury to the Attorney-General, who objected to it, to that officer, “that it contained no allegation so as to bring it within the act of July 13, 1861, that the cargo was proceeding, when captured, from a revolted State into other parts of the United States.” The requisite words, indicated above in the brackets and italics, appeared as an interlineated amendment.

The court allowed this remission by the Secretary to be received as part of the case; which therefore, as it now stood before this court, presented three questions:

1. How far the judgment should be affected by Meaher’s oath of loyalty, in connection with the proclamation ot the President giving full pardon and with restoration of all rights of property, except “ in property cases where rights of third parties shall have intervened ?”

2. How far it should be affected by the remission now allowed to be read and relied on, from the Secretary of the Treasury ?

3. Whether, if it was unchanged by these, the case was one for further proof?

Mr. Ashton, Assistant Attorney-General, for theUnited States, and Mr. Eames, for the captors:

I. Meaher declares that he was at all times a loyal citizen of the United States, and yet relies on the proclamation o President Lincoln in favor of those “ who have participate in the existing rebelliondeclares that he has ever acte a patriotic part, and then sets up a “ full pardon or treason.

The proclamation and pardon was never meant for per sons such as Meaher describes himself to be.

Neither has Meaher proved that he is not within the classes excepted from the benefit of the proclamation. He asserts, indeed, in his ex parte affidavit, that he is not; but that is no proof of the fact.

H. The case is no better on the remission from the Treasury. The vessel was not “found” at sea within one section of the act of July 13,1861. She was captured when sailing, a flag flying, her officers and crew aboard; nothing derelict about her; seized, not found. Neither were the vessel and cargo coming from a rebellious State or section “ into the other parts of the United States” so as to come within the other section. The voyage was unquestionably to Havana. Going from Mobile to Maine, vid Havana, the plan finally set up, was plainly all an afterthought.

Besides, the present condemnation was incurred by virtue of the public law of war, and not under the statute of July 13,1861, and is therefore, by the terms of the warrant, excluded from its operation.

Even if this were not so, the Secretary’s power to remit forfeitures incurred by virtue of the statute of 1861 is limited y the words of the statute to cases of seizure and proceedings to enforce forfeitures under the statute, and does not extend to and cannot be exercised in cases of maritime captures of vessels and cargoes under the law of war, adjudicated under that law, and in the prize jurisdiction, and then condemned as prize of war on account of breach of blockade.

ecent cases in this court show vessels captured and con• enaned as prize of war, though at the time of capture, and •mti so captured, liable also to seizure and forfeiture under io statute of 13th July, 1861, as belonging, in whole or in c^zens or inhabitants of’the insurrectionary States, an ound at sea. Among these, the Baigory and the Anromeda,* the Cornelius and the Bermuda.f

III. Is the case one for further proof?

1. Whatever Meaher’s general feelings or views were in regard to the rebellion, there is no doubt, we submit, that this voyage was a speculation, a fraud on the blockade. He was captured on the high seas, outside the line of the block ading vessels, steering to Havana, trying, as the captors re port, and, as seems obvious, to escape. If he could bring a host of witnesses to show what he was and what ho meant before sailing; that he was then a loyal man, wishing to return to loyal regions and loyal friends, these facts contradict them all, in a way past any power ol refutal. Why did he not first seek the blockading squad ron ? Indeed, the matters set up in his affidavits seem to have been quite an afterthought. There is nothing even in his deposition taken in preparatorio, which so much as adumbrates the scheme subsequently set up as the true history. If ever a claimant showed a character and a case where further proof ought not to be allowed, it is Meaher. He has shown that he can make proof ad libitum. He first gives evidence and files an answer, showing one case, sufficient, as he supposes, for the then necessity. But the mate contradicts him as to ownership, and the government produces the document found on board, which confirms what the mate had declared. He then files a second affidavit, setting up a further case, and explaining away the evidence against him. He next petitions the Secretary of the Treasury, setting forth his case as he thought needful. Objection is made by the Attorney-General that his case is radically defective in its facts, the non-existing facts being pointed out. And lo! Meaher immediately interlines and states the required facts. Allowance for further proof in such a case would be a direct encouragement to perjury. Courts of a miralty are most careful not to lay snares in this way for e fective consciences.

to the State of Alabama? Did he not know that Alaba na was then in rebellion against the nation ? But—

2. If he were ever so loyal, and if his narrative, in its last elaborated and interlineated form, were true, it would be no defence:

(a) The law of war denounces, as being a trading with the enemy, the withdrawal by a citizen of this country of any property without license, from the enemies’ territory after a considerable time has elapsed since the beginning of hostilities.* In that case, this court held that goods purchased in England before hostilities, and shipped to the purchaser in this country by his agent, eleven months after the declaration of war, were confiscable in a prize court.

(6) In Meaher’s affidavits his purpose of removing this property “ io a place of security, beyond the power and control of the States in rebellion,” is presented in such a way as that an intention to return to his residence and business in Mobile is consistent with it; nor are there any facts alleged in that document tending to show a dissolution of the com« mercial establishment and domicil in Mobile (proved by Flynn’s deposition in preparatorio to have existed), prior to or at the time of his sailing on this voyage, or any suspension of the mercantile pursuits in which he had been engaged during the entire period of war. If the claimant was a member of a house of trade in Mobile, engaged in the enemy s commerce, then, independently of personal residence, a continued connection with such a house would operate in law to prevent any divestiture of that enemy quality impressed upon him by residence and commerce during the war in Alabama.

(c) Meaher alleges that this cotton, “ had been produced on is own plantation.” Now, no doctrine is better settled an that the produce of a person’s own plantation in the

enemy s country is considered, in a prize court, as the proper y of the enemy, independent of his own personal residence and occupation.

very way the case is against the claimant.

Penniman’s claim, The St. Lawrence, 9 Cranch, 121.

356 The Gray Jacket. [Sup. Ct

Mr. B. F. Butler, for the claimant: Mr. C. Cushing, being allowed leave to appear for the Treasury department:

I. The proclamation of December 8th, 1863, was a proclaimed license to every sort of enemy within its terms, those by construction as well as those in fact, those who by mere presence and necessity had participated in the rebellion as well as to those who were actual belligerents, to come within the Union lines, with full restoration of all rights and property.*

No “ right of third parties”—neither jus ad rem oovjus in re—had “ intervened” by a simple seizure; nor could any intervene, at best, before a decree of condemnation. The case was not “ a property case.” Even if “a right” had intervened it was initiate only, and defeasible by the party’s taking the oath of loyalty as soon as he could and, certainly, before decree should fix the right.

Indeed the government has power to release all penalties and forfeitures and all maritime captures, irrespective of the claims of captors or informers, up to the moment of distribution of proceeds. Such is the settled doctrine of the prize courts.f

II. The remission by the Secretary of the Treasury.

1. The vessel was “ found at sea” and the property of an inhabitant of an insurgent State. When found, eo instanti, by force of the statute she became forfeited to the United States, and the title of the United States could not be divested either by capture or by sale to an innocent purchaser.^ There is no indication of the acts referring to derelict or abandoned vessels only. The vessel then comes within the terms of the act.

But the cargo must go with the vessel and partake of its character, especially where there is the same owner to both.

The remission is a license coupled with a final adjudica-

f The Elsebe, 5 Robinson, 172; H. M. S. Thetis, 3 Haggard, 231; French Guiana, 2 Dodson, 156-158; The Diligentia, 1 Id. 404; The Nassau, Blate ford’s Prize Cases, 601; Fifty-two Bales of Cotton, Id. 310.

J United States v. 1960 Bags of Coffee, 8 Cranch, 398; Same v. Grun y> 8 Id. 851.

Dec. 1866.] The Gray Jacket. 357

tion of the bonafides of the licensee in his acts under it, and must relate back to the inception of the voyage.

All licenses, either express or implied, are to be construed with the greatest liberality.* Such is the present doctrine, though not the old one.

2. This is a case of Treasury forfeiture, and not of maritime prize, f

This power of making remissions has been exercised by every Secretary of the Treasury since the war. In the Florida, by Secretary Chase; in the Cyclops, by Secretary Fessenden; in the case at bar, by Secretary McCulloch.

In the Revolution of 1775 the British Parliament passed an act of non-intercourse and forfeiture of rebel property, from which the act of July 13th, 1861, was drawn, and its necessity was argued from the same consideration as in this rebellion.^

The British act contained no relief from forfeitures under it, so that there was the strongest disposition to hold the captures maritime prizes; yet in every instance the forfeitures were adjudged to the Exchequer and not to captors, or as ‘Droits of Admiralty,” save in the first case arising;§ and in that case, the judge, Sir George Hay, publicly declared that he repented of that decision.|| Ever after the decisions were made as forfeitures. We have caused the “ Paper books of the Appeals to the Lords” to be examined, and find all cases were brought on the Instance side of the court, although t e act denominates the property as that of “ open enemies,” and to be proceeded against “ as lawful prize.”

“ To the protection of the public peace, and the lives and property of quiet and orderly citizens pursuing their lawful occupations, until Congress shall have assembled and deliberated on the said unlawful proceedings, or until the same shall have ceased, have further deemed it advisable to set on foot a blockade of the ports within the States aforesaid, in pursuance of the laws of the United States, and of the law of nations in such case provided.”

The blockade was made specifically “ under the laws of the United States and the laws of nations.” A belligerent blockade could have been only under the laws of nations, jure belli, in such case provided.

Congress did deliberate thereon, and the act of July 13, 1861 (already quoted), was one result of these deliberations, with authority to the President to make a new proclamation on the subject of commercial intercourse with the rebellious States.*

A proclamation was issued August 16, 1861, reciting the act of July 13, and declaring, among other things, that11 all ships and vessels belonging in whole or in part to any citizen or inhabitant of any of said States, found at sea, &c., will be forfeited to the United States.” It proceeded:

“ And I hereby enjoin upon all district attorneys, marshals, and, officers of the revenue, and of the military and naval forces of the United States, to be vigilant in the execution of said act, and in the enforcement of the penalties and forfeitures imposed or declared by it; leaving any party who may think himself aggrieved thereby to his application to the Secretary of the Treasury for the remission of any penalty or forfeiture, which t ie said Secretary is authorized by law to grant, if, in his judgment, the special circumstances of any case shall require such remis sion.”

From notification of that proclamation the blockading fleet became, by the authority of Congress and by order o the President, employed on the revenue service, so far as the acts of trade of the insurgents were concerned, an_

* 12 Stat, at Large, 257 ; Id. 319.

Dec. 186F.] The Gray Jacket. 859

a “blockading force” quoad neutral or hostile nations; the rights and wrongs of the rebels to be adjudged by the municipal laws of their country, which alone were applicable to them, and the neutral or hostile offenders to be tried by the prize courts of the country under the law of nations, to which alone they were amenable. This course was taken by Congress in order to meet meritorious cases like that at bar, instead of leaving the citizen to the rigors of blockade and prize capture; “ and when hardships shall arise provision is made by law for affording relief under authority much more competent to deal in such cases than this court ever can be.”*

The Executive has ordered “ all military and naval officers, district attorneys, and marshals, to be vigilant in enforcing that act.” Can a naval officer and a district attorney, by colluding to bring the cause on the prize side instead of the instance side of a United States Admiralty Court, thus avoiding their proclaimed duty, oust the United States of its forfeiture and property, and involve it perhaps in serious inconvenience ?

On this whole subject Sir William Scott speaks with force and clearness in The Elsebe.-f

“ Prize is altogether a creature of the crown. No man has, or can have, any interest but what he takes as the mere gift of the crown. Beyond the extent of that gift he has nothing.

his is the principle of law on the subject, founded on the wisest reasons. The right of making war and peace is exclusively in t e crown. The acquisitions of war belong to the crown, and the isposal of these acquisitions may be of the utmost importance or the purposes both of war and peace. This is no peculiar >ctrine of our constitution; it is universally received as a necessary principle of public jurisprudence by all writers on the Su^ject. Bello parta cedunt republics.

I mUSt add, that though I have suffered a party to £ an efore the court for the purpose of arguing the question, o not know the party who can legally stand before it, pray-

Per Johnson, J., I960 Bags of Coffee, 8 Cranch, 405.

t 5 Robinson, 173-192.

ing a condemnation to the crown, which the crown itself pub licly renounces.

“ When I state the position contended for on the part of the captors to be in effect this, that it shall be in the power of every man who has made a capture,—of the pettiest commander of the pettiest privateer,—to force on, in spite of all the prudence of the crown, opposed to such an attempt, the discussion and decision of the most delicate questions, the discussion and decision of which may involve the country in the most ruinous hostilities, I state a proposition that must awaken the apprehension of every man who hears me as to the extent of the danger which would attend the establishment of such a principle.”

III. Is the case one for further proof ? Opposing counsel argue that it is now attempted to show a different case from that presented by the proofs in preparatorio. This is not so; though we may wish to show a fuller one.

The standing interrogatories are not adapted to reach the facts in all cases of capture, in a war so special as ours. What are these standing interrogatories ?

To ascertain the legal status of a vessel in relation to her neutrality, a limited number of questions called u standing interrogatories ” were prepared many years ago by Sir William Scott, and have been adopted by the courts of the United States without substantial change. No better illustration of their occasional ill adaptation to elicit the facts necessary to the understanding a capture arising under a rebellion, such as was ours, can be had than the answer they cause Meaher to give in reply to the first interrogatory when the question is not read in connection therewith. On that answer the captors found an argument of disloyalty. The answer which the witness makes is :

“I was born in Maine; I live in Mobile, and have lived there thirty years; I am a citizen of the State of Alabama, to which £ owe my allegiance."

The matter is explained when you see to what question the answer is made. It is:

“ Where were you born, and where do you now live, and how long have you lived there ? Of what prince or state are you a subject or citizen, and to which do you owe allegiance?”

So it is with all the proofs in preparatories They are responsive to specific questions, and are not adapted to get out a history in a case where a history may well exist. Any exfoliation of the responsive facts—that which would make the history—would, as responsive to these interrogatories, be irregular.

We concede that, in a foreign war and a blockade of a foreign port, where there are no circumstances of license or withdrawal of friendly property to be proved, there would be no such doubtful status of the res as would allow further proof. But the case, we repeat, is not one of this sort. It is the case of an insurrection by certain people in certain parts of one nation; a case where many people in the insurrectionary district remained loyal, and wished to leave the district. Certainly a capture here presents a different case from one of an enemy’s vessel, and enemy property, of a claimant enemy by domicil in enemy country, pursuing a voyage in the interest of the enemy government.

The few discrepancies in the testimony are easily reconcilable. Meaher testifies that he owns the whole vessel and cargo. Flynn testifies that it belongs to Meaher, that the owners were Meaher & Brother. The explanation is that Meaher knew the fact that he was sole owner, and that Flynn did not know. Meaher knew that he put his own cotton on board, and, although forced to consent to ship half on government account, this did not change the ownership, an it, in fact, was all his own. This he now offers to prove, an has proved, to the satisfaction of the Secretary of the treasury.

So as to the paper found on board.

“ I understood they built this vessel expressly to carry their own cotton to Havana, but they had to allow government an interest of one-half in the cargo, otherwise they would not have been permitted to leave. Meaher had necessarily to appear to accept it.”

The claimant makes no contradictory cases. The facts which he seeks to prove are only those which he set forth in his claim and answer, explained, and by proper filling up, enlarged. No one of them is contradictory to anything he testified to in his deposition in preparatorio.

IV. Is the history, if it were in proof no defence ? We submit, in opposition to the captor’s counsel, that it is:

(a) The right of withdrawal of person and goods by a citizen from hostile territory, has always been recognized, and applauded as an act of loyalty. The only question has been, what is a reasonable time ? That question must always be decided by the circumstances of each case. Nothing can be deduced from rules in a foreign war, as applicable to this rebellion. The citizen had a right to suppose that his government would put down the rebellion within a reasonable time, so that he would not be obliged to quit home and property, as was hoped by all, and so wait. The Confederacy did not allow their citizens to leave it if the intention so to do was known-. All were retained for conscription and taxation. Undeniably, a reasonable time is to be given to collect property, but here the very collection of it tended to lead to suspicion and confiscation. The war was carried on by the rebels in an unusual and barbarous manner towards persons disposed to be loyal. If this course of the rebels furnishes no reason for relaxation of the rule by the courts, it certainly tends to excuse delays, and accounts for inconsistencies in the conduct of the claimant not to be judge by the rules of foreign warfare.*

In the case of The St. Lawrence, cited on the other side, although eleven months, under the facts, was considered an mreasonable delay, it being a foreign war, yet the Supreme Court granted motion for further proofs. In the case of a rebellion the rule should be that it is a reasonable time, whenever the withdrawal is made in good faith; an issue to be determined by the facts of each case.

(b) The captors assert thatil an intention on the part of the claimant to return to his residence and business in Mobile is consistent with the contents of this affidavit; and that there are no facts in the affidavit tending to show any dissolution of the claimant’s commercial establishment and domicil in Mobile prior to or at the time of his sailing on this voyage, or any suspenson of the mercantile pursuits in which he had been engaged during the war.”

But the affidavit does set forth that the claimant desired to “withdraw the property he was in possession of, or as considerable a portion of it as was practicable, from the so-called Confederate States, to a place of security, and get into such a position that he might realize the value of it and return to the State of Maine, where his mother now lives, and where he has property and many relations and friends; that with this object and intention, as well known to several of his confidential friends, he built the steamer Gray Jacket with his own means, with the design of lading her with cotton belonging to himself.”

mercial house of Santa Maria, with whom he, Timothy Meaher, was to have made an arrangement.”

(c) The res is not enemy property. Being simply domiciled in rebellious territory, without any act shown, does not make a loyal citizen an enemy, within the legal definition of enemy, without some declaratory act by his sovereign; certainly not so as to remit his rights to be tried by the laws of nations in a prize court.*

The property of rebels is not confiscable as prize of war, but by forfeiture.!

Being, at worst, only an enemy by construction of domicil—a quasi enemy—his status changed as soon as he formed the intention of returning to his allegiance, and did any act carrying out that intention.| He had escaped from the enemy country with his property, and was on the high seas, on his own deck, under the American flag, which he had a right to raise, having protected it through the rebellion. His domicil eoinstante changed; he was no longer an enemy, «even by construction, but an American citizen. His property, being enemy only because of his status, partook of the change with him. The flag determined the character of the vessel and cargo in absence of all papers.§

The question, in short, is, “Shall the court be left to grope among inferences, circumstances, misrecollections, or misconceptions of witnesses, to find facts upon which to confiscate a loyal man’s property, when, by admitting further proof, the claimant will prove, to the satisfaction of the court, as he has done to one branch of the government, that every answer or allegation that he has made is true, and that he was a loyal citizen, trying to take his property from the grasp of the enemies of the government, who ought to

Mr. Justice SWAYNE delivered the opinion of the court.

This case comes before us by appeal from the District Court of the United States for the Eastern District of Louisiana.

In the night of the 30th of December, 1863, the steamer Gray Jacket was discovered running out of Mobile Bay by the gunboat Kennebec, one of the blockading fleet. The darkness of the night enabled the steamer to avoid the pursuing vessel. In the morning she was seen endeavoring to escape to the southward and eastward. The Kennebec fired a gun across her bows. She hauled down her colors and hove to. The captors took possession of her. Her cargo was found to consist of about five hundred bales of cotton and a few other articles of small value. She was put in charge of a prize crew and sent to New Orleans for adjudication. The claimant, Meaher, was examined in preparatorio. He states that he was born in Maine; he had lived thirty years in Mobile; he was a citizen of Alabama, and owed his allegiance to that State; he was captain of the Gray Jacket, and owned the vessel and cargo; the vessel was bound for Havana; he built her near Mobile; the cotton with which she was loaded was raised in Alabama.

Elynn, the mate, was also examined. According to his $ davit, she sailed under English colors; her machinery ad bioken down,and she was in a disabled condition when aptured. He says, “She was taken running the blockade.”

“ The owners of the vessel were Captain Meaher an brother.” . . . « They also owned half the cargo.

e balance was for Confederate government account.”

Among the papers found on board was an agreement between the claimant and Meyers, a military officer and agent of the rebel government, whereby it was stipulated that “ the government will furnish the whole cargo of cotton, and will make over to the owners of the vessel one-half of the cotton, in consideration of which the owners do agree to deliver the other half belonging to the government at Havana, free of charge, except half of the expenses of pressing and storing incurred at Mobile.”

That “ the said steamer is to return to Mobile, if practicable; if not, then to some other Confederate port; and the government is to be allowed one-half of the carrying capacity of the steamer on the return voyage,” at rates specified.

And that “ in the event of a partial loss of the outward cargo, the portion of cotton saved is to be equally divided between the parties at the port of destination; and any loss on the inward cargo to be settled on the principle of general average, so far as the cargo is concerned.” Meaher’s affidavit in preparatorio was taken on the 26th of February, 1864. It ignored the interest of his brother in the vessel and cargo, and alleged the property of both to be in himself. It concealed the ownership of half the cargo by the rebel government and the contract between him and the rebel military agent. Upon these subjects not a word was uttered. On the 21st of March he filed an answer and claim, which do not differ materially from his affidavit in preparatorio.

The court below condemned the vessel and cargo as prize of war, and the decree is before us for review.

In this court a motion was made at the hearing, and argued at length, for an order for further proof, to enable the claimant to establish the facts set forth in the affidavit as to his loyalty to the United States, and the motives and object of his departure from Mobile with the vessel and cargo, and also to enable him to bring before this court the remission by the Secretary of the Treasury, bearing date of the 26th of March, 1866, of all right and claim to the property as forfeited to the United States, “ so far as such forfeiture was incurred under the provisions of the act of July 13,1861, and not otherwise.”

The court consented at once to receive this paper without further proof, and it is properly in the case.

The questions for our consideration are:

The effect of the amnesty proclamation of the 8th of December, 1863, in connection with the oath of the claimant ?

e propriety of making an order for further proof?

nd whether the remission by the Secretary of the Treasury entitles the claimant to the restoration of the vessel and cargo ?

The proposition as to the proclamation and oath was not pressed in the argument here. If it were relied upon, the nswers are obvious and conclusive.

one of the classes of excepted persons. His own affidavit under the circumstances, is clearly insufficient to establish the negative. “ Property cases, where the rights of third persons shall have intervened,” are excluded in terms by the proclamation.

The proclamation is founded upon the act of July 17,1862, and has reference only to property subject to confiscation as there denounced.

Both the statute and proclamation are wholly silent as to maritime captures like the one before us, and neither has any application to that class of cases. In no view of the sub ject can this proclamation be held to extinguish the liability of a vessel and cargo running the blockade, and seized in flagrante delicto. It would be a strange result in such a case if the subsequent oath of the claimant were allowed to establish his innocence and compel the restitution of the property.

This is not a proper case for an order for further proof. The order is always made with extreme caution, and only where the ends of justice clearly require it. The claimant forfeited all right to ask it by the guilty concealment in his first affidavit, and in his subsequent affidavit and claim. The allowance would hold out the strongest temptation to subornation of perjury. There is nothing to warrant such an exercise of our discretion. We are entirely satisfied with the testimony in the case, and entertain no doubt of the correctness of the conclusions we draw from it. If the allegations of the claimant are true, he postponed his effort to escape too long to derive any benefit from it. The law does not tolerate such delay. The motion is overruled.

The Gray Jacket was not proceeding to a loyal State. It is true that after this objection was taken by the Attorney-General to the authority of the Secretary to interpose, the claimant amended his petition by interlining the averment that he was attempting to take the property “ into the loyal States by way of Havana, if his vessel should prove fit for the voyage.” But this does not recall what he had before sworn, nor change the facts as they are disclosed in the record. In his first affidavit he said, “ The voyage began in Mobile and was to have ended at Havana.” “ In case we had arrived at our destined port, I think I should have reshipped the cargo to some port where I could have obtained a better price for it than 1 could obtain there.” The mate also testified “ that the voyage began at Mobile and was to have ended at Havana.” The claimant in his affidavit speaks of going to Havana, but was silent as to going beyond there, to any of the loyal States; and nowhere disclosed such a purpose until he amended his petition to the Secretary under the pressure of the occasion. We are satisfied that at the time of the capture no such intention existed. This brings the vessel and cargo within the exception prescribed J>y the Secretary. The order does not reach the case. But if the order of the Secretary were unqualified that the property should be released and discharged, the result would be the same. The power of the Secretary to remit forfeitures and penalties is defined and limited by law. The jurisdiction is a special one and he may not transcend it. If he do, his act 13 voi. Ue has no power to remit in any case of property captured as maritime prize of war. The subject lies wholly beyond the sphere of his authority. The liability of the property is irrespective of the status domicilii, guilt or innocence of the owner. If it come from enemy territory, it ears the impress of enemy property. If it belong to a loyal lz^n the country of the captors, it is nevertheless as Uc ¡able to condemnation as if owned by a citizen or sub-

Such, with this limitation, is the settled law of this and of all other prize courts.

The case before us, as we view it, has no redeeming feature. It has no claim to the benefit of the exception we have mentioned. The vessel and cargo were properly condemned as enemy property and for breach of the blockade. There is nothing persuasive to a different conclusion.

The decree of the court below is

Affirmed.

The Gray Jacket

(motion.)

As a general rule, where the United States is a party to a cause and is represented by the Attorney-General, or the Assistant Attorney-General, or by special counsel employed by the Attorney-General, no counsel can be heard in opposition on behalf of any other of the departments of t e government. fhe rule departed from in this instance, the circumstances being special.

The case of the Gray Jacket, reported on the last preceding pages, was argued partly on one occasion and partly oil another, Mr. Eames, who spoke for the captors, having been taken suddenly and, as the unfortunate issue proved, fatally ill while addressing the court, and the case having been a journed in the midst of the argument.

The case being subsequently called with a view of seeing bow far counsel were ready to go on, it was mentioned tha

Mr. Cushing would appear in behalf of the Treasury Department, to justify the remission, which the preceding report shows had been granted, of the right accrued to the United States and captors by a decree of condemnation of the vessel as prize. Some remark being made by the court as to the circumstance that the United States were on the side of the captors while the Treasury Department appeared in an antagonistic position, and a doubt being expressed whether it was quite allowable that the Treasury should thus appear, Mr. Cushing referred the matter of his taking part to the pleasure of the court; observing only that he was prepared to speak in support of the act of the Secretary of the Treasury, if desired.

Before the case came to be finally argued in conclusion—

The CHIEF JUSTICE delivered the opinion of the court on this point:

The court has considered the question whether counsel shall be heard in this cause on behalf of the Treasury Department, and has instructed me to say that in causes where the United States is a party, and is represented by the Attorney-General or the Assistant Attorney-General, or special counsel employed by the Attorney-General, no counsel can be heard in opposition on behalf of any other of the departments of the government.

In the present case, however, the argument has doubtless proceeded under the impression at the bar that counsel would be heard on behalf of the Treasury Department, and the court is desirous of all the light that can be derived from the fullest discussion. The counsel for the Treasury Department may be heard, therefore, if he sees fit, on behalf of the c aimant, and two hours will be allowed for the argument, without prejudice to the time which remains to the counsel w o opened the cause, for reply to the Attorney-General an the counsel for the captors.

Congress, could the claim be allowed. After a hearing the claim was dismissed by the court; the question involved, however, being certified by it to this court, as one of difficulty and proper for appeal. The matter was accordingly now here on appeal, taken by Brinkley, from the order dismissing his claim.

The question is, “ Does the mortgage as a claim prevail against the forfeiture?” We think it does.

The mortgage is a jus in re, and not a mere lien.*

Even then, if the case was unaffected by the act of Congress of March 3, 1863, the mortgage would prevail. This claim was not a secret one. Any fair and open claim existing at the time of capture upon property captured in war is valid, by the law of nations, if the claim amounts to a jus in ref

The forfeiture in this case, however, was really for breach of municipal law, though the condemnation may have been through pleadings in prize. The act of July 13,1861, was in force when the capture was made, and applicable to the facts of this case and controlled it. The general law of na-ions, as applicable to the question, was repealed to the extent of the provisions of this statute. Even therefore if, on principles of international law, the mortgage claim would not be allowed, we submit that under the statute of July 13, 1861, it would. For undoubtedly all municipal forfeitures are subject to claims such as this when accruing before the act which causes the forfeiture.

But finally, the act of March 3, 1863, is applicable, whatever ground of forfeiture may be assumed. The vessel, it wi ardly be denied, was condemned by virtue of laws apP ica le to the rebellion; and the act provides, that out of

Wheaton1,396 ^ns‘ ®°-> 1 Peters, 441-447; Thelusson v. Smith, 2

Jfr. Ashton, Assistant Attorney-General, contra.

Mr. Justice MILLER delivered the opinion of the court.

The decree of condemnation of vessel and cargo stand unaffected, and the only question presented for our decision is, whether appellant is entitled to have the amount of his mortgage paid to him out of the proceeds of the sale of the vessel.

1. The first ground on which appellant relies is, that the mortgage being a jus in re, held by an innocent party, is something more than a mere lien, and is protected by the law of nations.

The mortgagee was not in possession in this case, and the real owner who was in possession admits that his vessel was in delicto by failing to set up any claim for her. It would require pretty strong authority to induce us to import into the prize courts the strict common law doctrine, which is sometimes applied to the relation of a mortgagee to the property mortgaged. It is certainly much more in accordance with the liberal principles which govern admiralty courts to treat mortgages as the equity courts treat them, as mere securities for the debt for which they are given, and therefore no more than a lien on the property conveyed.

hands already. The mortgagee having an honest mortgage which he could establish in a court of prize, would either have the property restored to him, or get the amount of his mortgage out of the proceeds of the sale. The only risk run by enemy vessels or cargoes on the high seas, or by neutrals engaged in an effort to break a blockade, would be the costs and expenses of capture and condemnation, a risk too unimportant to be of any value to a belligerent in reducing his opponent to terms.

A principle which thus abolishes the entire value of prize capture on the high seas, and deprives blockades of all dangers to parties disposed to break them, cannot be recognized as a rule of prize courts.

2. The second ground on which appellant relies is based upon the fact that the vessel was liable to confiscation under the act of Congress of July 13, 1861, and that the act of March 3,1863, protects his rights in the premises.

This latter statute provides, “ that in all cases now or hereafter pending wherein any ship, vessel, or other property shall be condemned in any proceeding, by virtue of the acts above mentioned, or of any other law on that subject, the court rendering the judgment” shall first provide for bond fide, claims of loyal citizens. Although there is nothing in this act, or in its title, to show what the acts above-mentioned were, it may be conceded that the act of July 13,1861, was one of them. But as the vessel in the case before us was not condemned in any proceeding, by virtue of that act, or of any law on that subject, but was condemned under the international laws of war by which she became lawful prize, it is difficult to perceive how the act of 1863 can have any application to the case. It is certainly not covered by its verms, and we think still less by its provisions.

We are quite satisfied that in neither of these provisions did Congress have reference to cases of condemnation as prize jure belli.

It is further said that because the vessel in this case was liable to condemnation under the act of July, 1861, although actually condemned under a principle of international law, the court is bound to apply the statute as though she had been condemned in a proceeding under it. We do not see the force of the argument. Both laws are in force. The vessel was liable under both. The government chose to proceed against her under that law which prescribed the harder penalty. Its right to do so seems to us undeniable. The argument to the contrary would enable a person found guilty of a murder committed by burning down the house of his victim, to plead that he should only be sentenced to the penitentiary instead of being hung, because he was guilty of arson in addition to murder. The case of The Sally* is a direct decision of this court, that a statute creating a municipal forfeiture does not override or displace the law of prize.

We do not deny the full control of Congress over the law of prize as it may be administered in the courts of the United States whenever they choose to exercise it. But in the statutes relied on by appellant in this case, we see no evidence of any intention to modify that law in any respect.

There seems to be no reason to doubt the loyalty of appellant, or the fairness of his debt, and we regret our inability to provide for his claim. But until international treaties, or an act of Congress, shall mark another stage in the meliorations of the rigors of war, we are not at liberty to interpolate a principle which would tend so materially to destroy the right of prize capture in time of war.

Decree affirmed.

* 8 Crunch, 382

The William Bagaley.

1, Personal property left in a hostile country by an owner who abandons such country in order to go to the other belligerent, and so to return to his proper allegiance and soil, becomes, unless an effort is made with promptitude to remove it from such country, impressed with its character, and as such liable to the consequences attaching to enemy’s property.

2. The presumption of the law of nations is against an owner who suffers such property to continue in the hostile country for much length of time.

3. The effect of war is to dissolve a partnership subsisting between citizens of nations at war; and if the person abandoning the hostile country, have had his property in partnership with citizens of the enemy country, it is his duty to dispose of, and withdraw his interest in the firm. If he do not, such interest is subject to the rule above stated with regard to individual property.

4. Ships in time of war are bound by the character impressed upon them by the government from which their documents issue and under whose flag and pass they sail. The share of a citizen in a ship sailing under an enemy’s flag and papers, and who has had ample time and every facility to withdraw his effects from the enemy country, or dispose of such interestsas.could not be removed, but who has not attempted so to withdraw or dispose of them, is accordingly subject to capture and condemnation equally with the shares of enemies in the same ship. And where the cargo and ship are owned by the same person, the cargo follows the fate of the ship.

Appeal from the District Court for the Eastern District of Louisiana.

The steamer William Bagaley,—with a register issued at Mobile, June 16, 1863, under the authority of the “ Confederate States,” and reciting a previous enrolment in 1857 and a present ownership,—“ property having changed,” by Waring and others (“ citizens of the Confederate States and “trustees of association of stockholders),” with a master appointed by these trustees, and bearing the Confederate flag,—sailed from Mobile, July 17, 1863, during the blockade of that port, proclaimed April 19, 1861, by the United States, for Havana. Her cargo was of cotton, turpentine, &c. No papers were on board, for “ fear of being captured.” The “ cotton was shipped for the benefit of the owners in Mobile.” All the officers and crew were, with one exception, “ citizens of the Confederate States. The master had instructions to escape the blockading vessels, but not to resist.

Being perceived by the blockading squadron, she was pursued, and, after a brisk chase, captured. Being brought into New Orleans and libelled for condemnation, a claim or one-sixth of the vessel and cargo was interposed by Joshua Bragdon, and of this sixth he prayed restitution.

The facts upon which he grounded his claim were, that e was, and for many years had been, a resident of the State o Indiana, a loyal State; that the firm of Cox, Brainerd & of Mobile, Alabama, a rebel State, were the sole owners o the captured vessel and her cargo, of which firm the c alinaa had been for several years a member, and owned one six interest in all the property of the copartnership, whic

Dec. 1866.] The William Bagaley. 379

terest lie had never in any way transferred. That he was, and always had been, a true and loyal citizen of the United States, and that he had never, in any way, aided or abeted the rebellion, and after the breaking out of the same had never exercised any act of ownership or control over the property or the captured steamer, and that he had no connection with, or knowledge of, the unlawful voyage of the steamer which occasioned her capture. That in consequence of his loyalty, the so-called Confederate government seized all his interest and property in said firm of Cox, Brainerd & Co., and by a decree and process of one of her pretended courts, “ at some time during the year 1862,—the exact date not known,”—confiscated the same. That all such acts and proceedings of the insurrectionary government were void, and that the title of the claimant to his property remains unimpaired.

On the trial these facts were admitted of record by the District Attorney as true. The court dismissed the claim with costs, and condemned both vessel and cargo.

No other claim having been interposed in the proceedings in the lower court for any portion of the captured property or its proceeds, the only question presented by the appeal was the legal sufficiency and merit of the claim of Bragdon for his one-sixth.

After the case came into this court by appeal, however, the owners of the remaining five-sixths filed a petition asking to intervene for their interests. Their excuse for not appearing or putting in any claim in the District Court, it may be here stated, was, that they were residents of a State hostile to the United States, and had therefore no standing in that court; that this disability continued till after the case was removed into this court by appeal. And they set up, as reason for the restitution of their shares to them, that since e appeal they had received from the President “ a full pardon and amnesty for all offences by them committed arising from participation, direct or implied, in the said rebellion.”

.380 The William Bagaley. [Sup. Ct

Messrs. Henry Crawford, S. S. Cox, and J. J. Lewis, for the appellants and for the petitioners :

There is no dispute about the facts. The case is to be taken as a special verdict or case agreed on and stated.

I. We have, then, a question of good prize or lawful property—a contest between the government and a citizen, whom she admits to have been unshaken in his allegiance during a long rebellion, as to the right of the former to forfeit his property, or her duty to restore the same upon his application.

If the United States has warrant as against the admitted rightful owner to forfeit this property as good prize, it can only be on account of the commission of some offence against the law of nations. There are only two such offences which can be relative to the present case. We will treat them in their order.

1. The claimant’s property in vessel and cargo cannot be forfeited as enemy’s property.

To justify condemnation of property for such reason it is necessary to establish (a) the domicil of the owner in the enemy’s country, or (6) the employment of the property, either actually or constructively, by him in illegal trade with the enemy.

(a) Since it is not the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs, the general principle upon the subject has always been, that the domicil of the party is the true test of national character and determines the nature of property. ** And so the property of one resident in the enemy’s territory is res hostilis, and the lawful subject ot maritime capture, f

The question presented by this claim cannot be injurious y affected by the principle thus announced. The claimant here was not domiciled on the south side of what Grier, ca 8 “ the boundary marked by lines of bayonets, which can

crossed only by forcenor had he at any time been “ a citizen or subject of any State or district in insurrection against the United States;” but, on the contrary, as the government admits, was, and long had been, a resident loyal citizen of the State of Indiana.

(6) The other criterion of “ enemy’s property” is equally powerless to work a forfeiture. That test is thus defined by an eminent writer: “ All the property of enemies found afloat, and all property of citizens or subjects conducting themselves as belligerents, may be lawfully captured.”* This rule has been applied in such a multitude of cases that a cursory reference to the language employed by courts cannot fail to give a correct appreciation of its true meaning and limitation. In the leading case of The Rapid,f it is said:

“ A citizen or ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks.”

Again, in another case:

“ He incorporated himself into the permanent interests of the enemy.”|

In a third case, Sir William Scott says:

“By intendment of law, all property condemned is the property of enemies; that is, of persons so to be considered in the particular transaction.”§

Text-writers proceed in the same way:

He who clings to the profits of a hostile connection must be content to bear its losses also.”||

In the case of navigating under the pass or flag of the enemy, the party who uses them “is not at liberty,” it i^said in The Fortuna Verissimo, “ when they turn to his disadvantage, to deny the character which he has worn for his own benefit.”!

All these instances,—sailing under the enemy’s pass or flag; breach of blockade; carriage of contraband; establishment or continuance of a house of trade in the enemy’s country; illegal traffic with the enemy,—are cases of a criminal voluntary adoption of the enemy character by the citizen, odious violations of his duty to his government; and justice requires that all his ventures so employed be the rightful subjects of capture and condemnation as enemies property.

The application of this principle to the facts of the case at bar is not difficult. The claimant never was, at any time, within the insurrectionary lines; he had no dominion over his property after the inception of the rebellion, and he had no participation in, connection with, or knowledge of, the transaction of his former copartners.

Instead, therefore, of the claimant’s involving his property by “ embarking in the cause ” of the rebellion, within the meaning of the rule as laid down in The Rapid, he maintained his loyalty with such firmness that the rebel government confiscated his property as that of an alien enemy. He did not in any manner “ incorporate himself into the permanent interest of the enemy.” He is not seeking, as was the claimant in The Fortuna Verissimo, “ to deny the character which he has worn for his own benefit,” but he is striving

* San Jose Indiano, 2 Gallison, 268; and see Maisonaire v. Keating, Id« 838; and The Friendschaft, 4 Wheaton, 105. t

f 1 Dodson, 87; and see The Success, Id. 131; The Hiram, 1 Wheaton, 440; fhe Vigilantia, 1 Eohinson, 13.

Dec. 1866.] The William Bagaley. 883

to maintain, as best he may, the character of a consistently loyal citizen. Other than this he has neither sought nor worn. He has not been, in the language of Judge Story, “ engaged in the commerce of the enemy, upon the same footing, and with the same advantages, as resident subjects,” nor upon any footing or terms whatever. From the commencement of the rebellion, he stood aloof from his rebellious associates; he maintained his proper fealty; he turned his back upon his property situated within the control of the insurrectionary forces, trusting in the power of the government to reassert its supremacy, and in its honor to restore. He has “ not clung to, nor received the profits of, any hostile connection,” but in thought and act has remained true to his obligations as a citizen. He has not, in any manner, “ conducted himself as a belligerent.”

2. The claimant's property cannot be decreed good prize for any breach of blockade, unless the offence was committed in his interest and in person or by agent.

The breach of blockade is viewed in all cases as a criminal act. This necessarily implies a criminal intent, and, of course, a knowledge of the existence of the blockade and the determination to violate it.*

The books bear testimony to the frequency with which the courts have enforced this discrimination between those who are wholly innocent, and those who are tainted with the corrupt design, and commit the overt act: the property of the one being restored, while full forfeiture is visited upon the latter. No doubt, it is a presumption of the law of prize, t at a breach of blockade is committed in the interest of the cargo; and hence, prima facie, both vessel and cargo are subject to condemnation. Still if it be admitted that the ownX0f carS° stood clear from even a possible intention 0 raud, their property will be excepted from the penal consequence, f

The leading authorities upon this point will be found col-

. TT^ Batey, 1 Robinson, 92 ; The Nancy, 1 Acton, 59. -Jv States ”• Guillem> 11 Howard, 62; The Exchange, 1 Edwards, ’ NePtunus, 3 Robinson, 173; The Adonis, 5 Id. 228.

384 The William Bagaley. [Sup. Ct

lated in United States v. Guillem, in this court.** There tbe vessel had been guilty of an undoubted violation of the law and was condemned accordingly, but upon the intervention of an innocent owner of a portion of the cargo, it was holden, that “ if the owner can show that he did not participate in the offence, his property is not liable to forfeiture.”

It is notable, also, how indulgently the courts construe the law in certain cases in favor of the personally innocent, even as against the wilful action of their agents. As when orders have been given for goods prior to the existence of a blockade, and it appears that there was not time for countermanding the shipment afterwards, the courts hold that the owner of the cargo is not responsible for the act of his enemy agent, who might have an interest in sending off the goods, in direct opposition to the interests of his principal.f Under similar circumstances^ the cargo of an innocent neutral was restored; Sir William Scott saying:

“ The rule that a principal is bound by the acts of his agent is obviously too rigid to be applied to a case where it is the interest of the agent to get the goods off, and run the risk of capture, while the principal is wholly innocent of the risk.”

This broad distinction between guilty property which may be, and the goods of innocent owners which cannot be forfeited, is recognized throughout all the administration of the law of prize. The case of the carriage of contraband furnishes an illustration. Formerly, under a less refined dispensation of the international code, the presence of contraband articles worked a forfeiture of the ship, but this too rigid rule has been relaxed in modern times to a forfeiture of freight and expenses only, save in aggravated cases, or when the contraband articles belong to the owner of the vessel^ To escape from the contagion of contraband, the in-

The distinction is also approved in the case of carriage of despatches, which works a forfeiture of the ship which conveys them, and ob coniinentiam delicti of the cargo if they belong to the same owner. J

Also, in the case of the carriage of enemy’s goods in the ship of a neutral, when although the specific property is subject to capture, the lien of the neutral for his freight cannot be divested or forfeited.§

While the accepted doctrine is, that a deliberate and continued resistance to search is followed by the legal consequence of forfeiture, this consequence cannot be visited upon the cargo when the owner is innocent of any participation in the unlawful resistance. ||

Determined by these tests the interest of the claimant is obviously beyond the reach of forfeiture. He comes fairly within the exception stated in United States v. Guillem, as “ he did not participate in the offence.”

There is, however, another principle touching the law of blockade, borrowed from the general admiralty practice, and of frequent application. Recognizing the full force of the maxim quifacit per alium facit per se, the law of nations holds the owners of vessels to be accountable for the acts of those to whom they have intrusted the vessel, and in such cases decrees forfeitures or awards restitution of the owner’s property according to the criminal or lawful conduct of their agents.

Phillimore thus notices the doctrine of agency It is a general rule that ship and cargo are both confiscated

The Staadt Embden, 1 Id. 26; Halleck’s International Law, 573.

t 3 Phillimore’s International Law, 372; The Floreat Commercium, 8 Kobmson, 178; The Sarah Christina, 1 Id. 242.

t The Atalanta, 6 Id. 460. h ^'rances» $ Cranch, 418; The Marianna, 6 Eobinson, 25. II The Nereide, 9 Cranch, 388. H 3 International Law, 306.

vol. v.

386 The William Bagaley. [Sup. Ct

for a breach of blockade, but then an important distinction must be taken, viz., whether the owners of the cargo are, or are not identical with the owners of the ship. If they are not, the cargo is not confiscable, unless, before the goods were shipped, the owners were, or ought to have been, apprised of the existence of the blockade, or unless it be shown that under the circumstances the act of the master personally binds them.”

Sir William Scott in judicial decision holds similar Ian guage :*

“ In a case of breach of blockade, in order to make the conduct of the vessel affect the cargo, it is necessary that the owners were or might have been cognizant, or to show that the act of the master of the ship personally binds them. The master is the agent of the owners of the vessel, and can bind them by his contracts or misconduct, but he is not the agent of the owners of the cargo unless specially so constituted.”

The reason for this rule of the owner’s liability for his agent’s conduct, is thus stated in one case by that great judge:f

“ If the owner of the ship will place his property under the absolute management and control of persons who are capable of lending it to be made an instrument of fraud in the hands of the enemy, he must sustain the consequences of such misconduct on the part of his agent.”

And elsewhere,^ thus:

“ Owners of cargo must answer to the country imposing the Blockade, for the acts of the persons employed by them.”

So again, in the case of The Columbia.^

t( This vessel came from America, as appears, with innocen

f The Eanger, 6 Id. 126. J The James Cook, 1 Edwards, 261. 2 1 Robinson, ’54; and see The Calypso, 2 Id. 161.

Dec. 18G6.J The William Bagaley. 387

intentions on tbe part of her American owners, for it was not known in America that Amsterdam was blockaded, and there fore there is no proof immediately affecting the owners. But a person may be penally affected by the misconduct of his agent as well as by his own acts; and if he delegated general powers to others and they misuse their trust, his remedy must be against them.”

of those, in whom he has reposed no authority whatever, to whom he had intrusted’ no property, and whose every action wTas utterly beyond his control, and in direct denial of his rights.

So far as concerns Bragdon’s interest in this property he was clothed by law with both the right of property and the right of possession, while his copartners had the naked possession of his interest without right, and under the decree of a false court, whose authority cannot for a moment be recognized. It would be preposterous to contend, that for the deeds of persons guiltily in the possession of property, the true and innocent owner is to be held responsible. “Possession and use,” says this court in the early case of The Resolution,* “ ought upon a question of property to have the same influence in courts of admiralty as in courts of common law. It ought to be considered as a good title and as conclusive upon all mankind except the right owner. If the papers affirm the ship and cargo to be the property of an enemy, there must be a condemnation, unless those who contest the capture can produce clear and unquestionable evidence to the contrary.”

“ Upon a piratical capture,” it declared in the later case of The Josefa Segundaf (( the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried.”

An English case in point with the present, is The Vriend* sc.hapf. where a British ship having been captured by the enemy, was again captured by a British cruiser for aflagran breach of blockade by a neutral in possession; but the court adhering to the doctrine above quoted, ruled that the illega acts of those illegally in possession did not divest the tit e of the rightful owner, and awarded restitution upon his in tervening in the proceedings for condemnation.

If an opposite doctrine was conceded, no case coulu

occur in which restitution could be awarded, and the jus postliminii would remain to the mockery of the citizen an unmeaning fiction of the law.

3. The fact that the claimant oions^only a portion of the captured property instead of the whole, will not exclude him from the protection of the legal principles above established.

Courts discriminate between the guilty and innocent co-owners of the same property, restoring one portion to the citizen and forfeiting the other as the property of enemies and subject to capture..

The exact case is thus put by Sir William Scott, in The Jbnge Tobias*

“Formerly, according to the old practice, the carriage of contraband worked a forfeiture of the ship, but in later times the rule has been relaxed to the forfeiture of the ship only when owned by the same person. If he owns a share of the vessel, his share only will be condemned.”

In Graham’s claim,f Judge Story decides:

“ I hold this shipment to be on joint account. I therefore hold William Graham as entitled to one-third part of the present shipment, and as he is a domiciled British merchant I condemn it as lawful prize to the captors. The other two-thirds belonging to citizens, I order to be restored.”

In another instance,J when a cargo was shipped from alaga to St. Petersburg in an English vessel, by a Spanish ouse on joint account with a London firm, the same judge . e, that while the share of the enemy was good prize, the interest of the neutral Spanish house could not be subjected to condemnation.

In The. San Jose Indiano and Cargo, partners’ interests were istinguished, the enemy’s interests being condemned and ci izens restored, in divers instances.§

t remains to direct the attention of the court to certain

* 1 Robinson, 329.

f 1 Gallison, 618.

t The Betsy, 2 Id. 210.

4. The claimant having established an indefeasible legal title to this property, was entitled, as soon as it was rescued from the enemy, and came within the dominion of the United States, to full restitution thereof.

The record shows, that long prior to the rebellion, the claimant was the owner of this property. That being within the insurrectionary district, he exercised no control over it, and it was continually within the rebellious territory and under the exclusive authority of rebellious citizens. That in the year 1862, the so-called Confederate government seized his property jure belli, and undertook to extinguish the title of the claimant, by a condemnation and sale. A new register appears to have been taken out after the sale, “ property having changed.” Then follows the capture by our cruisers.

There is then property; an illegal capture by a government neither de facto nor de jure, but only a rank usurpation; an illegal and void condemnation and sale, and then a restoration of the property to the power of the country of the rightful owner. It being conceded that no taint of fraud or disloyalty can be imputed to the claimant, it would seem to be a proposition almost too plain for argument, that the title of the original proprietor has not been divested by any of these transactions. That the seizure of his property by the insurgent government was illegal and criminal, and that the sentence of condemnation and the proceedings subsequent thereto, were without the semblance of authority and voi, are statements which it were idle to elaborate.

The obligation of the government under such a state o affairs, is clearly defined by the French writer Vattel:*

“ The sovereign is bound to protect the persons and proper y of his subjects, and to defend them against the enemy. When, therefore, a subject or any part of his property has fallen the enemy^s possession, should any fortunate event bring

Dec. 1866.] The William Bagaley. 391

again into the sovereign’s power, it is undoubtedly his duty to restore them to their former condition, to re-establish the persons in all their rights and obligations, to give back their effects to the owners, in a word, to replace everything on the same footing on which it stood previous to the enemy’s capture.”

Our American author Halleck* redeclares the same thing:

“ This right of postliminy is founded upon the duty of every state to protect the persons and property of its citizens against the operations of the enemy. When, therefore, a subject is rescued by the state or its agents he is restored to his former rights and condition under his own state, for his relations to his own country are not changed, either by the capture or the rescue. So of the property of the subject recaptured from the enemy by the state or its agents, it is no more the property of the state than it was before it fell into the hands of the enemy. It must therefore be restored to its former owner.”

This doctrine was recognized many years ago in England.!

Outside the doctrine of postliminy, which rests upon its own peculiar principles, the courts of admiralty have been diligent in restoring property in all cases where the original owner’s title has not been lawfully divested, and it is now a doctrine of universal acceptance, that the original title must prevail, unless the property was captured by a lawful enemy, in a lawful manner, and a sentence of condemnation by a competent court has intervened.

It is not essential for the operation of this rule that the capture should be piratical. “ A capture, though not piratical, may be illegal and of such a nature as to induce the court to award restitution.”* If property be retaken from a captor clothed with a lawful commission, but not an enemy, it must be restored. For the act of taking being a wrongful act could not change the property. And so our courts have invariably decided that where a capture is made of the property of the subjects of a nation in amity with the United States, by a vessel, built, owned, equipped, and armed in the United States, it is illegal, and if the property is brought within the jurisdiction of this country, it will be restored to the original owner, f

The absence of a valid sentence of condemnation is considered equally fatal as an illegal capture.

If a neutral state seize and sell the vessel, there being no sentence of condemnation, the title is not changed.J Where a British ship had been captured, carried into Norway, and condemned before a French consul, it was held that the sentence was invalid, and the property should be restored. § A case is cited at the end of Assievedo v. Cambridge, in 1695, reported by Lucas,|| where restitution was decreed after a long adverse possession, two sales, and several voyages.

Inasmuch as in the case at bar, the original seizure by the insurgents was unlawful, and the sentence of condemnation utterly invalid, the application of these authorities is obvious. Upon the general doctrine of restitution, the reasoning of this court in The Resolution is very appropriate:

“ All the authorities cited on cases of capture authorized by the rights of war are where the property captured was the property of an enemy. Not an instance has been produced where a capture not authorized by the rights of war has been held to change the property. To say that a capture which is out of the sanction and protection of the rights of war can nevertheless derive a validity from the rights of war, is surely a contradiction in terms. The rights of war can only take place among enemies, and therefore a capture can give no right unless the property captured be the property of an enemy.”

5. The object of the war against rebellion as prosecuted by the government, and its policy repeatedly declared by the legislative and executive departments and followed by the judiciary, require the restoration of this property.

By the rebellion of 1861, it"became necessary,” “for the general government to vindicate by arms its own rights and the rights of its citizens.”

These words comprehend in and of themselves the whole scope and object of the war of self-defence in which the nation has been engaged for the past few years.

Congress resolved early in the struggle that the war was not waged for conquest or oppression, but “to defend and maintain the supremacy of the Constitution, and to preserve the Union.”*

and employ the army and navy “ to enforce the faithful execution of the laws, and suppress such rebellion.”

The President says, in his proclamation of September 22, 1862:

111 do hereby proclaim and declare that hereafter as heretofore, the war will be prosecuted for the object of practically restoring the constitutional relation between the United States and each of the States and people thereof, in which State that relation is or may be disturbed.”

These declarations of the object of the war have been followed by the courts. “ The war, so far as the government has been an actor,” says Betts, J.,in The Hiawatha, “has been defensive, and in protection of the existence and property of the government, and the welfare of its citizens.” “In a civil war,” says Sprague, J., in The Amy Warwick,“ the military power is called in only to maintain the government in the exercise of its legitimate civil authority.”

But, while the object of the war was thus clearly defined, the condition of affairs was so anomalous, the contest of such gigantic size, and extended over such a vast territory, that any measures which the government might take to defend its existence and restore its supremacy, would necessarily affect the deserving,—the loyal as well as the disloyal.

It is instructive, however, to note with what jealous care Congress and the Executive so ordered and wielded the belligerent power of the nation, that while it was a weapon against treason, it was as far as possible a shield for the loya and the oppressed. Whiting* says upon this subject:

“ The President having adopted the policy of protecting loyal citizens, wherever they may be found, all seizure of their prop erty and all interference with them have been forborne.

The President, in his proclamation of September 22,186, declares:

The letters of Admiral Porter to the Secretary of the Navy, of May 11 and 31,1864, touching the Red River cotton, and the proclamation of General Butler* on taking possession of New Orleans, are but reiterations of the general policy of the government.

By legislation in every form, the legislative department of the nation has recognized the same distinction and provided for the protection of all who have in fact maintained their allegiance.

Section 1, of the act of August 6, 1861, “ to confiscate property used for insurrectionary purposes,” enacts that if any person shall knowingly use his property, or suffer it to be used in aiding, abetting, or promoting the insurrection, such property shall be the lawful subject of prize and capture.

The act of July 31, 1861, appropriates two millions of dollars to purchase arms “ to place in the hands of the loyal citizens residing in any of the States, of which the inhabitants are in rebellion against the government of the United States.”

Section 9, of the act amending an act regulating commercial intercourse, July 2, 1864, prohibits all further intercourse “ except to supply the necessities of loyal persons residing in the insurrectionary States.”

Section 3 of the act to provide for the collection of abandoned property, March 3, 1863, ch. 120, provides, that when the property of any one resident in the seceded States has cen seized and sold by virtue of the act, the owner may go c ore the Court of Claims within two years after the suppression of the rebellion, and, upon proof of his loyalty, will e entitled to receive the proceeds arising from the sale of his property. tW «T L°f the Confiscation July 17, 1862, enacts

1 said property shall be found to have belonged to a

person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemy’s property.”

An act to protect certain liens, March 3, 1863, provides that if any loyal citizen holds a lien upon any vessel or other property, that the same shall be preferred to the claim of the government for condemnation.

Section 7 of the act regulating the‘collection of direct taxes in insurrectionary districts, allows any loyal citizen having a lien upon any real estate which has been sold for taxes to redeem the same. February 6, 1863.

It would seem, therefore, from the testimony, of these measures, that both the executive and legislative branches of the government have declared the settled policy of the nation to be, that no forfeitures shall be inflicted in this war on any but the rebellious, and that under all contingencies the truly loyal citizens South and North shall be protected and secured in the enjoyment of their rights of person and of property. To put any other construction upon these enactments and the general conduct of the war, would be to shut our eyes against their obvious and accepted meaning. Such policy is in recognition of the obligations which a just government owes to its faithful citizens, and may well be called the policy of justice.

The policy of magnanimity pursued by the government to its rebellious citizens is embraced in the proclamations of pro. tection, amnesties, pardons, and restorations to property and privileges, which are familiar to all, and are in strict conformity with the declared object of the war. Touching the latter, this court, in the late case of The Venice,* has approvingly said:

“ The same policy may be inferred from the conduct of the war. Wherever the national troops have re-established order under national rule, the rights of persons and property have been in general respected and enforced. Officer Farragut and General Butler expressed in proclamation the general policy of

the government. Both were the manifestation of a general purpose which seeks the establishment of the national authority, and the ultimate restoration of States and citizens to their national relations under better forms and firmer guarantees, without any views of subjugation by conquest.”

Keeping in view the declared object of this war, how is it possible to say that the condemnation of the property of a loyal citizen of a loyal State is a warrantable exercise of belligerent right; that it would conduce in the remotest degree to the accomplishment of the desired end ? For any such purpose it would be wholly impotent. Contributing nothing to “the reparation of injury, the re-establishment of right, and the restoration of order,” such action on the part of government would of itself be an injury to the citizen, a palpable denial of his common and constitutional right, and the sure promoter of disorder and discontent. Against any such forfeiture the government has deliberately set its face. She has pledged herself to her loyal citizens in every form by which a government can express its deliberate purpose,—by legislative enactments, executive proclamations, judicial decisions, the consistent management of war,—that this conflict has been waged for the protection, and not the destruction, of those rights. This claimant alike with every other true citizen has the right to demand, as he does now demand, that the government shall make good her pledges by according to him the full measure of his rights.

II. As to the remaining owners, now petitioners in this court.

Though ordinarily an appellate court receives no evidence w ich was not presented on the hearing in the court below, m all admiralty causes the rule is different. The case, when an appeal is taken and perfected, is heard de novo, and there 18 .Uo lla^ decree till the appellate court has acted and determine by decree the rights of the claimants to the fund.*

n t e case of The Schooner Pinkney, the vessel was conemne in the District Court for violation of the act of Con-

* Boone v. Chiles, 10 Peters, 177; United States v. Schooner Peggy,J Cranch, 103. 66J

898 The William Bagalet. [Sup. Ct.

Argument in support of the petitioners.

gress prohibiting commercial intercourse with certain parts of the Island of St. Domingo. An appeal was taken first to the Circuit Court, and afterwards to this court. Pending the last appeal the act expired by its own limitation. In delivering judgment, Chief Justice Marshall says:

“ The majority of the court is clearly of opinion that in admiralty cases an appeal suspends the sentence altogether, and that it is not res adjudicata until the final sentence of the appellate court is pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. This has been the uniform practice, not only in cases of appeal from the District to the Circuit Court of the United States, but in this court also. In prize causes the principle has never been disputed.”*

In The Venus, a prize case, the court says, “ The cause is before us as if in the inferior court.”

Under this rule it is allowable to allege and prove what was not alleged or proved in the court below, f

And, until a decree has been actually made, the court is bound to consider every claim against the fund in court.^ The case stands, therefore, upon the same footing as though the condemnation had not been decreed in the District Court; and the question presented is, whether this court, having a grasp upon the fund, and being called on to make distribution, will not, sitting in admiralty as in equity, make an order of distribution as justice and equity shall appear to require.

The rights of these claimants, as distributees, depend on the force and effect of the several pardons granted them by the President. [The counsel then went into a consideration of the effect of the pardons.]

I. to the claim of Bragdon for the one-sixth.

Giving the fullest effect to the case as stated by the claimant, it is, on its face, a case of enemy property and breach of blockade.

1. The partnership of Cox, Brainard & Co., of which the claimant was a member, was established and domiciled in the enemy country.*

2. Such a partnership is, by the law of war, treated throughout as a hostile establishment, and the whole partnership property is liable to capture and condemnation as enemy’s property, notwithstanding one or more of the partners may be domiciled in a neutral country; à fortiori, if some of the partners are domiciled in one of the hostile countries and the rest in the other, the partnership is hostile, and the partners are also personally enemies, j*

3. The courts of prize, in the language of Lord Stowell, in The Vrow Elizabeth,J regard vessels as having “ a peculiar character impressed upon them by the special nature of their documents, and they have always been held to the character with which they are so invested to the exclusion of any claims of interest that persons living in neutral countries may actually have in them.”

During the war with Russia, Dr. Lushington, in England, had occasion to consider and apply the doctrine enunciated in The Vrow Elizabeth, in the cases of two vessels, The Primus and The Industrie, under the Russian flag, portions of which belonged to Russian subjects, the other shares being owned by neutral Danes.§ These cases both occurred at the eginning of hostilities, and the neutral part-owners were onâfide entitled to their shares at a period antecedent to the war and up to the time of seizure.

He held that the claims were not maintainable, and that the neutral as well as the hostile shares were confiscable; that the flag and pass are binding on all persons having property in the ship; that whoever embarks his property in shares of a ship is bound by the character of that ship, whatever it may happen to be; that where a vessel is sailing under a neutral flag, the captors may show that the property is not neutral, but part of it belongs to an enemy, and in that case you divide it and condemn the part which is hostile, and not that part which is neutral; and that the proposition is not true vice versa, that where a vessel is sailing under a hostile flag you can claim on behalf of the neutral the property under an enemy’s flag; and that no distinction could be made between the flag being adopted prior to the commencement of hostilities, and when there was no reason to suppose that hostilities would have taken place, and the flag being adopted flagrante bello.

These two cases were cases of part-owners, whereas the present case is one of alleged ownership by a partnership, to which the doctrines just stated are, d fortiori, applicable.

4. This court has in recent cases confiscated the interests of Northern persons in vessels engaged in commerce with the rebel ports for illicit trading with the enemy, altogether irrespective of any agency or complicity, on the part of such owners, in the guilty voyages.

In the case of The Pilgrim,* the vessel was owned, two-thirds in New Orleans, and one-third in New York and Connecticut, and was captured for breach of blockade of New Orleans. Grier, J., said that “ the cargo and two-thirds of the vessel were liable to confiscation as enemy property, and the remainder for illicit trading with the enemy.

In the case of The Herald,^ a British vessel was partly owned in New York, and the court held that “ the shares of the vessel owned in New York might be condemned for trading with the enemy, but it is enough that vessel and cargo were equally involved in breach of blockade.’

In neither of these cases was there any imputation of guilty knowledge of the breach of blockade on the part of the loyal Northern part-owners.

5. Admitting the allegation of the partnership and of the ownership of this vessel by the firm at the time of capture, the claimant of course has no interest, right, or share, in any of the property of the firm, except what remains after the discharge and payment of all the debts and liabilities of the partnership, and therefore cannot claim or receive restitution of any particular portion of such property as representing the value of his interest therein.

A court of prize has no means of settling the accounts of the firm and determining the particular interests of the several members in the property. The ownership of this vessel was in the firm, and the resident members at Mobile, who were in possession of her, had authority to divest their own interests, as well as the interest of the Northern member, in virtue of their general power and agency as recognized by the law of partnership.

6. A transfer of the vessel had been effected before the present voyage to other persons, who obtained the register found on board, which divested the interest of the firm who may have owned her before the war. But all interests and rights in both the vessel and the cargo are confiscable for breach of blockade. It is not competent for owner of either vessel or cargo, in such case, to protect his property from condemnation by showing innocence in the transaction. All parties are concluded by the illegal act of the master, though it may have been done without their privity, and even contrary to their wishes. It is the act and intention of the master which determine the guilt or innocence of the property an its liability to confiscation; and this applies equally to vessel and cargo.*

hostile character is impressed upon the vessel by the speci cally hostile character of the trade in which she had

* Baltazzi v. Ryder, 12 Moore’s Privy Council, 184.

402 The William Bagaley. [Sup. Ct

been engaged during the war, independently of the domicile status, or relations of the owners.*

When a vessel is engaged de facto for a period of two years exclusively in the navigation and trade of the enemy’s country, in the possession and control of enemies, and under their flag, the question of ownership does not arise, and she is confiscable in consequence of the hostile taint which such use and employment affix upon the property.

II. As to the petitioners, rebel owners of the five-sixths. Conceding, argumenti gratia, that they had a right to be heard in this court, not having appeared in the other, the effect of the pardon is not sufficiently clear in a case of seizure like the present.!

Mr. Justice CLIFFORD delivered the opinion of the court.

The steamer and cargo were captured as prize of war on the 18th day of July, 1863, and, having been duly libelled and prosecuted as such in the District Court, on the 17th day of August following, they were both condemned as forfeited to the United States. Monition was duly published, but no one appeared as claimant, either for the steamer or cargo. Directions of the decree of condemnation were, that the steamer and cargo, after ten days’ public notice, should be sold by the marshal, and that the proceeds of the sale should be deposited in the registry of the court for distribution, according to law. Return of the marshal shows that the notice was duly given, and that the sale was made as directed by the decree. Proceeds of the sale were paid to the marshal, but before the amount was actually deposited in the registry of the court the appellant filed his petition o intervention, claiming one-sixth of the proceeds, upon the ground that he was the true and lawful owner of one-sixt part of the vessel and cargo. Allegations of the petition o intervention were, in substance and effect, as follows: _

1. That the petitioner was, and for many years had been, a citizen of the State of Indiana; that at the breaking out of the rebellion he was a member of the firm of Cox, Brainard & Co., at Mobile, Alabama; that the partners of the firm, as such, were the sole owners of the steamer and cargo; and that he had never parted with his share or in any way transferred his interest in the partnership

2. That the steamer, after the rebellion broke out. to the time of the capture, was continually in the waters of the rebellious States, and under the control and management of those engaged in the rebellion, which rendered it impracticable and unlawful for him to proceed to the place where the steamer was, or to exercise any control over the steamer or any part of the partnership property.

3. That he was, and always had been, a true and loyal citizen; that he had never given any aid, encouragement or assistance to the rebellion, and that he had no connection with, or knowledge of, the unlawful voyage of the steamer on account of which she was condemned as lawful prize.

4. That some court of the Confederate States, so called, at some time in the year 1862, had condemned and confiscated his interest in the partnership, but he averred that the decree was wholly nugatory and void, and that his interest in the steamer and cargo had never been extinguished or destroyed.

Basing his claim upon these allegations of fact, he prayed t at he might be paid out of the proceeds of the sale one-sixth of the amount required to be paid into the registry of the court. • 5 J

1. Captors contend that the steamer and cargo were both rightfully condemned as enemy property, and also for breach of blockade. Appellant denies the entire proposition as respects his interest in the captured property, and insists that the one-sixth of the same belonging to him cannot properly be condemned on either ground, because he was never domiciled in the rebellious States, and because he never employed the property, either actually or constructively, in any illegal trade with the enemy, or in any attempt to break the blockade.

Projected voyage of the steamer was from Mobile to Havana, and the master testified that she sailed under the Confederate flag. Proofs show that she left her anchorage in the night-time, and that she was captured, as alleged in the libel, after a brisk chase by several of our blockading squadron, more than two hundred miles from the port of departure. When captured, she had on board a permanent register, issued at Mobile under Confederate authority, and which described her owners as trustees of a certain association, and citizens of the Confederate States.

2. War necessarily interferes with the pursuits of commerce and navigation, as the belligerent parties have a right, under the law of nations, to make prize of the ships, goods, and efiects of each other upon the high seas. Property of the enemy, if at sea, may be captured as prize of war, but the property of a friend cannot be lawfully captured, provided he observes his neutrality. Public war, duly declared or recognized as such by the war-making power, imports a prohibition by the sovereign to the subjects or citizens of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country.*

Neutral friends, or even citizens, who remain in the ene-

my country after the declaration of war, have impressed

upon them so much of the character of enemies, that trading

with them becomes illegal, and all property so acquired is

liable to confiscation, j*

Part-owners of ships are seldom partners in the commer-

cial sense, because no one can become the partner of another

without his consent, and because if they acquire title by

purchase, they usually buy distinct shares at different times

and under different conveyances, and even when they are

e builders they usually make separate contributions for

Even where the part-owners of a ship are tenants in common the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of a ship’s husband as managing owner, f Admiralty, however, in certain cases, if no ship’s husband has been appointed, will interfere to prevent the majority from employing the ship against the will of the minority without first entering into stipulation to bring back the ship or pay the value of their shares. But the dissenting owners, in such a case, bear no part of the expenses of the voyage objected to, and are entitled to no part of the profits. Such are the general rules touching the employment and control of ships; but unless the co-owners agree in the choice of a managing owner, or the dissenting minority go into admiralty, the majority in interest control the employment of the ship and appoint the master.^

Tenants in common of a ship can only sell their own respective shares, but where the ship belongs to a partnership one partner may sell the whole ship.§

Open war had existed between the belligerents foi more than two years before the capture in this case was made, and yet there is not the slightest evidence in the record that the appellant ever attempted or manifested any desire to withdraw his effects in the partnership or to dispose of his interest in the steamer. Effect of the war was to dissolve the partnership, and the history of that period furnishes plenary evidence that ample time was afforded to every loyal citizen desiring to improve it, to withdraw all such effects and dispose of all such interests. aPartnership with a foreigner, gays Maclachlan, “ is dissolved by the same event which makes him an alien enemy;” and Judge Story says, t at there is in such cases an utter incompatibility created y operation of law between the partners as to their respect-

ive rights, duties, and obligations, both public and private, an therefore that a dissolution must necessarily result therel<^1’ ^dependent of the will or acts of the parties.”* xecutory contracts with an alien enemy, or even with a neutral, if they cannot be performed except in the way of commercial intercourse with the enemy, are ipso facto disa° ve by the declaration of war, which operates to that end

Purpose with a force equivalent to that of an act of Congress.f ~— ________ wold » °n 475; Story on Partnership, sec. 316: Gris-

t \ngtOn’ 15 Johnson> 57; Sarno case, 16 Id. 438. T xposito v. Bowden, 7 Ellis & Blackburne, 763.

408 The William Bagaley. [Sup. Ct.

Duty of a citizen when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable and adhere to the regular established government. Domicile in the law of prize becomes an important consideration, because every person is to be considered in such proceedings as belonging to that country where he has his domicile, whatever may be his native or adopted country.**

4. Personal property, except such as is the produce of the hostile soil, follows as a general rule the rights of the proprietor; but if it is suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicil, severing those business relations, or disposing of their effects, as matter of duty to their own government, and as tending to weaken the enemy. Presumption of the law of nations is against one who lingers in the enemy’s country, and if he continue there for much length of time, without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy, f

Ships purchased from an enemy by such persons, though claimed to be neutral, are for the same reasons liable to condemnation, unless the delay of the purchaser in changing his domicile is fully and satisfactorily explained. Omission of the appellant to dispose of his interest in the steamer, and his failure to withdraw his effects from the rebellious State, are attempted to be explained and justified, because the same were, as alleged in the petition, confiscated during the rebellion under the authority of the rebel government. More than a year, however, had elapsed after the proclama-

Property suffered so to remain has impressed upon it the character of enemy property, and may be condemned as such or for breach of blockade. Prize courts usually apply these rules where the partnership effects of citizens or neutrals is suffered to remain in the enemy country, under the control and management of the other partners who are enemies. But there are other rules applicable to ships owned under such circumstances which must not be overlooked in this case.

5. Courts and text-writers agree that ships are a peculiar property, and that such peculiarity assumes more importance as a criterion of judicial decision in war than in peace. They have a national character as recognized by the law of nations, because they regularly carry the flag of the nation to which they belong. Evidences of ownership are also peculiar, but vary somewhat according to the laws of the country in which the ships were built, or in which they are owned.* Commercial nations generally have, for the advancement 0 their own individual prosperity, conferred great privileges upon the ships belonging to their own citizens, and, in con-si eration thereof, have imposed upon their owners certain special duties and obligations. Usually they are required to e registered at the home port, and they are not allowed to ai any voyage, foreign or coasting, without such papers as. e aws ^he country to which they belong require.f merican vessels sailing for a foreign port are, in all cases, J^mre^by law to carry a passport, and it is generally ad-

Wheaton’s International Law, by Lawrence, p. 680.

t Abbott on Shipping, 72.

mitted that such a document is indispensable in time of war.* When a ship is captured as prize of war she is bound by the flag and pass under which she sailed. Owners are also bound by those insignia of national character. They are not at liberty when they happen to be evidence against them to turn round and deny the character the ship has assumed for their benefit, f

Established rule is that when the owners agree to take the flag and pass of another country they are not permitted, as matter of convenience, in case of capture, to change the position they have voluntarily chosen, but others are allowed to allege and prove the real character of the vessel. Meaning of the rule is that the ship is bound by the character impressed upon her by the authority of the government from which all her documents issue; and Chancellor Kent says this rule is necessary to prevent the fraudulent mask of enemy’s property.^ Adopting that rule, Dr. Lushington held, in the case of The Industrie^ that the share of a neutral in ownership, though purchased before the war, was subject to condemnation equally with the shares of enemies in the same ship. Principle of the decision is that whoever embarks his property in shares of a ship is in general bound by the character of the ship, whatever it may be, and that principle is as applicable to a citizen, after due notice and reasonable opportunity to dispose of his shares, as to a neutral.||

6. Decision of Lord Stowell, in the case of The Mercurius^ was that violation of blockade by the master affects the ship, but not the cargo, unless it is the property of the same owner, or unless the owner of the cargo was cognizant of the intended violation.

Proofs show that the cargo in this case was the property of the same owners, and, therefore, the case being within the principle of that decision, the cargo must follow the fate

* 1 Stat, at Large, 489. Maude & Pollock on Shipping, 95.

f Story on Prize, 61; The Elizabeth, 5 C. Robinson, 3; The Fortuna, Dodson, 87; The Success, Id. 132. „

t 1 Kent’s Com., 11th ed. 91. § 33 Eng. Law & Fq. || The Primus, 29 Eng. Law & Eq. 589. | 1 0. Robinson, 80.

of the ship. Subsequent cases, however, decided by the same learned judge, appear to have carried the rule much further, and to have established the doctrine in that country that when the blockade was known, or might have been known, to the owners of the cargo at the time when the shipment was made, the master shall be treated as the agent of the cargo, as well as of the ship, and that the former, as well as the latter, is liable to capture and condemnation.* Latest reported decision in that country is that of Bottazzi v. Ryder,] which was heard on appeal before the privy council, and the determination, both in the admiralty court and in the appellate court, was that where the cargo belonged to the same owners as the ship, the owners of the cargo, as well as the ship, were in general concluded by the illegal act of the master.

G-iving full effect to the admissions in this case, the appellant shows no just ground for the reversal of the decree made by the District Court.

8. Appellees are always beard in support of the decree, but they cannot have any greater damages than were assessed in the court of subordinate jurisdiction. Intervenors here, however, are neither appellants or appellees, as they did not appear as claimants in the District Court, and were not in any way made parties to the litigation. Original jurisdiction in prize, as well as in all other admiralty causes, is vested exclusively in the district courts. Property captured, where appeals are allowed to the Circuit Court, follows the cause into that court, but it does not in any case follow the cause into this court, because this court has no original jurisdiction in such cases.f

Evidently the application in this case is in its nature original, and not appellate, and it is well settled that this court has no original jurisdiction in prize causes.^ Such an application cannot be first presented in this court and allowed, because it would be assuming jurisdiction not granted either by the Constitution or the laws of Congress.

Petition of intervention is dismissed, and the

Decree of the District Court affirmed.