The Gray Jacket
72 U.S. 342

Annotate this Case

U.S. Supreme Court

The Gray Jacket, 72 U.S. 5 Wall. 342 342 (1866)

The Gray Jacket

72 U.S. (5 Wall.) 342

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF LOUISIANA

Syllabus

1. The proclamation of President Lincoln made December 8, 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.

3. A remission by the Secretary of the Treasury under the Act of July 13, 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 (§ 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 3 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 its 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 of the country of the captors, it is nevertheless as much liable to condemnation as if owned by a citizen or subject of the hostile country or by the hostile government itself. The only qualification of these rules is that where, upon the breaking out of hostilities or as soon after as possible, the owner escapes with such property as he can take with him or in good faith thus early removes his property with the view of putting it beyond the dominion of the hostile power, the property in such cases is exempt from the liability which would otherwise attend it.

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

7. An order for further proof in prize cases is always made with extreme

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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.

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 31 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 preparatorio on the standing interrogatories. These were all the witnesses thus examined.

In reply to these interrogatories, Meaher, the captain, stated that he was born in Maine, but had lived thirty years in Mobile. "I am a citizen," he continued, "of the State of Alabama, to which I owe my allegiance." He stated that the vessel came out of harbor with the American flag flying; that he was owner of the vessel and of the cargo; "that the voyage began at Mobile, and was to have ended at Havana;" that in case the vessel had arrived there, he thought that he should have reshipped the cargo to some place where he could have received a better price for it than he could in Havana.

Flynn, the mate, examined after Meaher had been, made the same statement as to the destination of the vessel and cargo. He stated, however, that the vessel sailed "under

Page 72 U. S. 344

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 bona 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 Mobile 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 withdrawal of his property from the limits of the so-called Confederacy. "

Page 72 U. S. 345

"And he now avers the truth to be that his right of property in the said steamer and in her cargo, which was full 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 8th 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. officer, acting for the gover't of the C.S.:"

"The gover't 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

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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

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