The Gray Jacket - 72 U.S. 342 (1866)


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

Page 72 U. S. 343

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

Page 72 U. S. 346

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 6d. 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 less on the inward cargo is to be settled on the principle 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 8, 1863, referred to in the answer, and by which the said President, reciting that it was desired by 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 in property cases where rights of third parties shall have intervened, and upon the condition that every such person shall take and 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.

All these proceedings, including the giving in evidence

Page 72 U. S. 347

of the paper above-named found on board, took place 5 April, 1864. On the 25th May following, the claimant made a new affidavit, which was subsequently filed. It presented a narrative as follows:

"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."

"And he further says that after the breaking out of the rebellion, he was anxious to adopt some course by which he might be enabled 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 it 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, well known to several of his confidential friends, he built the said steamer Gray Jacket with his own means, with the design of lading her with cotton belonging to himself; that while he was engaged in building said steamer, and she was approaching completion, the Confederate authorities at Mobile manifested a determination to make use of the steamer to advance their own purposes, and proposed to load her with cotton furnished by them and to give him one-half of the cargo as the owner of the steamer on condition that the other half was landed at Havana, free of charge for freight, and that he would bind himself to return to Mobile or to some other Confederate port, and give to the so-called Confederate government a certain portion of the carrying capacity of the said steamer on certain terms and conditions; that situated as he was, with his property and himself and his family in the power and under the control of the rebel authorities, he had no freedom

Page 72 U. S. 348

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 being 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 neither the so-called Confederate States or any person or persons in rebellion against the United States or their factors or agents or any others had at the time of the shipment of the said cotton on the said steamer Gray Jacket or at the

Page 72 U. S. 349

time of the capture of the said steamer on the 31st day of December, 1863, or now have any right, title, or interest in the said cotton or in the said steamer Gray Jacket."

"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 his 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. <|72 U.S. 344|>344-345.]

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 order to take further proof, its purpose being, in effect, to establish the truth of the facts set forth in the second affidavit of the claimant; to show also in substance:

"That he sailed out past Fort Morgan in the evening of the 30th of December with the full intent to deliver himself up to the blockading squadron if he met it or, failing to do so, to go to Havana; that during the night, his vessel was partially disabled, bursting a steam pipe, but he refused to return to Mobile,

Page 72 U. S. 350

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 while 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 acquitted 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 13, 1861.

This act, it is necessary to state, declares (§ 6) that any vessel belonging, in whole or in part, to any citizen or inhabitant of a state whose inhabitants were declared to be in a state of insurrection [as those of Alabama had been declared], "found at sea," should be forfeited to the United States; and also, by another section (§ 5),

"All goods and chattels, wares and merchandise, coming from said state or

Page 72 U. S. 351

section, into the other parts of the United States, . . . by land or water, together with the vessel or vehicle conveying the same."

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 21, 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, in 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 &c., 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 remission, set forth that Meaher

"would satisfy the honorable Secretary of the Treasury that he was a loyal man attempting to escape from the Confederacy, which he had never aided with his property [and to take the same into the loyal states, by

Page 72 U. S. 352

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 of 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?

Page 72 U. S. 365

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.

Flynn, the mate, was also examined. According to his affidavit, she sailed under English colors; her machinery had broken down, and she was in a disabled condition when captured. He says,

"She was taken running the blockade. . . . The owners of the vessel were Captain Meaher and brother. . . . They also owned half the cargo. The balance was for Confederate government account. . . . I know the Gray Jacket, on the trip on which she was captured, had attempted to sail covertly and secretly from Mobile, then under a blockade. She could not have left otherwise than secretly. . . . J. M. and T. Meaher

Page 72 U. S. 366

owned the vessel and half the cargo. The Confederate government owned the other half."

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 ordered the paper to be stricken from the files, but gave him leave to file an affidavit, which was accordingly done on the 29th of August following. This affidavit sets up an entirely new state of facts. According to its averments, he never sympathized with nor gave any aid to the rebellion; the steamer was built to enable him to get away with as much as possible of his property; he did not take his family with him, lest it might excite suspicion and defeat his object; the rebel government furnished none of the cotton

Page 72 U. S. 367

with which his vessel was laden; he was compelled to agree that one-half of it should be taken on account of that government, and also to assent to the provisions of the contract with the rebel military agent; otherwise he would not have been allowed to depart; it was his intention, upon reaching Havana, to claim all the cotton as his property and to appropriate the proceeds entirely to himself; on the 18th of March, 1864, he took the oath prescribed by the President's proclamation of the 8th of December, 1863; he is not within any of its exceptions, and is entitled, by its provisions, to the restoration of the property.

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.

The propriety of making an order for further proof.

And 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 answers are obvious and conclusive.

There is no satisfactory proof that the claimant is not in

Page 72 U. S. 368

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 subject 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 order of the Secretary of the Treasury does not affect the case. It is limited in its terms to the rights of the United States arising from forfeiture under the Act of July 13, 1861. That act provides "that all goods and chattels, wares, and merchandise, coming from a state or part of a state in rebellion" into the other parts of the United States "by land or water . . . shall, together with the

Page 72 U. S. 369

vessel or vehicle conveying the same . . . be forfeited to the United States." It contains nothing as to goods and vessels going from a rebel to a foreign or neutral port.

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 I 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 by 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 is void. He 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 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

Page 72 U. S. 370

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.

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.

* 12 Stat. at Large 255.



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