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

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U.S. Supreme Court

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

The Gray Jacket

72 U.S. (5 Wall.) 342

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

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