1. When the record presents a case in this Court which has been
prosecuted exclusively as prize, the property cannot be here
condemned as for a statutory forfeiture.
2. When the record presents a case prosecuted below on the
instance side of the court, for forfeiture under a statute, it
cannot here be condemned as prize.
3. In either of these cases, if the facts disclosed in the
record justify it, the case will be remanded to the court below for
a new libel, and proper proceedings according to the true nature of
the case.
4. In the present case, which was prosecuted as prize of war
exclusively, the facts did not prove a case of prize, nor did they
show a probable case of violation of any statutes. A decree of the
court below dismissing the libel and restoring the property was
therefore affirmed.
5. Permits granted during the late rebellion by the proper
licensing agents to purchase goods in a certain locality, are
prima facie evidence that the locality is properly within
the trade regulations of that department.
On the 15th of April, 1864, the steamer
A. G. Brown was
boarded in the Atchafalaya River while on her way to Brashear City,
by the United States gunboat
Wyanza, Captain
Page 72 U. S. 63
Washburne, and after some investigation the cargo of the Brown
was pronounced prize of war. She followed the gunboat into Brashear
City, her cargo was landed there, and put on the railroad which
connects that place with New Orleans, and sent to the latter city
in charge of a person calling himself a prize master. No attempt
was made to detain the
A. G. Brown. About a week
afterwards she landed at Brashear City, on her return from another
expedition, and as soon as she touched the shore, Captain Washburne
came on board of her, declared her cargo prize of war, and sent
that also to New Orleans by railroad. These cargoes consisted of
sugar and molasses.
At New Orleans the first cargo arrived in two installments. On
the arrival of the first, a libel was filed against it, in prize,
in the District Court for the Eastern District of Louisiana by the
attorney of the United States for that district. Shortly after this
the second installment of the first capture, and all of the second
capture, arrived at New Orleans, whereupon an amended or
supplemental libel,
equally in prize, was filed against
all the goods of both seizures.
The property, on its arrival, was placed in the hands of prize
commissioners, depositions
in preparatorio were taken, and
the litigation pursued and ended as if it were a single capture. It
was only by the most diligent search of the record that one was
enabled to discover what goods were taken in the first capture and
what in the second.
As soon as the case was fairly begun in the district court, C.
A. Weed filed his claim for the sugar and molasses of the first
capture, alleging that he was the owner of it; that he was a loyal
citizen of New Orleans; that he had purchased the property in the
Parish of
St. Mary, Louisiana, under a license from the
proper Treasury agents, and was transmitting it to New Orleans,
when it was seized. F. Blydenburgh filed a claim, with similar
statements, for the sugar of the second capture, stating, however,
that he had bought it under a license which authorized him to
"transport the same from the Parish of
St. Martin's." Both
claims, which were sworn to, were quite full in stating the
circumstances connected
Page 72 U. S. 64
with the purchases and loyalty of the region where made and
through which the property passed.
During the progress of the case, the claimant made a motion to
dismiss the proceedings in prize, and transfer the case to the
instance side of the court. This motion was disregarded, but, on
final hearing, the district court dismissed the libel and ordered
restitution of the property. From that decree the United States
appealed to this Court.
The vessel on which the goods were seized was the
property of the government of the United States, in the employment
and control of the quartermaster's department of General Banks'
army at the time of the seizure -- the government receiving $3,000
for the use of the vessel. An officer of this department
accompanied the expedition, which went from Brashear City for the
goods, and was on board when she was overhauled by the gunboat. The
vessel was manned by officers and men in the service of the
government. There was also on board a file of United States
soldiers, under the command of a captain of the army, who were
detailed for the expedition by order of the colonel in command. The
only person known to be on board not in the service of the
government was the person who acted as agent for the claimant of
the goods. Brashear City was in possession of our forces, and had
been for several months, and the vessel was only returning to her
proper place when she was captured in the first instance, and was
lying there when boarded in the second. Her voyage did not in
either case extend beyond the region of country which was under the
control of the military authorities of the government at that
time.
As to the cargoes.
Weed's had been brought from the Parish of St. Mary.
Blydenburgh's came from the Parish of St. Martin on the shore of
the Grand River, a little below a place called Butte la Rose. The
Grand River was apparently the boundary between the two parishes.
The district is on the Gulf of Mexico, and is indented on the Gulf
side by several bays, with numerous islands, creeks &c.,
divided by two or three
Page 72 U. S. 65
navigable rivers, broken by swamps and lakes and traversed in
every direction by numberless bayous and watercourses, facts which
rendered the absence of a public enemy a fact not so easy to be
ascertained.
It appeared, however, in this case that the district was in the
control of the United States; that the President had designated by
proclamation, on the 1st of January previous, the Parish of St.
Mary and apparently the whole region through which that cargo was
to pass as not in rebellion. Various places in the Parish of St.
Mary had been named by the commanding general as the places where
delegates from the state were to assemble on the 22d February,
1864, to appoint state officers, and on the first Monday of April
following, to make a state constitution.
The licenses, which were produced in court and had all usual
indicia of regularity, were to purchase within "the
country known as the Parish of St. Mary, Louisiana," and both had
at the top of them the words, "This permit will accompany the
shipment, and be surrendered at the customhouse." No papers were
found with the goods.
Page 72 U. S. 66
MR. JUSTICE MILLER delivered the opinion of the Court.
If this case is to be disposed of here upon the answer to be
given to the question of prize or no prize, there can be no doubt
that the decree of the district court must be affirmed.
There can on the facts be no pretense that there was any attempt
to break a blockade, nor can it be held that the cargoes were enemy
property. No person hostile to the United States is mentioned in
argument or otherwise as probable owner of any part of them. Can
the places from
Page 72 U. S. 67
which the goods were brought impress upon them the character of
enemy property? They were the products of those islands of
Louisiana found in the bayous of that region, and were undoubtedly
taken by the vessel from near the places of their production. These
places, as we have seen, were under the military control of our
authorities, and the Parishes of St. Mary and St. Martin were then
represented in a convention of loyal citizens, called to frame a
constitution under which a government was organized for the state
hostile to the rebellion and acceptable to the military commander
of that department.
The regularly authorized agents of the Treasury Department were
also issuing licenses to trade in these parishes under the act of
July 13, 1861, and the regulations of the Treasury Department made
under that act and other acts of Congress. It is not possible to
hold, therefore, that property arriving from these parishes was for
that reason alone to be treated as enemy property in the sense of a
prize court.
Whether it is liable to forfeiture for an illegal traffic, as
being in violation of those regulations and acts of Congress, will
be considered hereafter, but the question must be determined upon
other considerations than those which govern a prize court.
The question of prize or no prize must therefore be answered in
the negative.
But it is said in behalf of the government that if the property
in controversy is not subject to condemnation as prize of war, it
is liable to confiscation as having been purchased in violation of
the acts of Congress and the trade regulations established in
pursuance of those acts.
Before entering upon this inquiry a preliminary question of some
importance presents itself which must be first disposed of.
The pleadings, the testimony, and the conduct of the case have
been governed exclusively, from its commencement, upon the idea of
prize proceedings. The libel is a very general allegation of
property captured as prize. Not a word is found in the pleadings of
the case which alleges any
Page 72 U. S. 68
fact rendering the property liable to confiscation under the
acts of Congress. A large part of the testimony consists of
depositions taken
in preparatorio, where the claimants had
no opportunity of cross-examination. If, under these circumstances,
there is found in the testimony sufficient evidence to convince us
that the property is liable to statutory confiscation, can we
condemn it in this proceeding? Or, if we cannot condemn, must we,
on the other hand, restore it to the claimants?
It would seem to violate all rules of pleading as well as all
the rules of evidence applicable to penal forfeitures to hold that
in such circumstances we can proceed to condemnation. The right of
the claimant to be informed by the libel of the specific act by
which he or his property has violated the law, and to have an
opportunity to produce witnesses and to cross-examine those
produced against him, are as fully recognized in the admiralty
courts in all except prize cases as they are in the courts of
common law.
In the case of
The Schooner Heppet, [
Footnote 1] the vessel was proceeded against
for a forfeiture under the act to interdict commercial intercourse
with France, and this Court, by C.J. Marshall, said that the first
question made for its consideration was whether the information
would support a sentence of condemnation. After stating the
substance of the pleading and the rule which governs the common law
courts, he proceeded:
"Does this rule apply to informations in a court of admiralty?
It is not contended that all those technical niceties, which are
unimportant in themselves, and standing only on precedents of which
the reason cannot be discerned, should be transplanted from the
courts of common law in a court of admiralty. But a rule so
essential to justice and fair proceeding as that which requires a
substantial statement of the offense upon which the prosecution is
founded must be the rule of every court where justice is its
object, and cannot be satisfied by a general reference to the
provisions of the statute."
He then asked if this defect of the
Page 72 U. S. 69
pleading could be cured by any evidence showing that in point of
fact the vessel and cargo were liable to forfeiture, and held that
it could not.
In the case of
The Brig Caroline, [
Footnote 2] this case is affirmed and the
principle applied to a libel filed against a vessel for violating
the act of Congress concerning the slave trade. [
Footnote 3]
The claimants, on the other hand, insist that as the evidence
does not sustain a case within the prize jurisdiction of the court,
the libel must be dismissed and the property restored.
This might be true if the prize court of this country was a
court sitting under a special commission, as it is in England, for
that commission must then be the limit of its power. But such is
not the case here. The district court holds both its prize
jurisdiction and its jurisdiction as an instance court of admiralty
from the Constitution and the act of Congress, and it is but one
court, with these different branches of admiralty jurisdiction as
well as cognizance of other and distinct subjects.
The case of
Jecker v. Montgomery, [
Footnote 4] in this Court, is instructive, if not
conclusive, on the point we are now considering.
In that case, Captain Montgomery had, during the Mexican war,
taken as prize the
Admittance, an American vessel, and her
cargo for illegal trade with the enemy on the coast of California.
He had carried his capture before a court claiming prize
jurisdiction in that region, organized by the authority of the
commanding general, and she was by that court condemned and sold.
After this, the owners of the vessel and cargo filed a libel in
admiralty, in the instance side of the court, in the District of
Columbia, against the captor, alleging that the capture was
wrongful and the condemnation illegal, and they prayed for
restitution of their property or that Captain Montgomery might be
compelled
Page 72 U. S. 70
to bring the captured property into that court, or some other
court of competent jurisdiction, and institute there the proper
proceeding for its condemnation. Captain Montgomery answered and
insisted that his capture was lawful prize and that the proceedings
in the prize court in California were valid. Demurrers to the
answer were filed, and on these pleadings the libel was
dismissed.
On appeal to the Supreme Court it was held that the prize court
of California was without authority and its decree void. But
although the parties were before the court, and sufficient cause
for the capture was stated in the answer and sufficient excuse
shown for not proceeding to a valid adjudication -- all of which
was admitted by the demurrer of the claimants -- this Court
reversed the decree dismissing the libel, and remanded the case,
with directions that the captor should institute proceedings in
prize for the condemnation of his capture, and if he did not do so
within a reasonable time, the court should proceed against him on
the libel of claimants for a marine trespass.
The court said that
"the necessity of proceeding to condemnation in prize does not
arise from any distinction between the instance court of admiralty
and the prize court. Under the Constitution of the United States,
the instance court of admiralty and the prize court of admiralty
are the same court, acting under one commission. Still, however,
the property cannot be condemned as prize under this libel, nor
would its dismissal be equivalent to a condemnation, nor recognized
as such by foreign courts. The libellants allege that the goods
were neutral, and not liable to capture, and their right to them
cannot be divested until there is a sentence of condemnation
against them as prize of war. And, as that sentence cannot be
pronounced against them in the present form of the proceeding, it
becomes necessary to proceed in the prize jurisdiction of the
court, where the property may be condemned or acquitted by the
sentence of the court, and the whole controversy finally
settled."
In that case it was determined that the case must be remitted to
the court in prize because, under the libel and
Page 72 U. S. 71
mode of proceeding in the instance side of the court, the
question of prize or no prize could not be definitely settled. The
case before us is the converse of that. We have here a case where
all the proceedings are in prize, and according to the mode of
proceeding in prize courts, but the case for the government, if it
can be sustained at all, is not a case of prize, but of forfeiture
under municipal law. We think the reasons are quite as strong why
this Court should not condemn the property in this proceeding, even
if liable to forfeiture on the facts, as they are for refusing to
condemn a prize on a libel filed on the instance side of the court.
What, then, shall be done with the property if the facts in the
record prove a liability to forfeiture under the statute?
In the case of
The Schooner Adelaide, [
Footnote 5] where this precise question was
raised, it was not found necessary to decide it, because, the
proceeding being in prize, this Court held that the facts proved it
to be a prize case. But Mr. Justice Story, in delivering the
opinion of the Court, responding to the argument that the case was
salvage and not prize, and therefore the libel should be dismissed,
said:
"If indeed there were anything in this objection, it cannot in
any beneficial manner avail the defendants. The most that could
result would be that the case would be remanded to the circuit
court with direction to allow an amendment of the libel. Where
merits clearly appear on the record, it is the settled practice in
admiralty proceedings not to dismiss the libel, but to allow the
party to assert his rights in a new allegation."
This practice was also followed in the case of
Mrs.
Alexander's Cotton. [
Footnote
6] In that case, the cotton had been libeled as prize of war.
This Court was of opinion that it was not a case of prize, but that
it came within the statute covering captured and abandoned
property. The Court did not, for that reason, affirm the decree of
the district court, which had restored the property or its proceeds
to Mrs. Alexander, but reversed that decree and remanded the case
to the district
Page 72 U. S. 72
court that it might dispose of the proceeds of the sale of the
property, then in the registry, according to the opinion of the
court.
Our inquiries into this subject, guided and supported by the
decisions of this Court, lead to the establishment of two
propositions:
1. That when a case has been prosecuted as prize in the modes in
use in the prize courts which the facts in the record show not to
be prize, but a case of forfeiture under statute, this Court will
remand the case for further proceedings in the court below.
2. That where a case has been in like manner prosecuted in the
instance court which, on the facts presented, this Court is of
opinion is a case for a prize court, it will be remanded for
proceedings in prize.
We have already seen that the present is not, on the facts, a
case of prize. The first of the above propositions establishes the
rule that we cannot, under this proceeding, condemn the property
for a forfeiture under the statute. It remains to be determined
whether we shall affirm the decree of the district court restoring
the property or remand the case for further proceedings on the
question of municipal forfeiture. For this purpose we must examine
for a moment the testimony before us.
We have already seen that the goods were purchased in those
parishes of Louisiana which were occupied by our military forces
and which were under their control, and which were also represented
in the effort to establish a loyal state government. It also
appears that the legally appointed agents of the Treasury
Department were in the habit of issuing permits to trade in those
parishes.
The claimants allege that they made the purchases under licenses
obtained from these agents, that they were fair and honest
transactions, and that they themselves are loyal citizens of New
Orleans. The facts of the purchase are stated with particularity
and under oath. The permits or licenses are produced and filed in
court, and seem to us to be regular
Page 72 U. S. 73
in form and properly issued. It cannot be supposed that this
Court can take judicial notice of the varying lines of the federal
army of occupation in those remote regions, but the fact that the
proper officers issued these permits for certain parishes must be
taken as evidence that they were properly issued until the contrary
is established. The facts also that the goods were brought in by a
government vessel, for the use of which government received $3000,
commanded by government officers and guarded by government troops,
ordered for the purpose by the post commander, are circumstances
not to be disregarded in a matter of this kind.
It is objected that the permits were not found with the goods,
as the regulations direct. This was merely directory, and would not
of itself work a forfeiture of the goods. But they probably were on
board with the goods when the latter were seized, and the holder of
them may have felt justified in not delivering this evidence of his
good faith to a gentleman who seemed willing to let the vessel do
all she could in this traffic, so long as he could stand on the
shore when she landed her goods and seize them as prize of war.
It is said there is no proof identifying these goods as those
purchased under the permits, but the affidavits of claimants are
full to this point and are uncontradicted by any testimony in the
record. Other witnesses also prove the purchase and payment of
these goods by Weed about the time mentioned in the first of two
permits issued to him.
It is said that Blydenburgh's permit was to purchase in the
Parish of St. Mary, and that his purchase was made in the Parish of
St. Martin. It is not shown precisely where the purchase was made.
The sugar was taken from the shore of Grand River, a little below
Butte la Rose. This Grand River seems to be the boundary between
the Parishes of St. Mary and St. Martin. However there seems no
reason to suppose that Blydenburgh intended to violate the terms of
his permit, nor sufficient proof that he did so, in making his
purchase. There is much contradictory testimony as to the existence
of guerrillas near where the sugar was obtained about the time of
its transportation, but this would seem
Page 72 U. S. 74
to show the necessity for its speedy removal if the purchase had
been honestly made.
On the whole, we see no reason to suppose that a case of
forfeiture would be made out by the testimony on another trial, as
much of that taken
ex parte by the captors would probably
be modified favorably for the claimants on cross-examination.
The decree of the district court is therefore.
Affirmed.
[
Footnote 1]
11 U. S. 7 Cranch
389.
[
Footnote 2]
11 U. S. 7 Cranch
496.
[
Footnote 3]
See also The Samuel, 1
Wheat. 9;
The Mary Anne,
8 Wheat. 380.
[
Footnote 4]
54 U. S. 13 How.
498.
[
Footnote 5]
13 U. S. 9 Cranch
244.
[
Footnote 6]
69 U. S. 2 Wall.
404.
