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Opinion of the court.

"be for

vessel or vehicle conveying the same," feited 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 AttorneyGeneral 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

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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 domicili, 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 sub

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Statement of the case.

ject of the hostile country cr 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 hos tile 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.

THE GRAY JACKET

(MOTION.)

As a general rule, where the United States is a party to a cause and is repre. sented by the Attorney-General, or the Assistant Attorney-General, or by special counsel employed by the Attorney-General, no counsel can be heard in opposition on behalf of any other of the departments of the government.

The rule departed from in this instance, the circumstances being special.

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

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

Opinion of the court.

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

Before the case came to be finally argued in conclusion

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

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

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

Statement of the case.

THE HAMPTON.

1. In proceedings in prize, and under principles of international law, mortgages on vessels captured jure belli, are to be treated only as liens, subject to being overridden by the capture, not as jura in re, capable of an enforcement superior to the claims of the captors.

2. Neither the act of July 13th, 1861, providing (25) 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; but providing also (8) that the forfeiture may be remitted by the Secretary of the Treasury, &c.; nor the act of March 3, 1863, "to protect the liens upon vessels in certain cases," &c., refers to captures jure belli; and neither modifies the law of prize in any respect.

AN act of Congress of July 13, 1861,* passed during the late rebellion, enacted that goods, chattels, wares, and merchandise coming from or going to a State or section in insurrection, by land or water, along with the vessel in which they were, should be forfeited,-but gave the Secretary of the Treasury a right to remit. And another, passed March 3, 1863,†"that in all cases now, or hereafter pending, wherein any ship, vessel, or other property shall be condemned in any proceeding, by virtue of the acts above mentioned, or of any other laws on that subject, the court rendering judgment shall first provide for the payment of bonâ fide claims of loyal citizens."

In January, 1863, the schooner Hampton and her cargo were captured by the United States steamer Currituck in Dividing Creek, Virginia, and having been libelled in the Supreme Court for the District of Columbia, were condemned as prize of war. The master of the vessel was her owner, but interposed no claim; nor did any one claim the cargo. One Brinkley, however, appeared and claimed the vessel as mortgagee. The bona fides of his mortgage was not disputed; nor that he was a loyal citizen. But it was set up that neither by the laws of war nor under the acts of

* 12 Stat. at Large, 256.

† Id. 762.

Argument in support of the claim.

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

Mr. W. S. Waters, for the appellant and in support of the mortgage claim:

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

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

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

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

But finally, the act of March 3, 1863, is applicable, whatever ground of forfeiture may be assumed. The vessel, it will hardly be denied, was condemned by virtue of laws ap plicable to the rebellion; and the act provides, that out of

* Conard v. Atlantic Ins. Co., 1 Peters, 441-447; Thelusson v. Smith, 2 Wheaton, 396.

The Sally Magee, 3 Wallace, 451; The Tobago, 5 Robinson, 194, The Marianna, 6 Id. 24.

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