The D. Sargeant.

THE SLOOP D. SARGEANT AND CARGO.

The decision of the Supreme Court in The Prize Cases, (2 Black, 635,) as to the questions of war and blockade, applied to this case.

A citizen of a State in insurrection has, legally, no locus standi in a court of the United States, to contest a prize seizure.

Effect of a claim and answer in a prize suit, put in and verified by an agent, and not by the owner. Vessel and cargo condemued for a violation of the blockade.

(Before BETTS, J., December, 1863.)

BETTS, J.: The vessel and cargo in this case were captured March 12, 1863, off Galveston, by the United States vessel-of-war Kittatinny, as lawful prize. The vessel, as being unseaworthy, was sent into New Orleans, and was left there, after being appraised and valued at $1,500. Her cargo was transmitted to this district for adjudication, and was here arrested, by due process of law, and proceeded against for condemnation, in the present suit.

The libel was filed May 12, 1863. The warrant and monition issued thereon were returned by the marshal duly served June 2, and an answer and claim on the part of the claimant was filed June 16 thereafter.

Two broad lines of defence are assumed by the claimant in his pleadings. He asserts his absolute exemption from liability to the arrest and prosecution of his vessel and cargo as prize, for the reasons, first, "that no war existed between the United States and any other people or nation or power, whereby any forfeiture or condemnation of the said vessel or cargo has been incurred;" and, second, that “no blockade of any port or ports existed or was known to the claimants, whereby the vessel and cargo were liable to any seizure, capture, or condemnation."

It is sufficient to observe, upon these points of defence, that, contemporaneously with the unlawful conduct of the vessel and cargo. pursued and directed through the personal agency of the claimant, the Supreme Court of the United States declared and pronounced each and every of these positions of the claimant to be erroneous and utterly fallacious in judgment of law. (The Prize Cases, 2 Black, 635.)

The express denial, in the answer, "that the vessel, at the time of her capture, was attempting to violate any blockade, or any proclamation by which any blockade had been established, demands no inquiry or consideration by the court, since the owner and master of the vessel testifies, on his preparatory examination, that he knew that the port of Galveston was under blockade, and that he intended, on this voyage, to elude that blockade if he could. He could scarcely hope

The D. Sargeant.

to cover that culpability by asserting that he came out of one of the passes of the harbor, and did not see either of the blockading vessels at the time.

The other witness, Brown, states the matter with more openness. He says that he knew that Galveston was blockaded; that he saw the blockading vessels off the bar; that when he shipped he knew it was the intention to run out and elude the blockading vessels; and that the vessel ran out of the St. Louis pass, and did not see any of those vessels at the time.

Both of the witnesses testify that the vessel came out of Galveston under the confederate flag. The vessel and cargo were purchased by the claimant in Texas, in February, 1863. The register of title was executed to him by the confederate government, February 27, 1863, on his own oath of citizenship and ownership, in Texas. This appears upon the face of the register. So, also, the bill of sale of the vessel, dated in Houston, Texas, February 18, 1863, conveys the vessel to the claimant, who is described therein as of that place, for the consideration of $8,000. The shipping articles or agreement signed by the claimant February 17, 1863, as master, and by the crew, stipulate for a voyage to Honduras, or for a market, "and back to a port or place in the Confederate States of America." Those articles are certified, on the back of them, by the collector of Galveston, February 28, to be a true copy of the original then on file in his office. The master filed the manifest of his cargo, and obtained the clearance of his vessel at the custom-house at Galveston, on the same day. He testifies that he had no other than confederate colors and papers on board, and that he sailed out under a military pass from Houston. He asserts himself to be a native of Copenhagen, in Denmark, and says that his home for the last twenty years has been in New Orleans during the winter, and in the northern States during the summer. His own oath to his being a citizen of Texas, taken at Houston, on obtaining a registry of this vessel to himself, in February, 1863, concludes him as to the fact that he was then a citizen of an insurrectionary State, and an enemy of the United States. The claim interposed in his name would, accordingly, be a void paper, as he has legally, being a rebel, no locus standi in a court of the United States, to contest a prize seizure. But, furthermore, the claim filed in this case was interposed by an agent of the owner of the vessel and cargo, who does not assume to have personal knowledge of the facts he suggests; and the statement and attestation

The D. Sargeant.

by way of test oath thereto, in that method, inures in no way as evidence, nor does it amount to more than an argument by counsel on the instructions of the principal party. The court is not thereby called upon to moot the point whether such suggested circumstances would constitute a defence to the suit under the doctrines of international law.

The counsel for the claimant refers to a decision of the circuit court at the present term, in the case of The United States v. The General C. C. Pinckney, reversing a decision rendered in this court in the year 1862, in an analogous case. It appears, however, that the principle of law adopted by the district court was not discountenanced by the appellate court, but that the judgment was placed upon the further proofs introduced into the case after its appeal. The report of the new decree does not set forth the facts upon which the circuit court ultimately acted. It is needless for this court to remark, that if it were made to appear that this suit comes before this court with the same features presented by the one carried to the circuit court, the judgment of the latter would be entirely conclusive over this tribunal. Certainly, in a leading particular, the cases differ. The proof which controlled in the case of The C. C. Pinckney was accumulated evidence, as noticed in the decision of the appeal, demonstrating, beyond question, that the honest purpose of the claimant was to remove entirely his family and effects out of the rebel country so soon as the war was set on foot; whilst, in this case, there is not an iota of proof, written or oral, that the claimant had any other motive for the voyage he undertook, than to realize the advantage of a probably profitable mercantile adventure. He sought a neutral market for his cargo, and pledged himself, in the adventure, to return, with his vessel, within the Confederate States. -The defence puts no other aspect upon the enterprise than that of a bold daring by the claimant of the hazard of running an efficient blockade of Galveston, with the enemy flag displayed, and, perhaps, the aid of the obscurity of night, or the use of greater dexterity and speed in the movements put forth than would be employed against his effort. The defence does not indicate that the claimant was seeking the protection and security of a friendly hand to favor his enterprise, for, on the record, he contemns all authority or right on the part of the United States to take cognizance of his open and flagrant violation of the blockade in this attempt. Only on being arrested in committing the guilty act does he assume the bearing of an oppressed man seeking to fly from rebel tyranny, and to shelter himself and his property under

The Hattie.

the guardianship of the United States. The avowal of that intention is suspiciously late.

I am of opinion that the case is a clear one for the condemnation and forfeiture of the vessel and cargo.

Decree accordingly.

THE SCHOONER HATTIE AND CARGO.

After condemnation of the vessel and cargo, the decree as to the vessel was opened, by consent, on the application of loyal owners of the vessel, who showed that she had been previously captured from them by a privateer of the enemy. The court ordered the vessel to be restored to such owners on payment of one-eighth of her value, as salvage, to the captors.

(Before BETTS, J., December, 1863.)

BETTS, J.: The above-named vessel and cargo were captured as prize, June 21, 1863, at sea, off the harbor of Wilmington, North Carolina, by the United States war steamer Florida. On the 3d of July, 1863, both were libelled in this court, and were, by due process of law, condemned as forfeited, on default, by a regular decree of the court, July 21, 1863.

On the 17th of December instant, by consent of the United States attorney, the default as to the vessel was vacated in court, with leave that Thomas Hillyard and others might appear and make proof that they are loyal owners of the vessel, and that the same was captured at sea, as prize of war, by the Retribution, an armed vessel cruising under the authority of the Confederate States, and was appropriated to their use, and that, when seized in this suit, she was navigated in the interests of the said Confederate States, and that said Hillyard and associates might be permitted to intervene against the proceeds of the said vessel realized in this suit, and claim the same, on the allowance of lawful salvage to the captors of said vessel, the libellants in this suit. Pursuant to such consent the said Hillyard and others have this day filed their claim in this suit, alleging that they are bona fide owners of said vessel, and that she was seized and captured from them by a vessel called the Retribution. It is conceded, in writing, by the United States attorney, "that if the claimants establish their ownership of the said vessel by proper evidence, they will be entitled to the restoration of the said vessel to them upon payment of one-eighth of her value, as salvage."

The evidence presented to the court under the above claim consists of a copy of the register of the vessel made at the port of Boston,

The Banshee.

Massachusetts, November 7, 1860, to the claimants; the deposition of James T. Sparks, of Provincetown, Massachusetts, sworn to October 19, 1863, before a notary public; and the deposition of one of the claimants, Thomas Hillyard, taken before a notary public December 17, 1863, the assistant of the United States attorney being present and cross-examining the witness. No objection is made on the part of the United States to the competency and sufficiency of the said evidence to that end, and the proctors for the claimants having moved the court for a decree of restitution of the said vessel to them, the court is satisfied, upon the proofs aforesaid, that the claimants are loyal citizens of the United States, and are the true and bona fide owners of the said prize vessel, recaptured by the United States war vessel Florida.

It is, therefore, ordered and decreed, that the said schooner Hattie be restored to the claimants, on payment by them of one-eighth of the value of the said vessel.

THE STEAMER BANSHEE AND CARGO.

Vessel and cargo condemned for an attempt to violate the blockade.

(Before BETTS, J., December, 1863.)

BETTS, J.: The above-named steamer Banshee and her cargo were libelled in this court December 1, 1863, charged with being rightfully subject to capture as lawful prize of war. They were seized at sea, off the coast of North Carolina, while attempting to violate the blockade there imposed by the United States government, and were sent into this port for adjudication. Process of attachment and monition was regularly issued, returned, and published in the case, and a decree by default was ordered by the court and registered therein December 22, 1863.

It is quite needless to rehearse the contents of the numerous documents and vouchers submitted to the court and examined by it in the consideration of this case, as the direct and explicit testimony of the witnesses examined in preparatorio demonstrates the culpability of the prize, and the court will avoid encumbering its files by repeating details which are of no service in establishing the causes for the conviction of the prize.

The certificate of British registry shows that the vessel was of English build and ownership, and was registered in Liverpool Sep