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United States v. Six Boxes of Arms.

ciple is strenuously urged by the attorney for the govern. ment. Without attempting an extended investigation of this subject, I propose to state some of the reasons which lead me to the opposite conclusion. And in the first place I may remark that there is no question that, by the wellsettled rule of the law of nations, where a war exists between two distinct and independent powers, there must necessarily be a suspension of all commercial intercourse between them. When two nations are arrayed in war against each other, every subject and citizen of the one is regarded and treated as the enemy of the other. But does this principle apply strictly to the so-called Southern Confederacy, or to any of the individual States which have joined it? The President of the United States, in all his proclamations and public acts, bas cautiously avoided the recognition of the Southern Confederacy as an independent sovereignty, and has properly proceeded on the doctrine that the right of secession has no warrant in the constitution, and that the exercise of the right is simply a nullity; and when attempted to be sustained by arms, it places all who give aid or countenance to the movement in the attitude of rebels against the government. It results from this view, that every citizen of a seceding State is not necessarily to be regarded as an enemy, with whom all commercial intercourse is to be prohibited. The government of the United States has acted on the principle, in the case of Western Virginia and Eastern Tennessee, that the people of these sections, though within the geographical limits of seceded States, are to be viewed as loyal, and entitled to the sympathy and protection of the government.

But this view of the subject seems to have no practical application to the case before the court. At the time of the shipment of the property described in the libel, and at the time of its stoppage at Cincinnati, Arkansas had not seceded from the Union; nor does the evidence warrant the conclusion, that the state of things there was such as to render it probable she would take this course. In fact,

United States v. Six Boxes of Arms.

there were no indications of this until the assault upon and surrender of Fort Sumter had rendered it a political necessity, that the President should call on the States for a force sufficient to subdue the rebellion then palpably existing. This requisition was made on the 15th of April, and included Arkansas as a loyal State, and was followed on the 19th of that month, by a proclamation declaring the seceded States in a state of blockade. These acts, in Arkansas as in other States, excited all the slumbering elements of secession, which in the case of that State culminated in the passage of the ordinance of the 7th of May.

There is, however, a view of the case before the court, which seems clearly to warrant the conclusion, that this property was in no sense contraband of war, when seized as such at Cincinnati. The destination and the use intended to be made of the property at the time of its seizure, must furnish the tests of its status, as contraband or otherwise. If there were grounds for the presumption of a disloyal motive in the sale and shipment of the property, no such presumption is warranted in regard to it, when taken by the marshal on the 23d of May. The evidence already referred to clearly establisbes the fact, that the agent of the claimants, upon the first intimation of a probability that Arkansas might adopt the ordinance of secession, repaired to Cincinnati, and promptly directed that the property should not be sent according to its original destination, but should be forwarded to New York. It was not then in transitu to Arkansas, nor could it by possibility ever reach that State, as it was under an order for shipment for New York, to be there used in defense of the Union. In the light, then, of this fact, negativing, as it does, every presumption of a disloyal or unpatriotic purpose on the part of the claimants, I do not feel that I am justified in a decree, which not only forfeits the property in question, but would place a stigma on their reputation, which their conduct has not merited. And the view here stated is corroborated by the circulars of the secretary of the treasury

United States v. Six Boxes of Arms.

of the 2d of May and the 12th of June. In both these papers, the secretary enjoins great vigilance on the part of collectors in preventing the shipment of contraband goods to seceded States, or where there is just reason to suppose they will be used by persons in rebellion against the government. If satisfied that the property is not intended to be used for any unlawful purpose, they are merely to notify the shipper or his aģent of the fact and the cause of the detention. In the order of the 12th of June, this clause occurs: “If any such shipment, personally or by agent, shall satisfy you that the merchandise so arrested will not be sent to any place under insurrectionary control, but will be either returned whence it came, or be disposed of in good faith for consumption within loyal States, you will restore possession of the same, and allow such disposition to be made thereof, as the parties in interest may desire.” Under this instruction, with the knowledge that the property of the claimants had been ordered to New York, the officer of the customs would have been fully justified in restoring it, without any further investigation.

The case, then, before the court is that of a loyal citizen of a loyal State, whose property has been libeled for condemnation, and who has availed himself of his legal right to assert his claim, and to show that there is nothing in the facts to warrant a decree of forfeiture. In making this remark, I am not to be understood as intimating that the public officer at whose instance the seizure was made, is in any decree censurable. So far from this, it is probable that under the circumstances supposed to exist, the institution of this proceeding was a proper act of official duty. And I do not see any ground on which a certificate of probable cause of seizure, if applied for, could be refused by the court. But this is a wholly different question from that involving the legal right to the property, and its liability to condemnation and forfeiture. There may be good reasons for the seizure of property; and yet upon a full investiga

McGrew v. Steamboat Melnotte.

tion of the facts, no sufficient ground for holding that the owner has forfeited his right to it.

With these views, I can do no otherwise than decree in favor of the claimants, and order the restoration of the property to them.

(DISTRICT COURT.)
ROBERT MCGREW ET AL. v. STEAMBOAT MELNOTTE.

A boat astern attempting to pass one that is ahead, is held to stricter

vigilance and greater precaution than are required of the latter. The boat ahead is under no obligation to give way or to change her course

to facilitate the passage of the boat which is astern, and the latter, having a choice of the time and place to pass, incurs all the risk of the

attempt. This principle applies with great force and stringency when the boat

making the attempt to pass is lightly laden and easily controlled, and

the other is moved with difficulty. To entitle the libellants to indemnity for their loss, they must not only

show that their adversary is in fault, but that in the management of their boat there was no material error to which the collision can be

charged. The absence of a competent and vigilant watch, constantly employed to

assist and advise the pilot in his duty, is prima facie evidence of fault in the boat thus deficient.

Lincoln, Smith f Warnock, for libellants.

Dodd f Huston, for claimants.

OPINION OF THE COURT:

This is a libel in rem. against the steamboat Melnotte, in which damages are claimed for a collision with a coal barge in tow of the steamboat Hornet. The libel is in the usual form, averring that the loss and injury sustained were occasioned by the sole fault of the Melnotte. The answer takes issue on this allegation, and charges that the collision

McGrew v. Steamboat Melnotte.

was caused wholly by the faulty management of the Hornet. The depositions of a number of witnesses have been taken by the parties to sustain the theory of the collision insisted on by each; and, as usual in such cases, the evidence on some essential points is in direct conflict. I have carefully considered the evidence, but do not propose to analyze it critically in stating my views. While this conflict in the statements of the witnesses unavoidably involves the facts in some uncertainty, the conclusion I have reached seems to be well sustained by the preponderance of the testimony offered by the libellants, as fortified by the fair presumptions and probabilities of the case.

The collision took place about eleven o'clock in the night of April 26, 1860, on the Ohio river, just below the village of Newport, on the Ohio side. The Hornet is a stern-wheel steamboat, then employed as a tow-boat in the transportation of coal from Pittsburg to Cincinnati. At the time of the collision she was descending the river with seven heavily laden barges, five of which were near the bow, and two directly in the rear of the five, on either side of the boat. It is not controverted that the Hornet was properly equipped and manned as a tow-boat, and had the proper signallights, in good condition, at the time, and also that there was a light placed in the forward part of each of the front or wing barges.

The Melnotte is a passenger boat of considerable power and speed, and, at the time of the collision, was also descending the river. A short distance above the village of Newport, she was astern of the Hornet, and attempted to pass

that boat, on the Ohio or starboard side, nearly opposite the village. The Hornet, with her barges, being about one hundred feet in width, was descending near the middle of the river, probably a little nearer the Virginia than the Ohio shore, and in the usual place for a down boat. The river at that point is not less than four hundred yards wide, and at the time was in a good stage for navigation, there being at least twelve feet of water in the entire width of

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