Statement of the case.

had previously arrested the said property. He was therefore ordered to detain it to answer the information now filed in No. 939. During the month of November and December some three or four claimants came forward and were permitted to file their several claims, take exceptions, plead and take issue as to ownership of the cotton.

On the 22d of January, 1863, the plaintiff in error, Francis, for the first time appeared and filed a petition, not as owner or claimant of any portion of the cotton, but "that he may be admitted to appear in said case No. 939, as a party to the record as informer."

His petition set forth, as a foundation of his claim, that he gave information to the Board of Trade at Memphis on the 2d October, 1862, and also sent a written statement to R. S. Howard, collector of the port of St. Louis, containing information on which the said cotton was seized by the said collector in the case No. 934, and on the 10th October filed an information in writing with the District Attorney, upon which information the said cotton was subsequently libelled in case No. 939.

The District Attorney moved to strike this petition from the files of the court. The motion was overruled, and the petitioner was allowed to make proof of his right to be admitted as informer. A hearing was then had by witnesses, ore tenus, before the court, by request of the proctor of Francis.

Mr. Howard, collector of the port, resisted the claim of the petitioner. After hearing witnesses the petition was dismissed, and the petitioner ordered to pay costs.

A jury was afterwards ordered to try the issues of fact as to the ownership of the several claimants, and their verdict was, "That the allegations in the libel are true, and that we find for the United States." After divers motions for a new trial and in arrest of judgment, a decree was entered for the government. In this trial of the issue by the jury, and the judgment of the court thereon, Francis, the plaintiff in error, was of course no party on the record; his petition to become such having been refused, and he having acquiesced in that decree of the court without appeal. However, the

Opinion of the court.

next entry in the record was, that on the 9th day of June, 1863, "The claimants herein, and the petitioner Francis, filed in the clerk's office their bill of exceptions in the case." Why exactly the court permitted Francis thus to place himself on the record, was not clearly explained. However, the record showed an exception to the charge sealed in his part of the case:

Whereupon the court declared the law to be, that the taking of said written statement, by the said Francis, to the United States Attorney, at the request of said Howard, after the same had been addressed to the surveyor of the port, and delivered to said surveyor, did not constitute the said Francis an informer under the act of 6th August, 1861."

The question here was accordingly the correctness of this view of the court below, as stated in this exception.

The case was submitted by Messrs. Knight and Krum, for Francis, the plaintiff in error, and by Mr. Stanbery, A.-G., and Mr. Ashton, Assistant A.-G., contra.

Mr. Justice GRIER delivered the opinion of the court.

Although the consideration of this case might be dismissed, as the plaintiff in error is no party to the record, yet it may not be improper to notice the decision of the court below as stated in the exception taken.

In reference to that, it is to be observed, that the proceedings in this case were not instituted for the joint benefit of the informer and the United States. Francis did not offer to interpose in the case till three months after the proceedings had been instituted "wholly for the benefit of the United States," after issue joined with the claimants on proof furnished by others. An unofficial informer is liable for costs and damages in case of judgment in favor of the claimants. The informer should come forward and have the information made in his own name. He cannot thus intrude himself on the record after the case is prepared and about to be tried by a jury, and when a condemnation is imminent, and when he has avoided responsibility for costs in thus keeping back.

Opinion of the court.

If the claimants had succeeded they could have no judgment against the United States for costs, nor against him as not being a party to the suit.

The information given to the collector of the port is under the act of July 13, 1861, which is an act for the collection of duties on imports. By the supplement of May 20, 1862, to that act, the penalties are to be distributed according to the 91st section of the act of March 2, 1799, an act to regulate the collection of duties on imports.

Now, the act of August 6, 1861, differs entirely in its scope and character from that of July 13th, in the same year. It is not an act for the collection of revenue. The collector of customs is not the seizing officer, nor as such entitled to a share in the fines and penalties inflicted by the act and its supplement.

In this case the property is seized as liable to capture; and it is made the duty of the President to cause "the same to be seized."

The act for regulating process in the courts of the United States, passed May 8, 1792, sections 5 and 6, provides for the taxation and payment of costs by informers.

So the act of 28th of February, 1799, section 8, providing for compensation of marshals, &c., provides for cases of informers on penal statutes, as to payment of fees and costs.

All the laws on the subject are based upon the supposition that the informer should be a party to the original proceeding. He cannot thrust himself into a proceeding instituted by the Attorney-General, for the sole use of the government, when it is resisted by such officer, who denies all his allegations, and refuses any further partnership with him.

Even if the plaintiff in error had been a party to the liti gation, which he was not, and entitled to be heard, it is evident that he could not support his case.

JUDGMENT AFFIRMED.

Syllabus.

THE GRAY JACKET.

MERITS.)

1. The proclamation of President Lincoln made December 8th, 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 13th, 1861, providing (35) 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 (28) 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 3d 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 as 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 orde for further proof in prize cases is always made with extreme

Statement of the case.

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.

APPEAL from the District Court of the United States for the Eastern District of Louisiana, the case being thus:

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 31st 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 owed 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." IIc 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