Opinion of the court.

for military purposes in time of war. They make part of the necessary equipment of an army.

:

It is true that even these goods, if really intended for sale in the market of Matamoras, would be free of liability for contraband may be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destination, while all the circumstances indicate that these articles, at least, were destined for the use of the rebel forces then occupying Brownsville, and other places in the vicinity.

And contraband merchandise is subject to a different rule in respect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a violation of blockade is intended; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. The trade of neutrals with belligerents in articles not contraband is absolutely free unless interrupted by blockade; the conveyance by neutrals to belligerents of contraband articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character, destined in fact to a State in rebellion, or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras.

We are obliged to conclude that the portion of the cargo which we have characterized as contraband must be condemned.

And it is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chancellor Kent, thus: "Contraband articles are infectious, as it is called, and contaminate the whole cargo belonging to the same owners, and the invoice of any particular article is not usu ally admitted to exempt it from general confiscation."

Opinion of the court.

So much of the cargo of the Peterhoff, therefore, as actually belonged to the owner of the artillery harness, and the other contraband goods, must be also condemned.

Two other questions remain to be disposed of.

The first of these relates to the political status of Redgate, one of the owners of the cargo. It was insisted, in the argument for the government, that this person was an enemy, and that the merchandise owned by him was liable to capture and confiscation as enemy's property.

It appears that he was by birth an Englishman; that he became a citizen of the United States; that he resided in Texas at the outbreak of the rebellion; made his escape; became a resident of Matamoras; had been engaged in trade there, not wholly confined, probably, to Mexico; and was on his return from England with a large quantity of goods, only a small part of which, however, was his own property, with the intention of establishing a mercantile house in that place.

It has been held, by this court, that persons residing in the rebel States at any time during the civil war must be considered as enemies, during such residence, without regard to their personai sentiments or dispositions.*

But this has never held in respect to persons faithful to the Union, who have escaped from those States, and have subsequently resided in the loyal States, or in neutral countries. Such citizens of the United States lost no rights as citizens by reason of temporary and constrained residence. in the rebellious portion of the country.

And to this class Redgate seems to have belonged. He cannot, therefore, be regarded as an enemy. If his property was liable to seizure at all on account of his political character, it was as property of a citizen of the United States, proceeding to a State in insurrection. But we see no sufficient ground for distinguishing that portion of the cargo owned by him, as to destination, from any other portion.

*Prize Cases, 2 Black, 666, 687-8; The Venice, 2 Wallace, 258; Mrs. Alexander's Cotton, Id. 404.

Opinion of the court.

The other question relates to costs and expenses.

Formerly conveyance of contraband subjected the ship to forfeiture; but in more modern times, that consequence, in ordinary cases, attaches only to the freight of the contraband merchandise. That consequence only attaches in the present case.

But the fact of such conveyance may be properly taken into consideration, with other circumstances, in determining the question of costs and expenses.

It was the duty of the captain of the Peterhoff, when brought to by the Vanderbilt, to send his papers on board, if required. He refused to do so. The circumstances might well excite suspicion. The captain of a merchant steamer like the Peterhoff is not privileged from search by the fact that he has a government mail on board; on the contrary he is bound by that circumstance to strict performance of neutral duties and to special respect for belligerent rights.

The search led to the belief on the part of the officers of the Vanderbilt that there was contraband on board, destined to the enemy. This belief, it is now apparent, was warranted. It was therefore the duty of the captors to bring the Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so.

On the other hand, not only was the captain in the wrong in the refusal just mentioned, but it appears that papers were destroyed on board his ship at the time of capture. Some papers were burned by a passenger named Mohl, or by his directions. A package was also thrown overboard by direction of the captain. This package is variously described by the witnesses as a heavy sealed package wrapped in loose paper; as a box of papers; and as a packet of despatches sealed up in canvas and weighted with lead. By the captain it is represented as a package belonging to Mohl, and containing a white powder. We are unable to credit this representation. It is highly improbable that, under the cir cumstances described by the captain, he would have thrown any package overboard at such a time, and with the plain intent of concealing it from the captors, if it contained

Statement of the case

nothing likely, in his opinion, to prejudice the case of the

ship and cargo.

We must say that his conduct was inconsistent with the frankness and good faith to which neutrals, engaged in a commerce open to great suspicion, are most strongly bound. Considering the other facts in the case, however, and the almost certain destination of the ship to a neutral port, with a cargo, for the most part, neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we shall decree payment of costs and expenses by the ship as a condition of restitution. DECREE ACCORDINGLY.

UNITED STATES v. WEED ET AL.

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 primâ facie evidence that the locality is properly within the trade regulations of that department.

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

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, Cap.

Statement of the case.

tain 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 instalments. 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 instalment 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 con