The Prince Leopold.

knowledge, at the time of their egress from the ports of North Carolina, that those ports were in a state of blockade by the ships-of-war of the United States; but it does not appear by the proofs that such blockade was efficiently supported and enforced on the part of the government; nor does it appear that actual notice thereof was given to those vessels, or that it was imposed fifteen days prior to the departure of the said vessels from those ports; nor does it appear that the said schooner Aigburth was, when captured, attempting to violate any blockade of ports on the coast, set on foot by the proclamations of the President of the United States; and, accordingly, as to these three points, the libellants are allowed, as above directed, to give further proofs.

If no further proofs are offered, pursuant to the terms above mentioned, then a final decree is to be entered in favor of the libellants for the condemnation and forfeiture of both of the aforesaid vessels and their cargoes as enemy property, and in favor of the claimants, acquitting the said vessels of the charge of having violated the blockade aforesaid in leaving the said ports, and the schooner Aigburth of attempting a violation of such blockade at the time of her capture.*

THE SCHOONER PRINCE LEOPOLD AND CARGO.

Where an offence against the prize law has been committed, the vessel or cargo may be arrested anywhere at sea, or within the dominions of the capturing power, and by any person, officer, or citizen, as property belonging to the government.

The practice in prize proceeding in the courts of the United States is governed by the rules of admiralty law disclosed in the English reports, when not regulated by decisions or rules of the American courts.

Vessel and cargo condemned, as enemy property.

The captors allowed to produce further proof on the question of breach of blockade.

(Before BETTS, J., December, 1861.)

BETTS, J.: This vessel was arrested September 11, 1861, in the harbor of New York, by the marshal, and was libelled as a prize, and also as forfeited under the act of July 13, 1861.

The first question raised on the defence, by the pleadings and on argument, went to the regularity of the proceedings: first, in respect to the arrest of the prize, that there is not a sufficient specification of the cause of arrest, and also that the jurisdiction of the court is, in that respect, rescinded by the act of Congress. These considerations are

*In the case of the Sarah Starr the circuit court, on appeal, July 17, 1863, affirmed this decree as to the vessel and the cargo claimed by Evans, and reversed it as to the cargo claimed by the Munroes. A further appeal to the Supreme Court has been taken by the claimant of the vessel, but none as to the cargo. In the case of the Aigburth this decree was affirmed by the circuit court, on appeal, July 17, 1863.

The Prince Leopold.

sufficiently discussed in the previous cases of the Sarah Starr and the Aigburth, and the authorities dispense with all formalities of charge in the libel. (3 Phillimore, art. 470; American Encyclopedia, art. "Prize," by Story, J.) Second, that the seizure was by civil officers in the port of New York. When an offence against the prize law has been committed, the vessel or cargo may be arrested anywhere at sea, or within the dominions of the capturing power, and by any person, officer, or citizen, as property belonging to the government. By the English practice, custom-house officers capture vessels in port as prize, (The Elize, 1 Spinks' Prize Cases, SS;) and the seizure may be made even in the London docks, (The Conqueror, 2 Ch. Rob., 303.)

The practice in prize proceedings in the courts of the United States is governed by the rules of admiralty law disclosed in the English reports, (Brown v. The United States, 8 Cranch, 135, per Story, J.; Jecker v. Montgomery, 18 How., 110; see arguments and decisions in prize proceedings, Jecker v. Montgomery, 13 How., 498,) when not regulated by decisions or rules of the American courts. The exceptions to the place and manner of the capture, and to the mode of pleading it, are not tenable.

On the merits: First, the claimants had sufficient notice that the port of Newbern was under blockade, with other ports along the eastern coast of the United States south of Maryland. That the notice reached them before the blockade was made perfect on the part of the United States, or was efficient by the presence of an adequate force, is a fact not established by the evidence before the court, but may yet be made out by further proofs on the part of the captors. The vessel went to sea from Newbern, North Carolina, on the 1st of August. She was built in North Carolina, and was owned by Ellis, a merchant of Newbern, who shipped the crew on board on the 25th of July. He transferred her on the 16th or 18th of July to McLeod, who was a neutral British merchant, domiciled in business for several years previous in Charleston, and the British registry was made out in the name of McLeod. One of the crew testifies that the master, Wallace, told him in Newbern that he was part owner of her. She was loaded at Newbern with turpentine. The cargo is claimed by Wade, who came with it as passenger on the vessel. By the manifest, the cargo was shipped by McLeod, (who admits that he belongs to the Confederate States,) and was consigned to Wade. The cargo was put on board on the 23d of July. Wallace, the master, testifies that Wade told him the cargo belonged to McLeod. Wade, examined as a witness, is a native of North Carolina, and a resident there. He claims to be, in

The Mary McRae.

his private sentiments, a loyal citizen of the United States, opposed to the rebellion, and that he designed to export the cargo claimed by him, and to withdraw from the State and travel in Europe. His private opinions cannot be inquired into by the court. He, as a native resident of the State, is unequivocally by law subject to all the responsibilities attached to his birth and residence, in respect to property he acquires in the enemy country and attempts to export from it.

The points adjudged in the cases of the Sarah Starr and the Aigbarth apply to this, and must govern in these particulars the decision of this case.

Judgment for the libellants, condemning the vessel and cargo as enemy property. The libellants are permitted to give further proofs on the question of breach of blockade, if offered within ten days after notice of this decree. The report of the Navy Department to the Secretary of State, dated July 24, 1861, does not supply definite and adequate statements of the forces actually maintaining the blockade off the port of Newbern, or in that direct vicinity. It must be presumed to be within the competency of the Navy Department to prove affirmatively the acts of blockade performed by the squadrons, or particular vessels assigned to that service.*

THE BRIG MARY MCRAE.

Part of vessel condemned, under the 6th section of the act of July 13, 1861, (12 U. S. Stat. at Large, 257,) as belonging to a citizen of a State in insurrection.

Part of vessel acquitted.

The claim of the owner of the acquitted part to a lien upon the condemned part for outlays in fitting the vessel was disallowed, and the claimant was referred to the power of the Secretary of the Treasury, under the 8th section of the act, to remit the forfeiture.

(Before BETTS, J., December, 1861.)

BETTS, J.: This is a libel of information by the United States, demanding the forfeiture of the above-named brig, under the 6th section of the act of Congress of July 13, 1861. (12 U. S. Stat. at Large, 257.) It is ordered by the court that three fourth parts of said brig be adjudged forfeited to the libellants with costs, and that one fourth part, claimed by James Crocker, be acquitted. The claims of Crocker for outlays in fitting the vessel are no lien in law upon the remaining three fourth parts, and whether any portion of that forfeiture will be remitted to him rests in the discretion of the Secretary of the Treasury, under the 8th section of the act above named.

Judgment accordingly.

* This decree was affirmed, on appeal, by the circuit court, July 17, 1863.

The D. F. Keeling.

THE SCHOONER D. F. KEELING.

Under the confiscation act of July 13, 1861, a vessel belonging to an alien female, who resided transiently at New Orleans, having gone there to visit some relatives and attend to some matters of account, with the intention of then returning abroad, and who was engaged in no mercantile business there, was held not to be subject to forfeiture.

(Before BETTS, J., December, 1861.)

BETTS, J.: This was a libel of information, filed November 8, 1861, by the United States district attorney, in behalf of the United States, alleging the seizure of the above-named vessel, on the 30th of October last, in the port of New York, by the collector of the port, and charging that she was the property of Mary Hutchinson, an inhabitant of the city of New Orleans, in the State of Louisiana. It alleges that the said vessel, her tackle, &c., has become forfeited to the United States by virtue of the act of Congress of July 13, 1861. The claimant, in her answer, asserts that she is sole owner of the above vessel, which is a British vessel, and that the claimant has been sole owner of her since May 25, 1861, and is a British subject, and that the vessel is protected by subsisting treaties between Great Britain and the United States from seizure under any allegations in the libel.

She denies that she is an inhabitant of New Orleans in rebellion against the United States, and that she is such an inhabitant thereof as could cause the vessel to become forfeited under or by virtue of the act of Congress referred to in the libel. She avers that she is a native of Ireland, a widow, feeble and aged, about sixty years old, and in no way engaged in merchandise, or any other business. She denies that the vessel, &c., has incurred any forfeiture to the United States.

Evidence was given upon both sides on the point whether the vessel, when seized, belonged, within contemplation of law, to a citizen or inhabitant of New Orleans, in the State of Louisiana.

The assistant district attorney, on the argument, contended that the claimant, on the true construction of the words of the act, was an inhabitant of the State of Louisiana during her ownership of the vessel, but stated that "if her abode there was merely temporary and transient, the confiscation of the vessel was not claimed."

The evidence is that she is a native subject of Great Britain; that after the death of her husband she came from London to New Orleans to visit two of her sisters and some grandchildren, all residing in New Orleans, and that she intended to return to London. The precise time she has been in New Orleans is not specified in the proofs, but one of the witnesses, a brother of her son-in-law, says that he knew her there a few months. It is proved that she took the transfer of

The D. F. Keeling.

this vessel from a Mr. Leitch, then residing in New Orleans, and having, also, connexion with a house of trade in Minatitlan, in Mexico, in part payment of a debt bona fide owing her from him; and that he, because of disaffection with the rebellion in Louisiana, and being loyal in his sentiments to the Union, left New Orleans in the vessel. The vessel was laden and despatched from New Orleans to Vera Cruz and Minatitlan in her name and for her use, and from the latter place to New York, with a cargo, in the same way, and, when seized, was destined to return to Minatitlan in the same interest.

The penal language of the act under which the seizure was made is in these words: "Any ship or vessel belonging, in whole or in part, to any citizen or inhabitant of said State or part of a State whose inhabitants are so declared in a state of insurrection, found at sea, or in any port of the rest of the United States, shall be forfeited to the United States."

The title to the vessel did not pass to the claimant as being herself in any business pursuits, or having a mercantile domicile in Louisiana. She acquired it as a neutral creditor, having an honest debt, exceeding its value, owing to her by the vendor, and who immediately abandoned the State to avoid aiding the rebellion therein. There does not, therefore, appear to have been any semblance in the purchase of the vessel of purpose to promote the trade and interests of the enemy in the transaction, or to enable the vessel or claimant to become mixed with enemy trade or operations.

But, without feeling that the case, in its special features, demands. any close examination of the scope of the enactment, I take the alternative concession of the United States attorney as the true exposition of the law which the government desires to be made in this suit, and say that the evidence, in all its bearings, is satisfactory; that the claimant is a foreign subject, engaged in no mercantile business in New Orleans; and that her residence or inhabitancy there was transient, and limited to the intention of visiting near relatives residing in that place, and settling some matters of account, and then returning to her home in London.

I accordingly consider that she was not, at the time, such citizen or inhabitant of New Orleans as will subject this vessel to be forfeited to the United States. No costs can be awarded by the court against the United States, and, without discussing the merits of a claim to costs, I order a decree acquitting the vessel, her tackle, &c., from arrest, and their redelivery to the claimant.