La Conception, 6 Wheat. 235; The Arrogante Barcelones, 7 Wheat. 496; The Santa Maria, 10 Wheat. 431; The Monte Allegre, 7 Wheat. 520; The Fanny, 9 Wheat. 658; The Vrouw Anna Catharina, 5 Rob. 15; The Bello Corrunnes, 6 Wheat. 152; Wilson v. Forster, 6 Taunt. 25; Abb. Ship. 27; Kierlighett, 3 Rob. 99; Assievedo v. Cambridge in 1695, Lucas, 79; (10 Mod. 79); 3 Phil. Int. L. (464); The Perseverance, 2 Rob. 239; The Resolution, 2 Dall. 1.

The object of the war against rebellion as prosecuted by the government, and its policy repeatedly declared by the Legislative and Executive Departments and followed by the Judiciary, require the restitution of this property.

3 Phil. Int. L. 100, § 49; Halleck, Int. L. 412, 82; Fleming v. Page, 9 How. 614.

Congress resolved, early in the struggle, that the war was not waged for conquest or oppression, but to defend and maintain the supremacy of the Constitution, and to preserve the Union. Crittenden, Resolution, July, 1861.

By the acts of July 13, 1861, and July 29, 1861, to provide for the suppression of the Rebellion, and under the authority of which the war has been mainly carried on, it is enacted that, whenever it becomes impracticable to enforce the laws of the United States by the ordinary courses of judicial proceeding, it shall be lawful to call out the Militia and employ the Army and Navy, "to enforce the faithful execution of the laws and suppress such Rebellion." Betts, J., in The Hiawatha, Bl. & H.; Upton, Mar. War, 69; The Amy Warwick, Upton, 103 (see 2 Sprague, 143); Whiting, War Powers, 59; The President's Proclamation of Sept. 22, 1862; Letters of Admiral Porter to the Secretary of the Navy, of May 11 and 31, 1864; act of Aug. 6, 1861; act of July 31, 1861; § 9 of the act amending the act regulating commercial intercourse, July 2, 1864; § 3 of the act to provide for the collection of abandoned property, March 3, 1863, ch. 120; § 7 of the confiscation act, July 17, 1862; an act to protect certain liens, March, 3, 1863; § 7 of the act, Feb. 6, 1863; The Venice, 2 Wall. 274, 17 L. ed. 866. Under the circumstances of this case, the appellant is entitled to restitution, with costs and interest, as against the fund.

The general rule is that a person unjustly deprived of his property is entitled to full restitution; the value of the property, with interest and cost.

The Amiable Nancy, 3 Wheat. 546; La Amistad De Rues, 5 Wheat. 385; The Lively, 1 Gall. 315; The Anna Maria, 2 Wheat. 327.

Messrs. Crawford, Lewis, & Cox and Joseph J. Cox, also for Julius Hessee et al., petitioners.

At the time of the sentence of condemnation, and for eighteen months afterwards, the state of Alabama, the domicil of these claimants, was a state of the so-called Southern Confederacy, at war with the United States, and the court in which was the said vessel and cargo, was inaccessible to them.

Subsequently these claimants were all pardoned; Julius Hessee on the 17th of Oct. 1865; Moses Waring, Dec. 2, 1865; Robert Otis, Dec. 18. 1865 Charles P. Gage, Sept. 12, 1865, and James M. Brainard, March 19, 1866.

The pardons were duly accepted, pending the appeal.

By virtue of an interlocutory order, the ship and cargo were sold and the proceeds are now in the Treasury, undisturbed and subject to the order of this court.

The claimants having been fully pardoned, now petition the court for a restoration to them of five sixths of the proceeds of said sale.

Though ordinarily an appellate court receives no evidence which was not presented on the hearing of the court below, in all admiralty causes the rule is different. The case, when an appeal is taken and perfected, is heard de novo, and there is no final decree till the appellate court has acted and determined by decree the rights of the claimant to the fund.

Boone v. Chiles, 10 Pet. 177; U. 8. v. The Peggy, 1 Cranch, 103; Yeaton v. U. S. 5 Cranch, 281. To the same effect are Penhallow v. Doane, 3 Dall. 87, 119; Anonymous, 1 Gall, 22, 25; U. S. v. Preston, 3 Pet. 57; Conk. Adm. Pr. 736. "The cause is before us, as if in the inferior court."

The Venus, 1 Wheat. 113, a prize case. Under this rule it is allowable to allege and prove what was not alleged or proved in the court below.

2

Rose v. Himely, Bee, 313; The Sarah Ann, Sumn. 209; The Marianna Flora, 11 Wheat. 1; The London Packet, 1 Mas. 14; The Boston, 1 Sumn. 328; The Samuel, 1 Wheat. 9, 112; The James Wells, 7 Cranch, 22; The Clarissa Claiborne, 7 Cranch, 107; The Sally Magee, 3 Wall. 459 (ante, 200); Maley v. Shattuck, 3 Cranch, 458.

Until a decree has been actually made, the court is bound to consider every claim against the fund in court.

The Constancia, 10 Jur. 849.

The rights of these claimants as distributees, depend on the force and effect of the several pardons granted them by the President.

The words of the pardon are comprehensive enough to cover this application.

The power of the President to grant such pardon, and thereby to work restoration of all the rights of the grantee, is complete.

We must give "the power," conferred by the Constitution, the same meaning as prevailed here and in England at the time it found a place in the Constitution.

U. S. v. Wilson, 7 Pet. 160; Ex parte Wells, 18 How. 307, 15 L. ed. 421; Cathcart v. Robinson, 5 Pet. 264; Flavell's Case, 8 W. & S. 197.

A pardon frees the grantee from the punishment, whether of imprisonment, pecuniary penalty, legal disability, or whatever else the law has provided for the transgression.

Rex v. Greenvelt, 12 Mod. 119; Strickland v. Thorpe, Yelv. 126; Petre v. Cambridge, 3 Lev. 332; Thomas v. Sorrell, Vaugh, 330; Hall v. Vaughan, 5 Co. 49; Foxley's Case, 5 Co. 109 (a); 1 Bish. Crim. L. § 713; Cuddington v. Wilkins, Hob. 67-81; 2 Hale, P. C. 278; Crosby's Case, Salk. 689; Rookwood's Case, 4 St Tr. 681 (Fol.)-13 How. St. Tr. 183 (8 vo.) 7 Bac. Abr. tit. Pard. 412; 2 Story. Const. § 1498; Perkins v. Stevens, 24 Pick. 278; Haley v. Clark, 26 Ala. 439; Matter of Deming, 10 Johns. 232.

The Executive may remit penalties in pro

Revenue cases involving forfeiture and prize cases are analogous. The claim of the government rests only on the legal transgression of the owner. In prize cases, the offenses are said to be highly penal (The Sally, 8 Cranch, 382); especially breach of blockade; Halleck, Int. L. 584.

There is no distinction between the powers of the President in prize and revenue cases. In England, it is said, captors bring in prizes subject to the interposition of the Crown.

The San Juan, Edw. 377.

The Crown may, at any time before distribution, alter or revoke a distribution of prize

money.

Alexander v. Duke of Wellington, 2 Russ. & M. 35; Brummell v. McPherson, 5 Russ. 263; The Indian Chief, 5 C. Rob. 34; The Richmond, 5 C. Rob. 339; The Elsebe, 5 C. Rob. 173.

The President of the United States has the same power. Judge Betts, in United States v. The Napoleon (Blatchf. Pr. Cas. 296, 357), asserted it, and the defendant was relieved by the Executive after decree.

By the 13th section of the confiscation act, the President was empowered to grant pardon and amnesty to persons who participated in the Rebellion, on such conditions "as he might deem expedient for the public welfare."

Messrs. Henry Stanbery, Atty. Gen., J. H. Ashton, Asst. Atty. Gen., and Charles Eames, for the United States:

Giving the fullest effect to the allegations of this claimant, it is apparent that the claimant is not entitled to restitution of any portion of this property, under the following familiar doctrines of the law of war as administered in the prize courts.

1. The partnership of Cox, Brainard & Co., of which the claimant was a member, was established and domiciled in the enemy country. The San José Indiano, 2 Gall. 286.

2. Such a partnership is, by the law of war, treated throughout as a hostile establishment, and the whole partnership property is liable to capture and condemnation as enemy's property, notwithstanding one or more of the partners may be domiciled in a neutral country; a fortiori, if some of the partners are domiciled in one of the hostile countries and the rest in the other, the partnership is hostile and the partners are, personally, enemies.

Story, Part. § 316, p. 475; The Friendschaft, 4 Wheat. 107; The Antonia Johanna, 1 Wheat. 167; The Franklin, 6 Rob. 17.

The courts of prize, in the language of Lord Stowell, regard vessels as having a peculiar character impressed upon them by the special nature of their documents, and they have always been held to the character with which they are so invested, to the exclusion of any claims of interest that persons living in neutral countries may actually have in them.

The Vrow Elizabeth, 5 Rob. 5, 6; The Pri

This court has, in recent cases, confiscated the interests of northern persons in vessels engaged in commerce with the rebel ports into illicit trading with the enemy, altogether irrespective of any agency or complicity on the part of such owners in the guilty voyages.

The Pilgrim and Cargo, at December term, 1863; The Herald, 3 Wall. 774 (ante, 136). In neither of these cases was there any imputation of guilty knowledge of the breach of blockade on the part of the loyal northern part owners.

5. Admitting the allegation of the partnership and of the ownership of this vessel by the firm at the time of capture, it is plain that the claimant has no interest, right, or share in any of the property of the firm, except what remains after the full discharge and payment of all the debts and liabilities of the partnership; and he, therefore, cannot claim or receive restitution of any particular portion of such property, as representing the value of his interest therein. Story, Part. § 97.

6. It is evident, from the preparatory proofs and papers, that a transfer of the vessel had been effected before the present voyage to other persons who obtained the register found on board, which devested the interest of the firm who may have owned her before the War.

7. Thus far, the question has been considered wholly as one of ownership and property; but all interests and rights in both the vessel and the cargo are confiscable for breach of blockade.

It is not competent for owner of either vessel or cargo, in such case, to protect his property from condemnation by showing innocence in the transaction. All parties are concluded by the illegal act of the master, though it may have been done without their privity and even contrary to their wishes. It is the act and intention of the master which determines the guilt or innocence of the property and its liability to confiscation, and this applies equally to vessel and cargo.

Baltazzi v. Ryder, 12 Moore P. C. 184.

8. A hostile character is impressed upon the vessel by the specifically hostile character of the trade in which she had been engaged during the War, independent of the domicil status or relations of the owners.

The Vigilantia, 1 Rob. 1; The Planter's Wensch, 5 Rob. 22; The Embden, 1 Rob. 16; The Endraught, 1 Rob. 22; The Bermuda, 3 Wall. 545 (ante, 200).

Messrs. Cowley, Eames, and Stanbery for captors.

Mr. Justice Clifford delivered the opinion of the court:

The steamer and cargo were captured as prize of war on the 18th day of July, 1863, and, having been duly libeled and prosecuted as such in the district court, on the 17th day of August following, they were both condemned as forfeited to the United States. Monition was duly published, but no one appeared as claimant, either for the steamer or cargo. Directions of the decree of condemnation were, that the steamer and cargo, after ten days' public notice, should be sold by the marshal, and that the pro

tively, in any illegal trade with the enemy, or in any attempt to break the blockade.

2. That the steamer, after the Rebellion broke out to the time of the capture, was continually in the waters of the rebellious states, and under the control and management of those engaged in the Rebellion, which rendered it impracticable and unlawful for him to proceed to the place where the steamer was, or to exercise any control over the steamer or any part of the partnership property.

3. That he was, and always had been, a true and loyal citizen; that he had never given any aid, encouragement or assistance to the Rebellion, and that he had no connection with or knowledge of the unlawful voyage of the steamer on account of which she was condemned as lawful prize.

4. That some court of the Confederate States, so called, at some time in the year 1862, had condemned and confiscated his interest in the partnership, but he averred that the decree was wholly nugatory and void, and that his interest in the steamer and cargo had never been extinguished or destroyed.

Basing his claim upon these allegations of fact, he prayed that he might be paid out of the proceeds of the sale one sixth of the amount required to be paid into the registry of the court. Exceptions were filed to the petition of intervention, but they were overruled by the court, and the district attorney appeared and admitted that all the facts therein alleged were true. Parties were heard as upon an agreed statement, and the district court entered a decree that the intervention and claim of the petitioner be rejected and dismissed, with costs. Appeal was taken by the intervener from that decree, and he now seeks to reverse it upon the ground that 404*] he, as *owner of one sixth part of the steamer and cargo, is entitled to one sixth of the proceeds of the sale.

1. Captors contend that the steamer and cargo were both rightfully condemned as enemy property, and also for breach of blockade. Appellant denies the entire proposition as respects his interest in the captured property, and in sists that the one sixth of the same belonging to him cannot properly be condemned on either ground, because he was never domiciled in the rebellious states, and because he never employed the property, either actually or construc

and which described her owners as trustees of a certain association, and citizens of the Confederate States.

Testimony of the master showed that the cargo, which consisted of seven hundred bales of cotton, three thousand two hundred staves, and one hundred and twenty-five barrels of turpentine, was consigned to parties in Havana, and that the shipment was for the benefit of owners residing at the home port. Except an informal manifest, the steamer had no papers on board relating to the cargo, and the master testified that she carried none for the consignee, "for fear of being captured." He was appointed by the trustees, and he also testified that his instructions were to elude the blockading vessels if possible, but not to resist in case he was unable to escape. Ship's company consisted of thirty men, and all the officers and crew, with one exception, were citizens of the enemy country. Direct admission is made by the master in his testimony that he stole out of the harbor, and that the steamer and cargo were captured for breach of *blockade. Such an ad- [*405 mission was hardly necessary to establish the charge, as every fact and circumstance in the case tended to the same conclusion. Five sixths of the steamer and cargo were, confessedly, enemy property, and the whole adventure was projected and prosecuted for the benefit of resident enemy owners. None of these facts are controverted by the appellant, but he insists that, inasmuch as he was domiciled in a loyal state, and had no connection with the adventure or the voyage, his interest cannot properly be held liable to capture.

2. War necessarily interferes with the pursuits of commerce and navigation, as the belligerent parties have a right, under the law of nations, to make prize of the ships, goods and effects of each other upon the high seas. Property of the enemy, if at sea, may be captured as prize of war, but the property of a friend cannot be lawfully captured, provided he observes his neutrality. Public war, duly declared or recognized as such by the war-making power, imports a prohibition by the sovereign to the subjects or citizens of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country. Jecker v. Montgomery, 13 How. 498.

Neutral friends, or even citizens, who remain in the enemy country after the declaration of war, have impressed upon them so much of the character of enemies, that trading with them becomes illegal, and all property so acquired is liable to confiscation. The Hoop, 1 C. Rob. 196; The Rapid, 8 Cranch, 155; Potts v. Bell, 8 T. R. 561; Wheat. Int. Law, by Lawrence, 547.

effects from the rebellious state, are attempted to be explained and justified, because the same were, as alleged in the petition, confiscated during the Rebellion under the authority of the rebel government. More than a year, however, 409*] had elapsed after the proclamation of a blockade was issued before any such pretended confiscation took place. Members of a commercial firm domiciled in the enemy country, whether citizens or neutrals, after having been guilty of such delay in disposing of their interests or in withdrawing their effects, cannot, when the property so domiciled and so suffered to remain is captured as prize of war, turn round and defeat the rights of the captors by proving that their own domicil was that of a friend, or that they had no connection with the illegal voyage.

Property suffered so to remain has impressed upon it the character of enemy property, and may be condemned as such, or breach of blockade. Prize courts usually apply these rules where the partnership effects of citizens or neutrals is suffered to remain in the enemy country, under the control and management of the other partners who are enemies. But there are other rules applicable to ships owned under such circumstances, which must not be overlooked in this case.

5. Courts and text-writers agree that ships are a peculiar property, and that such peculiarity assumes more importance as a criterion of judicial decision in war than in peace. They have a national character, as recognized by the law of nations, because they regularly carry the flag of the nation to which they belong. Evidences of ownership are also peculiar, but vary somewhat according to the laws of the country in which the ships are built, or in which they are owned. Wheat. Int. Law, by Lawrence, p. 580.

Commercial nations generally have, for the advancement of their own individual prosperity, conferred great privileges upon the ships belonging to their own citizens and, in consideration thereof, have imposed upon their owners certain special duties and obligations. Usually they are required to be registered at the home port, and they are not allowed to sail on any voyage, foreign or coasting, without such papers as the laws of the country to which they belong require. Abb. Ship. 72.

American vessels sailing for a foreign port are, in all cases, required by law to carry a pass410*] port, and it is generally admitted that such a document is indispensable in time of war. Act, June, 1793, ch. 45 (1 Stat. 489).

When a ship is captured as prize of war she is bound by the flag and pass, under which she sailed. Owners are also bound by those insignia of national character. They are not at liberty when they happen to be evidence against them to turn round and deny the character the ship has assumed for their benefit. Story, Prize, 61; The Vrow Elizabeth, 5 C. Rob. 3; The Fortuna, 1 Dod. 87; The Success, 1 Dod. 132.

Established rule is that, when the owners agree to take the flag and pass of another country, they are not permitted, as matter of convenience in case of capture, to change the position they have voluntarily chosen, but others are allowed to allege and prove the real char

acter of the vessel. Meaning of the rule is that the ship is bound by the character impressed upon her by the authority of the government from which all her documents issue, and Chancellor Kent says this rule is necessary to prevent the fraudulent mask of enemy's property. 1 Kent, Com. 11th ed. 91. Adopting that rule, Dr. Lushington held, in the case of The Industrie, 33 Eng. L. & E. 657, that the share of a neutral in ownership, though purchased before the war, was subject to condemnation equally with the shares of enemies in the same ship. Principal of the decision is, that whoever embarks his property in shares of a ship is, in general, bound by the character of the ship, whatever it may be; and that principle is as applicable to a citizen, after due notice and reasonable opportunity to dispose of his shares, as to a neutral. The Primus, 29 Eng. L. & E. 589.

6. Decision of Lord Stowell, in the case of The Mercurius, 1 C. Rob. 80, was that violation of blockade by the master affects the ship, but not the cargo, unless it is the property of the same owner, or unless the owner of the cargo was cognizant of the intended violation.

Proofs show that the cargo in this case was the property of the same owners and, therefore, the case being within the principle of that decision, the cargo must follow the fate *of [*411 the ship. Subsequent cases, however, decided by the same learned judge, appear to have carried the rule much further, and to have established the doctrine in that country that when the blockade was known, or might have been known, to the owners of the cargo at the time when the shipment was made, the master shall be treated as the agent of the cargo, as well as of the ship, and that the former, as well as the latter, is liable to capture and condemnation. The Alexander, 4 C. Rob. 94; The Adonis, 5 C. Rob. 259; The Exchange, 1 Edw. Adm. 39; The James Cook, 1 Edw. Adm. 261.

Latest reported decision in that country is that of Baltazzi v. Ryder, 12 Moore, P. C. 183, which was heard on appeal before the Privy Council, and the determination, both in the admiralty court and in the appellate court, was that where the cargo belonged to the same owners as the ship, the owners of the cargo, as well as the ship, were in general concluded by the illegal act of the master.

Giving full effect to the admissions in this case, the appellant shows no just ground for the reversal of the decree made by the district court.

7. Since the appeal was entered in this court the other partners have filed a petition here, asking leave to intervene for their interests, and claiming the other five sixths of the vessel and cargo. They were not parties in the court below, having never appeared in the suit or made any claim whatever, and of course did not and could not, appeal from the decree. Substance of their excuse for not appearing in the district court is that they were residents in a state hostile to the United States and, consequently, that they had no standing in that court, by reason of such disability. Statement of the petition also is, that those disabilities continued until after the case was moved into this court by appeal; but they allege that since that time they have severally received the pardon of the