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United States v. Steamboat Henry C. Homeyer.

these articles of merchandise were disposed of at the time the boat was seized. As stated already, the invoices of all these articles amounted, at the high prices at Vicksburg, to less than $8,000, and the appraisement at the market value at Cincinnati was $7,500. It would seem probable from a comparison of these values, taking into view the difference in the prices at Vicksburg and Cincinnati, that no sales were made. I think no actual sales are proved by any witness. But still if the goods shipped were contraband, and intended for sale to rebels in arms, it would undoubtedly be a good ground for a decree of forfeiture. There is, however, no reason for the conclusion that there was any purpose of giving aid and comfort to the rebellion in the purchase and shipment of these goods. The quantity was small, consisting of an assortment of dry goods, groceries, boots and shoes, and some medicines. The amount forbids the inference that there could have been any intention to dispose of them as supplies for any organized force of rebels. On the contrary, they could only be viewed as intended for sale as family supplies, and to families and individuals. And so far as they were not contraband, the sale of such goods was not prohibited. The treasury officials were authorized to grant permits for this purpose, subject to the restrictions imposed by the rules of the treasury department. It was known that the inhabitants along the Mississippi were greatly in need of such articles, and to facilitate the purchase of cotton, it was deemed expedient to permit them to be sold. They were not contraband of war, either under the law of nations, or by the legislation of Congress, or the regulations of the treasury department.

But there is no reliable evidence that any of these articles were sold, or intended to be sold, to rebels in arms against the government. At Gaines' Landing, in Arkansas, and at some other points at which the steamer stopped, there were persons at the landings, some of whom came on to the boat. Many of them carried revolvers, which was an almost universal custom in that region. But the proof

United States v. Steamboat Henry C. Homeyer.

fails to show that any one of those who came on board the boat were officers or soldiers in the rebel service. It is true, on one occasion some twenty men on horseback, with cavalry arms, appeared for a short time on the bank of the river. They withdrew without attempting to molest the boat, or to afford any other demonstration of hostility. Whether guerrillas or not, does not appear from the evidence. There is no proof that any attempt was made to trade with them, or that they procured any supplies from the boat. Nor is there any proof that there were any organized rebel forces at any point in the vicinity of the places where the boat landed. One witness-who for reasons hereafter to be stated, is deemed unworthy of credit― states that the lines of the rebel army were within a short distance of Gaines' Landing. Another witness states substantially the same. But neither of these witnesses pretend to know the fact from any personal knowledge. It must have been a mere conjecture, or an inference derived wholly from hearsay or report. Other witnesses swear that they had no knowledge of any rebel force in that vicinity. It is certain that the master of the gunboat Romeo, lying near by, and by whose express permission the Homeyer landed at Gaines' Landing, had no knowledge of any rebel troops in the vicinity. And it is certain no permit to land would have been granted, had there been any danger that the persons or cargo on the steamer would have been in danger. Doubtless there were persons who came on board the boat that were disloyal, and perhaps rebels, but the testimony shows conclusively that it was impossible to distinguish by their dress or otherwise the loyal people from the rebels.

I must conclude, therefore, without going further into details, that there is not sufficient evidence to prove that the Homeyer was engaged in any illicit trade or intercourse, or that there was any intention in taking on board the steamer the merchandise referred to, to dispose of it in violation of law, or to give aid and comfort to the rebellion. It was

United States v. Steamboat Henry C. Homeyer.

precisely the "modified intercourse between loyal States or districts, and States or districts partially regained to the Union," which the secretary of the treasury declared to be permissible. As before stated, the Mississippi river and the shore of the river on either side were within the control of Union military and naval forces.

There are some general views of this case which strike me with great force, as conclusive to show there was nothing, either in the animus or the acts of these claimants, which should subject this property to forfeiture. I will advert very briefly to some of these:

1. As before remarked, there is no reason to entertain a doubt as to the loyalty of either Mr. Parkman or Mr. Page. Some of the witnesses, particularly Eames, say they have heard it impeached. But these general imputations can not weigh against the overwhelming testimony in the other direction. And I must say here, that in respect to the evidence of the witness just named, I can not give it entire credence. He has been active in all the measures and proceedings taken to procure the condemnation of this property, and, as the law was when this proceeding was instituted, would have been entitled to one-fourth of its proceeds as an informer. He now, doubtless, looks for a very liberal share in the event of a decree against the claimants. He has also had a fierce personal quarrel with one of the claimants, and is no doubt now hostile to him. But what is still more conclusive against his credibility is the fact, that he is positively contradicted in some material statements made by him on oath, by witnesses whose veracity is wholly unimpeached. Under these circumstances, the court is fully justified in rejecting his testimony.

2. The evidence is conclusive that in the transaction directly involved in this suit, and in all similar prior transactions, these claimants evinced the desire and the intention that the laws and regulations governing the trade on the Mississippi should be scrupulously observed. In regard to the trip of the steamer now in question, explicit instruc

United States v. Steamboat Henry C. Homeyer.

tions were given to this effect to all their agents and employes on the boat.

3. Mr. Yeatman, a special local treasury agent at Memphis, who, of all others, had the best opportunity of noticing, and whose official duty it was narrowly to watch their doings, says explicitly that they were unusually careful and anxious not to violate or evade any law or regulation applicable to the trade referred to. And he states it as his opinion that the reason of their success was mainly attributable to the the fact that their course was so strictly patriotic and honorable. There is other testimony in the same direction.

4. The agency, and an official of the treasury department placed on the steamer for the express purpose of guarding against any violations of law or rules, swears that he knows of no illicit or forbidden trade by the boat, or of any attempt to violate or evade any of these laws or regulations.

5. The master of the gunboat Romeo testifies, and other witnesses testify, that the Homeyer did not land at any point, or attempt to land, except under the protection of a gunboat, or by express permission for that purpose.

Now, in view of all the evidence of the good faith, the law-abiding character, and the loyalty of these claimants, I can not reconcile it with my duty in the case, to enter a decree for the forfeiture of this large amount of property.

Sitting as a judge in admiralty, I hold it to be allowable to avoid as far as possible in the rigid application of legal principles, the defeat of the ends of justice. The government of the United States ought not certainly to insist on a judgment against any of its citizens which will involve such a result. And now especially, when the formidable rebellion with which it was confronted has been so effectually suppressed, its action should be guided by a just and considerate leniency. No greater reproach to the government can be conceived of than the unjust and unsparing pursuit of a citizen for the mercenary purpose of putting money into its coffers.

Rusk v. Steamboat Freestone.

There is one transaction connected with this case to which, before concluding, I may briefly advert. It does appear that Elkins, who was on the steamer as the agent of the claimants for the purchase of cotton, entered into a contract with one Montgomery for the purchase of five hundred bales of cotton, for which payment was to be made in part with gold. This was a transaction which was in violation of one of the rules of the secretary of the treasury, prohibiting the payment of gold for cotton. This contract was entered into by Elkins in his own name, and, as it would seem, for his own individual benefit. The contract, however, was abandoned, and no cotton was delivered or placed on the boat under it. It was entered into not only without the knowledge but against the orders of the claimant, Parkman. It is in evidence that the claimants placed no gold in the hands of Elkins, and that there was none on the boat belonging to them. Now, as this contract was never carried into effect, and was entered into by Elkins on his own individual account, without the knowledge of the claimants and against their instructions, I do not see on what ground it can implicate them, or afford a basis on which a decree of forfeiture of their property can be justified.

These are the views which occur to me, after a careful consideration of this case.

Libel dismissed.

(DISTRICT COURT.)

WILLIAM J. RUSK AND ANDREW BYERS, OWNERS OF STEAMBOAT BELLE CREOLE v. STEAMBOAT FREESTONE.

On all steamboats navigating the western rivers there should be a competent and vigilant lookout.

The place of the lookout is on the forward part of the hurricane deck,

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