thorized an appraisement of prize property in That provision has its appropriate work in this way. these particulars: as among all these vessels 2. It was ex parte; neither the owners of the there might a case arise of international comproperty nor the authorities of the Govern- plication because of the condemnation of some ment being present and agreeing to it. one of them as prize, and as the United States None but the alleged captors appraised it or desired to keep within its control that class of were present when it was appraised. questions, so that the adjudication thereon It was not sent into any court, nor yet to might be by the highest court; or as new evithe Navy Department, nor yet with the papers dence might arise after the hearing before the or other communications notifying the Govern- | arbitrators, and after their award, or after the ment authorities of the captures. It purports decision of the district court, which it would be to come from the Quartermaster-General's office, desirable that the Supreme Court should pass and is not certified in due form, or otherwise upon; or that a motion should be made in the authenticated. Supreme Court to take testimony, to be heard There is absolutely nothing to show that it originally before that court as is within its auwas an official paper, or that it was a copy of thority to do in prize cases. To meet such con. an official paper from any of the Government tingencies, and to meet the possible submission Departments. of questions of law by the arbitrators to the Much of this property was restored to the judgment of the district court, which is always legal owners by orde of either the flag officer within the power of the arbitrators if they or the commanding general. choose so to do, and as they have done in the This was in accordance with the proclama matter of salvage or prize of certain of the tion of the commanding general, wherein that vessels heretofore mentioned, this provision official promised that “All the rights of prop- was inserted. erty, of whatever kind, will be held inviolate, But whenever the arbitrators do not submit subject only to the laws of the United States;” questions of law to the court, and whenever and also the published address of the flag. they have made clear and distinct and positive officer to the Mayor of New Orleans, wherein findings of fact and law within the submission, he declared that the rights of persons and it is respectfully submitted that, after the deproperty shall be secure. General Butler's cision of this court in Burchell v. Marsh, 17 proelamation was clearly recognized and val. How., 344, 15 L. ed., 96, and York & Cumberidated by the Supreme Court in the case of land R. R. Co. v. Myers, 18 How., 246, 15 L. The Venice, 2 Wall., 258, 17 L, ed., 866. ed., 380; we ought not to be called upon to Certain of the vessels are condemned as cite authorities that the determination of the prize of war, and also charged with military arbitrator is final and irreversible upon all salvage. Both amounts must be paid by the matters of law and fact. United States, if valid, since the objective point If so, then no action 'having been taken by is the Treasury. The two claims are incon- the United States as to the disposition of any sistent. of the vessels, and no new matter shown in the Messrs. B. F. Butler, J. Hubley Ashton case, or any new facts found, since the decision and Nath'l Wilson, for appellees: of the arbitrators, either in the court below or The libelants and appellees ask the court in this court, the cause has passed beyond the here that this appeal be dismissed, because it jurisdiction of this court into res judicata by is not an appeal from the final judgment of the the tribunal selected by the parties. district court. The only judgment entered at Upon the question whether there should be the time was, that the award of the arbitra- military salvage decreed against the vessels tors be, and the same is hereby made the rule named, or whether they should be decreed as and decree of this court in this cause, and that prize of war to the captors, the captors insist the cause be, and the same is hereby referred that the same were lawful prize. to the auditor of the court to ascertain and re- The facts find that these vessels had been port to the court sitting in admiralty, certain captured by the enemy from loyal owners and matters in the order expressed. were lawful prize unless the fact of return No decree of condemnation had been entered takes them out of that category. They were setting forth what vessels were condemned as afterwards recaptured in the enemy's ports by prize, and what vessels were to be condemned the western gulf squadron, taken from under in military salvage. the very guns of the enemy. That, we submit, The appeal of the United States was prema; was a capture in prize and these vessels were ture in this case, because no final decree had good prize; and if they had been sent into a been entered by the court below. district court held in the Eastern District of There is no other question open upon this Louisiana at that time, they must have been so record. The agreement of submission, the au- condemned. thority to make which is not questioned by the Some of the officers of the United States United States, and which was for the benefit Government, in the exercise of a discretion and advantage of the United States, as a which they deemed was committed to them, re. method of settling this controversy, makes the stored those vessels to the lawful owners. It determination of the arbitrators final and con- is not found that there was any order of the clusive upon all questions of law and fact. President of the United States for that pur. Ti is true that there is also added to the pose; it is not shown that it was approved by submission the following provision: the President or the Secretary of the Navy, in “With the right, also, of either party to ap- whom alone, by the statute, the control of peal io the Supreme Court of the United matters of prize is vested, and the record does States, as from other decrees and judgments in not show the facts upon which the arbitrators orize causes." found prize, so that finding can only be re. manner vised on the single fact of return alone, and signed by the counsel for Farragut, by the that, too, as against the rights of the captors. special counsel of the United States, the At But if the court should assume that the offi-| torney-General, the Secretary of the Treasury cers who restored these prizes had the proper and the Secretary of the Navy. authority, then clearly military salvage should This agreement, after reciting the pendency be allowed as against the vessels, because this of the suit we have just mentioned, and another is a proceeding in rem as the vessels themselves by the same libelant against the United States, are liable to answer the decree of condemna- which is not found in the record, but is suption, as the monition had gone out against posed to have related to the same subjectthem, and they are to be condemned in this matter, proceeds as follows: proceeding to pay this salvage because of their “Now, for the more speedy and economical rescue from the enemy by most meritorious adjustment of said controversies, it is agreed recapture. between the libelants and the United States, Phillim., 509, 510, Eng. ed. that these causes shall be referred to the final The libelants are insisting here upon the dif- determination and award of Henry W. Paine, ference between capture as prize or military Esq., of Boston, and Thomas J. Durant, Esq., salvage, but are content to submit that ques- of Washington, and Gustavus V. Fox, Esq. tion, without further argument, to the consid-late Assistant Secretary of the Navy, mutually eration of the court. chosen on the part of the libelant and the United States, the award of whom, or the Mr. Justice Miller delivered the opinion of greater part of whom, shall be final upon all the court: questions of law and fact involved in these On the 3d day of March, 1869, the President causes; said award to be entered as a rule 411*] approved "*An Act relating to Cap- and decree of court in said cases in said Sutures Made by Admiral Farragut's Fleet in preme Court with due right of either party to the Mississippi River in May, 1862,” which take evidence, as in other like cases, within is in the following words: thirty days from this date; and with the right "Be it enacted, etc., That the vessels attached also of either party to appeai to the Supreme to or connected with Admiral Farragut’s fleet Court of the United States, as from other in the River Mississippi, which participated in decrees or judgments in prize cases.” the opening of that river and which resulted In due time the arbitrators made their unanin the capture of New Orleans, in the month of imous award, the substance of which is as fol. May, eighteen hundred and sixty-two, and lows: which by law would have been entitled to prize 1. That the capture was not a conjoint oper: money in the captures made by said vessels, ation of the Army and Navy of the United shall be now entitled to the benefit of the prize States. laws, in the same as they would 2. It finds and names what vessels, fortyhave been had the District Court for the two in number, participated in the capture. Eastern District of Louisiana been then open, 3. It finds and names the vessels, twentyand the captures made by said vessels had been nine in number that were captured, and five libeled therein, and any court of the United vessels of war in process of construction on States having admiralty jurisdiction, may take the docks in the Mississippi River, and sixteen and have cognizance of all cases arising out of thousand tons of coal. said captures, and the same proceedings shall 4. It finds and declares the value of each be had therein as in other cases of prize." of these vessels separately, and *of coal (*414 “Sec. 2. And be it further enacted, That the and unfinished vessels, the aggregate being shares in such captures awarded to the officers $966,120. and men entitled to prize, shall be paid out of 5. It finds that all this property was lawful the Treasury of the United States." 15 Stat. prize of war and lawfully subject to condemnaat L., 336. tion as such. In pursuance of this statute, Admiral Far. 6. That in the engagement which resulted in ragut, on behalf of himself and the officers the capture of these ships, the entire force of and crews of his fleet, filed his libel in the Su- the enemy was superior to the force of the preme Court of the District of Columbia, on United States ships and vessels so engaged. the 26th April, 1869, against the ship Metrop- Omitting some unimportant matters, they find: olis, and a large number of other vessels, 10. That the ships, Metropolis, C. A. Faragainst sixteen thousand tons of coal, alleging well and Milan, the barkentine Ocean Eagle, their capture jure belli by his fleet, and setting the bark George Alban, the steamer Sally Robforth their value and praying a monition, and inson, whose aggregate value was $116,500, that they be held to be prize of war, and for were, after capture given up to the legal own. a decree directing their value to be distributed ers from whom they had been taken by the among the officers and crews of the western enemy, and allow the captors the value of these gulf squadron, as to law and justice may apper, thereon, and close by awarding to the libelants vessels and $46,600 for military salvage due tain. The United States, both by the attorney for the whole value of all these vessels, $966,120, and the $46,600 salvage just mentioned. the District of Columbia, and by special coun This award was made the decree of the court, sel employed in the case, appeared and defended and appeal taken by the United States to this the suit, and such proceedings were had that, court: by written agreement between the United After the case came into this court, the At: 413*] States on *one side and the libelants torney-General dismissed the appeal as to the on the other, the whole controversy was sub- sixteen thousand tons of coal, the five vessels mitted to three arbitrators, whose award, or of war in process of construction, and five that of a major part of them, should, by rule other vessels, namely: The Diana, The Ceres, of the court, be entered as its decree. It was The Tennessee, The McRea and The Iberville, covering $613,520 of the decree, and this sum The award was also liable, like any other has been distributed among the captors. award, to be set aside in the court below, for We find in the record a very considerable such reasons as are sufficient in other courts: part of it composed of evidence in the cause; for exceeding the power conferred by the subsome of it by stipulation, some of documentary, mission, for manifest mistake of law, for fraud and most of it by deposition. Whether any and for all the reasons on which awards are part of this was before the arbitrators, or what set aside in the courts of law or chancery. A part of it, or what other testimony, if any, motion was made in that court to set aside the was before them, the very confused record award on the following grounds: furnishes us no means of knowing. 1. The finding that the capture was not a 419*] * The first and most important ques- conjoint operation of the Army and Navy of tion, therefore, arising in the argument of the the United States is not warranted by the case, respects the validity of the award and law and the facts, but is expressly contrary to its effect in limiting the field of investigation the law and the facts. of this court on appeal. 2. The finding of the value of the vessels On the one hand, it is maintained that the alleged to have been captured is without war. provision which gives to either party the right rant of law and wholly unsupported by evito appeal to this court, as from other decrees I dence. or judgments in prize cases, in effect nullifies 3. The finding that the property alleged to the award here and opens the entire case have been captured was “lawful prize of war, upon all the pleadings and evidence in the and lawful subject of condemnation as such," record as though no award had been made. I is erroneous and wholly unsupported by the On the other, it is argued that the clause which law and facts. declares the award final upon all questions 4. The finding that the force of the enemy of law and fact involved in the cause, forbids was superior to the forces of the United States any inquiry here into any question of law or ships and vessels engaged in the alleged capfact passed on by the arbitrators. ture, is erroneous and wholly at variance with As regards the first proposition, it is unrea- and unsupported by the law and the facts. sonable to suppose that parties to a suit in 5. The finding that the steamer McRea was court, referring the whole subject to arbitrators lost after that she was alleged to have been capwith an agreement that the award shall be tured, and while she was used as cartel by the final and become the decree of the court, in- United States, is erroneous and not supported tended to leave the whole case open after the by the law and the facts. The evidence shows award as though none had been made. that The McRea belonged to the United States The provision for an appeal to this court prior *to her use and when she was [*421 was undoubtedly to negative the possible in- used by the rebels, and that she was recaptured ference that such appeal was forbidden by the from them by the naval forces of the United clause making the award final in all questions States on the occasion referred to in the award, of law and of fact arising in this case. and that she was not prize of war. At most it It is to be observed that the appeal is not was but a recapture. and could not be from the award, but from the 6. It is erroneous and not warranted by decree of the court below. That court would law, to allow military salvage, as against the deal with the award in the same manner United States, for the alleged recapture of the that awards in other courts could be dealt vessels set out in paragraph No. 10 of the with. award. Such property was not recaptured by There is nothing in the nature of the admi- the libelant and those he represents. ralty jurisdiction, or of an appeal in admiralty, A glance at these grounds will show that all as counsel seem to suppose, which would pre- of them, except the last, is an attempt to revent parties in that court, whether sitting in open the questions submitted to the arbitraprize or .as an instance court, from submitting tors, because they had decided, erroneously, their case by rule of the court to arbitration, questions of pure fact, or of law and fact, in or which varies the effect to be given to such which the former was so mingled with the award from that to be given to it in any other latter as to be inseparable. court, either in the court below or on appeal. Applying these principles to the case before This award is to be construed here and its ef- us, we think we are bound by the first statefect determined by the same general principles ment of the award, that the capture was not which would govern it in a court of common law or of equity. a conjoint operation of the army and navy. There is no evidence here of any misapprehen420*] *Vor do we conceive, notwithstand-sion of the law governing that question, and ing the expression in the agreement of submis- it must obviously have been one mainly of fact, sion, that all questions of law in the case, are and the award is, therefore, conclusive. concluded by the award. In this respect it is no more than a submission of all matters in So, also, the names of the vessels particivolved in the suit. pating in the capture of the vessels and other Where the award finds facts it is conclusive, property captured, and the value of that propWhere it finds or announces concrete proposi-erty, are all questions exclusively of fact which tions of law, unmixed with facts, its mistake, the arbitrators had a right to find, were bound if one is made, could have been corrected in the to find, and the finding is a finality. The findcourt below, and can be corrected here. Where ing that all this property was lawful prize of a proposition is one of mixed law and fact in war and subject to condemnation as such, was which the error of law, if there be one, cannot the very thing submitted to them for their de be distinctly shown, the parties must abide | cision, and unless it can be shown that in mak hv the award. ing this award they have acted upon a mani 883 22 WALL fest mistake of law, the award must be upheld. sided on that side of the line of bayonets Does this appear? Having found the capture, spoken of in the Prize Cases, 2 Black, 674, 17 the property captured, the names and char- L. ed., 479, which adhered to the Union, then acter of the vessels engaged in it, and the na- they were not liable to condemnation as prize, ture of the capture, the only other question for their owners could have interposed a claim open was the character of the captured prop in the prize court, and on payment of salvage erty. their property would have been restored to Was it liable to capture as prize for any of them. But if their owners resided on the other the reasons which make property liable to the side of that line, were themselves citizens of 422*]law of prize? Was it *contraband of and domiciled in States declared by the Presiwar? Had it been engaged in violating or at- dent's Proclamation to be in insurrection, then tempting to violate a blockade? Was it enemy their property captured in naval warfare was property? If it was captured with any or all lawful prize, and subject to condemnation. The of these characteristics it was lawful prize, loyalty of the owners made no difference in and subject to condemnation, and whether it this regard. This whole subject was exhauswas or not was clearly matter to be decided by tively examined in the Prize Cases, and the the arbitrators, and unless they violated some second proposition established by the opinion principle of law in deciding it, which this commencing at page 671, 2 Black, is, that court can see, the award must be confirmed. property of persons domiciled or residing within The Attorney-General insists that it suffi- the enemy's lines was enemy property, and ciently appears from the record that the ships liable to capture as prize of war, without reMetropolis, Farwell, Milan, the barkantine gard to their sentiments of loyalty or disloy. Ocean Eagle, the bark George Alban, and the alty to the United States Government. This steamer Sallie Robinson, of the value of $116, was sustained on the ground that all such 500; and the steamers St. Charles, Time and property, being capable of use in aid of the Tide, Louisiana Belle, Empire Parish, St. enemy, was liable to capture for the purpose Maurice, and Morning Light, of the value of of crippling his resources. And one vessel and $64,000, were not lawful prize or subjects of some personal property was condemned as condemnation. The foundation of the argu- prize in that case, because owned by citizens ment is, that these vessels were owned by loyal of Richmond, though no disloyal acts were citizens, and were on that account delivered charged or proved against them. up to their owners by the military authorities This rule was acted on by this court in all after their capture. As regards the six ves- cases which came within it (and there were sels last named, the award is totally silent as several) growing out of the same civil war. to their being delivered to the owners, or as The rule is vindicated by the fact that these to the loyalty of those owners. very vessels were seized and were in use by the There is some evidence in the record, if we public forces *of the enemy at the time [*424 could go behind the award, to show that they they were captured, and their capture was a were delivered to their owners, but none what- deadly blow at their power to carry on the ever as to the character of these owners for war. loyalty. We cannot, in the face of the award There is nothing in the finding of the court that they were lawful prize and subject to con- nor in the record, nor is it suggested by coun. demnation, infer that their owners were loyal sel in argument, to show that these owners men, if we could look to the evidence to find were not domiciled in the rebel States. It that the vessels were delivered to them. would be reasonably supposed from all that is It is, therefore, clear that there is no suffi- | known, that such was the case; and in favor cient evidence to show that the award as to of the award and decree below it will be prethese vessels was based on any mistake of law. sumed that the arbitrators had evidence of that The six vessels first named stand on a differ- fact. ent ground. As to them, the tenth finding of It does not appear, therefore, that in holdthe award is, that they were after capture ing these vessels liable to capture and congiven up to their lawful loyal owners, from demnation, lawful prize of war, the arbitrawhom they had been taken by the enemy.". tors violated any principle of law. On this point we understand the award as But it is quite clear that in awarding the stating that these vessels had been the property value of these vessels to the captors as prize, of loyal citizens of the United States, had been and in addition forty per cent. of that value 423*] seized by the enemy for their own *use, for salvage, they did violate law and justice. and when captured from the enemy by the libelants had been restored by the military power is seen on the face of the award; and the de This is too apparent to need argument, and in New Orleans to their original owners, and that on this state of facts the arbitrators' hold cree of the Supreme Court of the District as that when captured they were lawful prize and to the $46,600 awarded as salvage is reversed, liable to condemnation as such in a prize and in all other particulars it is affirmed, and court. Unless the fact that the original own. the case is remanded to the Supreme Court of ers were loyal to the Government of the United the District of Columbia, with directions to reStates is of itself sufficient to exempt these form its decree in this particular and for such vessels from the law of prize, the award of the further proceeding as may be necessary, in concourt must be sustained. If the owners reformity with this opinion. 884 89 U. S. The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distaret Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas., not to the number of he case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: We think that in all other respects the abbreviations used are clear and familiar to EDITOR. |
