thorized an appraisement of prize property in this way.

2. It was ex parte; neither the owners of the property nor the authorities of the Government being present and agreeing to it.

None but the alleged captors appraised it or were present when it was appraised.

It was not sent into any court, nor yet to the Navy Department, nor yet with the papers or other communications notifying the Government authorities of the captures. It purports to come from the Quartermaster-General's office, and is not certified in due form, or otherwise authenticated.

There is absolutely nothing to show that it was an official paper, or that it was a copy of an official paper from any of the Government Departments.

Much of this property was restored to the legal owners by order of either the flag officer or the commanding general.

This was in accordance with the proclamation of the commanding general, wherein that official promised that "All the rights of property, of whatever kind, will be held inviolate, subject only to the laws of the United States;' and also the published address of the flagofficer to the Mayor of New Orleans, wherein he declared that the rights of persons and property shall be secure. General Butler's proclamation was clearly recognized and validated by the Supreme Court in the case of The Venice, 2 Wall., 258, 17 L. ed., 866.

Certain of the vessels are condemned as prize of war, and also charged with military salvage. Both amounts must be paid by the United States, if valid, since the objective point is the Treasury. The two claims are inconsistent.

Messrs. B. F. Butler, J. Hubley Ashton and Nath'l Wilson, for appellees:

That provision has its appropriate work in these particulars: as among all these vessels there might a case arise of international complication because of the condemnation of some one of them as prize, and as the United States desired to keep within its control that class of questions, so that the adjudication thereon might be by the highest court; or as new evidence might arise after the hearing before the arbitrators, and after their award, or after the decision of the district court, which it would be desirable that the Supreme Court should pass upon; or that a motion should be made in the Supreme Court to take testimony, to be heard originally before that court as is within its authority to do in prize cases. To meet such contingencies, and to meet the possible submission of questions of law by the arbitrators to the judgment of the district court, which is always within the power of the arbitrators if they choose so to do, and as they have done in the matter of salvage or prize of certain of the vessels heretofore mentioned, this provision was inserted.

But whenever the arbitrators do not submit questions of law to the court, and whenever they have made clear and distinct and positive findings of fact and law within the submission, it is respectfully submitted that, after the decision of this court in Burchell v. Marsh, 17 How., 344, 15 L. ed., 96, and York & Cumberland R. R. Co. v. Myers, 18 How., 246, 15 L. ed., 380; we ought not to be called upon to cite authorities that the determination of the arbitrator is final and irreversible upon all matters of law and fact.

If so, then no action having been taken by the United States as to the disposition of any of the vessels, and no new matter shown in the case, or any new facts found, since the decision of the arbitrators, either in the court below or in this court, the cause has passed beyond the jurisdiction of this court into res judicata by the tribunal selected by the parties.

No decree of condemnation had been entered setting forth what vessels were condemned as prize, and what vessels were to be condemned in military salvage.

The appeal of the United States was premature in this case, because no final decree had been entered by the court below.

There is no other question open upon this record. The agreement of submission, the authority to make which is not questioned by the United States, and which was for the benefit and advantage of the United States, as a method of settling this controversy, makes the determination of the arbitrators final and conclusive upon all questions of law and fact.

is true that there is also added to the submission the following provision:

"With the right, also, of either party to appeal to the Supreme Court of the United States, as from other decrees and judgments in Drize causes."

named, or whether they should be decreed as prize of war to the captors, the captors insist that the same were lawful prize.

The facts find that these vessels had been captured by the enemy from loyal owners and were lawful prize unless the fact of return takes them out of that category. They were afterwards recaptured in the enemy's ports by the western gulf squadron, taken from under the very guns of the enemy. That, we submit, was a capture in prize and these vessels were good prize; and if they had been sent into a district court held in the Eastern District of Louisiana at that time, they must have been so condemned.

It

Some of the officers of the United States Government, in the exercise of a discretion which they deemed was committed to them, restored those vessels to the lawful owners. is not found that there was any order of the President of the United States for that purpose; it is not shown that it was approved by the President or the Secretary of the Navy, in whom alone, by the statute, the control of matters of prize is vested, and the record does not show the facts upon which the arbitrators found prize, so that finding can only be re

vised on the single fact of return alone, and that, too, as against the rights of the captors. But if the court should assume that the officers who restored these prizes had the proper authority, then clearly military salvage should be allowed as against the vessels, because this is a proceeding in rem as the vessels themselves are liable to answer the decree of condemnation, as the monition had gone out against them, and they are to be condemned in this proceeding to pay this salvage because of their rescue from the enemy by most meritorious recapture.

Phillim., 509, 510, Eng. ed.

The libelants are insisting here upon the difference between capture as prize or military salvage, but are content to submit that question, without further argument, to the consideration of the court.

Mr. Justice Miller delivered the opinion of the court:

On the 3d day of March, 1869, the President 411*] approved "*An Act relating to Captures Made by Admiral Farragut's Fleet in the Mississippi River in May, 1862," which is in the following words:

"Be it enacted, etc., That the vessels attached to or connected with Admiral Farragut's fleet in the River Mississippi, which participated in the opening of that river and which resulted in the capture of New Orleans, in the month of May, eighteen hundred and sixty-two, and which by law would have been entitled to prize money in the captures made by said vessels, shall be now entitled to the benefit of the prize laws, in the same manner as they would have been had the District Court for the Eastern District of Louisiana been then open, and the captures made by said vessels had been libeled therein, and any court of the United States having admiralty jurisdiction, may take and have cognizance of all cases arising out of said captures, and the same proceedings shall be had therein as in other cases of prize."

"Sec. 2. And be it further enacted, That the shares in such captures awarded to the officers and men entitled to prize, shall be paid out of the Treasury of the United States." 15 Stat. at L., 336.

In pursuance of this statute, Admiral Far ragut, on behalf of himself and the officers and crews of his fleet, filed his libel in the Supreme Court of the District of Columbia, on the 26th April, 1869, against the ship Metropolis, and a large number of other vessels, against sixteen thousand tons of coal, alleging their capture jure belli by his fleet, and setting forth their value and praying a monition, and that they be held to be prize of war, and for a decree directing their value to be distributed among the officers and crews of the western gulf squadron, as to law and justice may apper

tain.

The United States, both by the attorney for the District of Columbia, and by special counsel employed in the case, appeared and defended the suit, and such proceedings were had that, by written agreement between the United 413*] States on one side and the libelants on the other, the whole controversy was submitted to three arbitrators, whose award, or that of a major part of them, should, by rule of the court, be entered as its decree. It was

signed by the counsel for Farragut, by the special counsel of the United States, the Attorney-General, the Secretary of the Treasury and the Secretary of the Navy.

This agreement, after reciting the pendency of the suit we have just mentioned, and another by the same libelant against the United States, which is not found in the record, but is supposed to have related to the same subjectmatter, proceeds as follows:

"Now, for the more speedy and economical adjustment of said controversies, it is agreed between the libelants and the United States, that these causes shall be referred to the final determination and award of Henry W. Paine, Esq., of Boston, and Thomas J. Durant, Esq., of Washington, and Gustavus V. Fox, Esq. late Assistant Secretary of the Navy, mutually chosen on the part of the libelant and the United States, the award of whom, or the greater part of whom, shall be final upon all questions of law and fact involved in these causes; said award to be entered as a rule and decree of court in said cases in said Supreme Court with due right of either party to take evidence, as in other like cases, within thirty days from this date; and with the right also of either party to appeal to the Supreme Court of the United States, as from other decrees or judgments in prize cases."

In due time the arbitrators made their unanimous award, the substance of which is as follows:

1. That the capture was not a conjoint operation of the Army and Navy of the United States.

2. It finds and names what vessels, fortytwo in number, participated in the capture.

3. It finds and names the vessels, twentynine in number that were captured, and five vessels of war in process of construction on the docks in the Mississippi River, and sixteen thousand tons of coal.

4. It finds and declares the value of each of these vessels separately, and *of coal [*414 and unfinished vessels, the aggregate being $966,120.

5. It finds that all this property was lawful prize of war and lawfully subject to condemnation as such.

6. That in the engagement which resulted in the capture of these ships, the entire force of the enemy was superior to the force of the United States ships and vessels so engaged.

Omitting some unimportant matters, they find: 10. That the ships, Metropolis, C. A. Farwell and Milan, the barkentine Ocean Eagle, the bark George Alban, the steamer Sally Robinson, whose aggregate value was $116,500, were, after capture given up to the legal owners from whom they had been taken by the enemy, and allow the captors the value of these thereon, and close by awarding to the libelants vessels and $46,600 for military salvage due the whole value of all these vessels, $966,120,

and the $46,600 salvage just mentioned.

This award was made the decree of the court,

and appeal taken by the United States to this

court:

After the case came into this court, the Attorney-General dismissed the appeal as to the sixteen thousand tons of coal, the five vessels of war in process of construction, and five other vessels, namely: The Diana, The Ceres, The Tennessee, The McRea and The Iberville,

covering $613,520 of the decree, and this sum has been distributed among the captors.

We find in the record a very considerable part of it composed of evidence in the cause; some of it by stipulation, some of documentary, and most of it by deposition. Whether any part of this was before the arbitrators, or what part of it, or what other testimony, if any, was before them, the very confused record furnishes us no means of knowing. 419*] *The first and most important question, therefore, arising in the argument of the case, respects the validity of the award and its effect in limiting the field of investigation of this court on appeal.

The award was also liable, like any other award, to be set aside in the court below, for such reasons as are sufficient in other courts: for exceeding the power conferred by the submission, for manifest mistake of law, for fraud and for all the reasons on which awards are set aside in the courts of law or chancery. A motion was made in that court to set aside the award on the following grounds:

1. The finding that the capture was not a conjoint operation of the Army and Navy of the United States is not warranted by the law and the facts, but is expressly contrary to the law and the facts.

2. The finding of the value of the vessels alleged to have been captured is without warrant of law and wholly unsupported by evidence.

As regards the first proposition, it is unreasonable to suppose that parties to a suit in court, referring the whole subject to arbitrators with an agreement that the award shall be final and become the decree of the court, intended to leave the whole case open after the award as though none had been made.

The provision for an appeal to this court was undoubtedly to negative the possible inference that such appeal was forbidden by the clause making the award final in all questions of law and of fact arising in this case.

It is to be observed that the appeal is not and could not be from the award, but from the decree of the court below. That court would Ideal with the award in the same manner that awards in other courts could be dealt with.

There is nothing in the nature of the admiralty jurisdiction, or of an appeal in admiralty, as counsel seem to suppose, which would prevent parties in that court, whether sitting in prize or as an instance court, from submitting their case by rule of the court to arbitration, or which varies the effect to be given to such award from that to be given to it in any other court, either in the court below or on appeal. This award is to be construed here and its effect determined by the same general principles which would govern it in a court of common law or of equity.

4. The finding that the force of the enemy was superior to the forces of the United States ships and vessels engaged in the alleged capture, is erroneous and wholly at variance with and unsupported by the law and the facts.

5. The finding that the steamer McRea was lost after that she was alleged to have been captured, and while she was used as cartel by the United States, is erroneous and not supported by the law and the facts. The evidence shows that The McRea belonged to the United States prior to her use and when she was [*421 used by the rebels, and that she was recaptured from them by the naval forces of the United States on the occasion referred to in the award, and that she was not prize of war. At most it was but a recapture.

6. It is erroneous and not warranted by law, to allow military salvage, as against the United States, for the alleged recapture of the vessels set out in paragraph No. 10 of the award. Such property was not recaptured by the libelant and those he represents.

A glance at these grounds will show that all of them, except the last, is an attempt to reopen the questions submitted to the arbitrators, because they had decided, erroneously, questions of pure fact, or of law and fact, in which the former was so mingled with the latter as to be inseparable.

no more than a submission of all matters involved in the suit.