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Eastport and all other vessels of the Navy | United States and George D. Wise, the inperforming services on the western waters former herein." were under the control of the War Depart- Of those proceedings, Hugh Worthington ment until October 1, 1862, when they were had no notice or knowledge until after the turned over to the Navy Department, pur- sale of the vessel under them; but whether suant to the act of Congress of July 16, 1862, her other owners or Captain Wood had any chap. 185, 12 Stat. at L. 587.

does not appear: On July 17, 1862, in the district court of Before and throughout the war, Worththe United States for the southern district ington was a citizen and resident of Metropoof Illinois, the district attorney of the Unit. lis, Illinois, about ten miles above Paducah, ed States filed a libel in admiralty against and was loyal to the United States, and gave the Eastport, alleging "that on or about the no aid or comfort to the rebellion. He died 20th day of June, A. D. 1862, in the Mis- in March, 1876, intestate and without propsissippi river near Columbus, Kentucky, erty, and having received no compensation there was seized by George D. Wise, captain from the United States for the use or value and assistant quartermaster, with gunboat of the Eastport. The claimant, Sarah A. flotilla (and which he hereby reports for Oakes, is his daughter, and his sole survive condemnation), the steamer Eastport, and ing heir at law and next of kin. which was brought into said district. Said When Captain Wood ran the Eastport up seizure was made for the reason that said the Tennessee river, she was worth $40,000. steamer was used by and with the knowledge When she was captured by the United States and consent of the owner in aiding the pres- forces, she was worth $30,000. During the ent rebellion against the United States, con- time she was used by the United States, a trary to the act of August 6, 1861. The fair and reasonable rental for her was $150 said attorney therefore asks that process of a day. attachment may issue against said steamer, *The court of claims decided that the claim-[785] and the monition of this honorable court, ant was not entitled to recover against the and that all persons having an interest in United States, and dismissed the petition. the same may be made parties herein, and 30. Ct. Cl. 378. The claimant appealed to that on a final hearing of this case your this court. honor will adjudge and decree condemnation of said boat and order that the same may be

Mr. John C. Fay for appellant. sold.” Thereupon the court issued a moni- Messrs. Louis A. Pradt, Assistant At tion, reciting that the libel had been filed by torney General, and John G. Capers for apthe district attorney and Captain Wise; and pellee. commanding the marshal to attach the Eastport and detain her in his custody until the *Mr. Justice Gray, after stating the case[785] further order of the court; and to give no- as above, delivered the opinion of the court: tice by publication in a certain newspaper The special act of Congress of July 28, published at Springfield in that district for 1892, chap. 313, under which the petition in fourteen days before the day of trial, “and by this case was filed, confers jurisdiction upnotice posted up in the most public manner on the court of claims “to hear and deterfor the space of fourteen days at or near the mine what are the just rights in law" of the

place of trial, of such seizure and libel, to all claimant, as the daughter and heir at law [784]persons claiming the said steamer *Eastport, of Hugh Worthington, to compensation for boats, tackle, apparel, and furniture, or

the value of his interest in the steamboat knowing or having anything to say why this Eastport, alleged to have been taken by the court should not pronounce against the United States in 1862, and converted into a same, according to the prayer of the said li- gunboat; and authorizes and directs that bel,” to appear before the court at Springs court, upon her petition, “to inquire into the field on September 2, 1862. The marshal's merits of said claim, and if on a full hearing return on the monition stated that by vir the court shall find that said claim is just, tue thereof he had "attached the within to render judgment in her favor and against named boat, and made proclamation of the the United States for whatever sum shall

27 Stat. at L. 320. same;" and notice was published as ordered. be found due. And on that day the court entered a decree, claim is just” is the same as the question

Under this act, the question whether "said reciting the attachment and notice, and that, "what are the just rights in law of the notwithstanding proclamation made, no one had appeared or interposed a claim; and ad- claimant as Worthington's daughter and judging "that the default of all persons be, heir; and this necessarily depends upon the and the same are, accordingly hereby en

question what had been his legal right to tered, and that the allegations of the libel compensation from the United States for the in this cause be taken as true against said value of his interest in the vessel.

The act neither recognizes the claim as a property, and that the same be condemned valid one, nor undertakes to pass upon its as forfeited to the United States,” and be validity; but simply empowers the court of sold by the marshal. Pursuant to that de- claims to hear and determine whether the cree the Eastport was sold October 4, 1862, claim is valid or invalid; and the determinaby the marshal to the United States for the tion of that issue embraces not only the sum of $10,000, which, after deducting al- questions whether the claimant was the lowances to the clerk, to the marshal, and to daughter and heir at law of Worthington, the district attorney, was ordered by the whether he was a loyal citizen of the United court_to be “equally divided between the States, whether he was the *owner of three

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fifths of the Eastport, and whether the ves. I court of claims proceeded were that by the sel was taken and applied to the use of the Army appropriation act of July 17, 1861 (12 United States, but all other questions, of Stat. at L. 263, chap. 6), there was approlaw or of fact, affecting the merits of the priated for "gunboats on the western rivers, claim. United States v. Cumming, 130 U. one million dollars;" that, at the time of the 8. 452 [32: 1029].

capture of the Eastport, the gunboats and The leading facts of the case, as found by the naval forces of the United States on the court of claims, are as follows: Wort!. those rivers were under the control of the ington was a loyal citizen of the United War Department; that she was on inland States, residing at Metropolis in the state of waters, and could not be regarded as mari. Illinois; and the claimant was his daughter time prize; that she was lying dismantle and only heir at law. Early in the war of by the bank of a river, where the seizure the rebellion, in consequence of the blockade might as well have been made by a detachof the Mississippi river by the forces of the ment from the Army, as by one from the United States, the Eastport was tied up at Navy; and that, in view of these facts, the Paducah in the state of Kentucky, her home Eastport must be considered as having been port, undergoing extensive repairs under the captured by the Army. orders of her master, Captain Wood, and of In support of that conclusion, reference Worthington, who owned three fifths of her. was made to United States v. 269 1-2 She was afterwards taken by Wood, without Bales of Cotton, Woolw. 236. But that case Worthington's knowledge or consent, up the was wholly different from the case at bar. Tennessee river within the lines of the Con. In that case, a battalion of cavalry, com. federate forces, and came into their posses- manded by an officer of the Army of the sion; and while in their possession, and being United States, went in vessels in the service transformed into a gunboat for use in the of the United States up the Mississippi river, Confederate service, having on board the iron and landed in the state of Mississippi, and and other materials therefor, and having penetrated into country in the control of the been dismantled, and her upper works, cabin, Confederate forces, and, after a conflict with and pilot-house cut away, but before she had them, took from their possession a quantity been completed or used, or was in condition of cotton, and brought it by the river to the for use, in any hostile demonstration against state of Arkansas;

and Mr. Justice Miller (788) the United States, she was captured by part sitting in the circuit court, held that the cotof the naval forces of the United States ton só captured was not within the jurison the western waters, then under the con- diction of a prize court. The grounds of his trol of the War Department. No land forces decision are sufficiently shown by the followtook part in the capture, or were in the ing extract from his opinion: neighborhood at the time. The Eastport "It is not supposed or alleged that any was immediately brought by her captors to of these vessels were officered by government Mound City, Illinois, and was afterwards officers. They were not even armed vessels, converted by the United States into a gun and could not take part in any action, or boat, and put in commission in the Navy as contribute in any manner by belligerent such.

force to the capture. It is not shown that The questions of law presented by the rec- they remained after they landed the forces; ord are not free from difficulty.

and the fair inference is that they did not. By the law of nations, as recognized and It is averred that the cotton was conveyed administered in this country, when movable by the soldiers to the river, and that it was property in the hands of the enemy, used, or taken thence to the state of Arkansas; but intended to be used, for hostile purposes, is it is not alleged that it was so taken by the captured by land forces, the title passes tovessels. In short, the entire statement is the captors as soon as they have reduced the consistent with the fact that the vessels and property to firm possession; but when such crews were in the employment of the War

property is captured by naval forces, a judi. Department, and were used merely as trans[787]cial *decree of condemnation is usually neces- ports to carry the troops; and it is consist

sary to complete the title of the captors. ent with no other supposition. It is also 1 Kent, Com. 102, 110; Halleck's Interna- evident that the capture was not made on tional Law,'chap. 19, § 7, chap. 30, § 4; Kirk the banks of the river, but some distance v. Lynd, 106 U.S. 315, 317 (27: 193, 194). inland, where the vessels could render no

The Eastport, at the time of her capture other assistance than to land the forces, and by the forces of the United States, was in roceive them again. I cannot conceive that the hands of the Confederate forces, and was the employment by the government of unbeing transformed into a gunboat for use in armed steamboats, for the mere purpose of the Confederate service, with the iron and transporting troops from one point to another materials therefor on board. Al other on the Mississippi river, can render though not yet in condition for hostile use, every capture made by the troops or detachshe was clearly intended for that use. Con ments so transported prize of war, and let in sequently if, as the court of claims held, the crews and officers of those vessels to s her capture was made by the Army of the share of the prize money. Such vessels are United States, it cannot be doubted that the in no sense war vessels, and are neither er. capture was at once complete upon her be. pected nor fitted to take part in engageing taken into the possession of the national ments." Woolw. 256, 257. forces, and brought by them to Mound City, In the case at bar, on the other hand, it Illinois, in February, 1862.

appears, by the facts found by the court The grounds on which the decision of the of claims, that the Eastport, while water

borne, was boarded and taken by detachments of men in small boats from three United States gunboats, armed vessels, commanded by a lieutenant in the Navy, and part of the naval forces on the western waters, commanded by a captain in the Navy, who reported the capture to the Secretary of the Navy; and that, at the time of the capture, no land forces were near the scene thereof, or took any active part therein. Under these circumstances, we are not pre[789]pared to hold that the capture was made by the Army, and not by the naval forces of the United States, although the latter, at the time and place, were under the general control of the War Department.

If it was not a capture by the Army, it
was clearly a capture by the naval forces;
and the United States rely upon the proceed-condemnation.
ings for the condemnation and sale of the
Eastport in the district court of the United
States for the southern district of Illinois,
which are stated in the record.

Those proceedings, as appears on the face of the libel, were instituted under the act of Congress of August 6, 1861, chap. 60, the material provisions of which are as follows: Section 1 enacts that, if the owner of any property, of whatsoever kind or description, "shall purchase or acquire, sell or give," with "intent to use or employ the same, or suffer the same to be used or employed," or "shall knowingly use or employ, or consent to the use and employment of the same," in aiding, abetting, or promoting the then existing insurrection, "all such property is hereby declared to be lawful subject of prize and capture, wherever found; and it shall be the duty of the President of the United States to cause the same to be seized, confiscated, and condemned."

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proceedings were in conformity with the practice in admiralty, and were not gov erned by the strict rules that prevail in regard to indictments or criminal informations at common law. Union Ins. Co. v. United States, 6 Wall. 759, 763 [18: 879, 881]; The Confiscation Cases, 20 Wall. 92, 104-107 [22: 320, 322, 323].

Section 2 gives jurisdiction of the proceedings for condemnation of such property to "the district or circuit court of the United States having jurisdiction of the amount, or in admiralty, in any district in which the same may be seized, or into which they may be taken and proceedings first instituted." Section 3 provides that "the Attorney General, or any district attorney of the United States [in the district] in which said property may at the time be, may institute the proceedings of condemnation, and in such case they shall be wholly for the benefit of the United States; or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts." 12 Stat. at L. 319.

In the proceedings for the condemnation of the Eastport, the libel alleged that she [790]had been seized, in June, 1862, by an assistant quartermaster, "with gunboat flotilla," and that "said seizure was made for the reason that said steamer was used by and with the knowledge and consent of the owner in aiding the present rebellion against the United States, contrary to the act of August 6, 1861." This is a sufficient allegation that she was so used with the knowledge and consent of her owner, as well as that she was seized for that reason, and brings the case within the first section of that act. The

The libel was filed, as required by the second and third sections of that act, by the district attorney of the United States, in the district court of the United States, in a district into which the Eastport had been brought. The libel seems to have been filed by the district attorney on the information of the assistant quartermaster; but this was unimportant for any purpose, except for the distribution of the proceeds of the sale after

The expressions in the opinions in The Confiscation Cases, 20 Wall. 92, 109 [22: 320, 324], and in United States v. Winchester, 99 U. S. 372, 376 [25: 479, 480], cited by the appellant as tending to show that the proceedings for condemnation were void, for want of a preliminary order of the President of the United States directing the seizure of the Eastport and the institution of the proceedings, were delivered in cases in which proceedings for the confiscation of land, or of cotton captured on land, were sought to be maintained under the act of July 17, 1862, chap. 195 (12 Stat. at L. 589), and are not easily to be reconciled with earlier judg ments of this court under the same act. See Pelham v. Rose, 9 Wall. 103 [19: 602]; Miller v. United States, 11 Wall. 268 [20: 135].

But the act of 1861 differed materially, in its object, and in its provisions, from the act of 1862. As was observed by Chief Justice Waite, speaking for the court, in Kirk v. Lynd, 106 U. S. 315 [27: 193] the act of 1861 was passed by Congress in the exercise of its power under the Constitution "to make rules concerning captures on land and[791] water," and was aimed exclusively at the seizure and confiscation of property used in aid of the rebellion, "not to punish the owner for any crime, but to weaken the insurrection"; but the act of 1862 proceeded upon the entirely different principle of confiscating property, without regard to its use, by way of punishing the owner for being engaged in rebellion and not returning to his allegiance. The act of 1861 did not require (as the act of 1862 did) that proceedings for condemnation of the property in question should be instituted "after the same shall have been seized;" and the act of 1861 expressly authorized (as the act of 1862 did not) such proceedings to be instituted by "the Attorney General or any district attorney of the United States [in the district] in which said property may at the time be." The case at bar presents no question of the construction of the act of 1862.

The Eastport having been captured by the United States forces, and taken into the firm possession of the United States, before the institution of the proceedings for condemnation; those proceedings having been instituted by the district attorney, under the au

thority expressly given him by the act of law, and regulated in modern times by stat-
1861, in a proper court of the United States ute or treaty, or by the usage of civilized na.
in a district into which she had been taken; tions, has been *rested by eminent jurists up-(793)
and thereupon, according to the usual course on the duty of the sovereign to protect his
of proceedings in rem in admiralty, the ves- citizens and subjects and their property
sel having been taken into the custody of the against warlike or violent acts of the enemy
inarshal under a writ of attachment from Vattel's Law of Nations, lib. 3, chap. 14, $
the court, and notice published to all per. 204; Halleck's International Law, chap. 35,
sons interested to appear and show cause 88 1, 2. He is under no such obligation to
against her condemination, and no one liavo protect them against unwise bargains, or
ing appeared or interposed a claim at the time against sales made for inadequate consid.
and place appointed for the hearing; we eration, or by an agent or custodian in ex.
find it difficult to resist the conclusion that cess of his real authority. The jus post-
the decree of condemnation thereupo!l en liminii attaches to property taken by the en-
tered was valid, as against her former owners emy with the strong hand against the will
and all other persons, under the act of 1861; of its owner or custodian, and not to prop-
that the proceedings cannot be collaterally erty obtained by the enemy by negotiation or
impeached; and that the sale under that de purchase.
cree passed an absolute title to the United The act of 1800 is entitled "An Act Pro-
States.

viding for Salvage in Cases of Recapture," But, apart from the question whether the and applies only to recaptures from an enrecord shows a complete title in the Cast- emy. In order to come within its purpose, port to have vested in the United States, the and its very words, the property in question

claimant has wholly failed to show that must "have been taken by an enemy of the [792] Worthington *had any legal right to com- United States," and "retaken" by å publie

pensation from the United States for his in- or private vessel of the United States. terest in the vessel.

Where there has been no capture, there can The counsel for the claimant contends that, be no recapture. That enactment has been the capture having been made on navigable substantially embodied in later statutes. waters by vessels of the United States, the Act of June 30, 1864, chap. 174, § 29; 13 claimant is entitled to compensation for the Stat. at L. 314; Rev. Stat. $ 4652. The simvalue of Worthington's interest in the East ilar provision of the English prize acts was port, under the act of Congress of March 3, held by Sir William Scott to be inapplicable 1800, chap. 14, § 1, which was as follows: to a British ship captured from the French

“When any vessel other than a vessel of during a war between the two countries, war or privateer, or when any goods, which which before the war had been seized, con. shall hereafter be taken as prize by any ves- demned, and sold under the revenue laws of sel acting under authority from the govern- France, although the French seizure was al. ment of the United States, shall appear to leged to have been violent and unjust. The have before belonged to any person or per- Jeune Voyageur, 5 C. Rob. 1. Neither the bons resident within or under the protection English statutes nor our own have ever been of the United States, and to have been taken held to apply to property which had come inby an enemy of the United States, or under to the enemy's possession, by purchase or authority, or pretense of authority, from any otherwise, with the consent of the owner or prince, government, or state against which of his agent. the United States have arıthorized, or shall In the present case, the only facts found authorize, defense or reprisals, such vessel by the court of claims (other than may be or goods not having been condemned as prize ascertained from the papers in the Confed. by competent authority before the recapture erate Archives Office) which can be supposed thereof, the same shall be restored to the to have any bearing on the question whether former owner or owners thereof, he or they the Eastport came into the possession of the paying, for and in lieu of salvage, if retaken Confederate forces by capture, or by pur. by a public vessel of United States, one. chase, are these: Before and throughout eighth part, and if retaken by a private ves the war of the rebellion, Worthington, being sel of the United States, one-sixth part, of the owner of three fifths of the Eastport, was the true value of the goods so to be re- a citizen and resident of Illinois, was loyal stored, allowing and excepting all imposts to *the United States, and gave no aid or com-(794) and public duties to which the same may be fort to the rebellion, and neither knew of, liable. And if the vessel so retaken shall nor consented to, the Eastport being taken appear to have been set forth and armed as by her captain, Wood, within the lines of a vessel of war, before such capture or after the Confederate forces. This precludes any wards, and before the retaking thereof, as inference that Worthington himself particiaforesaid, the former owner or owners, on the pated in, or consented to, a transfer of the restoration thereof, shall be adjudged to pay, Eastport to the Confederate authorities; but for and in lieu of salvage, one moiety of the it does not negative the supposition that she true value of such vessel of war, or as priva- was sold to those authorities by Wood, or teer.” 2 Stat, at L. 10.

by the owners of the other two fifths of her. That act was a regulation of the jus That Wood's possession and control of her postliminii, by which things taken by the was by Worthington's authority and consent enemy were restored to their former owner is evident from the facts that Worthington upon coming again under power of the na- owned more than one half of her, and that tion of which he was a citizen or subject. she was being extensively repaired, under the The jus postliminii, derived from the Roman 'orders of both Wood and Worthington,

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OAKES V. UNITED STATES.

1898.

It is stated in the finding of facts that it did not appear what disposition Wood made of the Eastport, nor whether he was paid purchase money for her, nor whether he ever accounted for such money to the other owners, nor whether they had received any part of it, nor whether she came into the possession of the Confederate forces by capture, or by purchase from Wood.

If the matter rested here, there would be
nothing to warrant the court in concluding
that the Eastport came into the possession
of the Confederate forces by capture or other
forcible appropriation. But it does not rest

shortly before Wood took her within the Con- | 226, 402. And the appropriations for the
federate lines. At that time she was an un- War Department in 1882 included one "for
armed vessel, and fit for commercial pur- traveling expenses in connection with the
collection of Confederate records placed by
poses only.
gift at the disposal of the government."
Act of August 5, 1882, chap. 389, 22 Stat. at
I.. 241. Congress has also occasionally made
appropriations "to enable the Secretary of
the Treasury to have the rebel archives and
records of captured property examined, and
information furnished therefrom for the use
of the government." Acts of March 3, 1875,
chap. 130, 18 Stat. at L. 376; March 3, 1879,
chap. 182, 20 Stat. at L. 384; June 16, 1880,
chap. 235, 21 Stat. at L. 266. It has once,
at least, made an appropriation "for col-
lecting, compiling, and arranging the naval
records of the war of the rebellion, includ-,
ing Confederate *naval records." Act of July[796]
7, 1884, chap. 331, 23 Stat. at L. 185. And
it has made appropriations "for the prepara-
tion of a general card index of the books,
muster rolls, orders, and other official papers
preserved in the Confederate Archives Of-
Acts of May 13. 1892, chap. 72, and
fice."
March 3, 1893, chap. 208, 27 Stat. at L. 36,

here.

Upon the question whether the so-called Confederate States acquired possession of the Eastport by capture or by purchase, the extracts from the Confederate archives, made part of the facts found by the court of claims, appear to this court to have an important bearing, and to be competent, though not conclusive, evidence.

-94]

600.

The government of the Confederate States,
although in no sense a government de jure,
and never recognized by the United States
as in all respects a government de facto, yet
was an organized and actual government,
maintained by military power, throughout
the limits of the states that adhered to it,
except to those portions of them protected
[795]* from its control by the presence of the armed
forces of the United States; and the United
States, from motives of humanity and ex-
pediency, had conceded to that government
some of the rights and obligations of a bel-
ligerent. Prize Cases, 2 Black, 635, 673,
674 [17: 459, 478]; Thorington v. Smith, 8
Wall. 1, 7, 9, 10 [19: 361, 363, 364]; Ford v.
Surget, 97 U. S. 594, 604, 605; [24: 1018,
1021]: The Lilla, 2 Sprague, 177, and 2
Cliff. 169.

It would be an anomalous condition of
things if records of this kind, collected and
preserved by the government of the United
States in a public office at great expense,
were wholly inadmissible in a court of jus-
tice to show facts of which they afford the
most distinct and appropriate evidence, and
which, in the nature of things, can hardly
be satisfactorily proved in any other man-
ner.

The act of March 3, 1871, chap. 116, § 2, provided for the appointment of a board of commissioners, "to receive, examine, and consider the justice and validity of such claims as shall be brought before them, of those citizens who remained loyal adherents to the cause and the government of the United States during the war, for stores or supplies taken or furnished during the rebellion for the use of the Army of the United States in states proclaimed as in insurrection against the United States, including the use and loss of vessels or boats while employed in the military service of the United States." 16 Stat. at L. 524. By the act of April 20, For the collection and preservation of such 1871, chap. 21, § 1, it was enacted that "all papers, a bureau, office, or division in the books, records, papers, and documents relaWar Department (now known as the Con- tive to transactions of or with the late sofederate Archives Office) was created by the called government of the Confederate States, Executive authority of the United States or the government of any state lately in insoon after the close of the war of the rebel-surrection, now in the possession, or which lion, and has been maintained ever since, may at any time come into the possession, of and has been recognized by many acts of Con- the government of the United States, or of any department thereof, may be resorted to gress. for information by the board of commissioners of claims created by act approved March 3, 1871; and copies thereof, duly certified by the officer having custody of the same, shall be treated with like force and effect as the original." 17 Stat. at L. 6. The latter act thus not only allowed a particular board of commissioners, appointed to pass upon certain claims against the United States for property taken for the use of the Army during the war of the rebellion, *to[797] 1175 have access to such archives for information

No better evidence of the doings of that organization assuming to act as a government can be found than in papers contemporaneously drawn up by its officers in the performance of their supposed duties to that government.

For instance, Congress, beginning in 1872, has made frequent appropriations to enable the Secretary of War to have the rebel archives examined and copies furnished from time to time, for the use of the Government.' Acts of May 8, 1872, chap. 140, and March 3. 1873, chap. 226, 17 Stat. at L. 79, 500; August 15, 1876, chap. 287, March 3, 1877, chap. 102, 19 Stat. at L. 160, 310; June 19, 1878, chap. 329, 20 Stat. at L. 195; June 21, 1879, chap. 34, June 15, 1880, chap. 225, March 3, 1881, chap. 130, 21 Stat. at L. 23,

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