fifths of the Eastport, and whether the ves. | 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: Worth 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 dismantled 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 1-4 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, comfederate 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 so 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 to vessels. 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 consiste

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 receive them again. I cannot conceive that the hands of the Confederate forces, and was the employment by the government of un. being 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. All other on the Mississippi river, can render though not yet in condition for hostile use, I every capture made by the troops or detachshe was clearly intended for that use. Con inents so transported prize of war, and let in sequently if, as the court of claims held, the crews and officers of those vessels to a 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 excapture was at once complete upon her be. | pocted nor fitted to take part in engageing taken into the possession of the national I 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 detach- | proceedings were in conformity with the
ments of men in small boats from three practice in admiralty, and were not gov.
United States gunboats, armed vessels, com- / erned by the strict rules that prevail in re
manded by a lieutenant in the Navy, and gard to indictments or criminal informations
part of the naval forces on the western wa- / at common law. Union Ins. Co. v. United
ters, commanded by a captain in the Navy, States, 6 Wall. 759, 763 [18: 879, 881];Tho
who reported the capture to the Secretary of Confiscation Cases, 20 Wall. 92, 104-107 (22:
the Navy; and that, at the time of the cap- | 320, 322, 323].
ture, no land forces were near the scene The iibel was filed, as required by the
thereof, or took any active part therein. second and third sections of that act, by

Under these circumstances, we are not pre- the district attorney of the United States, (789)pared *to hold that the capture was made by in the district court of the United States, in

the Army, and not by the naval forces of a district into which the Eastport had been
the United States, although the latter, at brought. The libel seems to have been filed
the time and place, were under the general by the district attorney on the information
control of the War Department.

of the assistant quartermaster; but this wis
If it was not a capture by the Army, it unimportant for any purpose, except for the
was clearly a capture by the naval forces; distribution of the proceeds of the sale after
and the United States rely upon the proceed condemnation.
ings for the condemnation and sale of the The expressions in the opinions in The
Eastport in the district court of the United Confiscation Cases, 20 Wall. 92, 109 [22:
States for the southern district of Illinois, 320, 324], and in United States v. Winches-
which are stated in the record.

ter, 99 U. S. 372, 376 (25: 479, 480], cited by Those proceedings, as appears on the face the appellant as tending to show that tho of the libel, were instituted under the act proceedings for condemnation were void, for of Congress of August 6, 1861, chap. 60, the want of a preliminary order of the President material provisions of which are as follows: of the United States directing the seizure

Section 1 enacts that, if the owner of any of the Lastport and the institution of the property, of whatsoever kind or description, proceedings, were delivered in cases in which "shall purchase or acquire, sell or give," proceedings for the confiscation of land, or with "intent to use or employ the same, or of cotton captured on land, were sought to suffer the same to be used or employed,” or be maintained under the act of July 17, 1862, “shall knowingly use or employ, or consent chap, 195 (12 Stat. at L. 589), and are not to the use and employment of the same," easily to be reconciled with earlier judg. in aiding, abetting, or promoting the then ments of this court under the same act. existing insurrection, "all such property is See Pelham v. Rose, 9 Wall. 103 (19: 602]; hereby declared to be lawful subject of prize Miller v. United States, 11 Wall. 268 [20: and capture, wherever found; and it shall we 135). the duty of the President of the United But the act of 1861 differed materially, States to cause the same to be seized, con- in its object, and in its provisions, from tho fiscated, and condemned.”

act of 1862. As was observed by Chief Jus. Section 2 gives jurisdiction of the proceel- tice Waite, speaking for the court, in Kirke irgs for condemnation of such property to v. Lynd, 106 U. S. 315 [27: 193] the act of "the district or circuit court of the United 1861 was passed by Congress in the exercise States having jurisdiction of the amount, or of its power under the Constitution “to make in admiralty, in any district in which the rules *concerning captures on land and[791) Bame may be seized, or into which they may water,” and was aimed exclusively at the be taken and proceedings first instituted." seizure and confiscation of property used in

Section 3 provides that “the Attorney Geo- aid of the rebellion, "not to punish the owner eral, or any district attorney of the United for any crime, but to weaken the insurrecStates (in the district] in which said prop-tion"; but the act of 1862 proceeded upon erty may at the time be, may institute the the entirely different principle of confiscatproceedings of condemnation, and in such ing property, without regard to its use, by case they shall be wholly for the benefit of way of punishing the owner for being enthe United States; or any person may file gaged in rebellion and not returning to his an information with such attorney, in which allegiance. The act of 1861 did not require case the proceedings shall be for the use of (as the act of 1862 did) that proceedings such informer and the United States in equal for condemnation of the property in question parts." 12 Stat. at L. 319.

should be instituted “after the same shall In the proceedings for the condemnation

have been seized ;” and the act of 1861 exof the Eastport, the libel alleged that she

pressly authorized (as the act of 1802 did (790]had been seized, in June, 1862, by kan assist not) such proceedings to be instituted by

ant quartermaster, “with guinboat flotilla,” “the Attorney General or any district at.
and that "said seizure was made for the rea- torney of the United States (in the district)
son that said steamer was used by and with in which said property may at the time be.
the knowledge and consent of the owner in The case at bar presents no question of the
aiding the present rebellion against the construction of the act of 1862.
United States, contrary to the act of August The Eastport having been captured by the
6, 1861.” This is a sufficient allegation that United States forces, and taken into the firm
she was so used with the knowledge and possession of the United States, before the
consent of her owner, as well as that she was institution of the proceedings for condemna-
seized for that reason, and brings the case tion; those proceedings having been insti-
within the first section of that act. The 'tuted 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 condemnation, and no one lav- 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 thereupon 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-

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 East- 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

clainant 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 public

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, conshall hereafter be taken as prize by any veg. 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. l. Neither the Bons resident within or under the protection English statutes por our own have ever been of the United States, and to have been taken held to apply to property which had come iaby 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 authorized, 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 Confedby 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 throughcut 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-1794) 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,

shortly before Wood took her within the Con- 226, 402. And the appropriations for the federate lines. At that time she was an un. Var Department in 1882 included one "for armed vessel, and fit for commercial pur-traveling expenses in connection with the poses only.

collection of Confederate records placed by It is stated in the finding of facts that it gift at the disposal of the government." did not appear what disposition Wood made Act of August 5, 1882, chap. 389, 22 Stat. at of the Eastport, nor whether he was paid 1.. 241. Congress has also occasionally made purchase money for her, nor whether he ever appropriations "to enable the Secretary of accounted for such money to the other own. the Treasury to have the rebel archives and ers, nor whether they had received any part records of captured property examined, and of it, nor whether she came into the posses information furnished therefrom for the use sion of the Confederate forces by capture, of the government.” Acts of March 3, 1875, or by purchase from Wood.

chap. 130, 18 Stat, at L. 376; March 3, 1879, If the matter rested here, there would be chap. 182, 20 Stat, at L. 384; June 16, 1880, nothing to warrant the court in concluding chap. 235, 21 Stat, at L. 266. It has once, that the Eastport came into the possession at least, made an appropriation "for colof the Confederate forces by capture or other | lecting, compiling, and arranging the naval forcible appropriation. But it does not rest records of the war of the rebellion, includ. here.

ing Confederate *naval records.” Act of July[796) Upon the question whether the so-called 7, 1884, chap. 331, 23 Stat. at L. 185. And Confederate States acquired possession of it has made appropriations "for the preparathe Eastport by capture or by purchase, the tion of a general card index of the books, extracts from the Confederate archives, muster rolls, orders, and other official papers made part of the facts found by the court of preserved in the Confederate Archives ‘Of. claims, appear to this court to have an im- fice.” Acts of May 13. ?892, chap. 72, and portant bearing, and to be competent, though March 3, 1893, chap. 208, 27 Stat. at L. 36, not conclusive, evidence.

600. The government of the Confederate States, It would be an anomalous condition of although in no sense a governmeni de jure, things if records of this kind, collected and and never recognized by the United States preserved by the government of the United as in all respects a government de facto, yet States in a public office at great expense, was an organized and actual government, were wholly inadmissible in a court of jusmaintained by military power, throughout tice to show facts of which they afford the the limits of the states that adhered to it, most distinct and appropriate evidence, and

except to those portions of them protected which, in the nature of things, can hardly (795)*from its control by the presence of the armed be satisfactorily proved in any other man.

forces of the United States; and the United ner.
States, from motives of humanity and ex. The act of March 3, 1871, chap. 116, § 2,
pediency, had conceded to that government provided for the appointment of a board of
some of the rights and obligations of a bel- commissioners, “to receive, examine, and con-
ligerent. Prize Cases, 2 Black, 635, 673, sider the justice and validity of such claims
674 [17: 459, 478); Thorington v. Smith, 8 as shall be brought before them, of those
Wall. 1, 7, 9, 10 si9: 361, 363, 364): Ford v. citizens who remained loyal adherents to the
Surget, 97 U. s. 594, 604, 605; 124: 1018, cause and the government of the United
1021]; The Lilla, 2 Sprague, 177, and 2 States during the war, for stores or supplies
Cliff. 169.

taken or furnished during the rebellion for
No better evidence of the doings of that the use of the Army of the United States in
organization assuming to act as a govern- states proclaimed as in insurrection against
ment can be found than in papers contempo- the United States, including the use and lo
raneously drawn up by its officers in the per- of vessels or boats while employed in the
formance of their supposed duties to that 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 hooks, 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 in. soon 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 gress.

ary department thereof, may be resorted to For instance, Congress, beginning in 1872, for information by the board of commis. bas made frequent appropriations to enablé sioners of claims created by act approved the Secretary of War to have the rebel ar. March 3, 1871; and copies thereof, duly cer. chives examined and copies furnished from tified by the officer having custody of the time to time, for the use of the Government.” same, shall be treated with like force and Acts of May 8, 1872, chap. 140, and March effect as the original.” 17 Stat. at L. 6. 3. 1873, chap. 226, 17 Stat. at L. 79, 500; The latter act thus not only allowed a par. August 15, 1876, chap. 287, March 3, 1877, ticular board of commissioners, appointed to chap. 102, 19 Stat. at L, 160, 310; June 19, pass upon certain claims against the United 1878, chap. 329, 20 Stat, at L. 195; June 21, States for property taken for the use of the 1979, chap. 34, June 15, 1880, chap. 225, | Army during the war of the rebellion, *tor 797) March 3, 1881, chap. 130, 21 Stat. at L. 23,' have access to such archives for information

as to transactions of or with the so-called a despatch from one of their generals in Kertgovernment of the Confederate Stats ; but tucky, October 31, 1861, to the secretary of it declared the recoris and papers in such the navy, that the price of the Eastport ns archives, or duly certified copies thereof, to $12,000, a reply of the secretary of war be competent evidence of such transactions. of the same date, giving authority to the

Section 882 of the Revised Statutes, also, general to buy her if thought worth that re-enacting earlier acts of Congress, provides sum; a letter of January 5, 1862, from that "copies of any books, records, papers, or the general to the secretary of war indocuments in any of the Executive Depart. forming him that, by virtue of that auments, authenticated under the seals of such thority, he had bought her, and she was Departments respectively, shall be admitted being converted into a gunboat; & letter of in evidence equally with the originals there- January 16, 1862, from the secretary of war of.” And, by section 1076, the court of to the general, saying that he would at once claims has "power to all upon any of the order to be forwarded the necessary funds Departments for any information or papers for the Eastport; and a statement of disit may deem necessary;" "but the head of bursements, dated February 2, 1863, by the any Department may refuse and omit to general to the secretary of war, in which one comply with any call for information or item was a sum of $9,688.82,"expended in papers, when, in his opinion, such com- purchase of Steamer Eastport" pliance would be injurious to the public in- ' *Not going beyond what is required for the 73 terest.”

purposes of this case, we are of opinion that The certificate of the officer of the United the originals of these communications, and States in charge of the Confederate Archives consequently the certified copies thereot Cffice, embodied in the findings of fact, would from the Confederate Archives Office, are appear to have been furnished upon a call competent and persuasive evidence that the from the court of claims; and it is not open, Confederate authorities did not obtain pos at this stage of the case, to objection for not session of the Eastport by capture or by other being under the seal of the War Department, forcible and compulsory appropriation. since that court has found that the papers in The claimant therefore wholly fails to sup that office show the facts stated in that cer- port the allegation of her petition that the tifioate. Those facts consist of official com Eastport was captured by the insurgents munications, between high civil and military | Judgment affirmed. officers of the Confederato States, including! 1170

174 U. 1.

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