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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 remanded 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]; The 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 libel was filed, as required by the thereof, or took any active part therein. Under these circumstances, we are not pre789]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 proceedings 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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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

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 condemnation.

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 judgments 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 1861, in a proper court of the United States in a district into which she had been taken; and thereupon, according to the usual course of proceedings in rem in admiralty, the vessel having been taken into the custody of the marshal under a writ of attachment from the court, and notice published to all persons interested to appear and show cause against her condemnation, and no one having appeared or interposed a claim at the time and place appointed for the hearing; we find it difficult to resist the conclusion that the decree of condemnation thereupon entered was valid, as against her former owners and all other persons, under the act of 1861; that the proceedings cannot be collaterally impeached; and that the sale under that decree passed an absolute title to the United States.

But, apart from the question whether the record shows a complete title in the Eastport to have vested in the United States, the claimant has wholly failed to show that [792] Worthington *had any legal right to compensation from the United States for his interest in the vessel.

The counsel for the claimant contends that, the capture having been made on navigable waters by vessels of the United States, the claimant is entitled to compensation for the value of Worthington's interest in the East port, under the act of Congress of March 3, 1800, chap. 14, § 1, which was as follows:

"When any vessel other than a vessel of war or privateer, or when any goods, which shall hereafter be taken as prize by any vessel acting under authority from the government of the United States, shall appear to have before belonged to any person or persons resident within or under the protection of the United States, and to have been taken by an enemy of the United States, or under authority, or pretense of authority, from any prince, government, or state against which the United States have authorized, or shall authorize, defense or reprisals, such vessel or goods not having been condemned as prize by competent authority before the recapture thereof, the same shall be restored to the former owner or owners thereof, he or they paying, for and in lieu of salvage, if retaken by a public vessel of United States, one eighth part, and if retaken by a private vessel of the United States, one-sixth part, of the true value of the goods so to be restored, allowing and excepting all imposts and public duties to which the same may be liable. And if the vessel so retaken shall appear to have been set forth and armed as a vessel of war, before such capture or after wards, and before the retaking thereof, as aforesaid, the former owner or owners, on the restoration thereof, shall be adjudged to pay, for and in lieu of salvage, one moiety of the true value of such vessel of war, or as privateer." 2 Stat. at L. 16.

That act was a regulation of the jus postliminii, by which things taken by the enemy were restored to their former owner upon coming again under power of the nation of which he was a citizen or subject. The jus postliminii, derived from the Roman

law, and regulated in modern times by statute or treaty, or by the usage of civilized nations, has been *rested by eminent jurists up-[793] on the duty of the sovereign to protect his citizens and subjects and their property against warlike or violent acts of the enemy. Vattel's Law of Nations, lib. 3, chap. 14, § 204; Halleck's International Law, chap. 35, §§ 1, 2. He is under no such obligation to protect them against unwise bargains, or against sales made for inadequate consideration, or by an agent or custodian in excess of his real authority. The jus postliminii attaches to property taken by the enemy with the strong hand against the will of its owner or custodian, and not to property obtained by the enemy by negotiation or purchase.

The act of 1800 is entitled "An Act Providing for Salvage in Cases of Recapture," and applies only to recaptures from an enemy. In order to come within its purpose, and its very words, the property in question must "have been taken by an enemy of the United States," and "retaken" by a public or private vessel of the United States. Where there has been no capture, there can be no recapture. That enactment has been substantially embodied in later statutes. Act of June 30, 1864, chap. 174, § 29; 13 Stat. at L. 314; Rev. Stat. § 4652. The similar provision of the English prize acts was held by Sir William Scott to be inapplicable to a British ship captured from the French during a war between the two countries, which before the war had been seized, condemned, and sold under the revenue laws of France, although the French seizure was alleged to have been violent and unjust. The Jeune Voyageur, 5 C. Rob. 1. Neither the English statutes nor our own have ever been held to apply to property which had come into the enemy's possession, by purchase or otherwise, with the consent of the owner or of his agent.

In the present case, the only facts found by the court of claims (other than may be ascertained from the papers in the Confederate Archives Office) which can be supposed to have any bearing on the question whether the Eastport came into the possession of the Confederate forces by capture, or by purchase, are these: Before and throughout the war of the rebellion, Worthington, being the owner of three fifths of the Eastport, was a citizen and resident of Illinois, was loyal to the United States, and gave no aid or com-[794] fort to the rebellion, and neither knew of, nor consented to, the Eastport being taken by her captain, Wood, within the lines of the Confederate forces. This precludes any inference that Worthington himself participated in, or consented to, a transfer of the Eastport to the Confederate authorities; but it does not negative the supposition that she was sold to those authorities by Wood, or by the owners of the other two fifths of her. That Wood's possession and control of her was by Worthington's authority and consent is evident from the facts that Worthington owned more than one half of her, and that she was being extensively repaired, under the 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-
armed vessel, and fit for commercial pur-
poses only.

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.

War Department in 1882 included one "for traveling expenses in connection with the collection of Confederate records placed by gift at the disposal of the government." Act of August 5, 1882, chap. 389, 22 Stat. at L. 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 collecting, compiling, and arranging the naval records of the war of the rebellion, includ-, ing Confederate *naval records." Act of July[796] Upon the question whether the so-called 7, 1884, chap. 331, 23 Stat. at L. 185. 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 Ofclaims, appear to this court to have an im- fice." Acts of May 13. 1892, chap. 72, and portant bearing, and to be competent, though March 3, 1893, chap. 208, 27 Stat. at L. 36, 600. not conclusive, evidence.

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

here.

And

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 justice 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 manner.

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 The act of March 3, 1871, chap. 116, § 2, States, from motives of humanity and expediency, 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 conligerent. 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 [19: 361, 363, 364]; Ford v. citizens who remained loyal adherents to the Surget, 97 U. S. 594, 604, 605; [24: 1018, cause and the government of the United 1021]; The Lilla, 2 Sprague, 177, and 2 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, and has been recognized by many acts of Congress.

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Cliff. 169.

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,

may at any time come into the possession, of
the government of the United States, or of
ary department thereof, may be resorted to
for information by the board of commis-
sioners of claims created by act approved
March 3, 1871; and copies thereof, duly cer-
tified 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 par-
ticular 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]
have access to such archives for information

1175

as to transactions of or with the so-called a despatch from one of their generals in Kengovernment of the Confederate Stat; but tucky, October 31, 1861, to the secretary of it declared the records and papers in such the navy, that the price of the Eastport was 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; a 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 call upon any of the order to be forwarded the necessary funds Departments for any information or papers for the Eastport; and a statement of dis- . it 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 interest."

The certificate of the officer of the United States in charge of the Confederate Archives Cffice, embodied in the findings of fact, would appear to have been furnished upon a call from the court of claims; and it is not open, at this stage of the case, to objection for not being under the seal of the War Department, since that court has found that the papers in that office show the facts stated in that certificate. Those facts consist of official communications, between high civil and military officers of the Confederate States, including 1176

*Not going beyond what is required for the[798]
purposes of this case, we are of opinion that
the originals of these communications, and
consequently the certified copies thereof
from the Confederate Archives Office, are
competent and persuasive evidence that the
Confederate authorities did not obtain pos-
session of the Eastport by capture or by other
forcible and compulsory appropriation.

The claimant therefore wholly fails to sup-
port the allegation of her petition that the
Eastport was captured by the insurgents.
Judgment affirmed.

174 U. B.

FOLLOWING ARE MEMORANDA

OF

ALL CASES DISPOSED OF AT OCTOBER TERM, 1898,

WITHOUT OPINIONS, AND NOT ELSEWHERE OR OTHERWISE REPORTED IN THIS EDITION.

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WASHINGTON & GEORGETOWN RAILROAD
COMPANY, Plaintiff in Error, v. LEONIDAS
W. GRANT. [No. 141.]

In Error to the Court of Appeals of the District of Columbia.

Messrs. Enoch Totten and R. Ross Perry for plaintiff in error. No counsel for defendant in error.

January 18, 1899. Dismissed, pursuant to the 10th Rule.

UNION PACIFIC RAILWAY COMPANY, Plaintiff in Error, v. David GoCHENAUER et al. [No. 204.]

In Error to the Supreme Court of the State of Kansas.

Mr. John F. Dillon for plaintiff in error. No counsel for defendants in error.

January 24, 1899. Dismissed with costs, pursuant to the 10th Rule.

FRANCIS G. POSEY et al., Plaintiffs in Error, v. JULIA HANSON. [No. 205.]

In Error to the Court of Appeals of the District of Columbia.

Mr. F. H. Mackey for plaintiffs in error. Messrs. H. Randall Webb and John Sidney Webb for defendant in error.

January 24, 1899. Dismissed with costs, pursuant to the 10th Rule.

JOSEPH RAYMOND, Appellant, v. CITY OF
NEW ORLEANS. [No. 234.]

Appeal from the Circuit Court of the
United States for the Eastern District of
Louisiana.

Mr. Samuel T. Fisher for appellant. No counsel for appellee. with costs,

April 3, 1899. Dismissed pursuant to the 10th Rule.

JOHN W. SCHOFIELD et al., Appellants, v. HORSE SPRINGS CATTLE COMPANY. [No. 251.]

Appeal from the Supreme Court of the Territory of New Mexico.

Mr. W. B. Childers for appellants. Messrs. J.H. McGowan and H. L. Warren for appellee. April 14, 1899. Dismissed with costs, pursuant to the 10th Rule.

January 18, 1899. Dismissed with costs, ALCINDA M. CHAPPELL et al., Plaintiffs in Erpursuant to the 10th Rule.

JULIAN MARTINEZ et al., Appellants, v.
UNITED STATES. [No. 156.]

Appeal from the Court of Private Land
Claims.

Mr. T. B. Catron for appellants.

Attorney General for appellee.

ror, v. EDMONDSON AVENUE, CATONSVILLE, & ELLICOTT CITY ELECTRIC RAILWAY COMPANY. [No. 258.]

In Error to the Circuit Court of Baltimore
County, State of Maryland.

Mr. Thomas C. Chappell for plaintiffs in
The error. Messrs. John N. Steele and William
H. Buckler for defendant in error.
April 18, 1899. Dismissed with costs, pur-
suant to the 10th Rule.

January 17, 1899. Dismissed, pursuant to the 10th Rule.

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