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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- War Department in 1882 included one "for
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.

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.

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.

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 expediency, had conceded to that government some of the rights and obligations of a belligerent. 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

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Cliff. 169.

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
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-
fice." Acts of May 13. 1892, chap. 72, and
March 3, 1893, chap. 208, 27 Stat. at L. 36,
600.

It would be an anomalous condition of things if records of this kind, collected and reserved 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 act of March 3, 1871, chap. 116, § 2,
provided for the appointment of a board of
commissioners, "to receive, examine, and con-
sider 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."
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 rela-
War Department (now known as the Con- tive to transactions of or with the late so-
federate 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,
and has been recognized by many acts of Con-
gress.

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,

16

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

as to transactions of or with the so-called a despatch from one of their generals in Ken-
government 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 in-
documents in any of the Executive Depart- forming him that, by virtue of that au-
ments, 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 in-
terest."

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. &.

FOLLOWING ARE MEMORANDA

OF

ALL CASES DISPOSED OF AT OCTOBER TERM, 1898,

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

TENTH RULE.

SOPORI LAND & MINING COMPANY, Appel-
lant, v. UNITED STATES et al. [No. 38.]
Appeal from the Court of Private Land
Claims.

MARIANO S. OTERO, Appellant, v. UNITED
STATES. [No. 158.]

Appeal from the Court of Private Land
Claims.

Mr. T. B. Catron for appellant. The At

Mr. George Lines for appellant. The Attorney General for appellee. torney General for appellees.

October 11, 1898. Dismissed, pursuant to the 10th Rule.

JAMES T. STARK, Plaintiff in Error, v.
UNITED STATES. [No. 87.]

In Error to the District Court of the
United States for the Northern District of
Alabama.

Mr. John T. Morgan for plaintiff in error. The Attorney General for defendant in

error.

December 6, 1898. Dismissed, pursuant to the 10th Rule.

SARAH WILLIAMS, Plaintiff in Error, v.
STATE OF GEORGIA. [No. 101.]

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

Mr. John R. Cooper for plaintiff in error.
Mr. J. M. Terrell for defendant in error.
December 9, 1898. Dismissed with costs,
pursuant to the 10th Rule.

MISSOURI PACIFIC RAILWAY COMPANY,
Plaintiff in Error, v. CROWELL LUMBER &
GRAIN COMPANY. [No. 135.]

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

Messrs. John F. Dillon and W. S. Pierce for plaintiff in error. No counsel for defendant in error.

January 12, 1899. Dismissed with costs, pursuant to the 10th Rule.

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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 de fendant 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.

April 3, 1899. Dismissed with costs, 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 13, 1899. Dismissed with costs, ALCINDA M. CHAPPELL et al., Plaintiffs in Erpursuant to the 10th Rule.

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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 error. Messrs. John N. Steele and William H. Buckler for defendant in error.

April 18, 1899. Dismissed with costs, pursuant to the 10th Rule.

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MARIANO S. OTERO, Appellant, v. UNITED STATES. [No. 179.]

Appeal from the Court of Private Land Claims.

Mr. T. B. Catron for appellant. The Attorney General for appellee.

October 11, 1898. Dismissed, on author-| ity of counsel for appellant.

FRANCIS I. GOWEN, Sole Receiver, etc., Plaintiff in Error, v. Laura B. BUSH, Administratrix, etc. [No. 42.]

In Error to the United States Circuit Court of Appeals for the Eighth Circuit.

Messrs. Samuel Dickson and John W. McLoud for plaintiff in error. Mr. W. H. H. Clayton and Jos. M. Hill for defendant in

error.

October 14, 1898. Dismissed with costs. per stipulation.

UNITED STATES, Appellant, v. CITY OF ALBUQUERQUE. [No. 40.]

Appeal from the Court of Private Land Claims.

The Attorney General, the Solicitor General, and Mr. Matt. G. Reynolds for appellant. Mr. Frank W. Clancy for appellee.

re

October 17, 1898. Decrees reversed on the authority of United States v. Santa Fé 165 U. S. 681 [41: 877] and cause manded with directions to proceed therein in the matter of amendments, new parties, and otherwise as justice and equity may require.

KATE MCDONNELL, Surviving Partner, et al., Petitioners, v. MERCANTILE TRUST COMPANY et al. [No. 311.]

Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.

Messrs. Gregory L. and Harry T. Smith for petitioners. Messrs. W. A. Blount, D. P. Bestor, and Leopold Wallach for respondents.

October 17, 1898. Denied.

MUTUAL RESERVE FUND LIFE ASSOCIATION, Petitioner, v. J. K. DuBois, Administrator. [No. 330.]

Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit.

Mr. J. B. Foraker for petitioner. Mr. R. E. McFarland for respondent. October 17, 1898. Denied.

THIRD NATIONAL BANK OF PHILADELPHIA, Petitioner, v. NATIONAL BANK OF CHESTER VALLEY. [No. 337.]

Petition for a Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.

Mr. Henry B. Tompkins for petitioner. Mr. W. D. Ellis for respondent.

October 17, 1898. Denied.

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