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Eastport and all other vessels of the Navy | United States and George D. Wise, the in-
performing services on the western waters former herein."
were under the control of the War Depart-
ment until October 1, 1862, when they were
turned over to the Navy Department, pur-
suant to the act of Congress of July 16, 1862,
chap. 185, 12 Stat. at L. 587.

Of those proceedings, Hugh Worthington had no notice or knowledge until after the sale of the vessel under them; but whether her other owners or Captain Wood had any does not appear.

Before and throughout the war, Worthington was a citizen and resident of Metropolis, Illinois, about ten miles above Paducah, and was loyal to the United States, and gave no aid or comfort to the rebellion. He died in March, 1876, intestate and without property, and having received no compensation from the United States for the use or value of the Eastport. The claimant, Sarah A. Oakes, is his daughter, and his sole surviving heir at law and next of kin.

When Captain Wood ran the Eastport up the Tennessee river, she was worth $40,000. When she was captured by the United States forces, she was worth $30,000. During the time she was used by the United States, a fair and reasonable rental for her was $150 a day.

*The court of claims decided that the claim-[785] ant was not entitled to recover against the United States, and dismissed the petition. 30 Ct. Cl. 378. The claimant appealed to this court.

Mr. John C. Fay for appellant.

Messrs. Louis A. Pradt, Assistant Attorney General, and John G. Capers for appellee.

On July 17, 1862, in the district court of the United States for the southern district of Illinois, the district attorney of the United States filed a libel in admiralty against the Eastport, alleging "that on or about the 20th day of June, A. D. 1862, in the Mississippi river near Columbus, Kentucky, there was seized by George D. Wise, captain and assistant quartermaster, with gunboat flotilla (and which he hereby reports for condemnation), the steamer Eastport, and which was brought into said district. 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. The said attorney therefore asks that process of attachment may issue against said steamer, and the monition of this honorable court, and that all persons having an interest in the same may be made parties herein, and that on a final hearing of this case your honor will adjudge and decree condemnation of said boat and order that the same may be sold." Thereupon the court issued a monition, reciting that the libel had been filed by the district attorney and Captain Wise; and commanding the marshal to attach the Eastport and detain her in his custody until the further order of the court; and to give notice by publication in a certain newspaper published at Springfield in that district for fourteen days before the day of trial, "and by notice posted up in the most public manner for the space of fourteen days at or near the place of trial, of such seizure and libel, to all 784]persons claiming the said steamer *Eastport, boats, tackle, apparel, and furniture, or knowing or having anything to say why this court should not pronounce against the same, according to the prayer of the said libel," to appear before the court at Springfield on September 2, 1862. The marshal's return on the monition stated that by virtue thereof he had "attached the withinnamed boat, and made proclamation of the same;" and notice was published as ordered. And on that day the court entered a decree, reciting the attachment and notice, and that, notwithstanding proclamation made, no one had appeared or interposed a claim; and adjudging “that the default of all persons be, and the same are, accordingly hereby entered, and that the allegations of the libel in this cause be taken as true against said 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, by the marshal to the United States for the sum of $10,000, which, after deducting allowances to the clerk, to the marshal, and to the district attorney, was ordered by the court to be "equally divided between the

*Mr. Justice Gray, after stating the case[785] as above, delivered the opinion of the court:

The special act of Congress of July 28,
1892, chap. 313, under which the petition in
this case was filed, confers jurisdiction up-
on the court of claims "to hear and deter-
mine what are the just rights in law" of the
claimant, as the daughter and heir at law
of Hugh Worthington, to compensation for
the value of his interest in the steamboat
Eastport, alleged to have been taken by the
United States in 1862, and converted into a
gunboat; and authorizes and directs that
court, upon her petition, "to inquire into the
merits of said claim, and if on a full hearing
the court shall find that said claim is just,
to render judgment in her favor and against
the United States for whatever sum shall
be found due. 27 Stat. at L. 320.

claim is just" is the same as the question
Under this act, the question whether "said
"what are the just rights in law" of the
claimant as Worthington's daughter and
question what had been his legal right to
heir; and this necessarily depends upon the
compensation from the United States for the
value of his interest in the vessel.

claim is valid or invalid; and the determina-
tion of that issue embraces not only the
questions whether the claimant was the
daughter and heir at law of Worthington,
whether he was a loyal citizen of the United
States, whether he was the owner of three

fifths of the Eastport, and whether the vessel was taken and applied to the use of the United States, but all other questions, of law or of fact, affecting the merits of the claim. United States v. Cumming, 130 U. S. 452 [32: 1029].

The leading facts of the case, as found by the court of claims, are as follows: Worth ington was a loyal citizen of the United States, residing at Metropolis in the state of Illinois; and the claimant was his daughter and only heir at law. Early in the war of the rebellion, in consequence of the blockade of the Mississippi river by the forces of the United States, the Eastport was tied up at Paducah in the state of Kentucky, her home port, undergoing extensive repairs under the orders of her master, Captain Wood, and of Worthington, who owned three fifths of her. She was afterwards taken by Wood, without Worthington's knowledge or consent, up the Tennessee river within the lines of the Confederate forces, and came into their possession; and while in their possession, and being transformed into a gunboat for use in the Confederate service, having on board the iron and other materials therefor, and having been dismantled, and her upper works, cabin, and pilot-house cut away, but before she had been completed or used, or was in condition for use, in any hostile demonstration against the United States, she was captured by part of the naval forces of the United States on the western waters, then under the control of the War Department. No land forces took part in the capture, or were in the neighborhood at the time. The Eastport was immediately brought by her captors to Mound City, Illinois, and was afterwards converted by the United States into a gunboat, and put in commission in the Navy as

such.

The questions of law presented by the record are not free from difficulty.

court of claims proceeded were that by the Army appropriation act of July 17, 1861 (12 Stat. at L. 263, chap. 6), there was appropriated for "gunboats on the western rivers, one million dollars;" that, at the time of the capture of the Eastport, the gunboats and the naval forces of the United States on those rivers were under the control of the War Department; that she was on inland waters, and could not be regarded as maritime prize; that she was lying dismantled by the bank of a river, where the seizure might as well have been made by a detachment from the Army, as by one from the Navy; and that, in view of these facts, the Eastport must be considered as having been captured by the Army.

In support of that conclusion, reference was made to United States V. 269 1-2 Bales of Cotton, Woolw. 236. But that case was wholly different from the case at bar. In that case, a battalion of cavalry, commanded by an officer of the Army of the United States, went in vessels in the service of the United States up the Mississippi river, and landed in the state of Mississippi, and penetrated into country in the control of the Confederate forces, and, after a conflict with them, took from their possession a quantity of cotton, and brought it by the river to the state of Arkansas; and Mr. Justice Miller [788] sitting in the circuit court, held that the cotton so captured was not within the jurisdiction of a prize court. The grounds of his decision are sufficiently shown by the following extract from his opinion:

"It is not supposed or alleged that any of these vessels were officered by government officers. They were not even armed vessels, and could not take part in any action, or contribute in any manner by belligerent force to the capture. It is not shown that they remained after they landed the forces; 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 consistsary to complete the title of the captors.ent with no other supposition. It is also 1 Kent, Com. 102, 110; Halleck's International Law, chap. 19, § 7, chap. 30, § 4; Kirk v. Lynd, 106 U. S. 315, 317 [27: 193, 194].

The Eastport, at the time of her capture by the forces of the United States, was in the hands of the Confederate forces, and was being transformed into a gunboat for use in the Confederate service, with the iron and other materials therefor on board. Although not yet in condition for hostile use, she was clearly intended for that use. Consequently if, as the court of claims held, her capture was made by the Army of the United States, it cannot be doubted that the capture was at once complete upon her being taken into the possession of the national forces, and brought by them to Mound City, Illinois, in February, 1862.

The grounds on which the decision of the

evident that the capture was not made on the banks of the river, but some distance inland, where the vessels could render no other assistance than to land the forces, and receive them again. I cannot conceive that the employment by the government of unarmed steamboats, for the mere purpose of transporting troops from one point to another on the Mississippi river, can render every capture made by the troops or detachments so transported prize of war, and let in the crews and officers of those vessels to a share of the prize money. Such vessels are in no sense war vessels, and are neither expected nor fitted to take part in engagements." Woolw. 256, 257.

In the case at bar, on the other hand, it appears, by the facts found by the court of claims, that the Eastport, while water

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]; Tho Confiscation Cases, 20 Wall. 92, 104–107 [22:

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 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 pre89]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.”

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

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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 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 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

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