Under the Act of July 28, 1892, c. 313, conferring jurisdiction
on the Court of Claims "to hear and determine what are the just
rights in law " of the daughter and heir of Hugh Worthington to
compensation for his interest in a steamboat taken and converted
into a gunboat by the United States during the war of the
rebellion, and, if it " shall find that said claim is just," to
render judgment in her favor for the sum found due, the issue to be
determined depends upon the question what had been his legal right
to such compensation, embracing all questions, of law or of fact,
affecting the merits of the claim.
Whether the capture of a steamboat on the western waters within
the lines of the Confederate forces in February, 1862, by part of
the naval forces of the United States on those waters, commanded by
officers of the Navy, and under the general control of the War
Department, but no land forces being near the scene of the capture
or taking any active part therein, was a capture by the Army --
quaere.
A libel for the condemnation, under the Act of August 6, 1861,
c. 60, of a steamboat captured and taken into firm possession by
naval forces of the United States on the western waters during the
War of the Rebellion was filed by the District Attorney in
the District Court of the United.states for a district into which
she had been brought; the libel alleged that she
Page 174 U. S. 779
had been seized by a quartermaster, for the reason that she was
used with her owners' knowledge and consent in aiding the
rebellion, contrary to that act; she was taken into the custody of
the marshal under a writ of attachment from the court; notice was
published to all persons to appear and show cause against her
condemnation, and no one appeared or interposed a claim. It seems
that a decree thereupon rendered for her condemnation and sale was
valid against her former owners and all other persons.
The Act of March 3, 1800, c. 14, § 1, providing that
vessels or goods of a person resident within or under the
protection of the United States, taken by an enemy and recaptured
by a vessel pf the United States, shall be restored to the owner on
payment of a certain sum as salvage, has no application to property
captured by the United States which had come into the enemy's
possession by purchase or otherwise with the consent of the owner
or of his agent, and not by capture or by other forcible and
compulsory appropriation.
Communications between high civil and military officers of the
so-called Confederate States, preserved in the Confederate Archives
Office of the War Department of the United States or duly certified
copies thereof from that office, are competent evidence upon the
question whether possession of a steamboat belonging to a citizen
of the United States was obtained by the Confederate States by
capture or by purchase.
A petition under the Act of July 28, 1892, c. 313, for
compensation for an interest in a steamboat which alleges that she
was captured by the insurgents and recaptured by the United States
during the War of the Rebellion is not sustained by evidence that
she was captured by the United States from the Confederate forces
after they had obtained possession of her by purchase.
This was a petition under Act Cong. July 28, 1892, c. 313
(copied in the margin [
Footnote
1]), filed in the Court of
Page 174 U. S. 780
Claims January 9, 1895, by Sarah A. Oakes, the heir at law and
next of kin of Hugh Worthington, to recover compensation for his
interest in the steamboat
Eastport, alleged in the
petition to have been captured by the insurgents, and recaptured by
the United States, during the War of the Rebellion.
The facts of the case, as found by the Court of Claims, were, in
substance, as follows:
At the outbreak of the War of the Rebellion, the steamboat
Eastport, of 570 34/95 tons burden, duly enrolled at
Paducah, Kentucky, and commanded by Captain Elijah Wood, was plying
between the ports of Nashville, Tennessee and New Orleans,
Louisiana engaged in the cotton trade. After the beginning of the
war, she continued, under Wood's command, to ply between points on
the Ohio River until May, 1861, when, in consequence of the
blockade of the Mississippi River by the United States forces at
Cairo, Illinois, she was tied up at Paducah, and there remained
until August, 1861, undergoing extensive repairs under the orders
of Capt. Wood and of Hugh Worthington, who was the owner of
three-fifths of her, the remaining two-fifths being owned by two
other persons.
About the last of August, or early in September, 1861, when
Page 174 U. S. 781
the United States forces were about to take possession of
Paducah, and while the
Eastport was in the possession and
under the control of Captain Wood, he took her, with a small crew,
without Worthington's knowledge or consent, from Paducah up the
Tennessee River to a place near the mouth of the Sandy River, a few
miles above Fort Henry, within the lines of the Confederate forces.
Captain Wood returned to Paducah a few months afterwards, and
continued to reside there until his death, about the close of the
war. What disposition he made of the
Eastport does not
appear, although papers in the Confederate archives office show
what is stated in the certificate copied in the margin. [
Footnote 2] Nor does it appear whether
the sum of money stated therein was paid to Captain Wood, nor
whether he ever rendered an account thereof to the other owners,
nor whether they received any part of that sum, nor where they are,
nor what has become of their interests in the
Eastport,
nor why they are not seeking payment for the value thereof.
Sometime between September, 1861, and February 7, 1862,
Page 174 U. S. 782
the
Eastport was in the possession of the Confederate
forces, but whether by reason of capture or of purchase from
Captain Wood does not appear, and before the latter date, she was
taken by those forces to Cerro Gordo, Tennessee, and work was there
begun to transform her into a gunboat for use in the Confederate
service.
On February 7, 1862, while she was lying under the bank of the
Tennessee River near Cerro Gordo and being converted into a gunboat
for use in the Confederate service, with the iron and other
materials therefor on board, and having been dismantled, and her
upper works, cabin and pilot house cut away, but before she had
been completed or had been used or was in condition for use in any
hostile demonstration against the United States, she was boarded
under the fire of the enemy (whether that fire was from the vessel
or from the land does not appear) and captured by detachments of
men in small boats from three United States gunboats commanded by a
lieutenant in the navy and part of the naval forces on the western
waters, then under the control of the War Department, and commanded
by Captain Andrew H. Foote, who was serving under a commission from
the President of August 5, 1861, appointing him a captain in the
navy, and under an order from the Secretary of the Navy of August
30, 1861, directing him "to take command of the naval operations
upon the western waters, now organizing under the direction of the
War Department," and to proceed at once to St. Louis, to place
himself in communication with Major General Fremont, commanding the
Army of the West, and to cooperate fully and freely with him as to
his own movements, and to make requisitions upon the War Department
through him. Immediately after the capture, Captain Foote reported
his operations, together with the report of the lieutenant
commanding the gunboats, to the Secretary of the Navy, who
communicated them to Congress . At the time of the capture, no land
forces were near the scene thereof or took any active part
therein.
The
Eastport was brought by her captors to Mound City,
Illinois, on the Ohio River, arriving there about February 26,
1862, and was there, on the recommendation of Captain
Page 174 U. S. 783
Foote, converted by the United States into a gunboat, and about
August, 1862, went into commission as such with a full complement
of officers and men of the navy, and continued in the service as
part of the Mississippi squadron until April, 1864, when she was
sunk by running upon a torpedo, and was blown up by her commander
to prevent her capture by the Confederate forces. The
Eastport and all other vessels of the navy performing
services on the western waters were under the control of the War
Department until October 1, 1862, when they were turned over to the
Navy Department, pursuant to the Act Congress of July 16, 1862, c.
185, 12 Stat. 587.
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 persons claiming the said steamer
Page 174 U. S. 784
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 of Springfield on September 2, 1862.
The marshal's return on the monition stated that by virtue thereof
he had "attached the within-named 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 property, and that the
same be condemned as forfeited to the United States"
and be sold by the marshal. Pursuant to that decree, 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 United States and George D. Wise, the informer herein."
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.
Page 174 U. S. 785
The Court of Claims decided that the claimant was not entitled
to recover against the United States, and dismissed the petition.
30 Ct.Cl. 378. The claimant appealed to this Court.
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
The Special Act of Congress of July 28, 1892, c. 313, under
which the petition in this case was filed, confers jurisdiction
upon the Court of Claims "to hear and determine 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. 320.
Under this act, the question whether "said claim is just" is the
same as the question "what are the just rights in law" of the
claimant as Worthington's daughter and heir?, and this necessarily
depends upon the question what had been his legal right to
compensation from the United States for the value of his interest
in the vessel?
The act neither recognizes the claim as a valid one nor
undertakes to pass upon its validity, but simply empowers the Court
of Claims to hear and determine whether the claim is valid or
invalid, and the determination 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
Page 174 U. S. 786
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.
The leading facts of the case, as found by the Court of Claims,
are as follows: Worthington 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.
By the law of nations, as recognized and administered in this
country, when movable property in the hands of the enemy, used or
intended to be used for hostile purposes, is captured by land
forces, the title passes to the captors as soon as they have
reduced the property to firm possession, but when such property is
captured by naval forces, a judicial
Page 174 U. S. 787
decree of condemnation is usually necessary to complete the
title of the captors. 1 Kent Com. 102, 110; Halleck's International
Law, c.19, § 7, Id., c. 30, § 4;
Kirk v. Lynd,
106 U. S. 315,
106 U. S.
317.
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 Court of Claims
proceeded were that, by the Army Appropriation Act of July 17,
1861, 12 Stat. 263, 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 has 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, Woolworth 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
Page 174 U. S. 788
Miller, 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. It is averred that the cotton was conveyed by
the soldiers to the river and that it was taken thence to the State
of Arkansas, but it is not alleged that it was so taken by the
vessels. In short, the entire statement is consistent with the fact
that the vessels and crews were in the employment of the War
Department, and were used merely as transports to carry the troops,
and it is consistent with no other supposition. It is also 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."
Woolworth 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
waterborne, was boarded and taken by detachments of men in small
boats from three United States gunboats, armed vessels, commanded
by a lieutenant in the navy and part of the naval forces on the
western waters, commanded by a captain in the navy, who reported
the capture to the Secretary of the Navy, and that at the time of
the capture, no land forces were near the scene thereof or took any
active part therein. Under these circumstances, we are not
prepared
Page 174 U. S. 789
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.
These proceedings, as appears on the face of the libel, were
instituted under the Act of Congress of August 6, 1861, c. 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. 319.
In the proceedings for the condemnation of the
Eastport, the libel alleged that she had been seized in
June, 1862, by
Page 174 U. S. 790
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 proceedings were in conformity with the practice in
admiralty, and were not governed 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,
73 U. S. 763;
Confiscation
Cases, 20 Wall. 92,
87 U. S.
104-107.
The libel was filed, as required by the second and third
sections of that act, by the district attorney of the United States
in the district court of the United States in a district into which
the
Eastport had been brought. The libel seems to have
been filed by the district attorney on the information of the
assistant quartermaster, but this was unimportant for any purpose
except for the distribution of the proceeds of the sale after
condemnation.
The expressions in the opinions in
The
Confiscation Cases, 20 Wall. 92,
87 U. S. 109,
and in
United States v. Winchester, 99 U. S.
372,
99 U. S. 376,
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 Act July 17, 1862, c.195, 12 Stat. 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;
Miller v.
United States, 11 Wall. 268.
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, the
act of 1861 was passed by Congress in the exercise of its power
under the Constitution "to make rules
Page 174 U. S. 791
concerning captures on land and 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 authority 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 Worthington
Page 174 U. S. 792
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
Eastport, under the Act of Congress of
March 3, 1800, c. 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 pretence 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 the 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 vessel or 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 afterwards, 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 as
privateer."
2 Stat. 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 the 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
Page 174 U. S. 793
rested by eminent jurists upon 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, c. 14, § 204; Halleck's International Law, c. 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, c. 174, § 29, 13 Stat. 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
Page 174 U. S. 794
the United States, and gave no aid or comfort to the Rebellion,
and neither knew of nor consented to the
Eastport's 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 Confederate lines. At that time, she was an unarmed vessel, and
fit for commercial purposes 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 in
those portions of them protected
Page 174 U. S. 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,
67 U. S.
673-674;
Thorington v.
Smith, 8 Wall. 1,
75 U. S. 7-10;
Ford v. Surget, 97 U. S. 594,
97 U. S.
604-605;
The Lilla, 2 Sprague 177, and 2
Clifford 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 the collection and preservation of such papers, a bureau,
office, or division in the War Department (now known as the
"Confederate Archives Office") was created by the executive
authority of the United States soon after the close of the War of
the Rebellion, and has been maintained ever since, and has been
recognized by many acts of Congress.
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." Act May 8, 1872, c. 140, 17 Stat. 79; Act
March 3, 1873, c. 226, 17 Stat. 500; Act Aug. 15, 1876, c. 287, 19
Stat. 160; Act March 3, 1877, c. 102, 19 Stat. 310; Act June 19,
1878, c. 329, 20 Stat. 195; Act June 21, 1879, c. 34, 21 Stat. 23;
Act June 15, 1880, c. 225, 21 Stat. 226; Act March 3, 1881, c. 130,
21 Stat. 402. And the appropriations for the War Department in 1882
included one "for traveling expenses in connection with collection
of Confederate records placed by gift or loan at the disposal of
the government." Act Aug. 5, 1882, c. 389, 22 Stat. 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."
Act March 3, 1875, c. 130, 18 Stat. 376; Act March 3, 1879, c.
182, 20 Stat. 384; Act June 16, 1880, c. 235, 21 Stat. 266. It has
once at least, made an appropriation "for collecting, compiling,
and arranging the naval records of the War of the Rebellion,
including Confederate
Page 174 U. S. 796
naval records." Act July 7, 1884, c. 331, 23 Stat. 185. And it
has made appropriations "for the preparation of a general card
index of the books, muster rolls, orders and other official papers
preserved in the Confederate archives office." Acts May 13, 1892,
c. 72, 27 Stat. 36, and Act March 3, 1893, c. 208, 27 Stat.
600.
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 Act March 3, 1871, c. 116, § 2, provided for the
appointment of a board of commissioners
"to receive, examine and consider the justice and validity of
such claims as shall be brought before them, of those citizens who
remained loyal adherents to the cause and the government of the
United States during the war, for stores or supplies taken or
furnished during the Rebellion for the use of the army of the
United States in states proclaimed as in insurrection against the
United States, including the use and loss of vessels or boats while
employed in the military service of the United States."
16 Stat. 524. By Act April 20, 1871, c. 21, § 1, it was
enacted that
"all books, records, papers and documents relative to
transactions of or with the late so-called government of the
Confederate States, or the government of any state lately in
insurrection, now in the possession or which may at any time come
into the possession of the government of the United States, or of
any department thereof, may be resorted to for information by the
board of commissioners of claims created by the Act approved March
3, 1871, and copies thereof, duly certified by the officer having
custody of the same, shall be treated with like force and effect as
the original."
17 Stat. 6. The latter act thus not only allowed a particular
board of commissioners appointed to pass upon certain claims
against the United States for property taken for the use of the
army during the War of the Rebellion
Page 174 U. S. 797
to have access to such archives for information as to
transactions of or with the so-called "government of the
Confederate States," but it declared the records and papers in such
archives, or duly certified copies thereof, to be competent
evidence of such transactions.
Section 882 of the Revised Statutes also, reenacting earlier
acts of Congress, provides that
"copies of any books, records, papers or documents in any of the
executive departments, authenticated under the seals of such
departments, respectively, shall be admitted in evidence equally
with the originals thereof."
And by § 1076, the Court of Claims has
"power to call upon any of the departments for any information
or papers it may deem necessary, . . . but the head of any
department may refuse and omit to comply with any call for
information or papers, when, in his opinion, such compliance would
be injurious to the public interest."
The certificate of the officer of the United States in charge of
the Confederate archives office, 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 a dispatch from one of their generals
in Kentucky, October 31, 1861, to the Secretary of the Navy, that
the price of the
Eastport was $12,000; a reply of the
Secretary of War of the same date giving authority to the general
to buy her if thought worth that sum; a letter of January 5, 1862,
from the general to the Secretary of War informing him that, by
virtue of that authority, he had bought her and she was being
converted into a gunboat; a letter of January 16, 1862, from the
Secretary of War to the general saying that he would at once order
to be forwarded the necessary funds for the
Eastport, and
a statement of disbursements, dated February 2, 1863, by the
general to the Secretary of War in which one item was a sum of
$9,688.92, "expended in purchase of steamer
Eastport."
Page 174 U. S. 798
"Not going beyond what is required for the 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 possession of the
Eastport by capture or by other forcible and compulsory
appropriation."
The claimant therefore wholly fails to support the allegation of
her petition that the
Eastport was captured by the
insurgents.
Judgment affirmed.
[
Footnote 1]
"An act to confer jurisdiction on the Court of Claims to hear
and determine the claim of the heir of Hugh Worthington for his
interest in the steamer
Eastport."
"Whereas it is claimed the steamer
Eastport was taken
by the United States Anno Domini eighteen hundred and sixty-two,
and converted into a gunboat; and"
"Whereas it is claimed at the time of such taking one Hugh
Worthington, then of Metropolis, Massac County, Illinois, but since
deceased, was the owner of three-fifths interest in said steamer,
and no compensation has been paid to said Hugh Worthington or his
heirs; and"
"Whereas his daughter, Mrs. Sarah A. Oakes, of Metropolis,
Illinois, claims that Hugh Worthington was a loyal citizen, that
she is his only heir at law, and is justly entitled to receive from
the United States compensation for the value of her father's
interest in said steamer: Therefore"
"Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled that full
jurisdiction is hereby conferred upon the Court of Claims to hear
and determine what are the just rights in law of the said Sarah A.
Oakes, as heir of Hugh Worthington, deceased, and that from any
judgment so entered by said Court of Claims either party may appeal
to the Supreme Court of the United States, for compensation for the
value of said Worthington's interest in said steamer
Eastport. That upon proper petition being presented by
said Sarah A. Oakes, her heirs, executors or administrators, to
said court, said court is authorized and directed to inquire into
the merits of said claim, and if on a full hearing the court shall
find that said claim is just, the court shall enter judgment in
favor of the claimant and against the United States for whatever
sum shall be found to be due."
"SEC. 2. That in case judgment shall be rendered against the
United States, the Secretary of the Treasury shall be, and he is
hereby, authorized and directed to pay the claimant, her heirs,
executors or administrators, whatever sum shall be adjudged by the
court to be due out of any money in the Treasury not otherwise
appropriated."
27 Stat. 320.
[
Footnote 2]
"Under date of October 31, 1861, General L. Polk, C.S. Army,
telegraphed from Columbus, Kentucky, to the Secretary of the Navy,
C.S., that 'the price of the steamer
Eastport is $12,000;'
and on the same date J. P. Benjamin, acting Secretary of War, C.S.,
telegraphed to General L. Polk directions to 'buy the steamer
Eastport if thought worth $12,000 demanded.'"
"Under date of November 28, 1861, General L. Polk, in a letter
from Columbus, Kentucky, addressed to General A. S. Johnston,
C.S.A. stated that he bought the steamer
Eastport by
authority of the Secretary of the Navy."
"Under date of January 5, 1862, General L. Polk wrote to J. P.
Benjamin, Secretary of War, C.S., as follows:"
"By virtue of the authority from the War Department of October
31, I bought the steamer
Eastport, and she is now
undergoing the necessary alterations to convert her into a
gunboat."
"Under date of January 16, 1862, J. P. Benjamin, Secretary of
War, C.S., wrote to General L. Polk as follows: 'I shall order the
necessary funds forwarded at once for the
Eastport.'"
"Under date of February 2, 1863, General Polk, in a statement to
the C.S. Secretary of War of the disbursement of certain moneys,
gives as one item, 'Am't expended in purchase of steamer
Eastport as per receipt of Major Peters, A.Q.M.,
$9,688.92.'"
"No further information on the subject of the within inquiry has
been found in said archives."
"By authority of the Secretary of War:"
"F. C. Ainsworth"
"Colonel U.S. Army, Chief of Office"
