US SUPREME COURT DECISIONS

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 chanrobles.com-red

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 chanrobles.com-red

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 chanrobles.com-red

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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, chanrobles.com-red

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 chanrobles.com-red

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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. chanrobles.com-red

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.