blockading cruiser in range of the enemy's batteries, and yet we must consider it in view of the evidence on behalf of the captured ship, and of the undisputed facts tending to render it improbable, that any design of attempting to violate the blockade was entertained. The Olinde Rodrigues had neither passengers nor cargo for San Juan. In committing the offense she would take the risk of capture or of being shut up in that port. She was a merchantman engaged in her regular business, and carrying the mails. She was owned by a widely known and reputable company. Her regular course, though interrupted by the blockade of that port, led directly by it, and not far from it; and the testimony of her captain and officers denied any intention to commit a breach.

The evidence of evil intent must be clear and convincing before a merchant ship belonging to citizens of a friendly nation will be condemned. And on a careful review of the entire evidence, we think we are not compelled to proceed to that extremity.

But, on the other hand, we are bound to say that, taking all the circumstances together, and giving due weight to the evidence on behalf of the captors, probable cause for making the capture undoubtedly existed; and the case disclosed does not commend this vessel to the favorable consideration of the court.

Probable cause exists where there are circumstances sufficient to warrant suspicion, though it may turn out that the facts are not sufficient to warrant condemnation. And whether they are or not cannot be determined, unless the customary proceedings of prize are instituted and enforced. The Adeline, 4 Cranch, 244, 285; The Thompson, 3 Wall. 155. Even if not found sufficient to condemn, restitution will not necessarily be made absolutely, but may be decreed conditionally as each case requires, and an order of restitution does not prove lack of probable cause. The Adeline, supra; Jennings v. Carson, 4 Cranch, 2, 28, 29.

In the statement of Sir William Scott and Sir John Nicholl, transmitted to Chief Justice Jay, then minister to England, by Sir William Scott, September 10, 1794, "the general principles of proceeding in prize causes, in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdictions," are set forth as laid down in an extract from a report made to the king in 1753 "by Sir George Lee, then judge of the prerogative court, Dr. Paul, his majesty's advocate general, Sir Dudley Rider, his majesty's attorney general, and Mr. Murray (afterwards Lord Mansfield), his majesty's solicitor general"; and many instances are given where in the enforcement of the rules "the law of nations allows, according to the different degrees of misbehavior, or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or

not to be received, by the claimant, in case of acquittal and restitution." Wheat. Mar. Capt. Append. 309, 311, 312; Pratt's Story's Notes, p. 35.

In The Appollon, 9 Wheat. 362, 372, Mr. Justice Story said: "No principle is better settled in the law of prize than the rule that probable cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from damages; and if the case be of strong and vehement suspicion, or requires further proof to entitle the claimant to restitution, the law of prize proceeds yet further, and gives the captors their costs and expenses in proceeding to adjudication."

Section 4639 of the Revised Statutes contemplates that, under circumstances, all costs and expenses shall remain charged on the captured vessel, though she be restored, and this court has repeatedly held that damages and costs will be denied where there was probable cause for seizure, and that sometimes costs will be awarded to the captors. The Venus, 5 Wheat. 127; The Thompson, 3 Wall. 155; The Springbok, 5 Wall. 1; The Dashing Wave, Id. 170; The Sir William Peel, Id. 517; The Peterhoff, Id. 28, 61, 62.

In The Dashing Wave, Chief Justice Chase said: "We think it was the plain duty of a neutral claiming to be engaged in trade with; Matamoras, under circumstances which war-• ranted close observation by the blockading squadron, to keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the boundary line as to repel, so far as position could repel, all imputation of intent to break the blockade. He had no right to take, voluntarily, a position in the immediate presence of the blockading fleet, from which merchandise might be so easily introduced into the blockaded region. We do not say that neglect of duty, in this respect, on the part of the brig, especially in the absence of positive evidence that the neglect was willful, calls for condemnation; but we cannot doubt that, under the circumstances described, capturing and sending in for adjudication was fully warranted."

In The Springbok the ship was restored, but costs and damages were not allowed because of the misconduct of the master.

In The Peterhoff payment of costs and expenses by the ship was decreed as a condition of restitution. The Peterhoff was captured by the United States vessel of war Vanderbilt on suspicion of intent to run the blockade, and of having contraband on board. Her captain refused to take his papers to the Vanderbilt, and, in addition, papers were destroyed, and a package was thrown overboard. The Peterhoff was searched, and it is stated in the opinion: "The search led to the belief on the part of the officers of the Vanderbilt that there was contraband on board, destined to the enemy. This belief, it

is now apparent, was warranted. It was therefore the duty of the captors to bring the Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so." The court then commented on the destruction of papers, and the throwing overboard of the package, in regard to which it was unable to credit the representations of the captain, but, in view of the other facts in the case, did not extend the effect of the captain's conduct and the incriminating circumstances to condemnation.

The case before us falls plainly within these rulings. This vessel had gone into San Juan on July 4th, although the captain had heard of the blockade at St. Thomas, but he says he had not been officially notified of it. He telegraphed to the consul at San Juan to know, and was answered that they had received no official notice from Washington that the port was blockaded. He also heard while in San Juan that "it would be blockaded some future time, but that was not officially." The vessel was boarded and warned by the Yosemite on July 5th, and the warning entered on her log. This imposed upon her the duty to avoid approaching San Juan, on her return, so nearly as to give just cause of suspicion, yet she so shaped her course as inevitably to invite it.

When the New Orleans succeeded the Yosemite her commander was informed of the facts by his predecessor, and knew that, whatever the right of the Olinde Rodrigues to be in those waters, she could not lawfully place herself so near the interdicted port as to be able to break the blockade with impunity. But when he sighted her the ship was on a course to all appearance directly into that port, and steadily pursuing it. And, when he signaled, the Olinde Rodrigues apparently did not obey, but seemingly persisted on her course, and that course would in a few moments have placed her within the range of the guns of Morro and of the shore

batteries. In fact, when the shot was fired she was within the range of the Morro's guns. The evidence is overwhelming that she did not change her course until after the shot was fired, even though she may have stopped as soon as she saw the signal. The turning point into the Culebra or Virgin Passage was perhaps 40 miles to the eastward, and, while she could have passed the port of San Juan on the course she was on, it would have been within a very short distance. The disregard of her duty to shun the port and not approach it was so flagrant that the intention to break the blockade was to be presumed, though we do not hold that that was a presumption de jure.

The ship's log was not produced until three hours after she was boarded, and it now appears that the papers furnished the boarding officer, "said to be all the ship's papers," did not include two Spanish bills of health in which San Juan was entered as the vessel's destination. These were destroyed after the ship reached Charleston, and were, therefore, in the ship's possession when the other papers' were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent? or that their destruction tended to make a case of "strong and vehement suspicion?"

The entire record considered, we are of opinion that restitution of the Olinde Rodrigues should be awarded, without damages, and that payment of the costs and expenses incident to her custody and preservation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship.

The decree of the district court will be so modified, and, as modified, affirmed.

Mr. Justice MCKENNA dissented, on the ground that the evidence justified condemnation.

!

*780 $770

1. A special act of congress authorizing the court of claims to inquire into the merits of a claim, to determine what are the just rights in law of the claimant, "and if, on a full hearing, the court shall find the said claim is just," to render judgment against the United States for the sum due, commits to the court the determination of the legal rights of the claimant, and empowers it to pass upon all questions of law or fact affecting such rights.

2. 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 decree of condemnation is usually necessary to complete the title of the captors.

3. A steamboat, which was in the hands of the Confederate forces in a western river, and had been dismantled by them for the purpose of converting it into a gunboat, when it was captured, in February, 1862, under fire, by detachments of men in small boats from federal gunboats, under command of a naval officer, there being no federal land forces in the vicinity, must be regarded as a naval capture, and not one by the army, although the naval forces on such rivers were at the time under the general control of the war department.

4. Under the act of August 6, 1861 (12 Stat. 819), providing for the seizure and condemnation of property used with the consent of the owner in aid of the Rebellion, where the subject of condemnation proceedings was a vessel, and the libel therefor was filed in a court of admiralty, the pleadings and procedure were governed by the rules in admiralty, and not by the strict rules of criminal procedure. Nor was a preliminary order by the president directing such proceedings to be instituted essential to their validity under such statute.

5. The act of March 3, 1800 (2 Stat. 16), since substantially embodied in Rev. St. § 4652, providing for the restoration to the owners of the property of persons resident in, or under the protection of, the United States, which had been captured by an enemy in war, on its recapture by the forces of the United States, applies only to property which the enemy acquired possession of by capture, and not to such as it may have obtained by other means, though in fraud of the rights of the owner. Where a steamboat was taken within the Confederate lines by its captain, and there sold by him to the Confederate authorities, from whom it was afterwards captured by the forces of the United States, the case was not one of recapture, within the statute, though the sale was made without the knowledge or consent of the principal owner, who was a loyal citizen of the United States.

6. The records and official papers of the Confederate government which have been collected and preserved by the United States, or certified copies or extracts therefrom, made by the officer in charge of the Confederate archives office of the war department, are competent evidence of facts or transactions to which they relate.

Appeal from the Court of Claims

This was a petition under Act Cong. July 28, 1892, c. 313 (copied in the margiu1), filed in the court of 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 57034/95 tons burden, duly enrolled at Paducah, Ky., and commanded by Capt. Elijah Wood, was plying between the ports of Nashville, Tenn., and New Orleans, La., 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, Ill., 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.

1An 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.

About the last of August, or early in September, 1861, when the United States forces were about to take possession of Paducah, and while the Eastport was in the possession and under the control of Capt. 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 Ft. Henry, within the lines of the Confederate forces. Capt. 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." Nor does it appear whether the sum of money stated therein was paid to Capt. 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.

Some time between September, 1861, and February 7, 1862, the Eastport was in the possession of the Confederate forces, but whether by reason of capture or of purchase from Capt. Wood, does not appear; and before the latter date she was taken by those forces to Cerro Gordo, Tenn., 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 fron and other materials therefor on board, and having been dismantled, and her

2 Under date of October 31, 1861, General L. Polk, C. S. army, telegraphed from Columbus, Ky., 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, Ky., 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 I 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 aer 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. 19 S.C.-55

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 Capt. 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 himserf in communication with Maj. Gen. 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, Capt. 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, Ill., on the Ohio river, arriving there about February 26, 1862, and was there, on the recommendation of Capt. 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 Act Cong. 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, Ky., 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 dled by the district attorney and Capt. 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 14 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 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 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 Capt. Wood had any does not ap

pear.

Before and throughout the war Worthington was a citizen and resident of Metropolis, Ill., about 10 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 Lis sole surviving heir at law and next of kin. When Capt. 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 claimant was not entitled to recover against the United States, and dismissed the petition. 30 Ct. a 378. The claimant appealed to this court.

John C. Fay, for appellant. Asst. Atty. Gen. Pradt, for the United States.

Mr. Justice GRAY, after stating the case as above, delivered the opinion of the court.

Sp. Act Cong. 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?

⚫785

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 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. U. S. v. Cumming, 130 U. S. 452, 9 Sup. Ct. 583.

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, Capt. 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;