
    SARAH A. OAKES v. THE UNITED STATES.
    [No. 17818.
    Decided November 11, 1895.]
    
      On the Proofs.
    
    A statute confers jurisdiction upon this court “to hear and determine what are the just rights in laxo of the said Sarah A. Oakes as heir of Hugh Worthington,” and directs the court “ to ixupiire into the xnex-its of said claim, andifoxi a full hedx-ing the coxix-t shall fixid that said claim is just,” to enter judgment in favor of the claimant “for whatever sum shall he found to he due.” It appears that a steamboat lying at Paducah was carried up the Tennessee by the master and purchased by the Confederate government; that while being converted into a gunboat she was captured by Commodore Foote; that under the Act August 6, 1861, she was confiscated and condemned, and purchased by the United States. No prize proceedings were instituted. The vessels which captured her were “the Westex-n guxihoat fleet constructed by the War Department,” then under the command of the military authorities, though manned and officered by the Navy.
    I. Where a statute confers jurisdiction ‘ ‘ to hear and detex-xnine xohat are the justx-ighls ixi law,” the rights to be determined are legal rights. A subsequent clause directing the court to render judgment for the claimant if it be found “ that said claixn is jxist,” must be construed to mean just “ixi laxo ” as previously prescribed. The cases relating to such statutes reviewed.
    II. The principle of jus postliminii, so far as it relates to captured vessels belonging to American citizens, is embodied and regulated by the Act Sd March, 1800 (2 Stat. L., p. 17, sec. 1), and the Act 80th June, 1864 (13 id., p. 314, sec. 29; Rev. Stat., sec. 4652).
    III. The provision of the Act 3d Max-ch, 1800 (2 Stat. L., p. 17, sec. 1), declares “that when any vessel other thaxi a vessel of war shall hereafter he taken as px-ize hy any vessel acting under authority fro-xn the Govex-nment of the United States,” “xiot having heexi condemned hy conipetexit authox-ity before the recaptux-e, shall he restored to the fox-xner oxoner.” This does not extend to a vessel which, when recaptured, was in. process of reconstruction for a gunboat, the recapture being on the Tennessee River by “the Weslex-xi guxihoat fleet coxi-stx-uated by the War Depax-lment,” then attached to the Army and operating under the command of military authority.
    IV. If a vessel was captured by the Army on inland waters the title passed as soon as the captnre was complete; if by the Navy the title would not pass until the vessel -was condemned as prize.
    V.Prior to the Act 16th July, 1862 (12 Stat. L., p. 587), “ the Westex-xi gunboat fleet constructed by the War Depa/rtxnent” in 1861 was a part of the Army, though the vessels were navigated and commanded by officers of the Navy.
    
      
      The Reporters’ statement of tbe case:
    Tbe act conferring special jurisdiction upon tbe court of tbis case will be found set forth in tbe opinion. Tbe following are tbe facts as found by tbe court:
    I. At tbe outbreak of tbe war of tbe rebellion tbe steamer Eastport, duly enrolled on tbe 29tb November, 1858, at Padu-cah, Ky., of 570|f tons burthen, commanded by Capt. Elijah Wood, was plying between tbe ports of Nashville, Tenn., and New Orleans, La., engaged in tbe cotton trade.
    II. After tbe commencement of tbe war aforesaid tbe vessel under tbe command of said Captain Wood continued to ply between points on tbe Ohio River until May, 1861, when, in consequence of tbe blockade of tbe Mississippi River by tbe Federal forces at Cairo, Ill., she was tied up at Paducah, Ky., where she remained until August following. During tbe time tbe vessel was tied up at Paducah, Ky., she was repaired extensively, tbe work being done under tbe orders of tbe said Captain Wood and Hugh Worthington.
    III. About tbe last of August or early in September, 1861, when tbe armed forces of tbe United States were about to take possession of Paducah, Ky., and while tbe vessel was in tbe possession and under tbe control of Capt. Elijah Wood aforesaid, be took said vessel, with a small crew of men, without tbe knowledge or consent of Hugh Worthington, one of tbe owners, from Paducah, Ky., and ran her up tbe Tennessee River, within tbe lines of tbe Confederate forces, to a place near the mouth of tbe Sandy River, a few miles above Fort Henry.
    What disposition was made of tbe vessel by Captain Wood does not appear, though tbe Confederate archives office show as follows:
    “Under date of October 31, 1861, Gen. L. Polk, C. S. Army, telegraphed from Columbus, Ky., to tbe Secretary of tbe Navy, C. S., that ‘the price of tbe steamer Eastport is $12,000;’ and on the same date J. P. Benjamin, acting Secretary of War, C. S., telegraphed to Gen. L. Polk directions to ‘ buy tbe str. Eastport if thought worth $12,000 demanded.’
    “Under date Nov. 28,1861, Gen. L. Polk, in a letter from Columbus, Ky., addressed to Gen. A. S. Johnston, C, S. A., stated that be bought tbe steamer Eastport by authority of tbe Secretary of tbe Navy.
    “Under date of January 5, 1862, Gen. 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, O. S., wrote to Gen. L. Polk as follows: ‘I shall older 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, Amt. expended in purchase of steamer Eastport, as per receipt of Maj. 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. O. AiNswobth,
    “ Colonel, TJ. S. Army, Chief of Office.”
    
    Whether the sum of money stated therein was paid to Captain Wood does not appear, nor whether he ever rendered an ' account thereof to the other owners, though a few months after the vessel was so run up the Tennessee River he returned to Paducah, Ky., and resumed his residence there, and died about the close of the war.
    IY. Sometime between September, 1861, and February 7, 1862, the vessel was in the possession of the Confederate forces, but whether by reason of capture or purchase from said Captain Wood does not appear, and prior to the latter date was taken by said forces to near Cerro Gordo, Tenn., and work was there commenced to transform her into a gunboat for use in the Confederate service.
    Y. On February 7, 1862, and while said vessel was lying-under the bank of .the river and being converted into a gunboat, for use in the Confederate service as aforesaid, with the iron and other material therefor on board, but before her completion and before she had been used, or was in condition for use in any hostile .demonstration against the United States, she was captured from the enemy near Cerro Gordo Landing-on the Tennessee River, “by the naval forces on the Western rivers, commanded by Commodore A. H. Foote, U. S. N.,” then “under the control of the War Department,” i. e., by detachments of men in small boats from the gunboats Tyler, Lexington, and Conestoga, and taken to Mound City, Ill., on the Ohio River, where she arrived about February 26, following. At the time of said capture the vessel was dismantled, her upper works, cabin, pilot and wheel bouse having been cut away. She had also been scuttled in three places, to prevent her capture by the United States forces, by reason of all which she was damaged about $10,000.
    YI. After the vessel was brought to Mound City, Ill., she was converted into a gunboat by the United States, on the recommendation of Commodore Foote, and thereafter, about August, 1862, went into commission as such with a full com-. plement of men and officers of the United States Navy, and was so used on the Mississippi Elver as a part of the Mississippi squadron. This vessel, with others in like service, was turned over by the War Department to the Navy Department on the 1st October, 1862, pursuant to the Act of Congress of July 16,1862 (12 Stat. L., 587).
    Prior to October 1,1862, vessels in the United States Navy, including the gunboats Tyler, Lexington, and Conestoga, performing service on the Western waters, were under the control of the War Department.
    The vessel so captured continued in active service as a gunboat until April 17,1864, when she was sunk by being run on a torpedo, and afterwards, April 26, 1864, was blown up by her commander near Grand Ecore, La., to prevent her capture by the Confederates.
    VII. At the time the vessel was run up the Tennessee Eiver, as set forth in finding iii, she was a staunch vessel, about 10 years old, well equipped with machinery in good condition, of the reasonable value of $40,000, and when captured by the United States forces, as set forth in finding v, the vessel in her then condition was reasonably worth $30,000.
    VIII. During the time the vessel was in the use and employment of the United States as hereinbefore found, the fair and reasonable rental or annual charter of the same for commercial use, without crew or propulsion, less the cost and time of putting her in repair, was $150 per day, that being the usual price per day paid by the Quartermaster Department for like vessels during that period.
    
      IX. In July, 1862, certain proceedings were bad in tbe United States District Court for tbe southern district of Illinois concerning tbe capture of tbe vessel, as follows:
    
      “Record U. S. District Court, southern district Illinois.
    
    “ In tbe District Court of tbe United States for tbe southern district of Illinois. Tbe United States v. Steamboat East-port. In admiralty.
    “ Be it remembered that heretofore, to wit, on tbe seventeenth day of July, in tbe year of our Lord one thousand eight hundred and sixty-two, came Lawrence Weldon, esq., attorney of tbe United States for tbe southern district of Illinois, and filed in tbe office of tbe clerk of tbe District Court of tbe United States for said southern district of Illinois a libel against tbe above-named steamboat, which said libel was and is in tbe words and figures following, to wit:
    “Libel: United States of America, southern district of Ills., District Court.
    “To tbe Hon. S. H. Treat, Judge of said District:
    
    “ L. Weldon, district atty. of said district, would represent that on or about tbe 20th of June, A. D. 1862, in tbe Miss. Biver near Columbus, Ky., there was seized by Geo. D. Wise, capt. and asst, qrm., with gunboat flotilla (and which be hereby reports for condemnation) tbe steamer Eastport, and which was brought into said district. Said seizure was made for tbe reason that said steamer was used by and with tbe knowledge and consent of the owner in aiding tbe present rebellion against tbe United States, contrary to the act of Aug. 6,1861. Tbe said atty. therefore asks that process of attachment may issue against said steamer, and tbe monition of this bon. court, and that all persons having an interest in tbe same may be made parties herein, and that on a final bearing of this case your honor will adjudge and decree condemnation of said boat and order that tbe same may be sold.
    “L. Weldon.
    “(Indorsed:) Filed July 17, 1862. S. A. Oorneau, elk.
    “Whereupon a monition was issued out of tbe office of tbe clerk of said court as prayed in said libel; which said monition, tbe marshal’s return thereto, together with certificate of publication, are in tbe words and figures following, to wit:
    
      “United States oe America,
    “ Southern District of Illinois, ss:
    
    “The United States of America to the marshal of the southern district of Illinois, greeting:
    “Whereas a libel has been filed in the District Court of the United States, in and for the southern district of Illinois, on the 17th day of July, in the year of our Lord one thousand eight hundred and sixty-two, by L. Weldon,' district attorney of the United States, and Geo. D. Wise, capt. and asst. qrm. gunboat flotilla, against the steamer Eastport, boats, tackle, apparel, and furniture, for reasons and causes in said libel mentioned, and praying the usual process and monition of said court in that behalf to be made, and that all persons having, or pretending to have, any right, title, or interest therein, may be cited to appear and answer, all and singular, the matters in said libel articulately propounded, and that this court would be pleased to pronounce for the sum of the damages alleged in said libel, besides costs of suit. You are therefore commanded to attach the said steamer Eastport, boats, tackle, apparel, and furniture, and to detain the same in your custody until the farther order of this court respecting the same, and to give notice, by publication in the Illinois State Register, for fourteen days previous to 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, and that they be and appear before the said court, to be held in and for the southern district of Illinois, at the United States court room, in the city of Springfield, in said district, on the first Monday in September next, if that be a day of jurisdiction; if not, then on the first day of jurisdiction thereafter, at 30 o’clock in the forenoon of that day, then and there to interpose a claim for the same, and to make their allegations in that behalf.
    “And what you shall have done in the premises do youthen and there make return, together with this writ.
    “ Witness the Honorable Samuel H. Treat, judge of said court, this 17th day of July, in the year of our Lord one thousand eight hundred and sixty-two. and of our Independence the 87th year.
    “ [l. s.] S. A. Corneau, Cleric.
    
    “marshal’s return.
    “ I hereby certify that on this 31st day of July, A. D. 1862, I have by virtue of this writ attached the within-named boat, and made proclamation of the same.
    “ D. L. Phillips, U. S. M.
    
    “ By Isaac Keyes, Deputy.
    
    
      “NOTICE OE LIBEL AND SEIZUBE.
    “United States op Amebica,
    
      “Southern District of Illinois, ss:
    
    “Wliereas on the seventeenth day of July, A. D. 1862, Lawrence Weldon, United States district attorney, and Geo. D. Wise, capt. and asst. qrm. gunboat flotilla, filed a libel in the District Court of the United States for the southern district of Illinois against the steamer Eastport, boats, tackle, apparel, and furniture in a cause of condemnation and forfeiture;
    “ Whereas by virtue of process in due form of law to me directed, returnable on the first Monday in September next, I have seized upon and taken the said steamer Eastport, boats, tackle, apparel, and furniture, and have the same in my custody:
    “Notice is.hereby given that a District Court of the United States will be held at the United States court room, in the city of Springfield, on the first Monday in September next, for the trial of the said premises, and the owner or owners, and all persons who have or claim any interest are hereby cited to be and appear at the time and place aforesaid to show cause, if any they have, why a final decree should not pass as prayed.
    “D. L. Phillips, U. S. Marshal.
    
    “ Speingpield, III., Aug. 4, 1862.
    
    “publishee’s ceetipicate.
    “The undersigned, publisher of the Illinois State Register, a newspaper published at Springfield, Illinois, does hereby certify that the annexed notice was published in said paper for fourteen days successively, the first publication thereof having been made on the 4th day of August, A. D. 1862, and the last on the 19th day of August, A. D. 1862.
    “ C. H. Lanphieb,
    
      “Publisher Illinois State Register.
    
    “And afterwards, to wit, on Tuesday, the 2d day of September, in the year last aforesaid, the following proceedings were had in said court in said case, and were entered of record, to wit:
    “The United States against The Steamer Eastport, etc. In admiralty.
    “The marshal having returned on the monition issued in this cause that he had attached the said steamer, her engines, boats, tackle, apparel, and furniture, and had given due notice to all persons claiming the same that the court would on this day proceed to the trial and condemnation thereof should no claim be interposed therefor:
    “This day came the libelants, by their advocate, L. Weldon, esq., and upon their motion proclamation was made for all persons interested in the said steamer, her engines, boats, tacldé, apparel, and furniture, to appear and interpose their claim’ therefor, and no person appearing to answer said motion, it is ordered, adjudged, and decreed by the court 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. It is further ordered, adjudged, and decreed by the court that the said steamer, her engines, boats, tackle, apparel, and furniture be sold by the marshal under and by virtue of a writ of venditioni exponas, to be issued by the clerk of this court in accordance with the rules and practice of this court, and that upon the return thereof the marshal pay the proceeds of such sale into the depository of the court.
    “And afterward, to wit, on the 3rd day of December, in the year last aforesaid, the following further proceedings were had in said court in said cause, and were entered of record, to wit:
    “United States, on the relation of GeorgeD. Wise, as informer, v. Steamer Bastport, &c. In admiralty.
    “And now came again the United States by their district attorney, and the marshal having reported to the court that the United States became the purchaser of the steamer Bast-port, her engines, boats, tackle, apparel, and furniture, for the sum of ten thousand dollars. And the court, being now sufficiently advised in the premises, doth order, adjudge, and decree that there be allowed to the clerk for his services herein the sum of twelve dollars and eighty cents; to the marshal for his services herein the sum of one hundred and seventy-one dollars and eighty-two cents, and to the district attorney for his services herein the sum of one hundred dollars (the court allowing the district attorney eighty dollars under the provisions of section 3 of the act of March 25th, 1862, entitled “An act to facilitate judicial proceedings in adjudications upon captured property, and for the better administration of the law of prize ”).
    “And it is farther ordered, adjudged, and decreed by the court that the balance of the proceeds, amounting to the sum of nine thousand seven hundred and fifteen dollars and thirty-eight cents, be equally divided between the United States and George D. Wise, the informer herein.
    
      ‘•United States op America,
    “ Southern District of Illinois, ss:
    
    “The United States of America to the marshal of the southern district of Illinois, greeting :
    “ Whereas a libel was filed in the District Court of the United States for the southern district of Illinois on the 17th day of July, in the year of our Lord one thousand eight hundred and sixty two, by the United States against the steamer Eastport, &c., praying that the same may be condemned and sold for the causes in said libel alleged; and
    “Whereas the said steamer Eastport, &c., has been attached by process issued out of the said district court in pursuance of the said libel and is now in custody by virtue thereof; and such proceedings have been thereupon had that by the final sentence and decree of the said court in this cause made and pronounced on the 2nd day of September, in the year of our Lord one thousand eight hundred and sixty-two, the said steamer Eastport, her boats, tackle, apparel, and furniture was condemned and ordered to be sold by you, the said marshal, after giving 25 days’ notice of such sale, according to law:
    “Therefore, you, the said marshal, are hereby commanded to cause said steamer Eastport, her boats, tackle, apparel, and furniture, so condemned and ordered to be sold, to be sold in manner and form upon the notice and at the time and place by law required. And that you have the money arising from such sale in said court at Springfield on the 1st Monday of October, eighteen hundred and sixty-two, and that you then pay the same to the clerk of the court; and have you also then and there this writ.
    “Witness the honorable Samuel H. Treat, judge of the said court, this 4th day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of our Independence the 87th year.
    “ [l. s.] S. A. Cornead, Cleric.
    
    “L. Weldon, Esq., Proctor.
    
    “By virtue of this writ I have on this 4th day of October, 1862, at public auction, sold the within-named steamer East-port, her engines, tackle, boats, apparel, and furniture, to the United States for the sum of ten thousand dollars.
    “D. L. Phillips, U. 8. Marshal.
    
    “United States op Aherica,
    “ Southern District of Illinois, ss:
    
    “ I, M. B. Converse, clerk of the District Court of the United States for the southern district of Illinois, do hereby certify the foregoing to be a true copy of the record and proceedings in a certain cause determined in said court wherein the United States, on the relation of George D. Wise as informer, was libelant against the steamer Eastport, as fully as the same now appear of record and on file in my office.
    “ In testimony whereof I have hereunto subscribed my name and affixed the seal of said court, at my office in Springfield, this 6th day of June, A. D. 1894.
    [seal.] “M. B. Converse, Cleric.”
    
    Of these proceedings Hugh Worthington had no notice or knowledge until after the sale of the vessel, and until late in the year 1862, but whether or not the other owners of the vessel or Captain Wood had does not appear. Nor does it appear why the other owners of said vessel are not seeking pay for the value of their interest in said vessel.
    X. At the time said vessel was run up the Tennessee River by her captain, as set forth in finding hi, she was owned by Hugh Worthington, Mrs. A. O. Woolfolk, and Charles W. Harrison, in the proportion of three-fifths to Hugh Worthing-ton, and one-fifth each to Mrs. A. O. Woolfolk and Charles W. Harrison.
    What has become of the interest of the said Mrs. A. O. Woolfolk and Charles W. Harrison in said vessel, or where they are, does not appear. Nor does it appear whether they received any portion of the money so paid by the Confederate Government.
    XI. Prior to and during the war Hugh Worthington was a citizen and resident of Metropolis, Massac County, Ill., about 10 miles above Paducah, Ky. He was loyal to the United States throughout the war and gave no aid or comfort to the rebellion.
    XII. Hugh Worthington died intestate at Metropolis, Ill., March 31,1876, never having received from the United States any compensation for the use or value of the vessel so captured. He owned no property at the time of his death. What debts, if any, exist against his estate does not appear.
    XITT. The claimant, Sarah A. Oakes, is the sole surviving heir at law and the next of kin of said Hugh Worthington, deceased, being his daughter.
    
      Mr. John C. Fay and Mr. William E. Creen for the claimant:
    We contend that, both as matter of strict law as well as by the terms of this enabling act under which the court is authorized to mete out justice to tbe claimant irrespective of any strict rule of law, tbe claimant is entitled to recover a fair and reasonable compensation for tbe use of this boat while it was used in tbe naval service of tbe United States, and a reasonable compensation for its value, it having been destroyed by tbe United States while in its use and employ.
    Tbe facts show that a vessel, tbe property of a loyal citizen of tbe United States, resident in a loyal State, was taken by tbe enemy and recaptured from that ene my by tbe Navy of tbe United States, upon tbe navigable waters of tbe United States. Tbe title of the owner as between him and bis Government was not divested by its capture in tbe first instance, and under tbe law of postliminii tbe recapture inured to tbe benefit of the owner, subject only, under any circumstances, to tbe law of salvage.
    Tbe doctrine of property lawfully taken in war as enemy’s property has no application to tbe case at bar; tbe subject of this controversy is not enemy’s property, but tbe property of a citizen of tbe United States.
    Tbe jus postliminii of tbe Roman law, by which property taken by tbe enemy was held to be restored to its former state when coming again under tbe power of tbe nation to which it formerly belonged, is a doctrine which is recognized and established in tbe jurisprudence of tbe United States. While this general rule of law is now recognized by all civilized nations, tbe details and conditions of its enforcement are variable by different nations, so that it can not be said to be uniform; tbe general principle, however, is universally conceded. In tbe United States tbe Aot of March 3,1800 (2 Stat., 17), provided, inter alia, that in case of recaptures of vessels * * * belonging to persons resident within or under tbe protection of the United States, tbe same not having been condemned as prize by competent authority before tbe recapture, shall be restored on payment of salvage of one-eigbtb of tbe value if recaptured by a public ship, and other rates of salvage under certain other specified circumstances.
    In tbe case at bar there is no pretense that after tbe capture of tbe vessel by tbe Confederates she was ever condemned as lawful prize by competent authority. No action, so far as the record discloses, was ever taken with regard to her; but even bad there been any attempted, it could only have been by a court established by the Confederate government as a prize court.
    That such a court could not divest a citizen of the United States of his property was distinctly decided in the case of The Lilla (11 Sprague’s Decisions), wherein it was held that restitution of that vessel should be made to citizens of the United States, although she had been condemned by a prize court established by the Confederacy, on the clear ground that -a court of the United States could not recognize as valid or give an effect to an act of such a tribunal in the case of property of its own citizens.
    The Act of 1864 (13 Stat. L., 314) continued in force the jus postliminii, recognized in the act of 1800, but repealed the specific rate of salvage contained in that act and substituted therefor a provision upon payment of “ such salvage, costs, and expenses as the court (i. e., the prize court) shall order.” .This act is now embodied in section 4652 of the Eevised Statutes.
    In the case of the United States v. Farragut (22 Wall., 423) the Supreme Court, in treating of the recapture of vessels of loyal owners at New Orleans, says: “If the owners resided on that side of the line of bayonets spoken of in the prize cases (2 Black, 274) which adhered to the Union, then they were not liable to condemnation as prizes, for their owners could have interposed a claim in the prize court, and on payment of salvage their property would have been restored to them.”
    This being the right in law of the resident loyal owner, can he be in any degree deprived of them by the failure of the captor to libel the vessels in a prize court, where salvage might have been awarded him, and the property restored to its loyal owner upon such payment1? The .duty of the captor is so imperative, that only under extraordinary circumstances, such as did not occur in this case, can it be excused. (Jaelcer v. Montgomery, 13 How., 498; same case, 18 How., 110; The Dos Hermanos, 2 Wheat., 76.)
    By the failure to bring the property into court for adjudica, tion the captors are and ought to be foreclosed of their right of salvage. This in no way harms the United States, for the salvage does not accrue to it; but it defeats the right of the captors to salvage. By their own negligence they have precluded their own recovery. In violating the rights of the owners they have lost their own.
    The jurisdictional act directs the court to render such judgment as shall be just. In arriving at the justice of the case, could it be meted out more evenly or exactly than in following the consensus of opinion of the civilized nations of the world, all of which require, either upon payment of salvage or without, the recaptured property of their own citizens shall be restored to them; or as in the present case, the captors not having availed themselves of the right to salvage, and by that act having prevented the owner from having his property restored to him, that he should be entitled to his reclamation without the payment of salvage, which could not now be decreed against him ?
    The situation is not changed by the fact that the captain, against the consent and without the knowledge of the owner, took the vessel from a quasi neutral port and ran her within the enemy’s territory, where she was taken; that act of the captain’s was either barratry or piracy, and in either event makes the recaptor, by the law of all civilized nations, bound to restore her. (Wheaton International Law, sections 360, 361).
    After the conversion of this vessel into a gunboat, an effort was made to obtain title to her under the confiscation laws, and a mock sale was made of her while she was hundreds of miles away from the court and engaged in actual warfare. A mere cursory examination of those proceedings develops their irregularities. In the first place, she was not subject to that law; but, without going into the various details of irregularity, no Presidential order for the proceedings appears in the record, which alone is fatal to jurisdiction and renders the whole proceedings void and reviewable collaterally in this proceeding. (See United States v. Winchester, 99 U. S., 372.)
    Yiewed from any point, it follows that on February 27,1862, when the United States took possession of the Eastport and commenced her transformation into a gunboat for the use of the Government, she was the lawful property of a loyal citizen of the United States, domiciled in a loyal State, and was not subject to seizure and was as fully protected by that clause of tbe Constitution that forbids the taking of property for public use without just compensation, as any other property then within the limits of the United States.
    The title of the owner thus established was never divested by any act of his, or by any act of the law, and the vessel remained his property during all the time it was used by the Government and up to the time she was blown up by her commander on April 26,1864.
    
      Mr. Samuel A. Putnam (with whom was Mr. Assistant Attorney-General Bodge) for the defendants:
    We must look solely to the special act above cited for the jurisdiction of the court. The act begins with the statement that «full jurisdiction is hereby conferred upon the Court of Claims to hear and determine what are the just rights in law, etc.,” and near the close of the first section adds that the “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, etc.”
    Though the jurisdiction is thus stated in two different ways, I apprehended that the two statements were intended to mean the same thing. The claim can not be just unless it is founded upon claimant’s just rights in laio. No claim which is obnoxious to law can be considered by the courts to be just. I shall, therefore, treat the first statement of the act as the true definition of the jurisdiction in this case.
    What, then, are claimant’s just rights in law?
    
    In Cummings’s Case (130 U. S. R., 452) the court construed a statute by which claimants were “permitted to sue in the Court of Claims, which court shall pass upon the law and facts as to the liability of the United States, etc.” The court held that this act had no other effect upon the jurisdiction of the Court of Claims than to remove the bar of the statute of limitations, and that it left the case still within the control of all existing statutes and adjudications.
    To my mind there is no material difference between a direction to “pass on the law and facts as to the liability” and to “ determine what are the just rights in law.” I maintain, then, that this special act falls within the construction given by the Supreme Court to the act in the Cummings Case, and merely provides claimant with, a tribunal where he may propound any existing claim which he may have in this matter and which is lawful independent of this special act. It is intended merely to give him a remedy, and not to in any sense define his rights. Otherwise Congress would have disposed of the matter without any reference to this court.
    The steamboat, the value of which is the subject in controversy here, was captured from the Confederates while in process of conversion by them into a gunboat for their service. The United States thereupon confiscated it and converted it to their own. use. Clearly, this was a lawful confiscation and divested the title to said boat out of all claimants and invested the United States with full title to it, unless, as asserted by claimant, the United States was, by the jus postUminii, bound to restore it to its former owner, who was a loyal citizen of the United States.
    I am not able to find that the Roman jus postUminii has ever . been incorporated into the substantive law of the United States. In the Roman law postUminii was applied in every kind of proceeding and extended to every kind of property, real, personal, and mixed, and even to persons. (1 Kent, 108.)
    The United States in the year 1800 adopted an act governing prizes captured by maritime vessels at sea which embodied some of the principles of postUminii, but which was enforceable only in admiralty proceedings. It did not extend to property captured by land forces. (2 Stat. L., 16.) This act was in force in 1862 when this boat was captured, but this boat having been captured from the Confederates by the Army of the United States the capture did not make the boat a prize within the meaning of that act.
    August 6,1861, Congress passed an act providing for the disposition of property captured in any manner, and which the owner had used or allowed to be used in aid of any insurrection against the United States, and provides for an adjudication of the facts in the circuit or district court (12 Stat. L., 319).
    Proceedings under this statute, while not cases in admiralty, were to conform to the practice and procedure in admiralty (.Insurance Go. v. United States, 6 Wall., 759). The libel of this steamboat in the District Court for the southern district of Illinois conformed, in all respects, with this statute. The petition stated that tbe property bad been used witb the knowledge and consent of the owner in aid of insurrection. The final decree of the court recites that all of the allegation of the petition shall be taken as true.
    At the time of the passage of the act of August 6, 1861, it was the evident intention of the Government that the usual rules of war that the captor should be invested and the original owner divested of title to property captured in hostile territory or possession by the mere capture should not be applied, and that such property should in all cases be carried into the courts for adjudication. The magnitude of the war, the vexations and injurious delays that must occur under such a regulation made the speedy abandonment of such a course imperative, and the machinery of the court was dropped so far as land captures, of which this was one (United, States v. Padelford, 9 Wall., 540), were concerned, and property of every description captured in hostile territory or from hostile possession became from that moment, regardless of the status of the real owner of it, the property of the United States. Nor were the United States under any sort of legal obligation to pay for such property. They had not taken it by right of eminent domain, but by right of capture in war.
    This law of war was recognized by all legislation subsequent to the act of 1861, so far as I have been able to find. It was especially recognized by the captured and abandoned property act which was adopted on the theory that the title to such property vested in the United States by the mere act of capture, and without judicial Condemnation, and was intended to give relief to the loyal owners of certain kinds of that property. The steamboat here in controversy did not fall within the relief there afforded. The contention that the title to property captured in hostile territory or possession is vested in the captor has been so frequently adjudicated by the Supreme Court of the United States that it is difficult to select one case more conclusive than another. Perhaps as full a discussion of the question as any other is found in the opinion of Chief Justice Waite in Lamar v. Browne (92 U. S. R., 187).
   Peelle, J.,

delivered tbe opinion of tbe court.

Tbis action is prosecuted under tbe Act of July 28, 1892 (27 Stat. L., 320), wbicb reads as follows:

“Whereas it is claimed tbe steamer Eastport was taken by tbe United States anno Domini eighteen hundred and sixty-two, and converted into a gunboat; and
“Whereas it is claimed at tbe 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,
11 Be it enacted by the Senate and Souse 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 judgments 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.”

The facts briefly stated are these:

Early in the late civil war the captain of the steamer East-port, plying on the Mississippi and other Western rivers, without the consent or knowledge of the owners, took the vessel from Paducah, the port of her enrollment, to a place on the Tennessee Eiver within the lines of the Confederate forces. What disposition, if any, was made of the vessel by Captain Wood does not appear, but it does appear that soon thereafter the Confederate Government purchased the vessel of someone, as set forth in tbe findings, and that thereafter the vessel was found in the possession of the Confederate forces at Cerro Gordo, on the Tennessee Biver, undergoing transformation into a gunboat for use in the Confederate service.

While the work was thus in progress, but before the vessel had been used in any hostile demonstration against the United States, the naval forces of the United States, under the command of Commodore Foote, captured the vessel' and took her to Mound City, Ill., where she was reconstructed and made a gunboat, and thereafter used as such by the United States until blown up and sunk by her commander in April, 1864, to prevent her capture by the enemy.

The naval forces thus capturing the vessel were at the time under the control of the War Department.

Soon after the capture certain libel proceedings were had against the vessel in the District Court of the United States for the southern district of Illinois, pursuant to the Confiscation Act August 6, 1861 (12 Stat. L., 319), wherein a decree in condemnation forfeiting the vessel to the United States was rendered and the vessel ordered sold at public auction, which was accordingly done by the marshal of the district and the vessel bid in, in the name of the United States, for $10,000, as set forth in the findings.

Of these proceedings Hugh Worthington, one of the owners, had no notice until after the sale and late in 1862.

The act conferring jurisdiction on the court, it will be observed at first reading, is not free from ambiguity.

By the first clause of section 1 jurisdiction is conferred on the court “ to hear and determine what are the just rights in law of the said Sarah A. Oakes as heir of Hugh Worthington, deceased, * * * for compensation for the value of said Worthington’s interest in said steamer Eastport.”

In other words, the act confers jurisdiction on the court to hear and determine in the first instance what the “just rights in law” of Hugh Worthington were at the time of capture or when the vessel was bid in by the United States and taken into the naval service of the Government.

There is no controversy about the claimant being the sole surviving heir of Hugh Worthington, deceased, so that her legal rights, whatever they maybe, will depend upon the “just rights in law” of Hugh Worthington, through whom, as such heir, she claims and from whom her rights emanate.

This being determined in her favor, the second clause of the same section authorizes and directs the court, upon proper petition being presented, “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.”

The justice of the claim must be measured by the law of the case, i. e., “ the just rights in law ” of Hugh Worthington “ for compensation for the value of said Worthington’s interest in said steamer Eastport.”

The act referred to is a remedial statute, and while, as in the case of the United States v. Cummings (130 U. S., 452), it would operate to remove the bar of any statute of limitations that might exist, no rights are conferred by the act other than remedial that did not exist before; and this is true whether the claimant'or her ancestor, at any time prior to the passage of the act, could have maintained an action in this or any other court.

But the claimant contends that rights other than remedial are conferred by the special act, and in support of this contention several authorities are cited, the first of which is the Fendall Case (16 C. Cls. R., 106). The action in that case was brought under an act of Congress giving this court “original legal and equitable jurisdiction of all claims now existing against tbe District of Columbia arising out of contract.”

That was a general statute for a particular class of claimants, and is otherwise unlike the act in the case at bar; for in addition to the equitable jurisdiction thereby conferred, the cause of action must arise out of contract to entitle a claimant to sue. Jurisdiction was conferred upon the court to inquire into “claims now existing against the District of Columbia arising out of contract,” thus showing that the right of recovery was based on preexisting claims which arose out of contract.

In the Boudinot Case (18 C. Cls. R., 716, 728) a special act was passed to enable an Indian, who claimed protection by reason of a treaty, “ to bring suit in the Court of Claims against the United States Government to recover what may be due Mm in justice and equity for the loss inflicted upon Mm by reason of said seizure, for an alleged violation of the internal-revenue laws, of his property, á tobacco factory, its detention and damages thereto while under' seizure, the value of the tobacco, material, and other personal property also seized, and the expenses to which he was subjected thereby.

That was a case in which no rights existed prior to the passage of the act. The act created a claim arising out of an alleged tort, after the act of the internal-revenue officers had been sustained by a decree of a United States District Court, affirmed by the Supreme Court; and it authorized the claimant to recover, not what was legally due him, but “to recover what may be dire him in justice and equity for the loss inflicted upon him” by the seizure, notwithstanding the legality of the seizure had been sustained by the courts.

So that there is no parallel between that case and the one at bar, for in the case at bar rights did exist, subject to the character of the recapture of the vessel and the legality of the condemnation proceedings, both of which the court is authorized to judicially inquire into, to ascertain the “just rights in law” of the claimant and her ancestor.

In the Carroll Case (22 C. Cls. R., 104-107) a special act of Congress conferred jurisdiction on the court to enable the persons therein stated to maintain an action against the District of Columbia “ to recover such damages, if any, as they have sustained by reason of the change of grade and the regrading of the streets around square No. 736 in the city of Washington, * * * and, in ascertaining the damages sustained by the plaintiffs, the court is directed to take into consideration the advantages, if any, to the said square No. 736 resulting from the change of grade and regrading aforesaid.”

The court in construing this act said:

“The doctrine is indisputable that a municipal corporation is not liable to adjoining property owners in damages for consequences incident to an improvement of the street so long as there is no encroachment upon the possession of the owner and the corporation is guilty of no negligence; but Congress in the passage of the act of our jurisdiction have waived that defense on the part of the District of Columbia, and referred to this court the question of the extent of the injury, if any, suffered by the claimants in the improvement of the streets of the city of Washington as the owner of block No. 736, known as Duding-ton Square.”

A cursory reading of tbe act will convince any one that by it certain rights were conferred on the claimants, i. e., “to recover such damages, if any, as they have sustained by reason of the change of grade and the regrading of the streets,” etc., thereby conferring rights that did not exist before; an din addition to this the court was directed, in the ascertainment of the damages sustained, “to take into consideration the advantages, if any, to the said square numbered seven hundred and thirty-six resulting from the change of grade and regrading aforesaid.”

The act not only conferred jurisdiction on the court to enable persons to maintain their actions, but it took away an important defense and substituted in its stead a right of recovery for such damages as they may have sustained resulting from the change of grade and regrading as therein stated.

In the case at bar there is no contention that any defense is taken away from the defendants by tbe act.

In the case of the United States v. Alexander (148 U. S., 186) the question did not arise. That was an action by the owner of a well which became dry by reason of the construction of an aqueduct to increase the water supply in the city of Washington. The first section of the act provided among other things in substance that a survey and map should be made of the lands necessary to extend the aqueduct and the mode of acquiring title to such lands by condemnation, and then the section provided that “ any person or corporation having any estate or interest in any of the lands embraced in said survey and map, who * * * shall be directly injured in any property right, may, at any time within one year from the publication of notice by the Attorney-G-eneral, as above provided, file a- petition in the Court of Claims of the Uuited States^ setting forth his right or title and the amount claimed by him as damages for the property taken or injury sustained.”

The question presented in that case was as to whether the act restricted “ the right to sue exclusively to the parties holding land within the limits of the survey.”

The court held that “ the plain meaning and intent of the legislature were to provide for the care of those whose lands or property rights were directly injured by the construction of the work proposed to be done, as well as for the care of those injured by the taking of their lands.”

So the destruction of the well was held to be a “ direct injury ” to property recognized as such by law, and that, inasmuch as the injury resulted from “ the construction of a public work under authority of a statute,” there could be a recovery both on principle and authority.

The foregoing are the authorities cited by the claimant in support of the proposition that the act under which suit is brought is not only remedial, but fixes the rights of the claimant, or gives her rights additional to those she had theretofore, i. e., that the act merely devolves upon the court the duty of ascertaining the facts, and then, without reference to the legal rights of the parties at the time of the capture or sale of the vessel, to proceed to assess the damages, thereby constituting the court a jury shorn of judicial discretion.

Congress doubtless have the power to create a claim or cause of action, at least as against the United States, and by the same act to provide a remedy for its enforcement, but they have not done so, in our opinion, in the remedial act under consideration.

By the act jurisdiction is conferred on the court to hear and determine “the just rights in law” of the claimant, not simply as to heirship, but in addition the “just rights in law” of Hugh Worthington, deceased, “for the value of said Worth-ington’s interest in said steamer Eastport.”

It is indeed true that a subsequent clause of the first section directs the court to inquire into the merits of the claim, and if it “shall find that said claim is just,” it is directed to enter judgment “for whatever sum shall be found to be due.”

But this is plainly governed by the preceding -or jurisdictional clause, “that full jurisdiction is hereby conferred upon the Court of Claims to hear and determine what are the just rights in law” of the claimant as heir of the original owner; and when the statute subsequently says that the court shall enter judgment if it be found “ that said claim is just,” it means just “in law” as previously prescribed. The rights to be determined are legal rights.

With these preliminary remarks concerning the proper construction to be given to the act we will proceed to consider what “the just rights in law” of Hugh Worthington were “for compensation for the value of said Worthington’s interest in said steamer Eastport.”

The claimant’s contention is that the vessel was captured by the Confederate forces, but before she had been used or was in condition to use in any hostile demonstration against the United States she was recaptured by the naval forces of the United States; and that inasmuch as the claimant was a loyal citizen of the United States, residing at the time in a loyal State (Illinois), the title as between him and the United States was not divested by reason of such recapture; and that the condemnation proceedings in the District Court of the United States for the southern district of Illinois under the Confiscation Act August 6, 1861 (12 Stat. L., 319), and the sale of the vessel under the decree of the court thereunder, were void for the want of an order of the President to seize and condemn the vessel, as held in the case of the United States v. Winchester (99 U. S., 372), and that the whole proceedings are, therefore, reviewable collaterally in this proceeding.

For these reasons, and to sustain a recovery, the claimant invokes the doctrine of thejws postliminii of the Roman law, which she contends was recognized in the Act March 3, 1800, section 1 (2 Stat L., 17), the first section of which is as follows:

“ That 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, defence or reprisals, such vessels 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 or privateer.”

The Act June 30, 1864, section 29 (13 Stat. L., 314), now Revised Statutes, section 4652, incorporated the essential provisions of the act 1800, repealing, however, the specific rate of salvage therein fixed and providing that the sum to be paid as salvage cost and expenses should be fixed by the court in the event of a judgment of restitution.

The defendant’s contention is, assuming that the vessel was captured by the Confederate forces, that her recapture by the naval forces of the United States, while under control of the War Department, was a recapture by the Army of the United States, and that by reason thereof the claimant’s title was thereby divested and became vested in the United States.

And the defendants further contend that the proceedings in the District Court, as before stated, were in conformity to law, and that if the title did not become vested in the United States by reason of the capture aforesaid, then the same did vest by reason of the sale had under the decree of condemnation.

The question for our consideration at this point, then, assuming, as the claimant contends, that the yessel was captured by the Confederate forces, is as to the character of the recapture by the naval'forces of the United States on inland waters while under the control of the War Department.

The question is one by no means free from embarrassment, and, as far as we have been able to investigate, we have found no adjudicated case directly in point, and none has been cited by counsel on either side.

It is well settled and not questioned in this case that if the vessel in controversy was captured by the Army the title thereto passed as soon as the capture was complete; while if captured by the Navy as prize the title would not pass until condemned as provided by law. (Halleck’s International Law, ch. 30, secs. 1 and 2; the ship Resolution, 2 Dall., 1; the Adventure, 8 Cranch, 221; the Sally Magee, 3 Wall., 451; the Peterhoff, Blatchford, R., 620; the Neustra, etc., 108 U. S., 92.)

It will not be necessary to consider the question of a joint capture by the Army and Navy, as the findings show that the recapture, if such it was, was by the officers and men of vessels in the Navy under the control of the War Department, so that the army and the naval forces within the territory or district of tbe captured vessel were necessarily acting under tbe orders of tbe same military commander.

Therefore if the recapture is to be treated as a marine capture, by tbe naval forces of tbe United States, such capture was presumably by order of tbe military commander and not under direction of naval or admiralty authority.

It can not therefore be claimed, under tbe circumstances of this case, that tbe capture was made by tbe naval forces as such acting under naval authority, as evidently contemplated should be done in order to dignify tbe capture as a marine prize of war. (See Case 680 Pieces Merchandise, 2 Sprague, 233, 235.)

To sustain a recovery herein tbe vessel must have been “taken as prize” within tbemeauing of tbe Act of 1800 (supra). That war existed at tbe time there is no controversy.

In tbe Case 269 1-2 Bales of Cotton (1 Woolworth, 236-256) tbe court, by Mr. Justice Miller, in speaking of tbe capture of cotton on tbe 26th of September, 1862, by vessels used as transports on tbe Mississippi Biver, said :

“ From that statement it is not at all inferable that tbe vessels named were any part of tbe naval force of tbe United States. Indeed, we know that no naval force then existed on those waters. The gunboats were made a part of tbe Navy by order of tbe Government on tbe 1st day of October, several days after tbe capture.”

And further along at page 257 it is said:

“In short, tbe entire statements consistent with tbe fact that tbe vessels and crews were in tbe employment of the War Department, and were used merely as transports to carry tbe troops; and it is consistent with no other supposition.”

Thus showing that in tbe mind at least of that great jurist, to constitute a maritime prize tbe capture must have been by tbe naval forces as such, acting under naval authority, and that inasmuch as tbe naval vessels on tbe Western or inland ' waters of tbe United States were not made a part of tbe Navy until October 1, 1862, no such capture could have occurred prior thereto.

Tbe Act July 16, 1862 (12 Stat. L., 587), under which tbe, capturing and other vessels were transferred to tbe Navy Department recited and provided “ that tbe Western gunboat fleet constructed by tbe War Department shall be transferred to tbe Navy Department, which shall be hereafter charged with the expense of its repair, support, and maintenance/ thus showing that prior to the transfer the capturing vessels had been constructed by the War Department, and by reference to the Army Appropriation Act July 17, 1861 (12 Stat. L., 263), we find that the sum of $1,000,000 was appropriated for “ gunboats on the Western waters.” Of this all persons were bound to take notice.

The findings (5) show that the vessel was captured from the enemy by detachments of men from the gunboats Tyler, Lexington, and Conestoga while she was lying under the banks of the river being converted into a gunboat for use in the Confederate service.

It is evident, therefore, that the vessel at the time of capture was accessible to the land forces, and as was said in the Cotton Plant Case (10 Wall., 577, 580), “ there was nothing in the situation of the property that required peculiarly a naval force or marine service to effect its capture. The seizure might as well have been made by a detachment from the Army as by one from the Navy.”

In this same connection the court in the case of Porter v. United States (106 U. S., 607, 612), in construing the words “inland waters,” as used in the Act July 2, 1864, section 7 (13 Stat. L., 377), said:

“The term ‘inland’ as here used was evidently intended to apply to all waters of the United States upon which a naval force could go, other than bays and harbors on the seacoast. In most instances property of the enemy on them could be taken, if at all, by an armed force without the aid of vessels of war. These were seldom required on such waters, except when batteries or fortified places near them were to be attacked in conjunction with the Army.”

This authority, however, is not cited for the purpose of showing that no marine capture could have occurred on the inland waters of the United States at the time of the recapture of the vessel in the case at bar, but rather as showing the intention of Congress by the act, as thus construed, that captures of enemies’ property on the inland waters could be effected “if at all, by an armed force without the aid of vessels of war.”

If the land forces had aided in the recapture, it is clear that they would have done so under the order of the same military commander, as both forces were subject to his orders.

While the land forces did not contribute immediately to the recapture of the vessel, they were at the time stationed at or near the mouth of the Tennessee Hi ver.

At the same time it is quite evident, from the facts of the case, that the land forces could have captured the vessel without the cooperation of the naval forces, in which case it is conceded the title would have become vested in the United States.

So, in view of what we have said, and the reasoning of the authorities cited, we hold that the vessel was captured by the Army, and that therefore the title of the claimant’s intestate thereby became divested and vested in the United States.

This being the holding of the court it is unnecessary to consider the question of the legality of the condemnation proceedings in the District Court for the southern district of Illinois; or the other, perhaps more important, question as to whether the captured vessel, which was undergoing conversion into a gunboat for use in the Confederate service, would fall within the meaning of the Act of 1800 (supra), “as a vessel of war” as set forth in the first clause of the section quoted.

In view of the conclusion we have reached in the case, it is unnecessary to consider what may be the “just rights in law ” of the claimant in the estate as “heir,” or the legal effect of the statute in that regard authorizing her to bring this suit.

For the reasons stated the claimant is not entitled to recover, and the petition is therefore dismissed..

Weldon and Davis, J. J., were not present when this case was tried, and took no part in the decision.  