#### SLAWSON'S CASE. Hamilton Slawson, appellant, *v.*The United States, appellees.

(6 Court of Claims R., p. 370; not yet reported in Wallace.)

*On the claimant’s Appeal.*

*A steamboat is impressed into the Confederate military service at the beginning of the rebellion. Her owner dies, and the vessel is sold at an administrator’s sale ivhile still in the rebel service, her captain becoming her purchaser. He endeavors to procure her discharge, but cannot. At the evacuation of Cha/rleston she is fired by the rebel military, but the owner puts out the fire and saves her. An engineer in the United States Navy the next day tells the oivner to bring the vessel from James Island, where she lies aground, and agrees to place her in the service of the Government at*$150 *a day. A quartermaster ratifies the agreement, and she goes into the service of the Quartermaster Department. Subsequently she*is *turned over to a Treasury agent and sold as captured property, and the proceeds are paid into the Treasury. The owner brings suit, first, for her earnings,*(see 4 C. Cls. R., p. 87; 6 Id. p. 370,) *and subsequently the present action for her proceeds in the Treasury. The Court of Claims decides*
      *145
      *that ii is without jurisdiction, the steamer having leen used for waging xear against the United States. Judgment for the defendant. The claimant appeals.*

I. Where a person bought a vessel while she was in the rebel military service, though by impressment, it must be inferred that he thereby consented to her being so employed, notwithstanding that the purchase was made at an administrator’s sale, and that the purchaser had previously, as agent for the owner, objected to her impressment and endeavored to procure her release.

II. The proviso to the *Abandoned or captured properly Act*(12 Stat. L., p. 820, ó 1) expressly excludes from the operation of the act fDroperty which has been used for carrying on war against the United States *;*and where a vessel was engaged as transport in the military service of the rebels with the consent of her owner, he cannot recover her proceeds in the Treasury by a suit brought under the act.

*The Reporters’*statement of the'ease:

The claimant first brought suit for¡the services of his vessel under an agreement made with a naval engineer, but ratified by one of the military quartermasters in charge of transportation. (See 4 O. 01s. It., p. 87.) Failing in' this he then brought the present suit for the proceeds of her sale under the *Abandoned or captured property Aet.*

The court below found the following facts:

I. The claimant was, prior to, during, and after the war of the rebellion, a citizen of the United States, resident in Charleston, South Carolina.

II. In April, 3861, before the bombardment of Fort Sumter the armed rebels at Charleston took forcible possession of the steamer De Kalb, for the proceeds of the sale of which this suit is brought, and the rebel authorities kept her in their service under a charter, and generally with a guard of a sergeant and three to sis men on her, until the day of the evacuation of Charleston by the rebels in February, 1865. She was used by those authorities to transport men and quartermaster’s and commissary stores between Charleston and the rebel batteries around Charleston Bay.

III. T/hen the said boat was so taken possession of the claimant was the agent of her then owner iu reference to her, and as such agent he objected to her being taken into the service of the rebels.

IY. In April, 1863, while still ip the use of the rebel anthori*146ties for the purpose aforesaid, the said steamboat was sold at Charleston by the administrator of J. Harvey Dingle, her owner, at which sale the claimant became the purchaser of her. He tried very often to get her back from the rebel government, but could not do it,- but whether he so tried before or after his purchase of her, does not appear.

Y. During the whole period of the rebellion up to the day of the evacuation of Charleston, the claimant, first as agent of said Dingle, and afterward as owner of said boat, was engaged in her management.

VI. On the morning of the evacuation of Charleston by the rebels, the said boat, then lying at the wharf in Charleston, was set on fire by rebel soldiers and turned adrift in the harbor there, when the claimant and others went to her in a small boat, put out the fire, and staid on board of her until she drifted ashore on James Island, opposite Charleston, where she was when the United States forces took possession of Charleston.

VII. Upon the occupation of that place by those forces, G-. B. N. Tower, an engineer in the United States Navy, was placed in charge of captured vessels and transport service, and in a conversation between him and the claimant mention was made of the said boat, and after making inquiries as to her condition, the said Tower directed the claimant to have her brought to the city of Charleston from James Island shore, and he agreed to place her in the service of the United States Government. The said Tower afterward ordered one Duncan, a blacksmith and boiler-maker, (who- was introduced to him by the claimant,) to get said boat in order, which he did, and the day she came to the wharf at Charleston, repaired, she was put in the United States service, with the consent of Captain Moore of the Quartermaster’s Department of the United States Army, the said Tower agreeing that $150 i>er day should be paid for her use, and the said Moore consenting thereto. She remained in that service from the latter part of February, 1865, till some time in March or April, 1866, in all 402 days; but no compensation for her use was paid by the Government.

VIII. At the end of that time, under an order from the Quartermaster-General’s office, directing that vessels captured at Charleston should, when not required'by the Quartermaster’s Department, be turned over to the agents of the Treasury, the Do Kalb was so turned over, and on the 6th of June, 1866, was *147sold by T. C. Oallicot, supervising special agent of the Treasury Department, and the net proceeds of the sale were $3,963.38, which were paid into the Treasury of the United States.

IX. Between the months of February and October, 1865, the United States expended in the repairs of said boat $15,334.30.

X. The claimant consistently adhered to the United States during the rebellion, and gave no aid or comfort to persons engaged in said rebellion, unless the contrary should be considered as growing out of the fact that he became the purchaser of' said boat while she was under charter to the rebel authorities, and thereafter continued till the capture of Oharlestou to manage her as her owner.

Upon the foregoing facts the conclusion of law is, that the proviso to the first section of the *Act March*12, 1863, entitled *11 An act to provide for the collection of abandoned*property, *and for the prevention of frauds in insurrectionary districts within the TJmted*States,” and the first section of the “ *Act to restrict the jurisdiction of the Court of*Claims,” &c., approved July 4,1864, preclude this court from taking jurisdiction of this action, and that the claimant’s petition should be dismissed.

*Mr. George Taylor*for the claimant, appellant:

In the *Act July*13,1861, section 6, it is provided that certain steamboats shall be forfeited, and section 9 directs how the forfeiture shall be effected; and section 6 of the *Act July*17, 1862, provides for the seizure and appropriation of all kinds of property owned by those in rebellion against the United States, and section 7 of said last-mentioned act provides for the condemnation of said property. Under each statute proceedings had to be instituted in the proper courts, and condemnation had by due process of law. To avoid this expense and delay in certain cases, Congress passed the *Act March*12,1863, which authorized the Secretary of the Treasury to appoint agents for the collection of abandoned and captured property in the in-surrectionary districts; but said act provided that such captured and abandoned property should not include any kind or description which had been used, or which was intended to be used, for carrying on war against the United States, such as arms, ordnance, ships, steamboats, or other water-craft, and the furniture, fin-age, military supplies, or munitions of war.

*148It will be seen that this proviso embraces only such property as had been used, or was intended to be used,, in carrying on war j that is, *the public property of the*enemy, which, according to the laws of war, belong to the conquering sovereign or State. 3 Philemon, 189; *‘Alexander*v. *The Buhe of*Wellington, (2 Buss. & Myena, 35;) *French Guiana,*(2 Dod., 150;) *The Gecroa,*(id., 444;) (see 4 Cranch, 452.) Private property on land could not be seized and condemned without statutory provisions, and ships and other vessels seized at sea or in port could be condemned only by libel in the prize courts. We must therefore construe the proviso in the first section of the *Act March*12, 1863, to embrace public property only, which belonged to the enemy and which was owned and used by the Confederate States, or which was owned and intended to be used by them in the operations of war; and we submit that the proviso was not intended to embrace or include private property, such as the De Kalb, which had been seized by the confederates and used in carrying *supplies*and commissary stores within the harbor of Charleston, and which had been thus used contrary to the wishes and in violation of the rights of the appellant. Such a construction would not only ratify the original wrong of the confederates, but it would justify the act of seizure on their part, and make the United States a receiver of property plundered from its own citizens.

By limiting the proviso to public property Congress appears to have had in view the fifty-eighth Article of War, which requires that all public property taken from the enemy shall be secured for the use of the United States.

The operation of the first section of the *Act March*12,1863, was extended and enlarged by the third section of the *Act July*2,1864, so as to include all descriptions of property mentioned in the *Acts July*13, 1861, and *July*17, 1862. These acts embraced all estates and private property of every description. And the third section of the *Act July 2,*1864, amended section 6 of the *Act March*12,1863, so as to compel the Army and Nav3r to turn all such property over- to the agents of the Treasury Department, thus bringing the proceeds of said property under the operation of the third section of *Act March*12, 1863.

In the eighth finding of the Court of Claims, it will be seen that the steamer De Kalb was turned over to $he agent of the *149Treasury Department by the quartermaster, according to the *Act July*2,1864, and that the Treasury agent, as directed in the *Act March,*12, 1863, sold said steamer, and paid the net proceeds into the Treasury of the United States, thus treating-such steamer as captured property under that law, and not as public property captured *jure belli*from' the enemy, and belonging to the United States by right of such capture. The steamer was turned over in obedience to instructions, and according to ■ the construction given to these various acts by the Secretary of the Treasury. After the *Act July*2, 1864, new regulations respecting captured, abandoned, and confiscable personal property were issued, (see page 111 of Treasury Eegulations,) and the quartermaster, in pursuance of section 6 of the *Act 12th March,*1863, as amended by section 3 of the *Act July*2,1864, turned the steamer over to the Treasury agent, and the Government treated said steamer as captured private property .under said act.

*Mr. Assistant Attorney-General Sill*for the United States, appellees:

The Court of Claims has no jurisdiction of this case, because it comes within section 1 of the *Act July*4,1864, (13 Stat. L., 381.) Assuming that the De Kalb belonged to the claimant, and had not been used with his consent,by the confederate government, it appears by the seventh finding of the Court of Claims that the vessel was taken possession of by Tower, an engineer in the United States Navy, who was placed in charge of captured vessels after the evacuation of Charleston, and by Tower she was turned over to the United States officers, and employed by the Quartermaster’s Department of the Army, without the assent of the claimant. This was clearly an appropriation of the property, under the decisions of this court.— *United States*v. *Kimball,*(7 C. Cls. Ii., p. 234;) *Pugh*y. *United States,*(ibid., 284.)

The first section of the *Act March*3,1863, (12 Stat. L., 820,) providing for the collection of abandoned property and for the prevention of fraud in the insurrectionary districts within the United States, expressly provides that the property included within the act “ shall not include any kind or description which has been used, or which was intended to be used, for waging or *150carrying on war against the United States, such as árms, ordnance, ships, steamboats, or other water-craft, and the furniture, forage, military supplies, or munitions of war.” The steamboat in this case comes directly within the language of the proviso, and there is no reason for so limiting the application of the act as to hold, as the claimant contends, that it only applies to the property of the confederate government, and not to property belonging to private individuals, which was used by it in its military operations. In the first place, the proviso makes no reference to the rebel government or to the ownership of property, but refers only to property that has been “ used,” or was intended to be' “ used,” in carrying on war against the United States. Therefore, it is the *use*made of the property, and not the *ownership*of it, to which the statute refers. In the second place, the whole statute refers solely to private property, and not to public or *quasi*public property of the rebel government. That would become the property of the United States on capture, or upon the suppression of the rebellion, by the laws of war, without any legislation whatever; and no legislation in respect thereof was necessary. In the third place, such a construction would open the way for fraudulent claims so extensive as to leave very little, if any, property to which the proviso could apply.

If the court shall be of opinion that the proviso of the act of 1863 applies only to property held and used with the consent of the owner by the Confederate government, then it would include this case, because it is found that the claimant bought the steamer De Kalb while she was in possession and used by the rebel government under a charter. When he bought her, she seems to have been already liable to forfeiture, and, even if she were not, his purchase under such circumstances was an assent to the use to which she was then put, and he cannot complain if, buying her under such circumstances, she is treated as property of the rebel government. *Volenti non fit injuria.*

Mr. Justice Davis

delivered the opinion of the court:

This suit is based substantially on the following state of facts : In April, 1861, before the bombardment of Sumter, the confederate authorities at Charleston took forcible possession of the-steamer De Kalb, the property of one Dingle, against the ob*151jection of tbe claimant, wlio bad charge of the boat, and used her for military purposes until the evacuation of Charleston, in February, 1805. During the continuance of this employment Dingle died, and in April, 1863, the boat was sold at administrator’s sale to the claimant, who, either as agent of the owner, or as owner himself, had the management of her from the beginning of the rebellion to the evacuation of Charleston. On the morning that this event happened, the boat, while lying at the wharf, was set on fire by the soldiers and turned adrift in the harbor. In this condition she was boarded by the claimant and the fire put out, but she drifted ashore on James Island, opposite Charleston, where she was when the United States forces took possession of the city.

On the occasion of this occupation, Tower, an engineer in the Navy, was placed in charge of the captured vessels and transport service. In a conversation between him and the claimant his attention was called to the steamer, and after making inquiries as to her condition, he directed the claimant to bring her to Charleston, and agreed to place her in the service of the United States. Accordingly, with the consent of Captain Moore, of the Quartermaster’s Department, he fixed $150 per day as the compensation for her use. Neither this sum nor any other was ever paid for this use, although the steamer was in the service of the Government until April, 1866, when, under an order from the Quartermaster-General’s Office, directing that vessels captured at Charleston should, when not required by the Quartermaster’s Department, be turned over to the agents of the Treasury, she was sold, and the proceeds paid into the. Treasury.

It is impossible to suppose that Tower would have made the contract he did with Slawson if he had been informed of the true state of affairs with reference to this steamer, and in the absence of proof on the subject,.it is a fair presumption that he was kept purposely in ignorance of the fact that she had been engaged constantly for nearly two years preceding the'occupation of - Charleston by the Federal forces, with the consent of the owner, in carrying on war against the United States. The object of Slawson in the transaction was obvious. If he could, through the instrumentality of Tower, get his steamer in the service of the Government at a stated compensation, he would have a chance, at least, to save her from being treated as prize *152of war, and, if so, to obtain a remunerative price for her future employment. The circumstances at the time were favorable to the accomplishment of his object. The steamer was aground on a distant island, and Tower, although he had a right to suspect, could not certainly know the kind of use to which she had been previously put. If a credulous man, which would seem to be the case, he Could be easily imposed on, and in the nature of things it was not to be expected that any one would volunteer information to condemn the boat and Slawson’s conduct in connection with her.

It seems, however, that the mode adopted by Slawson to save his boat, and obtain compensation for her future use, if ingeniously contrived, did not accomplish his object, for the Government not only declined to pay anything for her use, but appropriated the boat itself as the lawful capture of the Army. This disposition of the property was strenuously resisted by Slaw-son, as appears by the statements of his petition. The Quartermaster’s Department not only refused on request to return the boat, but without notice to Slawson, and against his will, turned it over to the agent of the Treasury. Learning that this was done, he invoked, without success, the authority of the Secretary of the Treasury, in his behalf. This officer declined to restore the boat, on the ground that by the act of transfer to the Treasury Department the military power has.adjudged and determined the fact that the boat was the lawful capture or prize of the Army, and that he had not the power to revise that decision. She was accordingly sold, and the net proceeds paid into the Treasury. Slawson insists that he is entitled to these proceeds under the *Act to provide for the collection of abandoned*property, even if there had been a valid capture, but the proviso to the first section of this act expressly excludes from its operation property which, like this, has been used for the purpose of carrying on war against the United States. Congress did not think proper to become the trustee for the owner of a steamboat engaged, with his consent, id the military service of the enemy at the very time Charleston was taken. It will not do to say that Slawson acted under compulsion after his purchase. In the first place, the Court of Claims do not find this to be the case, and, besides, his conduct is inconsistent with any such theory, for he'purchased the steamer while under charter in the Confederate service, and necessarily must *153have knowa that ho could not recover her from that service. It needs no argument to show that the purchaser under such circumstances consents that the boat shall be continued in the same business in which she had been engaged from the commencement of the rebellion. The claimant is, therefore, excluded from the benefit of the *Captured and abandoned property*Aci, and as the Court of Claims has no jurisdiction to try a case growing out of the appropriation of property by the Army or Navy, it follows that its judgment must be affirmed.