CONCEALMENT OR SPOLIATION GROUNDS FOR SUSPICION. 457

"It is undoubtedly a very awakening circumstance, calculated to excite the vigilance and justify the suspicions of the court. But it is a circumstance open to explanation, for it may have arisen from accident, necessity, or superior force; and if the party, in the first instance, fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled.

"If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile; if the cause labor under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of denial of further proof, and condemnation ensues from defects in the evidence, which the party is not permitted to supply."

In the Anna Maria (2 Wheat. 327), C. J. Marshall says: "The right to visit and detain for search is a belligerent right, which cannot be drawn in question.

"But this search must be conducted with as much regard to the rights and safety of the vessel detained as was consistent with a thorough examination of her character and voyage. All that was necessary to this object was lawful, all that transcended it was unlawful."

In the Anna Maria, upon libel, the owners recovered full damages of the captors, because the vessel, after capture and while in their possession, was lost through the fault of the captors. And the case of the Der Mohr (3 Ch. Rob. 129), was cited and relied upon as sustaining the principle of the decision, upon which the owners of the Anna Maria recovered full damage for their lost vessel. To complete the history of this judicial exposition by Sir William Scott, of the liability of captors to indemnify for their own or their agent's

458

CAPTORS LIABLE FOR LOSS OR NEGLIGENCE.

misconduct, another case of the Der Mohr (4 Ch. Rob. 315), should have been cited. The former was decided June 24, 1800, the latter December 14, 1802.

But both grew out of the same transaction. The Der Mohr, on her voyage from Surinam to Altona, was captured by two British ships of war, commanded respectively by Captain Church, the senior, and Captain Talbot, the junior officer in command. The prize was committed to the junior officer, with directions to put a pilot on board, for the purpose of taking her through the Needles, and himself to accompany her to Spithead. A prize-master in charge refused the tendered services of a pilot, who was dispatched to him; and the vessel was lost, as was claimed by the owners, through the misconduct of the captors. In the first case, restitution in value of the ship was decreed to the owners; in the second, freight was deemed not to be limited to the proceeds of the cargo saved, and was decreed in toto against the captor.

Restitution was decreed, and accordingly the owner became entitled to full indemnity. Although the loss was through the ignorance, obstinacy, and general negligence of a prize-master, still his superior officer (Captain Talbot) was held responsible upon the ground, that "every principal is civilly answerable for the conduct of his agent." Though proper orders had been given, they were not properly executed, and thereby the loss occurred. For this loss, the neutral owner had a just claim for an entire indemnity, and could only seek it against the responsible and principal captor. It was a hard case for Captain Talbot, miseranda vel hosti; but he could be relieved only by the assistance of the governThis was anticipated by Sir William Scott; as

ment.

QUESTIONS OF PRIZE EXCLUSIVELY FOR ADMIRALTY COURTS. 459

shortly after the decision in 1802, the court was informed that the amount of restitution had been ordered to be paid by the government, in aid of the captor.

The act of the Congress of the United States passed September 24, 1789, § 9, vests in the United States district courts as full jurisdiction of all prize causes as is exercised by the Admiralty courts of England. This jurisdiction of the district courts is an ordinary, inherent branch of their powers as courts of Admiralty, whether considered as prize or instance courts.

The language of the act is: "Shall also have exclusive original cognizance of all civil causes of Admiralty and maritime jurisdiction."

And it was early determined in Bingham v. Cabot (3 Dall. 19), that the questions of prize or no prize are exclusively of Admiralty jurisdiction.

In discussing the title to things acquired in war, jure belli, it will be convenient as well as more instructive to consider such title as threefold, and to classify these acquisitions accordingly,

1. As things taken for booty.

2. As forced contributions or levies.

3. As maritime prize.

And first, booty may be defined as personal property captured by a public enemy on land; differing herein. from prize, inasmuch as that is personal property captured by a public enemy on the sea.

Whenever booty shall have been twenty-four hours in possession of the enemy, or has been carried by the captor infra presidia or within a place of safety, it thereupon becomes the captor's absolute property; and if, moreover, it shall have passed bonâ fide into the hands neutral, then there remains no jus postlimini for the original owner.

460

BOOTY FORCED LEVIES

PRIZE.

The right of booty belongs to the sovereign, except where pillage is permitted; and then it belongs to the private soldier. It is not, however, usual in modern times, for civilized nations to seize private property as booty.

Nevertheless, there are occasions when such a rule may be departed from, and the practice be not only tolerated but justified even and applauded; as in the grand march of General Sherman to the sea through the Gulf States.

Secondly. Forced contributions may be designated as levies made by a belligerent force, invading a hostile country, and while in the occupation thereof; and they serve to support the army of occupation there by means of a compulsory levy, or call for money or property, from hostile inhabitants, by order of the commander-inchief of the invading force; thereby rendering a resort to indiscriminate pillage unnecessary, and authoritatively prohibiting it.

Thirdly. The more general definition of prize would be this:

Maritime prize is the taking of enemy property, water borne, on the high seas, whether ship or goods, by authority of a belligerent power, for the purpose of becoming master of part or the whole, with the intention of appropriating it.

With this general definition of prize, the further examination and discussion of the subject might be pursued and extended under the usual inquiries:

Who can make prize?

What may be captured as prize?

What is sufficient capture?

What is right of postliminy?

What is ransom and when permissible?

DEFINITION OF PRIZE.

461

What is adjudication of prize or no prize and distribution of prize money?

As this extended discussion may possibly interfere with the original plan of the present treatise, I shall confine that discussion to three of those inquiries, namely: Prize, capture and adjudication.

1. And generally, nothing can be taken as prize, except by the authority of an existing government engaged in war; because no one has a right to make war unless it be an existing government, duly constituted for the time being.

In the United States, the power to make war is lodged in Congress.

By the law of nations, a formal declaration of war and notice thereof has heretofore been deemed essential; but this is not always an indispensable prerequisite.

Since the war of the United States with Mexico, if the fact be made known that war exists, that, of itself, is alone sufficient; being deemed now equivalent to a formal declaration, so that all rights and incidents, consequent upon a state of war, follow and flow from such proclaimed fact.

In such a condition of affairs, however made known, provided it have the sanction and assent of the government, authority may be given to private as well as public ships to capture and make prize.

Of course, it is quite superfluous to add, that an unauthorized capture is no prize; and none but a freebooter, corsair, or pirate will deliberately engage in such expeditions, or would be likely to continue in it, after the real or pretended cause for capturing or destroying property had notoriously ceased to exist.

Thus the doings of the Shenandoah and the conduct