The Peterhoff.

definitively marked in consequence and effect, as if the two had no common foundation of authority. (1 Kent's Com., 101, 102, note 6; Halleck's International Law, ch. 30, §§ 1, 4.) When property is captured on land by a belligerent, the title passes and is vested so soon as the capture is complete, and the property then belongs absolutely to the sovereign. In regard to a prize taken at sea, the right of property is not changed by the seizure alone. The prize remains in the hands of the captor, lawfully sequestrated, under a species of trusteeship, awaiting a trial at law in the courts of the nation seizing it. While undergoing the processes of law necessary to ascertain its character, it is exempt from all power of the captors other than that of safekeeping for the purposes of trial, and of determining its culpability. Until the decree of the prize court has transferred the title of the prize to the capturing power, the lawful proprietorship continues, with the original possessor, subject to no other use or appropriation by its occupant than that of safe-keeping under arrest, pending judicial proceedings seeking its forfeiture. Manifestly, in that status of the property, it cannot be lawfully divested of its condition of pledge, so long as the question of its lawful ownership is undetermined and rests under judicial advisement. These considerations are irrefragable, in respect to the functions of a court of dernier resort within whose cognizance the property may be placed; and more especially there is no shadow of authority existing in a tribunal from whose jurisdiction a subject of litigation is carried by appeal to a superior one, to recur to and exercise a renewed power over the subject-matter, after it has been transferred and submitted to the exclusive judgment of the ultimate tribunal.

It is within the competency of the Supreme Court, on the appeal in this cause, to decree the suit null and void; to order a new trial; to deny the recovery of costs, or to adjudge, at its discretion, any modification of the forfeiture pronounced against the prize by the district court, which the court of last resort may regard as equitable and just. The inferior court cannot lawfully intercept that corrective authority of the superior court, and prevent, by otherwise disposing of the res itself, while the appellate court may be in the act of rectifying the injury inflicted on the appealing party, that order of remedy which is most appropriate and desirable to the aggrieved suitor.

There is no effective judgment against the prize property or its proceeds remaining on the records of the district court. In principle, its orders to devote the proceeds of the captured property to the payment

The Peterhoff.

of the costs and expenses of the suit, while the cause remains within the control of the Supreme Court, for final decision, can be no more appropriate and available than directions from it to make full distribu tion of the proceeds of the prize among the captors, together with costs. It seems to me a misapprehension of the case of The Collector (6 Wheat., 194,) to regard it as laying down the doctrine, that, after an appeal to the Supreme Court, the funds connected with the cause still remain subject to the order and disposal of the inferior court. On the contrary, the opposite conclusion appears to be plainly stated. The inferior court remains the custodian of the proceeds in the cause under litigation while it is pending in the Supreme Court, but the inferior court is expressly inhibited from making any order respecting the property, whether it has been sold and the proceeds paid into court, or whether it remains specifically, or its proceeds remain in the hands of the marshal. The property or fund in this suit is undoubtedly in the keeping or charge of the district court, or of the sub-treasury, as its actual depository, but the lawful control of it belongs to the Supreme Court, in all particulars.

These principles will preclude my granting the motion of the counsel on the part of the prize commissioner, for an order directing the payment of the costs taxed in his favor in this case out of the funds deposited in charge of this court, and it is, accordingly, not necessary to discuss the further question presented, and much urged, respecting the right of the commissioner to have those costs declared to be payable out of the proceeds in the cause in court, or, in case of the deficiency of that fund, out of the judiciary fund in the treasury. It is understood that that question is to come before the court in other cases, now on appeal from this court to the Supreme Court, in which a decision upon the point may become practically important, and not be merely speculative and inactive. The consideration of the question may, I think, more appropriately abide an occasion which shall demand its determination.

I am by no means prepared to accept the qualified provision in the 13th section of the prize act of June 30, 1864, (13 U. S. Stat. at Large, 311,) that the district court, notwithstanding the appeal to the Supreme Court, "may still proceed to make a decree of distribution, so far as to determine what share of the prize shall go to the captors, and what vessels are entitled to participate therein," as giving authority to the district court to pay out of its registry or charge the moneys or

The Charlotte.

fund under appeal in the Supreme Court. I am inclined rather to regard it as a strongly implied inhibition to the district court against intermeddling in any way with the actual disposal of the funds left in its charge, except in execution of positive directions of the Supreme Court.

THE STEAMER CHARLOTTE AND CARGO.

Vessel and cargo condemned for a violation of the blockade.

(Before BETTS, J., February, 1865.)

BETTS, J.: The above vessel and cargo were captured, as prize of war, by a squadron of United States vessels-of-war, January 20, 1865, in Cape Fear river, off Smithville, North Carolina, and were brought into this port for adjudication. They were here arrested by the marshal, January 28, 1865, under process of monition and attachment, returnable in court February 14. Due notice was given thereof by public proclamation made in open court on that day; and, no person appearing to answer to such attachment, monition, and proclamation, it was, on motion of the United States attorney, ordered by the court that an interlocutory judgment of condemnation by default be rendered against the said prize vessel and her cargo, pursuant to the course and practice of the court. The pleadings, the documentary proofs, and the depositions in preparatorio, were submitted by the United States attorney to the court, to ascertain and determine the legal liability of the prize to condemnation and forfeiture.

The vessel was of English build, and when arrested carried on board of her a British certificate of registry, issued at the custom-house in London, bearing date August 26, 1864, with a further certificate indorsed thereon, by the custom-house registrar at Halifax, November 17, 1864, that Thomas Edwin Cocker had then become master of the vessel. It thus appears prima facie upon the ship's title papers produced from her, that she was a neutral vessel, which had departed from her home port and was arrested in the mouth of a blockaded port. The prize-master who brought the captured vessel into this port received with her no other papers than the aforesaid registry, and reports that he does not know that she had any papers on board.

Thomas E. Cocker, the master of the prize vessel, George Turner, the second mate, and Alexander Crawford, the ship's engineer, were

The Charlotte.

examined in preparatorio, by the prize commissioner, on the 2d day of February, 1865. The master testifies that he is a subject of the Queen of England; that he was present at the capture of the vessel on the 20th of January last, about 12 o'clock at night, at Smithville, in the Cape Fear river; that she was brought, immediately af er her capture, to this port; that she carried English colors; that she also had a confederate flag, which was usually hoisted at the mast-head in going up Cape Fear river, when coming in; that the circumstances of the capture were, that the vessel was bound from Bermuda to Wilmington, North Carolina, and had passed the blockading squadron there, as she supposed, and ran right into Smithville, and was there intercepted and ordered to anchor by the United States squadron; that the capture was made, he supposes, by all four of the American vessels; that the owners were British subjects, resident in England; that he was appointed master at Halifax, by the owners in England, for the voyage; that there were no bills of lading for the cargo of the vessel, to his knowledge; that he signed none; that he knows of no papers on the vessel except the register; that all private papers on the ship were burned or destroyed on board as soon as it was discovered she was in the enemy's hands; that her cargo, amounting to about 150 tons burden, consisted of miscellaneous merchandise, composed principally of materials for wearing and military supplies; that the vessel had, under his command, made a previous voyage from Bermuda to Wilmington and back, bringing cotton out of Wilmington; that he supposes the cargo in this case belonged to the owners of the vessel; that he knew that Wilmington was held under blockade by the United States forces before he attempted to enter the port on this occasion; and that the vessel had previously entered the port of Wilmington, and come out while it was under blockade, and was making the attempt to violate the blockade again when captured.

The other two witnesses concur substantially in the evidence given by the master, with the exception that the first engineer states that a portion of the cargo which the prize had on board when captured was composed of goods contraband of war. It is unnecessary to repeat the evidence in full detail, as the evidence given by both of the witnesses fully supports the charge of violating the blockade by the prize in running into the port of Wilmington when arrested.

It is ordered and decreed that the vessel and cargo be condemned and forfeited for the cause in the libel alleged.

The Stag.

THE STEAMER STAG AND CARGO.

Vessel and cargo condemned for a violation of the blockade.

(Before BETTS, J., February 23, 1865.)

BETTS, J.: This vessel was captured January 20, 1865, about simultaneously with the preceding vessel, the Charlotte, and upon the same cruising ground, and by part of the same United States war vessels, as prize of war, and was sent into this port for adjudication, where she was libelled and arrested by process of the court on the 28th day of January last. The same order of procedure was followed in this case as in the preceding one, and, in due course of practice, an interlocutory decree of default was rendered by the court against the vessel and cargo, February 14, 1865. It is needless to recapitulate the exact steps pursued.

No ship's papers were taken from the prize other than a register, executed at Wilmington, North Carolina, December 17, 1864, by the confederate custom-house, transferring the vessel, as one of British build, from John Fraser & Co., and stating that Richard H. Gale, a citizen of the Confederate States, and apparently a commissioned officer of the rebel navy, was her master; and two letters from the secretary of the navy of the Confederate States-one dated December 6, 1864, and one dated December 12, 1864, both addressed to the said Gale at Wilmington, and each recognizing him as commander of the Stag, in the service of the Confederate States; and a letter from William H. Peters, as agent of the navy department at Wilmington, North Carolina, dated December 12, 1864, to the said Gale, as captain of the Stag, directing him to take the ship directly to sea in the confederate service; and another letter of similar purport, from the same navy agent, dated at the navy department, Wilmington, December 16, 1864, reiterating to Captain Gale, in command of the vessel, to despatch her immediately, in the rebel service, to Bermuda.

The depositions in preparatorio of Stephen Brewster Coltman, first officer, Richard Bell, second officer, and Hardy Mermetstein, third officer of the Stag, were taken in the cause, before the prize commissioner in this district, on the 1st day of February, 1865, and were duly returned and filed in court. No other sworn proofs were presented in the case except the affidavit of the prize-master accompanying the delivery of the prize and her papers.

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