monition, and if that process be disobeyed, an 7*] attachment issues against the *parties in contempt. But the court may, in all cases, proceed in the first instance by warrant of ar rest of the person or property to compel security to abide its decree.

Having said so much on the subject of prize jurisdiction as seemed necessary to explain the practice of the court, we may now pass to the consideration of the rights and duties of captors in relation to property captured in war.

(The Anna, 5 Rob., 332); if the cargo be without any clearance (Ib.); if the destination be untruly stated; if the papers respecting the ship or cargo be false or colorable, or be suppressed or spoliated; or if the neutrality of the cargo does not distinctly and fully appear (report of Dr. Lee, &c.: Chitty's Law of Nations, Appendix, 303; Wheat. on Capt., Appendix, 320); if the voyage be from or to a blockaded port (The Frederick Molke, 1 Rob., 86), or not legal to the parties engaged in the traffic (The Walsingham Packet, 2 Rob., 77; The Hoop, 1 Rob., 196; The St. Antonius, 1 Acton, 113); if the cargo be of an ambiguous character as to contraband (The Endraught, 1 Rob., 22; The Rindge Jacob, 1 Rob., 89; The *Jonge [*9 Margaretha, 1 Rob., 189; The Twende Broder, 4 Rob., 33; The Frau Margaretha, 6 Rob., 92; The Ranger, 6 Rob., 125); and generally if the case be a case of further proof, all or any of those circumstances furnish a probable cause for capture, and justify the captors in bringing in the ship and cargo for adjudication.

To enable a vessel to make captures which shall enure to the benefit of the captors, it is necessary that she should have a commission of prize. But non-commissioned vessels of a belligerent nation may not only make captures in their own defense, but may, at all times, capture hostile ships and cargoes, without being deemed by the law of nations to be pirates; though they can have no interest in prizes so captured. (2 Brown's Civ. and Adm. Law, Whenever the captors are justified in the 524; Caseregis, Disc., 24, no. 24; 2 Woodes. capture, they are considered as having a bona Lect., 432; Consolato del Mare, ch. 287, 288; fide possession, and are not responsible for any 3 Buls., 27; 4 Inst., 152, 154; Zouch. Adm. subsequent losses or injuries arising to the propJurisd., ch. 4, 101; Com. Dig. Admiralty, E. 3; erty from mere accident or causalty, as from The Georgiana, 1 Dodson, 397; The Diligentia, stress of weather, recapture by the enemy, shipId., 403; The Emulous, 8 Cranch, 131; The wreck, &c. (The Betsey, 1 Rob., 93; The CathNereide, 9 Cranch, 449; The Dos Hermanos, arine and Anna, 4 Rob., 39; The Carolina, 4 ante, 76.) But every capture, whether made Rob., 256, Del Col v. Arnold, 3 Dall., 333.) by commissioned or non-commissioned ships, is They are, however, in all cases bound for fair at the peril of the captors. If they capture and safe custody; and if the property be lost property without reasonable or justifiable cause, from want of proper care, they are responsible they are liable to a suit for restitution, and may to the amount of the damage; for subsequent 8* also be mulcted in costs and damages. misconduct may forfeit the fair title of a bona If the vessel and cargo, or any part thereof, be fide possessor, and make him a trespasser from good prize, they are completely justified. And the beginning. (The Betsey, 1 Rob., 93; The although the whole property may, upon a hear- Catharine and Anna, 4 Rob., 39.) Therefore, ing, be restored, yet, if there was probable if the prize be lost by the misconduct of the cause of capture, they are not responsible in prize-master, or from neglecting to take a pilot, damages (opinion of M. Portalis, in the case or to put on board a proper prize crew, the of The Statira, 2 Cranch, 102, note a); but, on court will decree restitution in value against the other hand, they may, under circumstan- the captors. (The Der Mohr, 3 Rob., 129; The ces according to the degree of doubt or suspi-Speculation, 2 Rob., 293; The William, 6 Rob., cion thrown upon the case, either from the de- 316; Del Col v. Arnold, 3 Dall., 333; Wilcocks v. fects of the papers, the nature of the voyage, or Union Ins. Co., 2 Binney, 574.) But although, the conduct of the captured crew, be entitled in general, irregularity of conduct in captors to receive their costs and expenses in bringing makes them liable for damages, yet in case of a in the property for adjudication. It is not bona fide possession the irregularity to bind within the object of this note to enumerate all them must be such as produces irreparable loss, the various circumstances which have been ad- as, for instance, such as may prevent restitution judged to constitute probable cause for capt- from an enemy who recaptures the property. But, in general, it may be observed, (The Betsey, 1 Rob., 93.) And in cases of gross that if the ship pretend to be neutral, and has misconduct the court will hold the commission not the usual documents of such ship on board of the captors forfeited. (The Marianne, 5

ures.

1.---Aucun ne pourra armer un vaisseau en guerre sans commission de l'amiral. Ordonnance de 1681, liv. 3, tit. 9, Des Prises, art. 1. Il est tellement vrai, qu'il n'y a que ceux qui ont commission de l'amiral qui sont en droit de faire a leur profit des prises sur l'ennemi, que si le capitaine d'un vaisseau marchand a été attaqué en mer par un vaisseau ennemi dont il s'est rendu maitre dans le combat, la prise qu'il a faite du vaisseau ennemi ne lui appartient pas, mais appartient a l'amiral, qui est a cet égard aux droits du roi ; l'amiral a coutume d'en gratifier

pour le tout ou pour partie celui qui a fait la prise, sans tirer a conséquence. Pothier, de Proprieté, No. 93; Valin, Sur l'Ordonnance, ubi supra.

chands, navire ou marchandise sans cause raison2.-Lesdits preneurs empeschans aucuns marnable, ou qu'ils ne soyent nos adversaires, nostre dit amiral sera deuement restituer le dommage, et ne permettra plus l'usage qu'ont a ce contre raison tenue iceux preneurs, en quoy ils ont faict et donne de grands dommages a aucuns de nos alliez par feinte, ou fausse couleur qu'ils mettoyent de non cognoistre s'ils estoyent nos adversaires, ou non, qui est chose bien damnable, contre raison et justice, que homme soubs telle couleur deust porter dommage, ou destourbier. Ordonnance de 1400, art. 8. See the opinion of M. Portalis, in the case of The Pigou (2 Cranch, 98, note a).

1.--Enjoignons aux capitaines qui auront fait leur sont faites te tirer sous pavillon étranger. à quelque prise, de l'amener ou envoyer,, avec les peine d'être privés, eux et leur armateurs, de tous prisonniers, au port où ils auront armé a peine le provenu de la prise, qui sera confisqué au profit de perteuil leur droits et d'amende contraire; si de Sa Majesté si le vaisseau est jugé ennemi; et en ce n'est qu'il fussent forces par la tempête ou par cas que la vaisseau soit jugé neutre, les capitaines les ennemis, de relâcher en quelque autre port, et armateurs seront condamnés aux dépens, domauquel cas ils seront tenus d'en donner incessa-mages et interéts des proprietaires Ordonnance ment. Avis aux interressés a l'armement. L'Ord- de Ï7 Mars, 1696. onnance de 1681, liv. 3, tit. 9; Des Prises, art. 7. See also the Ordinance of 1584, art. 43; Coll. Mar. 113.

3. Si la prise étoit évidemment mauvaise, de maniere, qu'il n'y eut rien qui fut capable d'excus2. Sa Majesté a ordonné, et ordonne, que tous er le corsaire; nul doute alors que la main-levee les capitaines commandans ses vaisseaux ou ceux n'en fut ordonnée, non-seulment avec exemption armés en course par ses sujets seront tenus d'ar- de tous frais: mais encore avec tous depens, domborer pavillon francais avant de tirer le coup d'as-mages et intérêts contre l'armateur. 2 Valin, Sur surance ou de semonce. Defenses tres-expresses l'Ordonnance, 336.

In respect to the measure of damages, where | ship are responsible for the seizure made in obethe vessel and cargo are actually lost, it is usual dience to the commands of their superior; to allow the actual value of the property. for by the prize law, the act of the com(Del Col v. Arnold, 3 Dall., 333; Maley v. mander is binding upon the interests of all unShattuck, 3 Cranch, 458; The Anna Maria, der him, and he alone is responsible for damages ante, 327.) And where a prize had been ille- and costs. (The Diligentia, 1 Dodson, 404.) gally condemned by a vice-admiralty court. The meaning of the rule is, that the person acerected by the commanders in the West Indies, tually ordering the seizure is liable for the damunder a misapprehension that they possessed an ages, and not his superior in command (who authority to erect such courts, and afterwards has not concurred in the particular act), simply restitution in value was decreed by the High from the fact that the seizor is acting within Court of Admiralty in England, the court al- the scope of his general orders. (The Mentor, lowed the invoice value, 10 per cent. profit, 1 Rob., 179.) Therefore, a suit cannot be mainand freight, as well where the ship and cargo tained against an admiral upon a station, who belonged to the same persons as where they is not privy to the act of seizure. (lb. 179.) were separately owned. (The Lucy, 3 Rob., Nor a commodore, who commands the 208.) Indeed, what items may properly form *squadron, but gives no orders for the [*14 13*] a part of the damages, depends upon the capture. (The Eleanor, ante, 346.) In short, nature and circumstances of the case; and for the actual wrong-doer is the person to answer guides to direct his judgment, the learned reader in judgment, and to him responsibility is atis referred to the following cases: Le Caux v. tached by the court. He may have other perEden, Doug., 594, 596; Talbot v. Janson, 3 sons responsible over to him, and that responsiDall., 133, 170; Cotton v. Wallace, 3 Dall., 302, bility may be enforced; as, for instance, if a 304; The Charming Betsey, 2 Cranch, 64; Maley captain make a wrongful seizure under the exv. Shattuck, 3 Cranch, 458; The Narcissus, 4 press orders of his admiral, that admiral may Rob., 20; The Zee Star, 4 Rob., 71; The Corier be made answerable in the damages occasioned Maritimo, 1 Rob., 287; The St. Juan Baptista, 5 to the captain by the improper act. But it is Rob., 33; The Die Fire Damer, 5 Rob., 357; the constant and invariable practice of the prize The Anna Catharina, 6 Rob., 10; The Driver, court to have the actual wrong-doer the party 5 Rob., 145; The Lively, 1 Gallis., 315; The before the court; and the propriety of the pracAnna Maria, ante, 327. Where damages and tice is manifest, because, if the court was once costs are allowed, if, after they are assessed, pay- to open the door to complaints founded on rement is delayed, the court will allow interest mote and consequential responsibility, it would upon the principal sum from the time of assess- be difficult to say where it is to stop. (The ment, although it includes interest as well as Mentor, 1 Rob., 179.) The principles applicable principal. (The Driver, 5 Rob., 145.) to this class of cases are fully developed in the opinion in the case of The Eleanor (ante, 346). to which the reader is respectfully referred.

As to the mode of assessing damages, it is usual for the court to refer the subject to commissioners, to make inquiry and return a regular report to the court of the several items and amount of damages. But in their report they should state the principles upon which they proceed in making allowances, where the items do not explain themselves, and not report a gross sum without specification or explanation. (The Charming Betsey, 2 Cranch, 64; The Lively, 1 Gallis., 315.)

In respect to the persons who are liable for costs and damages, it may be observed that the general rule, in respect to public ships, is, that the actual wrong-doer, and he alone, is responsible. (The Mentor, 1 Rob., 179.) It is not meant by this that the crew of the capturing

1.-Pothier holds, that the owner of the privateer | may entirely discharge himself from the responsibility beyond the amount of the penalty in his bond, by abandoning the vessel to the injured party. De Propriete, No. 92. But Valin decides, that the prize law controls, in this respect, the provision of the municipal law of France, by which the owners of merchant vessels are discharged from their responsibility, by abandoning the ship and freight, in like manner as they are by the British statute, 9 Geo II., ch. 15. En conformité des dits Réglemens de 1701 et 1744 (giving costs and damages to neutrals wrongfully seized), il faut donc tenir aujourd'hui sans égard à la disposition de l'art. 3 du titre des propriétaires, &c., et du présent article, en tant qu'il limite le cutionnement à la somme de 15,000 liv. que l'armateur répondra indéfiniment de tous les dommages et interêts résultans des délits et déprédations des gens de son corsaire, et des prises irrégulières par eux faites; sans pouvoir même s'en défendre, en payant la somme de 15,000 liv. pour laquelle il aura donné caution, et en déclarant en même temps qu'il abandonne outre cela son navire avec tous ses agrêts, apparaux et autres dépendan

In case of private armed vessels, the owners, as well as the master, are responsible for the damages and costs occasioned by illegal captures, and this to the extent of the actual loss and injury, even if it exceeds the amount of the bond usually given, upon the taking out of commissions for privateers. (Bynk. Q. J. Pub., 1. 1, ch. 19, Duponceau's ed., p. 147: Talbot v. Three Brigs, 1 Dall., 95; S. C. 1 Hall's Am. Law Journ., 140; 1 he Die Fire Damer, 5 Rob., 357; The Der Mohr, 3 Rob., 129; 2 Brown's Civ. and Adm. Law, 140, Del Col v. Arnold, 3 Dall., 333; The Anna Maria, ante, p. 327). ' But the sureties to the *bond are respon- [*15 sible only to the extent of the sum in which they

ces, relativement a l'art. 2 du même titre des propriétaires, &c., dont la disposition n'est plus applicable en matière d'armement en course, que celle de l'art. 3, attendu ces mêmes règlemens qui forme une decision particuliere a cet egard." Sur l'Ordonnance, liv. 3, tit. 9, des Prises, art. 2. Such appears to have been the former law of France, but it was changed by the new commercial code. “Les propriétaires des navires équipés en guerre, ne seront toutefois responsables des delits et depredations commis en mer, par les gens de guerre qui sont sur leur navires, ou par les equipages que jusqu'a concurrence de la somme pour laquelle ils auront donné caution, à moins qu'ils n'en soient participans ou complices." Code de Commerce, art. 217. But as our laws not only contain no such provision, but have not even adopted the British statute, by which the owners are discharged in ordinary cases by abandoning the vessel and freight to the injured party, there can be no doubt that the responsibilty of the owners of privateers is not limited, either to the penalty of the bond or the value of the vessel.

rant to take possession of the property. But
where the prize has been first seized in port, a
monition issues, in the first instance, to bring in
the papers if they are in the possession of a sub-
ject or citizen. (The Conquerer, 2 Rob., 303.)
The usual monition is directed to the marshal,
and in England is served by posting up a copy
at the Royal Exchange, in the city of London.
In former times fourteen days were allowed
between the service of the monition and the
day of hearing the cause; but in most of the
later prize acts in England twenty days are al-
lowed after the execution of the monition.
(Robinson's Coll. Mar., 89, note; Mariott's
Formulary, 187.) In the United States the re-
turn day of the monition depends upon the
discretion of the district judge; but it is usually
twenty days at least after the issuing of the pro-
cess; and it is served usually by posting up a copy
on the mast of the prize vessel, and at such other
public places as the judge may direct; and al-
so by publication in the newspapers printed in
or near the principal place or port of the district
into which the prize is brought. This proceed-
borrowed from the Roman law, by which, when
it became impracticable to serve the party with
a personal citation, recourse was had to this
method, which is called a citation per edictum.
(Dig. Lib. 5, tit. 1, sec. 63; Robinson's Coll.
Mar., 88, note.)

templates that the payment of the duties is, in cases of condemnation, to be made by the marshal, out of the proceeds of prize sales. And it has been repeatedly held in the Circuit Court for the first circuit, that no forfeiture accrued for not securing the duties upon prize goods before condemnation; and that the court might, at any time, direct an unlivery and sale; and upon such sale, would deduct the amount of duties, and direct them to be paid to the collector. It has already been stated that when the marshal has possession of the property he is bound for safe and fair custody; and if any loss be sustained, it is at least his duty to be prepared to show that it was not lost by any default of his. (The Hoop, 4 Rob.. 145.) If, therefore, property be pillaged while under his care, the court will hold him responsible for its value, if it arose from his negligence. If, indeed, upon an application to enforce their responsibility, he by his answer deny any neg19*] ligence and loose custody, the court may, perhaps, think it no more than a legal and proper confidence in its own officer to throw the burden of proof of culpable negli-ing by monition and service by public notice is gence or fraud on the other party. (The Rendsberg, 6 Rob., 142, 157.) And where the property is lost while actually under the locks of the government, the marshal will not be liable, although he may still be considered as constructively having the legal custody. (Ib.)

At the return day of the process, if no claim be at that time or previously interposed, and upon proclamation made no person appear to claim, the default is entered on the record; and the court will then proceed to examine the evidence, and if proof of enemy's property clearly appear, it will immediately decree condemnation; if the case appear doubtful it will postpone a decision. It is not now usual to condemn goods for want of a claim till a year and a day has elapsed after the service of the process, except in cases where there is a strong presumption and reasonable evidence to show that the property belongs to an enemy. (Rob. Coll. Mar., 89; The Harrison, *ante, vol. [*21 I, p. 298; The Staat Embden, 1 Rob., 26, 29.) And if no claim be interposed within that period, the property is condemned of course, and the question of former ownership is precluded forever, the owner being deemed in law to have abandoned it. (The Staat Embden, 1 Rob., 26, 29; The Henrick and Maria, 4 Rob., 43, 44: The Harrison, ante, vol. I, p. 298; Rob. Coll. Mar., 89, note; 1 he Avery, 2 Gallis.)

In prize causes it is not usual to file any special allegation of the particular circumstances on which the captors found their title to condemnation. The libel is, and always ought to be, the mere general allegation of prize, such as is used in undoubted cases of hostile property. The act of bringing the vessel in, and proceeding against her, allege her generally to be a subject of prize rights, and the captors are not called upon to state, at the commencement of the suit, the particular grounds on which they contend she is so. They have a right to institute the inquiry, and take the chance of the benefit of any fact that may be produced in the course of that inquiry. (The Adeline, 9 Cranch, 244; The Fortuna, 1 Dodson, 81.) This is a great advantage on the side of the captors, but is controlled by their liability to costs and damages, if the inquiry produce nothing; and is fully balanced by the advantage given to the claimant in this species of proceeding, that no evidence shall be admitted against him but such as proceeds from himself, from his own documents, and from his own witnesses, the captors If at or before the return day of the process not being permitted, except in cases marked by a claim is interposed, the cause is then to be peculiar circumstances, to furnish any evidence heard in its proper order upon the ship's papers whatever. (The Fortuna, 1 Dodson, 81.) Con- and the preparatory examinations. Accomsiderations of this nature render it very import-panying every claim must be an affidavit which is ant for proctors to adhere, with the greatest care, to the established form; and it is a great irregularity, equally evincing want of skill and judgment, to deviate from it.

Upon filing the libel the usual practice is immediately to issue a monition citing all persons who are interested to appear at a given day, and show cause why the property should not be condemned as prize; and this process, in the 20*] United States, usually includes a war

called the test affidavit, and which regularly should state that the property at the time of shipment, and also at the time of capture, did belong, and will, if restored, belong to the claimant; and if there be any special circumstances in the case these should be added. (The Adeline, 9 Cranch, 244; vide The Sally, 3 Rob., 300, note.) In respect to the manner of interposing claims. and the rules by which their admission or rejection are governed, it does not