was on this account no capture. The sending of a prize-master on board is an overt act of possession, but by no means essential to constitute a capture. If the merchantman was obliged to lie-to, and obey the direction of the French lugger, and await her further orders, she was completely under the dominion of the enemy; there was no ability to resist and no prospect of escape. There have been many instances of capture where no man has been put on board, as in ships driven on shore and into port, I remember particularly, a famous case of a British vessel, armed with two swivels, which took a French privateer row-boat from Dunkirk. Having only three men on board, and only armed with the swivels, she was afraid to board the row-boat, which was full of men armed with muskets and cutlasses-but by the terror of her swivels she compelled their submission, and obliged them to go into the port of Ostend, then the port of an ally, she following them all the way at a proper dis tance."

A privateer, finding enemy's property on board a neutral vessel, put two men on board, and the master of the vessel promised to proceed into a port of the captain, without resistance to the force put in his possession. It was held that the capture was suffi cient, as against the claim of another privateer of like commission as the first, who captured the vessel on finding her proceeding to the port of an enemy.

"Though the privateer," said Lord Stowell, "had no right to compel such an engagement, if the neu

1 The Hercules, ubi sup. ; La Esperanza, 1 Haggard, 91. The Resolution, 6 Rob., 13.

tral master voluntarily promised to go into the British port, without more force being put upon him, I am of opinion that the act of seizure, under such circumstances, would be fully sufficient in law to constitute a capture. The engagement being made, the neutral nation sustains no injury from it, and it is fully competent for the master of the privateer to act under it. It is a mere question of prudence, whether he will trust to, the word of the neutral master, or whether he will take the more effectual precaution of putting an adequate force on board."

But if one privateer takes a vessel, and afterward abandon her, and then another takes the same vessel, the last seizor is, in law, the only captor, and the act of a commander in relinquishing that which would otherwise have been good prize, to himself and his crew, is binding upon the interests of all under him. Commenting upon the circumstances of a case like this, Lord Stowell says: "As it is im possible that the claims should coexist, the court is bound to decide upon them according to their legal merits, which must depend upon this questionwhich of them was the actual captor? That is, not only who was the person by whom the seizure was actually made, but which is the party legally entitled to the character of captor; for there may be many successive captors, but only one can be legally entitled, as captor, to the benefit of the prize. If a captor dismisses what he has seized upon, the

interest of himself and all under him is concluded by this act, and the same vessel lies open to seizure by any other captor who may exercise a similar dis

cretion."

1

The Diligentia, 1 Dod., 404; vide also The Woodbridge, 1 Haggard, 74.

13

Liability for mistakes in engagements of friendly vessels.

Lawful cap

An officer placed in possession of a vessel cap tured by a national vessel, by the captor, may not be dispossessed by the officer of another national vessel for the purpose of enabling the latter to make a capture for his own use and benefit.'

If a neutral vessel be captured by a superior force, and a small force be placed on board her with a prize-master to carry her into port, it is not the duty of the master and crew of the captured vessel to attempt to effect a rescue, for, by doing so, they subject the vessel to condemnation, which would otherwise be entitled to restitution.2

If two armed ships should meet upon the ocean, and under mutual mistake, and without any want of reasonable care, should go into an engagement, neither would be liable to the other for any injury resulting from the combat. But if an attack were wanton, or in consequence of gross negligence the part of either, it would subject the offending party to liability for the most ample remunera

tion.8

Lawful captures can only be made by national be made by vessels of war, or vessels commissioned for that purpose. A seizure was made by a hired armed revenue cutter, said to have been placed under the command of The Euridice man-of-war as a tender.

public armed vessels or private armed vessels commissioned.

"In order to support that averment," said Lord Stowell, "it must be shown, either that there has been some express designation of her in that char acter, by the orders of the admiralty, or that there has been a constant employment and occupation,

The Eagle, 1 W. Rob., 245.

2 The Short Staple vs. The United States, 9 Cranch, 55. The Marianna Flora, 3 Mason, 116.

in a manner peculiar to tenders, equivalent to an express designation, and sufficient to impress that character upon her. The former species of proof would undoubtedly be most desirable."

In another case, a capture was made by a revenue cutter, which had been fitted out as a tender by the captain of a man-of-war, and put in command of a midshipman, and manned by a crew from the man-of-war, but without any commission or order from the admiralty.

"It is not to be maintained," says Lord Stowell, in his opinion in this case, "that an officer, by put ting his men on board, can constitute a ship to be a part of the navy of Great Britain. Such a character is not to be impressed without the intervention of some public authority. If the contrary could be held, this must follow, that an officer of a large ship might form out of these tenders as many ships of war as he pleased - he might compose a fleet. Whatever may have been the case in remote stations where the principal persons in command must necessarily be intrusted with a greater latitude of discretion-at home, where an officer has it in his power instantly to refer to the admiralty, the case is very different."

Unless the commission so granted by the commander, be afterward confirmed by the admiralty, the prize is condemned as a droit of admiralty.

boats belong

In cases however of boats belonging to men-of- Capture by war, and employed in effecting a capture, Lord ing to men-ofStowell said: "The court would certainly be dis. war.

posed to extend, as far as it could, with propriety,

1 The Charlotte, 5 Rob. 2 The Melomane, 5 Rob., 50.

Restitution no bar to second capture

to ships of war, the benefit of captures made by their boats acting distinctly in that capacity. There must be situations in which the captures could not otherwise be made, and many considera. tions of convenience require that they should be allowed to take, in whatever manner their judg ments may deem expedient, according to the cir cumstances of the case, either by their whole force, or by a part detached on that particular service. The court would therefore not be disposed to narrow the legal effect of the operation of their boat's

The voluntary restitution of a prize, does not ba a second seizure by other parties, either on the sam or on other evidence, but such second capture is made at the peril of being subjected to costs and damages as made against the presumption of illegality resulting from the first restitution."

A ship, although incapable of going out upon a cruise, may nevertheless, make an effectual capture by her boats.

"It is not to be said," says the learned court, in a case in which this question arose, "that because the ship was incapable of going out on a cruise, that therefore she could not make a seizure in port. She had arms which she could stretch out for such a purpose. She had her boats, which might be employed on a service of this kind. Is the court in every case, to enter upon a consideration of the exact state and condition of the ship by which a

1 The Charlotte, ubi supra; vide also The Donna Barbara, 2 Haggard, 373.

The Mercurius, 1 Rob., 80; vide also The Woodbridge, 1 Haggard, 74.