money, for the taking or destroying of vessels of the enemy. Such provision is made by the fifth section of the English prize act. As grants of this description are considered as made to reward immediate personal exertion, and, moreover, are public grants, the courts construe them with much more rigor than they do the conflicting claims of individuals for shares of prize money. In these, as in all other public grants, the presumption is in favor of the grantor, and against the grantee. Hence, all claims of constructive joint capture, as from sight, association in chase, etc., are rejected. Originally the reward was confined to actually combat only; but, it is now held, that where a capture can be considered as a continuation of a general action, the whole fleet is equally entitled to head money, notwithstanding the particular combat and formal taking or destroying by a single ship belonging to the fleet. It is otherwise where the capture is not the immediate consequence of the general action. In a general engagement there can be no distinction of combatants; the whole fleet is supposed to contend with the whole opposing force; it is often so in fact, and always so in supposition of the law. But if the capture is made under such circumstances as to destroy all supposition of a continuity of the general engagement, the court will pronounce against the claim of the fleet to share in the head money. (Wildman, Int. Law, vol. 2, pp. 321-326; The Clarinde, 1 Dod. Rep., p. 436; La Gloire, Edw. Rep., p. 280; L'Alerte, 6 Rob. Rep., p. 238, The Ville de Varsovie, 2 Dod. Rep., p. 301; El Rayo, 1 Dod. Rep., p. 42; The Babilion, Edw. Rep., p. 39; L'Elise, 1 Dod. Rep., p. 442; The Dutch Schuyts, 6 Rob. Rep., p. 48; The Matilda, 1 Dod. Rep., p. 367; The San Joseph, 6 Rob. Rep., p. 331; The Uranie, 2 Dod. Rep., p. 172; La Francha, 1 Rob. Rep., p. 157; The Santa Brigada, 3 Rob. Rep., p. 58; The Bellone, 2 Dod. Rep., p. 343.)

§ 27. In all cases of collusive captures, the captors, whether single or joint, acquire no title to the prize, and the captured property is condemned to the government. If collusion be alleged, the usual simplicity of the prize proceedings is departed from in order to discover the fraud, if any exist. Evidence invoked from other prize causes is sometimes resorted to, as proof of collusion. Thus, where the same

vessel has been proved guilty of collusion in another case, during the same cruise, the court will take cognizance of that fact in the claim before it. The British prize act (section twenty) provides for forfeiture in all cases of capture by collusion, or connivance, or consent, and any bond given by the captain or commander of the captured vessel, is, also, declared to be forfeited to the crown. But even without a statutory provision, the same result would follow from the general rules of maritime capture, for prize courts generally will decree forfeiture of the rights of prize against the captors for gross irregularity or fraud, or for any other criminal conduct. Although the capture may be a good prize, if there should prove to be fraud and collusion between the captors. and the captured, the former will have forfeited their rights, and the property is condemned to the government generally. Forfeiture may, also, be declared in favor of the government for other acts of misconduct, and for willful and obstinate violation of duty on the part of the captors. (Wildman, Int. Law, vol. 2, pp. 298, et seq.; Kent, Com. on Am. Law, vol. 1, p. 359; The Johanna Tholen, 6. Rob. Rep., p.72; The George, etc., 1 Wheaton Rep., p. 408; Oswell v. Vigne, 15 East. Rep., p. 70; The George, 2 Wheaton Rep., p. 278; The Experiment, 8 Wheaton Rep., p. 261; The Bothnea and The Jahnstoff, 2 Wheaton Rep., p. 169; Dalloz, Repertoire, verb. Prises Maritimes, sec. 5.)

§ 28. So, in all cases of forfeiture of interest in the prize by the captors, the condemnation is to the government. The captor may forfeit his right of prize in various ways: as, by an unreasonable delay in bringing the question of prize or no prize to an adjudication by a competent court; by unnecessarily taking the captured vessel to a neutral port; by cruel treatment of the captured crew; by breaking bulk on board, except in case of necessity; by embezzlement; by breach of instructions, or any offense against the law of nations, etc. But irregularities on the part of captors, originating in mere mistake or negligence, which work no irreparable mischief, and are consistent with good faith, will not forfeit their right of prize. In order that a prize court may decree forfeiture or restitution, it is not necessary that the prize itself be brought within its jurisdiction; it is sufficient

that a proceeding be instituted by the claimants against the captor. Thus, if the prize be lost at sea, the court still has jurisdiction of the case, and may proceed to its adjudication at the instance of either the captors or the claimants. So, if captured property be converted by the captors, the jurisdiction of the prize court over the case continues; it may always proceed in rem, wherever the prize, or the proceeds of the prize, can be traced to the hands of any person whatever; and this it may do, notwithstanding any stipulation in the nature of bail had been taken for the property. But the court may exercise a sound discretion whether it will interfere in favor of the captors, in case the captured property has been unjustifiably or illegally converted, and in case the disposition of the captured vessel and crew has not been according to duty. "If no sufficient cause," says Chief Justice Taney, "is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capture, and award restitution and damages against the captor; although the seizure as prize was originally lawful, or made upon probable cause. And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a libel filed by the captured, as for a marine trespass, the court will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning." (Wildman, Int. Law, vol. 2, pp. 298, 299; Kent, Com. on Am. Law, vol. 1, pp. 358, 359; The Susannah, 6 Rob. Rep., p. 48; The Falcon, 6 Rob. Rep., p. 194; L'Ecole, 6 Rob. Rep., p. 220; La Dame Cecile, 6 Rob. Rep., p. 257; The Pomona, 1 Dod. Rep., p. 25; The Arabella and Madeira, 1 Gallis. Rep., p. 368; Jecker, et al. v. Montgomery, 13 Howard Rep., p. 516; British Prize Act, sec. 30; Dalloz, Repertoire, verb. Prises Maritimes, sec. 5.)

$29. Probable cause of seizure is, by the general usage of nations and the decisions in admiralty, a sufficient excuse in cases of capture de jure belli, and this question belongs exclusively to the court, which has jurisdiction to restore or condemn. The general principles which govern cases of this character, are embodied in the statute laws of the United

States. The act of June 26th, 1812, section six, provides that the courts of the United States in which the case may be finally decided, "shall and may decree restitution, in whole or in part, when the capture shall have been made without just cause; and if made without probable cause, or otherwise unreasonably, may order and decree damages and costs to the party injured." If there be a reasonable suspicion, it is proper to make the capture, and submit the cause for adjudication before the proper tribunal, and, although the court should acquit without the formality of further proof, the captors will be justifiable, by reason of such probable cause; but where the seizure is wholly without excuse, they are liable for costs, and for the damages which ensue from the seizure, and such damages and costs will be decreed to the party injured. The liability of the captor for damages and costs, depends, in general, upon his good faith and intentions; a court will seldom impose damages for a mere error of judg ment, unless the irregularity is very gross, and works a serious injury to the claimants. They are never responsible for the neglect or error of the captured vessel. Thus, if a vessel, although not liable to condemnation, has defective documents on board, or does not show proper papers, the captor is not liable for either costs or damages, but, on the contrary, the court will generally allow him costs and expenses, to be paid by the claimants to whom the restitution is made. But, if he unreasonably delay to procure an adjudication, or is otherwise guilty of negligence or good faith, he is liable for costs and damages. The owners of captured property, which is lost through the fault or negligence of the captors, are entitled to compensation in damages, and the value of the vessel, cost of cargo, with all charges, and the premium of insurance if paid, are allowed in ascertaining the amount of damages. Where a ship was justifiably captured, but not liable to be. condemned, was lost by the culpable negligence of the prizemaster, restitution in the value of ship and freight was decreed. Where freight is decreed, it is to be estimated on the footing of a fair commercial profit. A captor is liable for demurrage, in all cases of unjustifiable delay; for sending his prize into an inconvenient port; for loss of the ship if he refuses to take a pilot, but not where there is a regular pilot

on board; for deficiency of cargo; but not, without negligence or misconduct, for goods stolen from a warehouse after commission of unlivery. All claims to costs and damages are extinguished by accepting an unconditional release of the vessel. (Wildman, Int. Law, vol. 2, pp. 153-177; U. S. Statutes at Large, vol. 2, p. 761; The Palmyra, 12 Wheaton Rep., p. 1; The George, 1 Mason Rep., p. 24; Locke v. The U. S., 7 Cranch. Rep., p. 339; Shattuck v. Maley, 1 Wash. Rep., p. 245; Jecker, et al., v. Montgomery, 13 Howard Rep., p. 505; Bello, Derecho Internacional, pt. 2, cap. 5, §5.)

§ 30. Questions with respect to the liability of admirals of fleets, and commanders of squadrons, for captures made by vessels and officers under their commands, and of owners of privateers for the acts of their captains, have often been adjudicated upon by the courts. The commander of a squadron, or the admiral of a fleet, is liable to individuals for the trespasses of those under his command, in case of actual presence and coöperation, or of positive orders. Where, in such cases, the capture has actually taken place, the prize-master is considered as a bailee to the use of the whole fleet or squadron, who are to share in the prize money, and thus the commander may be made responsible; but not so as to mere trespasses, unattended with a conversion to the use of the fleet or squadron. With respect to costs and damages, it is a general rule in relation to public ships, that the actual wrong-doer, and he alone, is responsible. It is not meant by this that the crew of the capturing ship are responsible for a seizure made in obedience to the commands of their superior; but that the person actually ordering the seizure is the one to be held liable for costs and damages. Thus, the commander of a single vessel is liable for the acts of all under his command, and the commander of a fleet or squadron, in case of actual presence and coöperation, or of positive orders. In the United States he is also held responsible for acts done under his permissive orders; but not so in England. The captain, there, must be looked to as the actual wrong-doer, and the admiral is responsible to him if he has given express orders for the particular seizure. (Kent, Com. on Am. Law, vol. 1, p. 100; Phillimore, On Int. Law, vol. 3, § 457; The Mentor, 1 Rob. Rep., p. 177; The Diligentia, 1 Dod. Rep., p. 404; The Eleanor, 2 Wheaton Rep., p. 346.)