vessel, the former being merely temporarily detached to take the prize into port, but without any real separation of object or interest.1

§ 22. The general rules of joint capture for commissioned 'privateers, are also applicable to non-commissioned vessels; with this distinction:-that all captures by the latter must be condemned to the government as droits of Admiralty, the captors only receiving compensation in the nature of salvage, which is usually awarded by the prize-court, where their conduct has been fair; and, in cases where there has been great personal gallantry and merit, the whole value of the prize is given them. Where a vessel has a commission against one enemy, but none against another whose property is captured, it is regarded as non-commissioned with respect to that particular capture. If, at the time of the capture by a vessel commissioned by a letter of marque, the master of the capturing vessel be not on board, the capture is considered as made without commission, and enures to the government. So of a vessel fitted out and manned by a ship of war, and acting without any authority or commission; unless brought within the definition of a tender, it is deemed a non-commissioned vessel, and its captures enure, not to the benefit of the manof-war, but to the government. But the question whether the capture is made by a duly commissioned captor, or not, is one between the government and the captor, with which claimants have nothing to do; they have no legal standing to assert the right of the State.2

§ 23. Where a privateer or a non-commissioned vessel is the actual captor, and a man-of-war only a joint captor, the latter has no right to dispossess the former, but is entitled to put some one on board to take care of the interests she may

1 The 'Anna Maria,' 3 Rob., 211; the 'Melomane,' 5 Rob., 41; the Belle Coquette,' 1 Dod. R., 18; the Nancy,' 4 Rob., 327, note.

The Charlotte,' 5 Rob., 280; the 'Dos Hermanos,' 2 Wheat. R., 76 ; the Cape of Good Hope,' 2 Rob., 274.

The profits of a capture made by individuals, acting without a commission, enure to the government, but it has not been the practice to exact them. It has been their practice to recompense gratuitous enterprise, courage, and patriotism, by assigning the captor a part, and sometimes the whole of the prize.-1 Op. Att. Gen., 463.

Under the Acts of March 25, 1862, and July 17, 1862 (12 Stat. at L., 375, 4; and 607, 6), an armed merchant vessel, not in the service of, and having no commission from, the United States, although she is present at the capture of a prize and co-operates therein, is not entitled to share in the proceeds.—The 'Merrimac, Blatchf. Pr. Cas., 584.

have in the capture. It is not essential, but a measure of proper precaution and of great convenience, that an interest should be asserted at the time. Where expenses were incurred by the actual captor in consequence of an omission of this precaution, they were directed to be paid out of the proceeds. Where a man-of-war and a privateer were joint chasers, and the privateer came up first, and struck the first blow, but the man-of-war was the actual taker, they were held to be joint actual captors.1

24. Any misconduct or fraud on the part of the capturing vessel, intended to deceive another, in order to prevent her from taking part in a capture, is generally punished by admitting the claim of the latter to the benefit of joint captor. Thus in the case of the 'Herman Parlo,' the actual captor extinguished his lights in order to prevent other ships from seeing the chase or capture. In the case of the 'Eendraught,' the captor hoisted American colours, and offered to protect the prize against the other vessels who were chasing her; by this means, the actual capture was deferred till the other vessels were out of sight. In both these cases the claims to joint capture were admitted, although the claimants were not in sight when the capture took place. Moreover, in the latter case the claimants were awarded costs against the actual captor. Where two convoying ships were detached to reconnoitre two ships in sight, which turned out to be a British frigate and an enemy's vessel, the frigate signalled her number, but made no signal of an enemy's ship ahead, thereby causing the convoying ships to be recalled. He afterwards made the capture, and the convoying ships were admitted as joint captors, on account of her neglect to make the proper signal. So, where a non-commissioned schooner which had had an engagement with an enemy's vessel, and though beaten off, was still hanging upon her, was induced to sheer off by the actual captor coming up and hoisting French colours, the claim of the Admiralty to joint capture for the schooner was sustained by the prize-court.2

''La Flore,' 5 Rob., 271; the 'Marianne,' 5 Rob., 13; the 'Sacra Familia,' 5 Rob., 362; the San José,' 6 Rob., 244 ; ' L'Amitié,' 6 Rob., 268; the 'Wanstead, Edw. R., 268.

2 The Herman Parlo,' 3 Rob., 8; the 'Eendraught,' 3 Rob., appen. 35; the Spankler,' 1 Dod. R., 359; the 'Waaksamheid,' 3 Rob., 1 ; ' La Virginie,' 5 Rob., 124; the Robert,' 3 Rob., 194.

§ 25. The distribution of prize among joint captors is usually regulated by statute, but in cases where no statute exists, resort is had to the general rule of prize law established by the courts, which is that joint captors share in proportion to their relative strength. And this relative strength is usually determined by the number of men on board the actual taker, and the ships assisting in the capture. The same rule seems applicable to the case of a joint capture by a public and private ship, whether the latter be commissioned or not; as also where an ally co-operates in the capture.'

§ 26. The foregoing remarks respecting joint capture refer to benefit in prize; but some States also allow a bounty, or head 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 rigour 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 favour 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 actual 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.2

1 Roberts v. Hartley, Doug. R., 311; Duckworth v. Tucker, 2 Taunt. R., 7; the Dispatch,' 2 Gallis. R., 1; the 'Twee Gesuster,' 2 Rob., 2841 note; Le Franc,' 2 Rob., 285, note.

The Clarinde,' 1 Dod. R., 436; 'La Gloire,' Edw. R., 280 t 'L'Alerte,' 6 Rob., 238; the Ville de Varsovie,' 2 Dod. R., 301; El Rayo,' 1 Dod. R., 42; the Babilon,' Edw. R., 39; L'Elise,' 1 Dvd R,

6

§ 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 cognisance 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 favour of the government for other acts of misconduct, and for wilful and obstinate violation of duty on the part of the captors.1

§ 28. So, in all cases of forfeiture of interest in the prize by

442; the 'Dutch Schuyts,' 6 Rob., 48; the 'Matilda,' 1 Dod. K., 367; the 'San Joseph,' 6 Rob., 331; the 'Uranie,' 2 Dod. R., 172 ; 'La Francha,' I Rob., 157; the 'Santa Brigada,' 3 Rob., 58; the 'Bellone,' 2 Dod. R., 343

Under section 2 of the Act of Congress of July 17, 1862 (12 Stat. at L., 606), which provides for the distribution of prize money, according to the relative force of the vessel or vessels making the capture, as compared with that of the captured vessel-Held, that it was proper to consider as the capturing force not only the flag-ship which, in fact, inflicted the damage received by the captured vessel, but also any other vessels which, by diverting the fire of the enemy, etc., contributed to the capture. -The ironclad Atlanta,' 3 Wall. 425, affirming 2 Am. Law Rep. N.S., 675.

1 Kent, Com. on Am. Law, vol. i., p. 359; the 'Johanna Tholen,' 6 Rob., 72; the George,' 1 Wheat. R., 408; Oswell v. Vigne, 15 East., 70; the 'George,' 2 Wheat. R., 278; the Experiment,' 8 Wheat. R., 261; the 'Bothnea' and the Jahnstoff,' 2 Wheat. R., 169.

Where two vessels engaged in combat under a mutual mistake in regard to each other's character, and the vessel attacked captured the other, it was held in the United States that the capture was not unlawful, VOL. II. Ꭰ Ꭰ

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 offence 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 favour 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 of the prize was originally lawful, and 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

being apparently required in self-defence; and that the subsequent bringing in of the vessel for adjudication was not a cause for giving damages.-The Marianna Flora, 11 Wheat. 1.