the question of prize or no prize, but will treat the captor as a wrong-doer from the beginning.'1 1 Wildman, Int. Law, vol. ii., p. 298; the Susannah,' 6 Rob., 48; the 'Falcon,' 6 Rob., 194; 'L'Ecole,' 6 Rob., 220; 'La Dame Cécile,' 6 Rob., 257; the Pomona,' 1 Dod. R., 25; the Arabella and Madeira,' I Gallis. R., 368; Jecker et al. v. Montgomery, 13 Howard R., 516. The settled rule is to require the captors of a vessel to bring in for examination her master and principal officers and some of her crew (the 'Jane Campbell,' Blatchf. Pr. Cas., 101), but an omission to do so is not a sufficient ground to defeat a capture made by a government vessel.—The 'Shark,' Ibid., 215. Captors are not bound to allow the captured crew to navigate the ship, nor are the latter bound to perform such duty. The captors are bound to put on board a sufficient crew to navigate the ship.-The 'George,' 1 Mas., 24. The latest decision of the United States with regard to persons found on board of a captured vessel is, that they do not pass with the vessel and cargo into judicial custody. But they are subject to the control of the court for the purpose of examination, and their subsequent discharge or detention rests with the officers of the naval service, according to its rules. -The Salvor,' 4 Phil., 409. The duties of captors of prize are prescribed, by the Act of June 30, 1864, s. 1, 13 Stat. at L., 306. Misconduct on the part of the captors, e.g. wrongful spoliation of property on board a prize, or separation of officers and crew from her, may destroy the legality of the capture, and may subject the captors personally to punishment for the infringement of the laws of maritime warfare. The right of seizure is dependent on its lawful use. The 'Anna Maria,' 2 Wheat., 327; the 'Jane Campbell, Blatchf. Pr. Cas., 101. Prize law prohibits, under penalty of the disallowance of the right of prize to the captors, and the positive infliction of punishment by penalties and costs, any irregularities against the property seized or the captured crew, especially where the latter are neutral.-The 'Jane Campbell,' supra. Where captures are made by public ships, the actual wrong-doer alone is responsible for any wrong done or illegality committed on the prize, except as respects acts done by members of the seizing vessel, in obedience to the orders of their superiors.-The 'Louisa Agnes,' Blatchf. Pr. Cas., 107. Concerning the treatment of a captured crew, Sir W Scott remarks : 'There are two parts of the charge to which it is necessary for me to advert. The first is the imputation of a practice which, if proved to have existed to the extent alleged and without necessity, must be pronounced to be disgraceful to the character of the country, since no one who hears me will deny that to apply even to enemies modes of restraint which are unnecessary and at the same time convey personal indignity and personal suffering, is highly dishonourable. It is alleged that the Spanish crew, to the number of 22 persons, were put in irons. This is a fact that certainly requires much explanation, for I will not say there may not be cases in which such restraint may be necessary, and therefore justifiable. But the necessity must be urgent and evident. The captor when called upon for his explanation has furnished no apology but that suggested by his counsel. Admitting the motive to be truly stated, that this act was done for security, I am afraid it will not amount to a justification, because it was incumbent on the captor to pursue a proper purpose by proper means. It should be established, to the satisfaction of the court, that this species of security alone would have been sufficient for his preservation. 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 judgment, 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 At the same time, I must say that the misconduct appears to have proceeded, rather from an improper notion of security, than from any intention to inflict pain or personal indignity. If any such malignant motive had been proved, I should have thought it my duty to pursue this matter much farther.'-The 'Juan Baptista,' etc., 5 Rob., 39; see also the 'Die Fire Damer,' Ibid. 357. The 'Java's' men were treated by the American officers in a disgraceful manner. The moment the prisoners were brought on board the "Constitution' they were handcuffed and pillaged of almost everything they possessed. True, Lieut.-General Hislop got back his valuable service of plate and the other British officers were treated civilly.-James, Nav. Hist., vol. vi., 136. After the Berwick' had been taken by the French squadron, the officers and crew were distributed about among the different ships, without being allowed to take any clothes except those on their backs, and were in every other respect most shamefully treated. Ibid., vol. i., 255. 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 prize-master, 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.1 1 The 'Palmyra,' 12 Wheat. R., I; the 'George,' 1 Mason R., 24; Locke v. The United States, 7 Cranch. R., 339; Shattuck v. Maley, I Wash. R., 245; Jecker et al. v. Montgomery, 13 Howard R., 505. During the Crimean war of 1854, the 'Ostee,' sailing under the Mecklenburg flag from Cronstadt to Elsinore, was seized by a British ship of war and sent to London for adjudication as prize. Upon the ship's papers and the examination of the crew on the usual interrogatories, there appeared to be no ground for condemnation. The ship and cargo were restored to the claimants, but without costs or damages. On appeal to the Privy Council, their lordships observed in the judgment, that the restitution of a ship and cargo may be attended, according to the circumstances of the case, with any one of the following consequences:-1st, the claimants may be ordered to pay to the captors their costs and expenses; or, 2nd, the restitution may be simple restitution, without costs or expenses or damages to either party; or 3rd, the captors may be ordered to pay costs and damages to the claimants. These provisions meet the various circumstances, not ultimately affording ground for condemnation, under which captures may take place. A ship may by her own misconduct have occasioned her capture, and in such a case it is very reasonable that she should indemnify the captors against the expenses which her misconduct has occasioned; or she may be involved, with little or no fault on her part, in such suspicion, as to make it the right or even the duty of a belligerent to seize her. There may be no fault either in the captor or the captured, or both may be in fault; and in such cases there may be damnum absque injuriâ, and no ground for anything but simple restitution. Or there may be a third case, where not only the ship is in no fault, but she is not by any act of her own, voluntary or involuntary, open to any § 30. Questions with respect to the liability of admirals of fleets, and commanders of squadrons, for captures made by fair ground of suspicion. In such a case a belligerent may seize at his peril and take the chance of something appearing on investigation to justify the capture; but if he fails in such a case it seems very fit that he should pay the costs and damages which he has occasioned. Their lordships considered that the case before them was brought within the last of these rules, and gave the claimants their costs in the court below, but no costs in the Appeal. They also gave them damages, the amount to be referred to the Registrar and merchants. The amount was subsequently paid by the British Government. Costs and damages, when decreed against the captors, are not inflicted as a punishment on the captors, but as affording compensation to the injured party. In order to exempt captors from costs and damages, in case of restitution, there must be some circumstances connected with the ship or cargo, affording reasonable ground for belief that the ship or cargo might prove a lawful prize. What amounts to such a probable cause, as to justify a capture, is incapable of definition and is to be regulated by the peculiar circumstances in each case. It is not necessary to prove vexatious conduct on the part of the captors, to subject them to condemnation in costs and damages. Neither will honest mistake, though occasioned by an act of government, relieve the captors from liability to compensate a neutral for damages, which the captors by their conduct have caused the neutral to sustain. In the course of the judgment, their lordships further observed:-The law which we are to lay down, cannot be confined to the British Navy; the rule must be applied to captors of all nations. No country can be permitted to establish an exceptional rule in its own favour, or in favour of particular classes of its own subjects. On the Law of Nations, foreign decisions are entitled to the same weight, as those of the country in which the tribunal sits. America has adopted almost all her principles of prize law from the decisions of English courts, and whatever may have been the case in former times, no authorities are now cited in English courts, in cases to which they are applicable, with greater respect than those of the distinguished jurists of France and America. Whatever is held in England to justify or excuse an officer of the British Navy, will be held by the tribunals of every country, both on this and the other side of the Atlantic, to justify or excuse the captors of their own nations.'-Schacht v. Otter, 9 Moore, Privy Council Cas., 150. Prize-courts deny damages, or costs, in cases of seizure made upon 'probable cause,' that is to say, where there were circumstances sufficient to warrant suspicion, though not to warrant condemnation.—The 'Thompson,' 3 Wall., 155; affirming S. C., Blatchf. Pr. Cas., 377. Where a ship is bona fide seized as a prize, and afterwards released without any suit being instituted against her, the owner cannot sustain an action at common law for the seizure. His remedy, if any, is in the Court of Admiralty.-Faith v. Pearson, 6 Taunt., 439. No action lies at common law for false imprisonment, where the imprisonment was merely in consequence of taking a ship as prize, although the ship has been acquitted.-Le Caux v. Eden, 2 Dougl., 594. It was held a good defence, in an action for taking a steam vessel, that the defendant was an admiral in the Portuguese navy, and that he took the vessel as a prize, and that it became forfeited to the Queen of Portugal, although he was a natural born subject of Great Britain and had accepted his commission without licence of the King of England. -Dobree v. Napier, 3 Scott, 201. 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 co-operation, 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 co-operation, 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.' Captors are not liable for damages in a case where the vessel captured presents probable cause for the capture, even though she was led into the predicament in which she is found involuntarily, and by the mistake of the revenue officers of the captors' own government.-The 'La Manche,' 2 Sprague, 207. 1 Kent, Com. on Am. Law, vol i. p. 100; Phillimore, On Int. Law, vol. iii. § 457; the 'Mentor,' 1 Rob., 177; the Diligentia,' 1 Dod. R., 404; the Eleanor,' 2 Wheat. R., 346. An action between the single ships of two nations at peace is rare. Still more rare is an action, under similar circumstances, between two squadrons. Unfortunately an action was fought in 1804 between an English and Spanish squadron in open day; not through any accident, but under express orders from the government of one of the combatants; and, so far from the matter being afterwards made up, it led to an almost immediate declaration of war by the party who had to complain of the aggression. Towards the end of the summer of 1804 the British Government received intelligence (which, however, was afterwards disproved by the Spanish Government) that an armament was fitting out in Ferrol, that a considerable force was already collected there, and that the French troops were near at hand. Immediately on this information the British Admiralty despatched a squadron off Cadiz to intercept and detain, by force or otherwise, the four Spanish frigates known to be bound to that |