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from consideration, which give to those rules a claim to our attention that we can not entirely disregard. The United States having, at one time, formed a component part of the British Empire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which was capable of changing it.

"It will not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British courts, will be considered as forming a rule for the American courts, or that any recent rule of the British courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations."

Marshall, C. J., Thirty Hogsheads of Sugar v. Boyle (1815), 9 Cranch, 191, 198.

"I remember with pleasure that I once heard you assert this principle free ships free goods], but in Congress and in the Supreme Court I am sorry to say that it was almost friendless. Such is the influence of England. We read none but English books, adopt none but English ideas of law and politics.”

Mr. Ingersoll to Mr. Madison, July, 1814, Meigs's Life of Charles Jared
Ingersoll, 325.

The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country. By this law the definition of prize goods is that they are goods taken on the high seas, jure belli, out of the hands of the enemy.

Schooner Adeline, 9 Cranch, 244.

In 5 Wheat., App. p. 52, Wheaton gives a note on prize law, which embraces:

1. Extract from the Consolato del Mare. Chap. CCLXXIII., CCLXXXVII. P. 54.

2. Extracts from the Code des Prises. Articles relatifs aux prises, Extraits de l'Ordonnance de Charles VI. sur le faict de l'Admiraulté, of Dec. 7, 1400. P. 62. Articles Extraits de l'Edit. concernant la Jurisdiction de Admirauté de France, March, 1584. P. 65.

3. Sur la Navigation, Ordonnance du Roi de Suede. Feb. 19, 1715. P. 72. 4. Ordinance of the King of Denmark, Norway, the Vandals, the Goths, etc., Sept. 23, 1659. P. 75.

5. Extracts from the French Ordinance of 1681. Liv. III., Tit. IX., § 2, Des Prises. P. 80.

6. Réglement du 17 Février 1694, concernant les passeports accordés aux vaisseaux ennemis par les Puissances neutres. P. 85.

7. Ordonnance du 12 Mai 1696, touchant la manière de juger les vaisseaux qui échouent, ou qui sont portés aux côtes de France par tempête ou autrement. P. 86.

H. Doc. 551-vol 7—39

8. Extrait du Règlement du 21 Octobre 1744, concernant les prises faites sur mer, et la navigation des vaisseaux neutres pendant la guerre. P. 87.

9. Règlement du 26 Juillet 1778, concernant la navgation des bâtimens neutres en temps de guerre. P. 88.

10. Danish Prize Instructions of 1810. P. 91.

11. Ordinances of Congress, Nov. 25, 1775, p. 103; Dec. 5, 1775, p. 104; Jan. 6, 1776, p. 105; March 23, 1776, p. 106; April 2, 1776, p. 106; April 3, 1776, p. 107; Nov. 15, 1776, p. 108; May 2, 1780, p. 109, and other ordinances to p. 128.

12. British Statutes and Prize Instructions. P. 129.

Prize courts are subject to the instructions of their own sovereign. In the absence of such instructions their jurisdiction and rules of decision are to be ascertained by reference to the known powers of such tribunals and the principles by which they are governed under the public law and the practice of nations.

The Amy Warwick, 2 Sprague, 123.

Prize courts are tribunals of the law of nations, and the jurisprudence they administer is a part of that law. They deal with cases of capture as distinguished from seizures; their decrees are decrees of condemnation, not of forfeiture; they judge the character and relations of the vessel and cargo, and not the acts of persons.

Speed, At. Gen., 1866, 11 Op. 445.

The equitable principle of prescription is applied by prize courts.

Sir W. Scott, The Mentor, 1 C. Rob. 179.

"All law is resolvable into general principles: The cases which may arise under new combinations of circumstances, leading to an extended application of principles, ancient and recognized, by just corollaries, may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken, the practice is not new, nor is it justly chargeable with being an innovation on the ancient law; when, in fact, the court does nothing more than apply old principles to new circumstances."

Lord Stowell, The Atalanta (1808), 6 C. Rob. 440, 458.

2. LIENS.

§ 1230.

A claim was made by an American merchant to certain goods Prize-Lien on which were libeled as enemy's property, and which

goods. were shipped by British merchants on their own account and risk. The claimant set up a lien (1) on some of the

goods on the ground of an advance made to the shippers by his agent in Great Britain in consideration of the consignment; and (2) on other goods on the ground that they were shipped to him in virtue of a general balance of account due to him as the shippers' factor. The court, Washington, J., said that the doctrine of a factor's lien for a balance of account, or of a consignee's lien for advances, was unknown in the prize courts, unless in special cases where the lien was imposed by a general law of the mercantile world, independently of any contract between the parties, as, for example, in the case of freight allowed on an enemy's goods seized in the vessel of a friend. The court therefore refused to allow further proof of the claimant's allegations.

Marshall, C. J., was absent. Livingston, J., dissented, saying that he could concur in the condemnation of the property only as subject to the claimant's lien.

The Frances (1814), 8 Cranch, 418.

That capture, jure belli, overrides previous liens; see, also, The Hampton, 5 Wall. 372; The Battle, 6 Wall. 498. .

Under the principles of international law, mortgages on vessels captured jure belli are to be treated only as liens subject to be overridden by the capture. The act of March 3, 1863, "to protect the liens upon vessels in certain cases," does not refer to captures jure belli, or modify the law of prize in any respect.

The Hampton, 5 Wall. 372.

The right of capture acts on the proprietary interest of the thing captured at the time of capture, and is not affected by the secret liens or private engagements of the parties.

The Carlos F. Roses, 177 U. S. 655.

3. FREIGHT.

§ 1231.

A vessel sailed from London to Amelia Island under a charter party by which she was to carry the outward cargo free, but was to receive freight for the return cargo at a rate greater than would have been paid if the return voyage had had no connection with the outward. On her outward voyage she was captured by a United States armed vessel, and her cargo was condemned as enemy property; but an allowance was made for freight to Amelia Island, as on a quantum meruit. The claimant of the cargo and the master of the ship having appealed, the latter contended that the outward and return voyage should be treated as one, and freight allowed as stipulated in the charter party. Marshall, C. J., delivering the opinion of the court,

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held that the outward and return voyages were to be considered as distinct, and said: "The court can perceive no principle on which a cargo to be delivered freight free can be burthened with the freight agreed to be paid on a cargo to be afterwards taken on board. In this case, too, no sum in gross is to be paid for freight, but a sum depending on the quantity and quality of the return cargo. If the claim to freight on the return voyage, not commenced at the time of capture, can not be sustained, the court perceives no other rule which could have been adopted than that which the district court did adopt. Freight has been allowed on the whole voyage to Amelia Island, as on a quantum meruit. The captors not having appealed, no question can arise on the propriety of having allowed the ship any freight whatever. The court, however, will say that it is satisfied with the allowance which is made, and which is certainly an equitable one."

The Société (1815), 9 Cranch, 209, 212.

A neutral vessel, chartered for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any other port on the Baltic, and back to London, at a freight of 1,000 guineas, was captured on her way from London to St. Michaels and brought into the United States, where part of the cargo was condemned and part restored. Held, that freight was chargeable upon the whole cargo, the restored as well as the condemned.

The Antonia Johanna (1816), 1 Wheat. 159.

No question was raised below as to whether the whole freight for the whole voyage should be allowed, or only a pro rata freight, though the whole freight was decreed. Had the question been raised, it would, said the court, "have deserved grave consideration."

"It has been held, that the charter party is not the measure by which the captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to that inflamed rate of freight. When no such circumstances exist, when a ship is carrying on an ordinary trade, the charter party is undoubtedly the rule of valuation, unless impeached; the captor puts himself in the place of the owner of the cargo, and takes with that specific lien upon it. But a very different rule is to be applied, when the trade is subjected to very extraordinary risk and hazard, from its connexion with the events of war, and the redoubled activity and success of the belligerent cruisers. 5 Rob. 82. The Twilling Riget."

The Antonia Johanna (1816), 1 Wheat. 159, note by the reporter, p. 170.

The law of nations does not prohibit the carrying of enemies' goods in neutral vessels; so far from so doing, upon the condemnation of the

goods, the vessel is entitled to freight. But if a neutral endeavors, by false appearances, to cover the property of a belligerent from the lawful seizure of his enemy, such conduct identifies the neutral with the belligerent whom he thus endeavors to protect, and is a fraud on the neutrality of his own government and upon the rights of the belligerent.

Schwartz v. Insurance Company of North America, 3 Wash. C. C. 117.

IV. PROCEDURE.

1. GENERAL RULES.

§ 1232.

"We have the honor of transmitting, agreeably to your excellency's request, a statement of the general principles of proceeding in prize causes in British courts of admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdiction.

"The general principles of proceeding can not, in our judgment, be stated more correctly or succinctly, than we find them laid down in the following extract from a report made to his late Majesty, in the year 1753, by Sir George Lee, then judge of the prerogative court; Dr. Paul, His Majesty's advocate-general; Sir Dudley Ryder, His Majesty's attorney-general, and Mr. Murray (afterwards Lord Mansfield), His Majesty's solicitor-general:

“When two powers are at war, they have a right to make prizes of the ships, goods, and effects, of each other, upon the high seas. Whatever is the property of the enemy may be acquired by capture at sea; but the property of a friend can not be taken, provided he observes his neutrality.

66.6 'Hence, the law of nations has established, that the goods of an enemy, on board the ship of a friend, may be taken.

666

That the lawful goods of a friend, on board the ship of an enemy, ought to be restored.

"That contraband goods going to the enemy, though the property of a friend, may be taken as prize; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality.

66

By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, lawful prize.

"Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a court of admiralty, judging by the law of nations and treaties.

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