subjects of the legal consequences of carrying enemy's property or contraband goods, nothing can be demanded of the sovereign of the neutral nation but to remain passive. If, however, in the present. case, the British captors of the brigantine Experience, Hewit, master; the ship Lucy, James Conolly, master, and the brigantine Fair Columbia, Edward Carey, master, have any right to the possession of those American vessels or their cargoes, in consequence of their capture and detention, but which you state to have been rescued by their masters from the captors, and carried into ports of the United States, the question is of a nature cognizable before the tribunals of justice, which are opened to hear the captors' complaints; and the proper officer will execute their decrees." Mr. Pickering, Sec. of State, to Mr. Liston, British min., May 3, 1800, Dip. See, as to the case of the Emily St. Pierre, Moore on Extradition, I. 596. The crew of a captured vessel, in charge of a prize crew of inferior force, are not bound to attempt a rescue, since such attempt would in case of recapture expose the vessel, though otherwise innocent, to condemnation. Brig Short Staple v. United States (1815), 9 Cranch, 55. The right of search carries with it the correlative duty of submitting to search; hence, where a vessel has been seized by a belligerent and is being sent in for adjudication, her rescue by her master and crew is unlawful. The Mary (1901), 37 Ct. Cl. 33. It is the duty of the captors to place an adequate force upon the captured vessel, and the omission to do so is at their own risk. Grundy, At. Gen. (1838), 3 Op. 377. 2. WHO MAY MAKE. § 1207. Restitution of property was claimed on the ground that the captain of the privateer which made the capture was an alien. Johnson, J., delivering the opinion of the court, said that this circumstance, if it could have any bearing at all on the question of condemnation, would only lead to the condemnation of the captain's interest to the Government as a droit of admiralty. The owners and crew of the privateer were as much parties to the suit as the commander, and his national character could not affect their rights. But the court saw "no reason why an alien enemy should not be commissioned as commander of a privateer. There is no positive law prohibiting it; and it has been the universal practice of nations to employ foreigners, and even deserters to fight their battles. Such an individual knows his fate should he fall into the hands of the enemy; and the right to punish in such cases is acquiesced in by all nations. But, unrestrained by positive law, we can see no reason why this Government should be incapacitated to delegate the exercise of the rights of war to any individual who may command its confidence, whatever may be his national character." The Mary and Susan (1816), 1 Wheat. 46, 57. Claimants of property which is liable to condemnation can not litigate the question of the captor's commission. They have no standing before the court to assert the rights of the United States. the capture was without a commission, the condemnation must be to the United States generally; if with a commission as a national vessel, it must still be to the United States, but the proceeds are to be distributed by the court among the captors according to law. The Dos Hermanos, 2 Wheat. 76; The Amiable Isabella, 6 Wheat. 1, 66. The capture of a Spanish vessel and cargo, made by a privateer commissioned by the province of Carthagena while it had an organized government and was at war with Spain, can not be interferred with by the courts of the United States. The Neustra Señora de la Caridad, 4 Wheat. 497. The commission of a public ship, signed by the proper authorities of the nation to which she belongs, is complete proof of her national character; and the courts of a foreign country will not inquire into the means by which the title to the property has been acquired. The Santissima Trinidad, 7 Wheat. 283. W., a loyal citizen of the United States, residing in Illinois, owned three-fifths of a vessel called the Eastport, which early in the civil war was tied up at Paducah, Kentucky, her home port, in consequence of the blockade of the Mississippi River by the United States. Subsequently, without W.'s knowledge or consent, the vessel was taken by her master within the Confederate lines and apparently sold by him to the Confederate forces, who proceeded to convert her into a gunboat. Before the conversion was completed the vessel, which was lying under the bank of the Tennessee River, near Cerro Gordo, Tennessee, was captured by detachments of men in small boats from three United States gunboats, commanded by a lieutenant in the Navy, and forming part of the United States naval forces on the western waters, under command of Captain Foote. Captain Foote reported the capture to the Secretary of the Navy, and the vessel, on Captain H. Doc. 551-vol 7—33 Foote's recommendation, was converted by the United States into a gunboat, which was afterwards sunk by running upon a torpedo and was then blown up to prevent her capture by the Confederates. The capture of the Eastport by the United States forces took place February 26, 1862, and she was commissioned as a gunboat about August of the same year. She was destroyed in April, 1864. She and all other vessels of the Navy serving on western waters were under the control of the War Department till October 1, 1862, when they were turned over to the Navy Department under the act of Congress of July 16, 1862. (12 Stat. 587.) In the army appropriation act of July 17, 1861, the sum of one million dollars was appropriated for "gunboats on the western rivers." The court said: "We are not prepared to hold that the capture was made by the Army, and not by the naval forces of the United States, although the latter, at the time and place, were under the general control of the War Department." Oakes v. United States (1899), 174 U. S. 778, 782, 788-789. 3. RIGHTS OF CAPTOR. $1208. If a captured vessel is abandoned at sea by the captors, and being thus derelict is taken possession of by a neutral and brought into a neutral port and libeled for salvage, the district court has jurisdiction to entertain such libel, and, ex. necessitate, may also adjudicate upon the conflicting claims of the captors and former owners to the surplus. In such a case the claim of the captors was allowed, as no neutral nation can impugn or destroy the right vested in the belligerent by the capture. McDonough . Dannery, 3 Dall. 188. The right of the captor in the captured property vests at the time of the capture, and can be taken away only on act of supreme legislative power, a statute, or a treaty. The Mary and Susan (1816), 1 Wheat. 46. Causes of prize are usually heard, in the first instance, upon the papers found on board the vessel, and the examination taken in preparatorio; and it is in the discretion of the court to order further proof. The prima facie effect of a bill of lading being to vest the ownership of the goods in the consignee named in it, where the consignee so named is an enemy the goods are prima facie liable to condemnation. Capture at sea of enemy's property clothes the captors with all the rights of the owner at the commencement of the voyage; and no lien created after the capture, or after the commencement of the voyage, can deprive the captors of their rights. The Sally Magee, 3 Wall. 451. By the treaty between the United States and France of 1800, Article VI., it was provided that "property captured, and not yet definitively condemned, or which may be captured before the exchange of ratifications (contraband goods destined to an enemy's port excepted), shall be mutually restored." This provision was upheld by the Supreme Court. United States v. The Schooner Peggy, 1 Cranch, 103. See opinions of Lincoln, At. Gen., 1 Op. 111, 114, 119. On several occasions during the war with Spain the President of the United States ordered captured vessels to be released prior to the institution of judicial proceedings. 4. PROBABLE CAUSE. § 1209. Where a vessel, alleged to be Danish property, was seized as French property, on the south side of the island of St. Domingo, and while proceeding for an examination, under the protection of the American flag, was seized by a British armed ship and taken into Jamaica and there condemned, and a claim was made by the Danish subject upon the Government of the United States for compensation, it was advised that the first captors were not liable for the first capture and detention for examination, there being probable cause for the seizure, nor for the second capture; and that the Government of the United States was not bound for the unlawful captures of its subjects. Lincoln, At. Gen., 1802, 1 Op. 106. Capture is justified only where the circumstances afford it probable cause of guilt; but a public officer, executing according to the best of his judgment, the orders he has received, even though those orders exceed the law, ought not to be assessed "vindictive or speculative damages." Murray v. Schooner Charming Betsy (1804), 2 Cranch, 64, 124. During the Revolutionary war the schooner George was captured by the American privateer Addition, and was condemned by the court of admiralty for the State of New Jersey. This sentence was reserved by the Continental court of appeals, and restitution was ordered but never obtained. In May, 1790, the owner of the sloop, one Jennings, a Dutch subject, domiciled in the island of St. Eustatius, filed a bill in the district court of the United States for the district of Pennsylvania against the owner of the privateer, praying for relief. It appeared that while the appeal to the Continental court of appeals was pending the vessel was sold, but that the proceeds were held by the marshal, and never, in fact, came into the hands of the owner of the privateer. It was therefore held that the decree of restitution operated upon the marshal and not upon the captors. It was argued, however, in behalf of Jennings, that at any rate the captors were wrongdoers, responsible for all the losses which had been produced by their "tortious " act, and that they were bound to grant relief. This argument the court refuses to accept. A belligerent cruiser who, with probable cause, seized a neutral and took her in for adjudication was not, said the court, a wrongdoer. The act was not "tortious." The order of restoration proved that the property was neutral, not that it was taken without probable cause. Indeed, the testimony in the record showed that there was cause for the seizure and the decree of the Continental court of appeals, though it ordered restoration, did not award damages for the capture and detention nor allow costs in the suit below. Jennings v. Carson (1807), 4 Cranch, 2. meant "prima facie It being contended that "probable cause evidence, or, in other words, such evidence as, in the absence of exculpatory proof, would justify condemnation" of goods seized for violation of the revenue laws, Marshall, C. J., said: "This argument has been very satisfactorily answered. . . . The term probable cause, according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion." Locke v. United States (1813), 7 Cranch, 339. A belligerent cruiser who, with probable cause, seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrongdoer. Jennings v. Carson (1807), 4 Cranch, 2. Where a party, whose national character does not appear, gives his money to a neutral house, to be shipped with money of that house and in their name, and an attorney in fact, on capture of the money and libel of it as prize, states that such neutral house are the owners thereof, and that "no other persons are interested therein," the capture and sending in will be justified; though in the absence of proof of an enemy's character in the party shipping his money with the neutral's, a condemnation may not ensue. Where a vessel has been guilty |