With regard to this special phase of the case, it may be observed that the
contention that, whether or no the vessel was enemy's property or
otherwise subject to capture, no injury was done to the belligerent
whose exercise of the right of search was prevented, is merely a reas-
sertion of one view of the controversy, since it obviously assumes the
point at issue, viz, whether such prevention was an injury of which
the belligerent had a right to complain, or, in other words, a substan-
tial injury.
Considering Mr. Wheaton's argument as a whole, it appears (1) that it
was directed against the condemnation and not against the capture
of the vessels; (2) that it was chiefly designed to show that the
condemnations were, under the special circumstances of the case,
improper; (3) that it alleged that the condemnations proceeded upon
a construction of the instructions of 1810, which was, as has been
pointed out, more extensive in its effect than that which was origi-
nally given to them by the Danish Government; (4) that it nowhere
suggests that the acceptance of belligerent convoy did not create an
adverse presumption which justified the sending in of the vessels for
adjudication.

On March 28, 1830, a convention was signed by which the King of Den-
mark, while renouncing all claims against the United States, agreed
to pay a lump sum of 650,000 Spanish-milled dollars " on account of
the citizens of the United States, who have preferred claims relating
to the seizure, detention, condemnation, or confiscation of their ves-
sels, cargoes, or property whatsoever, by the public or private armed
ships, or by the tribunals of Denmark, or in the States subject to the
Danish sceptre," during the maritime war in question. And it was
further stipulated that the intention of the two high contracting
parties being solely to terminate, definitely and irrevocably, all the
claims which have hitherto been preferred, they expressly declare
that the present convention is only applicable to the cases therein men-
tioned, and, having no other object, can never hereafter be invoked
by one party or the other as a precedent or rule for the future."

A neutral vessel, though liable to capture without search when sailing under belligerent convoy, is not liable to capture or condemnation for sailing under such convoy after she has, voluntarily or involuntarily, separated from it.

The Galen (1901), 37 Ct. Cl. 89.

X. CAPTURE.

1. WHAT CONSTITUTES.

§ 1206.

An American vessel, bound for an American port, having been seized by an American privateer, the captor entered into an understanding with the master by which it was arranged that the captor should preserve his claim to any British goods which might be found on board, the residue to belong to the claimants. A single man,

but no prize crew, was then put on board the vessel. Subsequently, on the arrival of the vessel in port, all the goods, as well as the vessel, were libelled, on the ground of a trading with the enemy. The claimants of the vessel and goods contended that there was no capture: that the prize master alone was unable to secure the vessel against a rescue should one be attempted; that he was unable to bring her into port without the assistance of the original crew; and that even if it should be held that there was a capture it extended only to the British goods. The vessel and cargo were, however, condemned. Marshall, Ch. J., delivering the opinion of the court, said: "That the American [privateer] took possession of the Alexander with the intention of making prize of that part of her cargo which might be deemed British, is not controverted. How was this intention to be executed .." if it was not by capture? "And if such part of the cargo as might eventually be British, was captured, and the whole remained together in the vessel, how can the capture be considered as partial? But it has been truly observed that it is not non-capture, but abandonment, for which the 'complainants in fact contend. But while the whole cargo remains together, claimed by the captor, if it be enemy property, how can any part of it be said to be abandoned? If it was entirely abandoned, for what purpose was one of the crew of the America put on board the Alexander? The inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away [with] all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor, may not be retained as well by a prize master alone, as by a considerable detachment from his crew.”

The Alexander (1814), 8 Cranch, 169.

To constitute a capture some act should be done indicative of an intention to seize and retain as prize; and it is sufficient if such intention is fairly to be inferred from the conduct of the captor.

The Grotius, 9 Cranch, 368.

A tortious possession under an illegal capture can not make a valid title by a sale.

The Fanny, 9 Wheat. 658.

Though a superior physical force is not necessary to make a seizure, there must be an open, visible possession claimed, and a submission to the control of the seizing officer. If a seizure be voluntarily aban

doned it becomes a nullity, and it must be followed up by appropriate proceedings to be effectual in conferring rights of property.

The Josefa Segunda, 10 Wheat. 312.

Where a vessel seized as contraband of war is lost while in the hands of its captors, without their fault, they are not liable therefor.

The Caroline Wilmans, 27 Ct. Cl. 215.

Where the illegality of a seizure is shown, the owners are entitled to indemnity.

The Nancy, 37 Ct. Cl. 401.

"I am just informed that two American seamen, Daniel Tripe and Benjamin Yeaton, are in prison at Point Peter, Guadaloupe, and that the government of that place refuses to exchange them and threatens to punish them as criminals. The offence committed is said to have been the rescue of their vessel, in doing which the prize master was killed.

"As the fact is completely justifiable by the laws and usages of war, it will not authorize the revenge which the government of Guadaloupe proposes to exercise on these prisoners. Nor will the Government of the United States permit such practices to remain unpunished; however retaliation may wound the feelings of humanity, a just regard for the lives of our citizens and a sound policy will compel us to resort to it.

"I must therefore request that you will endeavor to have these men exchanged, and that, if it is pretended that they ought to be detained as criminals and to be punished as murderers, you remonstrate against an act alike lawless and inhuman, and make such declarations as you may believe will be productive of good, of the certainty that the American Government will retaliate."

Mr. Marshall,, Sec. of State, to Mr. Clarkson, Aug. 1, 1800, MS. Inst.
U. States Ministers, V. 346.

Rescue.

"In reference to your letter of the 2d February last, I soon after took occasion to intimate to you what appeared to be the President's way of thinking on the subject. I have now the honor to state to you that while, by the law of nations, the right of a belligerent power to capture and detain the merchant vessels of neutrals, on just suspicion of having on board enemy's property, or of carrying to such enemy any of the articles which are contraband of war, is unquestionable, no precedent is recollected, nor does any reason occur which should require the neutral to exert its power in aid of the right of the belligerent nation in such captures and detentions. It is conceived that, after warning its citizens or

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.
Cor. 1862, 149.

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

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