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 v. 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.

It being contended that "probable cause meant "prima facie 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 'prob

able 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

of carelessness and a portion of her cargo is of a supicious nature, the costs and expenses of the capture may be ratably apportioned between the vessel and the suspicious portion of the cargo, though

both are restored.

The Dashing Wave, 5 Wall. 170.

5. WRONGFUL CAPTURE.

§ 1210.

During the state of limited war between the United States and France, 1798-1800, the Danish ship Mercator was captured at sea by Captain Maley, commanding the U. S. S. Experiment. The capture of the vessel was due to the suspicion that she was in reality an American vessel engaged in violating the nonintercourse with France. A suit was subsequently brought, by the owners against Captain Maley for damages for the wrongful seizure of the vessel, and judgment was recovered. The United States district attorney at Philadelphia was instructed to appear in behalf of Captain Maley, and the judgment was paid by the United States.

Maley v. Shattuck (1806), 3 Cranch, 458.

For the instructions to the district attorney to appear in the case, see Mr.
Madison, Sec. of State, to Mr. Dallas, June 15, 1802, 14 MS. Dom.
Let. 25.

For the appropriation for the payment of the judgment, see act of Feb.
2, 1813, 6 Stat., Private Laws, 116-117.

For a summary of diplomatic correspondence concerning the case, see
Moore, Int. Arbitrations, V. 4553.

This case establishes the rule that the commanding officer of a man-of-
war may be sued in damages for the alleged wrongful capture of a
vessel, but this does not signify that such officer is personally answer-
able for the damages. On the contrary, the design of the rule is to
promote justice. As the Government could not be directly sued in
its own courts, suit was permitted to be maintained against its
individual officer; but the Government was supposed to stand behind
its servant, as in reality it did, and save him from personal liability.
In this way a mode was established of obtaining damages from the
Government through judicial proceedings. No doubt an officer might,
by malicious acts done outside the scope of his duty and unauthorized
by any instructions, render himself personally liable for his wrongs,
but this is in no wise incompatible with what has been stated as to
the meaning and purpose of the rule laid down in Maley v. Shattuck.

Two vessels, sailing from Halifax, Nova Scotia, in November, 1813, with British licenses and cargoes of British goods destined for the United States, were captured on the same day near the Ragged Islands by a small American privateer. Their crews were put ashore on the islands and the vessels were conducted one into Salem and the other into Plymouth, Massachusetts. They were apparently of for

eign nationality, but had on board Swedish papers which were admitted to be false and simulated. Immediately on their arrival they were seized by the collectors at Salem and Plymouth for an alleged violation of the nonimportation act; prize proceedings were also begun by the captors. The court, deeming the capture collusive, condemned the vessels and their cargoes to the United States and dismissed the captor's libel. The captor appealed, but the circuit court affirmed the condemnation, and the case was then brought before the Supreme Court. Johnson, J., delivering the opinion of a majority of the court, said that while the voyage of the vessels was "loaded with infamy," yet the evidence was not sufficient to fasten on the captor a participation in the fraud. Almost every feature in the case might be “indifferently pronounced the lineament of guilt or innocence." In such a case the court "must pronounce in favor of innocence." The decree below was therefore reversed, and the vessels and cargoes adjudged to the captor.

The Bothnea and Jahnstoff (Mar. 4, 1817), 2 Wheat. 169. In this decision great weight was given to the circumstances, as evidence in favor of the captors, that nine out of fifteen members of the privateer's crew were to praticipate as joint owners in her prizes. This was stated by Mr. Justice Johnson, delivering the opinion of the court in the case of the George, in which the fact that the privateer's crew were all engaged on wages was accepted as adverse to the captor. (The George, Mar. 14, 1817, 2 Wheat. 278.)

The schooner George (see report in 1 Wheat. 408, where further proof was ordered) was condemned to the United States on the ground that her capture by the American privateer Fly was collusive. Johnson, J., delivering the opinion of the court, said that during the restrictive system and the ensuing war, English manufactures in immense quantities were accumulated on the west coast of Nova Scotia, from which they were, by the fraudulent contrivance of persons in both countries, introduced into the United States. The George was ostensibly bound from Nova Scotia to Havana, but she was utterly deficient in equipment for such a voyage. The Fly was the sole property of her captain, and every man under him was engaged on wages. In the case of the Bothnea (2 Wheat. 169) the court had attached great weight to the fact that nine out of fifteen of the privateer's crew in that case were joint owners, and it was thought improbable that such a transaction, if there was fraud in it, would have been confided to so many witnesses. But in the case of the Fly the captain was to have all the prize money. It also appeared that sometime before the capture the Fly lay at Machias, in Maine, and that the lieutenant, a brother-in-law of the captain, was absent at Moose Island, holding communication with certain notorious