Seizures made jure belli
by noncommissioned captors are
made for the government, and no title of prize can be derived but
from the prize acts.
A noncommissioned captor can only proceed in the prize court as
for salvage, the amount of which is discretionary.
The appellate court will not interfere in the exercise of this
discretion as to the amount of salvage allowed, unless in a very
clear case of mistake.
An appeal under the Judiciary Acts of 1789, ch. 20, s. 22, and
of 1803, ch. 353, prayed for and allowed within five years, is
valid although the security was not given until after the lapse of
The mode of taking the security, and the time for perfecting it
are within the discretion of the court below, and this Court will
not interfere with the exercise of that discretion.
This was the same case reported in 15
U. S. 2
Wheat. 76, where the decree of the court below
condemning the cargo as enemy's property was affirmed by this
Court, reserving the question as to the distribution of the prize
proceeds. The original capture was made by Mr. Shields, a purser of
the navy, in the year 1814, in a barge armed and fitted out to
cruise, but not regularly attached to the navy. The cause was
remanded to the court below for further proceedings, and that court
decreed the proceeds to be equally distributed between the United
States and the captor,
Page 23 U. S. 307
without deducting the captor's expenses. From this decree the
captor appealed to this Court.
Page 23 U. S. 310
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court
that whatever might have been the ancient doctrine in England in
respect to captures in war, it is now clearly established in that
kingdom that all captures jure belli
are made for the
government, and that no title of prize can be acquired but by the
public acts of the government conferring rights on the captors.
If the original law of England authorized an individual to
acquire to his own use the property of an individual without any
express authority from the public, that law was changed long before
the settlement of this country. It never was the law of this
country. Before the Revolution, all captures from the enemy accrued
to the government, to be distributed according to law, and the
Revolution could not strip the government of this exclusive
prerogative and vest it in individuals. It is then the settled law
of the United States that all captures made by noncommissioned
captors, are made for the government, and since the provisions in
the prize acts as to the distribution of prize proceeds are
confined to public and private armed vessels cruising under a
regular commission, the only claim which can be sustained by the
captors in cases like the present must be in the nature of salvage
for bringing in and preserving the property.
In the present case, the district court awarded one-half of the
prize proceeds, or salvage, to the captors. It was an exercise of
sound discretion, and this Court would with extreme reluctance
interfere with that discretion unless
Page 23 U. S. 311
in a very clear case of mistake. We perceive no such mistake in
this case, and are well satisfied with the amount of the salvage as
decreed by the district court.
As to the question which has been made whether the appeal was in
due time, it appears that the appeal was prayed for within five
years and was actually allowed by the court within that period. It
is true that the security required by law was not given until after
the lapse of the five years, and under such circumstances the court
might have disallowed the appeal and refused the security. But as
the court accepted it, it must be considered as a sufficient
compliance with the order of the court and that it had relation
back to the time of the allowance of the appeal. The mode of taking
the security and the time for perfecting it are matters of
discretion, to be regulated by the court granting the appeal, and
when its order is complied with, the whole has relation back to the
time when the appeal was prayed. We must presume the security was
given in this case according to the rule prescribed by the district
court, and the appeal was therefore in time.
Decree affirmed with costs.