fleet; that it is otherwise where the capture is not the immedi- Evi § 27. In all cases of collusive captures, the captors, whether Collusive single or joint, acquire no title to the prize, and the captured captures property is condemned to the government. If collusion be alleged, the usual simplicity of the prize proceedings is departed from in order to discover the fraud, if any exist. dence invoked from other prize causes is sometimes resorted to, as proof of collusion. Thus, where the same vessel has been proved guilty of collusion in another case, during the same cruise, the court will take cognisance of that fact in the claim before it. The rules of maritime capture generally will decree forfeiture of the rights of prize, against the captors, for gross irregularity or fraud, or for any other criminal conduct. Although the capture may be a good prize, if there should prove to be fraud and collusion between the captors and the captured, the former will have forfeited their rights, and the 1 The 'Clarinde,' 1 Dod. R., 436; 'La Gloire,' Edw. R., 280; 'L'Alerte,' 6 Rob., 238; the 'Ville de Varsovie,' 2 Dod. R., 301; ‘El Rayo,' 1 Dod. R., 42; the 'Babilon,' Edw. R., 39; 'L'Elise,' 1 Dod. R., 442; the Dutch Schuyts,' 6 Rob., 48; the 'Matilda,' 1 Dod. R., 367; the San Joseph,' 6 Rob., 331; the Uranie,' 2 Dod. R., 172; 'La Francha,' 1 Rob., 157; the 'Santa Brigada,' 3 Rob., 58; the Bellone,' 2 Dod. 343. R., Forfeiture of claims to prize property is condemned to the government generally. Forfeiture may, also, be declared in favour of the government for other acts of misconduct, and for wilful and obstinate violation of duty on the part of the captors.1 § 28. So, in all cases of forfeiture of interest in the prize by the captors, the condemnation is to the government. The captor may forfeit his right of prize in various ways: as, by an unreasonable delay in bringing the question of prize or no prize to an adjudication by a competent court; by unnecessarily taking the captured vessel to a neutral port; by cruel treatment of the captured crew; by breaking bulk on board, except in case of necessity; by embezzlement; by breach of instructions, or any offence against the law of nations, &c. But irregularities on the part of captors, originating in mere mistake or negligence, which work no irreparable mischief, and are consistent with good faith, will not forfeit their right of prize. In order that a prize court may decree forfeiture or restitution, it is not necessary that the prize itself be brought within its jurisdiction; it is sufficient that a proceeding be instituted by the claimants against the captor. Thus, if the prize be lost at sea, the court still has jurisdiction of the case, and may proceed to its adjudication at the instance of either the captors or the claimants. So, if captured property be converted by the captors, the jurisdiction of the prize court over the case continues; it may always proceed in rem, wherever the prize, or the proceeds of the prize, can be traced to the hands of any person whatever; and this it may do, notwithstanding any stipulation in the nature of bail already taken for the property. But the court may exercise a sound discretion whether it will interfere in favour of the captors, in Kent, Com. on Am. Law, vol. i. p. 359; the 'Johanna Tholen,' 6 Rob., 72; the 'George,' 1 Wheat. R., 408; Oswell v. Vigne, 15 East., 70; the George,' 2 Wheat. R., 278; the 'Experiment,' 8 Wheat. R., 261; the Bothnea' and the 'Jahnstoff,' 2 Wheat. R., 169. By section 37 of the Naval Prize Act, 1864 (27 and 28 Vict., cap. 25), a prize court, on proof of any offence against the law of nations, or against this Act, or any Act relating to naval discipline, or against any Order in Council, or royal proclamation, or of any breach of her Majesty's instructions relating to prize, or of any act of disobedience to the orders of the Lords of the Admiralty, or to the command of a superior officer, committed by the captors in relation to any ship or goods taken as prize, or in relation to any person on board any such ship, may, on condemnation, reserve the prize to her Majesty's disposal, notwithstanding any grant that may have been made by her Majesty in favour of captors. case the captured property has been unjustifiably or illegally converted, and in case the disposition of the captured vessel and crew has not been according to duty. If no sufficient cause is shown to justify the sale, and the conduct of the captor has been unjust and oppressive, the court may refuse to adjudicate upon the validity of the capture, and award restitution and damages against the captor; although the seizure of the prize was originally lawful, and made upon probable cause. And the same rule prevails where the sale was justifiable, and the captor has delayed, for an unreasonable time, to institute proceedings to condemn it. Upon a libel filed by the captured, as for a marine trespass, the courts of the United States will refuse to award a monition to proceed to adjudication on the question of prize or no prize, but will treat the captor as a wrongdoer from the beginning.' 1 Wildman, Int. Law, vol. ii. p. 298; the 'Susannah,' 6 Rob., 48; the Falcon,' 6 Rob., 194; 'L'Ecole,' 6 Rob., 220; 'La Dame Cécile,' 6 Rob., 257; the Pomona,' 1 Dod. R., 25; the Arabella and Madeira,' Gallis. R., 368; Jecker et al. v. Montgomery, 13 Howard R., 516. The settled rule is to require the captors of a vessel to bring in for examination her master and principal officers and some of her crew (the 'Jane Campbell,' Blatchf. Pr. Cas., 101), but an omission to do so is not a sufficient ground to defeat a capture made by a government vessel. (The 'Shark,' ibid. 215.) Captors are not bound to allow the captured crew to navigate the ship, nor are the latter bound to perform such duty. The captors are bound to put on board a sufficient crew to navigate the ship. (The 'George,' 1 Mas., 24.) Persons found on board of a captured vessel do not pass with the vessel and cargo into judicial custody. But they are subject to the control of the court for the purpose of examination, and their subsequent discharge or detention rests with the officers of the naval service, according to its rules. (The 'Salvor,' 4 Phil., 409.) Misconduct on the part of the captors, e.g. wrongful spoliation of property on board a prize, or separation of officers and crew from her, may destroy the legality of the capture, and may subject the captors personally to punishment for the infrigement of the laws of maritime warfare. The right of seizure is dependent on its lawful use. (The 'Anna Maria,' 2 Wheat., 327; the Jane Campbell,' Blatchf. Pr. Cas., 101.) Prize law prohibits, under penalty of the disallowance of the right of prize to the captors, and the positive infliction of punishment by penalties and costs, any irregularities against the property seized or the captured crew, especially where the latter are neutral. (The Jane Campbell,' suprà.) Where captures are made by public ships, the actual wrongdoer alone is responsible for any wrong done or illegality committed on the prize, except as respects acts done by members of the seizing vessel, in obedience to the orders of their superiors. (The 'Louisa Agnes,' Blatchf. Pr. Cas., 107.) Concerning the treatment of a captured crew, Sir W. Scott remarks: 'There are two parts of the charge to which it is necessary for me to advert. The first is the imputation of a practice which, if proved to have existed to the extent alleged and without necessity, must be pro VOL. II. CC Probable cause of seizure usually sufficient § 29. Probable cause of seizure is, by the general usage of nations and the decisions in Admiralty, a sufficient excuse in cases of capture de jure belli, and this question belongs exclusively to the court, which has jurisdiction to restore or condemn. The general principles, governing cases of this character, were embodied in the statute laws of the United States by the Act of June 26, 1812, s. 6, which provides that the courts of the United States, in which the case may be finally decided, shall and may decree restitution, in whole or in part, when the capture shall have been made without just cause ; and if made without probable cause, or otherwise unreasonably, may order and decree damages and costs to the party injured.' If there be a reasonable suspicion, it is proper to make the capture, and submit the cause for adjudication before the proper tribunal, and, although the court should acquit without the formality of further proof, the captors will be justifiable, nounced to be disgraceful to the character of the country, since no one who hears me will deny that to apply even to enemies modes of restraint which are unnecessary and at the same time convey personal indignity and personal suffering, is highly dishonourable. It is alleged that the Spanish crew, to the number of twenty-two persons, were put in irons. This is a fact that certainly requires much explanation, for I will not say there may not be cases in which such restraint may be necessary, and therefore justifiable. But the necessity must be urgent and evident. The captor when called upon for his explanation has furnished no apology but that suggested by his counsel. Admitting the motive to be truly stated, that this act was done for security, I am afraid it will not amount to a justification, because it was incumbent on the captor to pursue a proper purpose by proper means. It should be established, to the satisfaction of the court, that this species of security alone would have been sufficient for his preservation. At the same time, I must say that the misconduct appears to have proceeded, rather from an improper notion of security, than from any intention to inflict pain or personal indignity. If any such malignant motive had been proved, I should have thought it my duty to pursue this matter much further.' (The 'Juan Baptista,' &c., 5 Rob., 39; see also the 'Die Fire Damer,' ibid. 357.) The 'Java's' men were treated by the American officers in a disgraceful manner. The moment the prisoners were brought on board the Constitution' they were handcuffed and pillaged of almost everything they possessed. True, Lieut.-General Hislop got back his valuable service of plate and other British officers were treated civilly. (James, Nav. Hist., vol. vi. 136.) After the Berwick' had been taken by the French squadron, the officers and crew were distributed about among the different ships, without being allowed to take any clothes except those on their backs, and were in every other respect most shamefully treated. (Ibid. vol. i. 255.) Captors are not liable for damages in a case where the vessel captured presents probable cause for the capture, even though she was led into the predicament in which she is found involuntarily, and by the mistake of the revenue officers of the captors' own government. (The 'La Manche,' 2 Sprague, 207.) by reason of such probable cause; but where the seizure is wholly without excuse, they are liable for costs, and for the damages which ensue from the seizure, and such damages and costs will be decreed to the party injured. The liability of the captor for damages and costs depends, in general, upon his good faith and intentions; a court will seldom impose damages for a mere error of judgment, unless the irregularity is very gross, and works a serious injury to the claimants. They are never responsible for the neglect or error of the captured vessel. Thus, if a vessel, although not liable to condemnation, has defective documents on board, or does not show proper papers, the captor is not liable for either costs or damages, but, on the contrary, the court will generally allow him costs and expenses, to be paid by the claimants to whom the restitution is made. But, if he unreasonably delay to procure an adjudication, or is otherwise guilty of negligence or bad faith, he is liable for costs and damages. The owners of captured property, which is lost through the fault or negligence of the captors, are entitled to compensation in damages, and the value of the vessel, cost of cargo, with all charges, and the premium of insurance if paid, are allowed in ascertaining the amount of damages. Where a ship was justifiably captured but not liable to be condemned, and was lost by the culpable negligence of the prize master, restitution in the value of ship and freight was decreed. Where freight is decreed, it is to be estimated on the footing of a fair commercial profit. A captor is liable for demurrage, in all cases of unjustifiable delay; for sending his prize into an inconvenient port; for loss of the ship if he refuses to take a pilot, but not where there is a regular pilot on board; for deficiency of cargo; but not, without negligence or misconduct, for goods stolen from a warehouse after commission of unlivery. All claims to costs and damages are extinguished by accepting an unconditional release of the vessel.' 'The 'Palmyra,' 12 Wheat. R., 1; the 'George,' 1 Mason R., 24; Locke v. the United States, 7 Cranch. R., 339; Shattuck v. Maley, I Wash. R., 245 ; Jecker et al. v. Montgomery, 13 Howard R., 505. As to what constitutes probable cause, which will justify a capture, see the 'Dashing Wave,' 5 Wall., 170; the 'George,' 1 Mas., 24; the 'La Manche,' 2 Sprague, 207. Vessels which pick up enemy's goods, thrown overboard during a chase, are entitled to them as captors, and not as salvors. (The 'Victory,' ibid. 226.) A ship of war which after search captures a merchant vessel without reasonable grounds, and sends her in for adjudication as prize, is |