R. S. 4759. Privateer Pension Fund; How Derived, 86.

4760. To Be Paid into the Treasury, etc., 87.

5441. Delaying or Defrauding Captor or Claimant, etc., of Prize Property, 87.

CROSS-REFERENCES.

Penalty for Removal of Property or Maltreating Persons Captured on Prize, see ARTICLES FOR THE GOVERNMENT OF THE NAVY, vol. 1, pp. 466, 467.

Property Employed in Aid of Insurrection and Proceedings for Condemnation, see INSURRECTION, vol. 3, pp. 528-530.

Seizures on Inland Waters, see INSURRECTION, vol. 3, p. 530.

Fees of Clerks and Marshals in Prize Cases, see JUDICIAL OFFICERS, vol. 4,

p. 125.

Jurisdiction of District Court and Appeals in Prize Cases, see JUDICIARY, vol. 4,

p. 195.

Proceeds to Navy Pension Fund, see PENSIONS, vol. 5, p. 606.

Registration of Captured and Condemned Vessels, see SHIPPING AND NAVIGATION.

Piratical Vessels, see PIRACY, vol. 5, p. 752.

Sec. 4613. [Application of provisions of title.] The provisions of this Title shall apply to all captures made as prize by authority of the United States, or adopted and ratified by the President of the United States. [R. S.]

sel may be allowed. The Siren, 1 Lowell (U. S.) 280, 22 Fed. Cas. No. 12,911, affirmed (1871) 13 Wall. (U. S.) 389.

The naval stores taken at a naval station by a naval force as the result of a naval engagement are prize, within the meaning of the statute, and the fact that they were taken from a navy yard instead of from a vessel does not render the statute inapplicable. Manila Prize Cases, (1903) 188 U. S. 254.

Barges as prizes. — Barges propelled by sweeps and by poling and floating derricks or wrecking boats captured by the navy are not prizes within the meaning of this section. Manila Prize Cases, (1903) 188 U. S. 254.

Sec. 4614. [What are vessels of the navy.] The term "vessels of the Navy," as used in this Title, shall include all armed vessels officered and manned by the United States, and under the control of the Department of the Navy. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 315.

Capture by transport. - Where a vessel and cargo were captured at sea by a steamer employed as a transport in the service of the United States, but not a commissioned vessel of war, it was held that the filing by the

United States of a libel against the vessel and cargo as prize was an affirmance by the United States of the capture and that such ratification was equivalent to an original seizure by authority of the government. The Emma, (1863) Blatchf. Prize Cas. 561, 8 Fed. Cas. No. 4,461.

Sec. 4615. [Duties of commanding officer upon making capture.] The commanding officer of any vessel making a capture shall secure the documents of the ship and cargo, including the logbook, with all other documents, letters, and other papers found on board, and make an inventory of the same, and seal them up, and send them, with the inventory, to the court in which pro

ceedings are to be had, with a written statement that they are all the papers found, and are in the condition in which they were found; or explaining the absence of any documents or papers, or any change in their condition. He shall also send to such court, as witnesses, the master, one or more of the other officers, the supercargo, purser, or agent of the prize, and any person. found on board whom he may suppose to be interested in, or to have knowledge respecting, the title, national character, or destination of the prize. He shall send the prize, with the documents, papers, and witnesses, under charge of a competent prize-master and prize-crew, into port for adjudication, explaining the absence of any usual witnesses; and in the absence of instructions from superior authority as to the port to which it shall be sent, he shall select such port as he shall deem most convenient, in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon and an appraisement made by persons as competent and impartial as can be obtained, and their reports shall be sent to the court in which proceedings are to be had; and such property, unless appropriated for the use of the Government, shall be sold by the authority of the commanding officer present, and the proceeds deposited with the assistant treasurer of the United States most accessible to such court, and subject to its order in the cause. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 306.

Lists of persons claiming prize money, see ARTICLES FOR THE GOVERNMENT OF THE NAVY, vol. 1, p. 466.

General construction. The statute contemplates that the captured property, or the proceeds, if sold, shall be brought to the proper port, unless it be destroyed or appropriated to the use of the government before such delivery, and in case of appropriation before or after delivery the value of the property shall be deposited by the government for disposition. Adjudication as to the legality of the capture and award of prize money in a proper case are required when the vessel is brought in, sold or appropriated, but adjudication only as to lawful prize as distinguished from award of bounty money when the property has been destroyed." The Santo Domingo, (1903) 119 Fed. Rep. 386.

Necessity of delivery. "Captors share in such property as is delivered for adjudication. Such delivery must be actual unless on account of the condition of the property it cannot be made, when sale is authorized by the commanding officer present, or unless it has been appropriated for the use of the government." The Santo Domingo, (1903) 119

Fed. Rep. 386.

take and deliver. He must in offensive action seize, and if need be in defensive action retain, and his success in both regards, if it be good prize, perfects his right to an adjudication for prize money. Rescue or recapture defeats such right.' The Santo Domingo, (1903) 119

Fed. Rep. 386.

Destruction of prize as appropriation for use of government. "The destruction of a lawful prize at the instance of the commander of the captors, by reason of the imminent danger of recapture, is not such an appropriation of the property for the use of the government as constrains the United States to deposit the value thereof for distribution, and entitles the captors to share therein." The Santo Domingo, (1903) 119 Fed. Rep. 386.

"Property annihilated, although its nonexistence be beneficial in depriving the enemy of its use, is alike incapable of use by the captors' government, and the act of destroying for the sake of destruction, as distinguished from consumption or destruction in the course of use, is not such user as the statute contemplates." The Santo Domingo, (1903) 119 Fed. Rep. 386.

Effect of destruction of prize. "When captors take a lawful prize they have alternative duties, to save it, if practicable; to destroy it, if it be impracticable to save. The first duty insures prize money, other elements of the right existing; the second duty involves the sacrifice of prize money, and the pecuniary reward is in the form of bounty. But captors cannot scuttle the ship captured and have her in the form of prize money. Their money reward is measured by what they deliver secure from the enemy. If persons be sent to capture a vessel and thereupon to destroy her, the destruction precludes prize money, and if the destruction er necessitate rei must and does follow capture,

#

the captor's status is the same. Indeed, if is is impracticable to bring the property into port, or to make some safe disposition of it,

the captor's duty is to destroy, although it result in a renunciation of prize money." The Santo Domingo, (1903) 119 Fed. Rep. 386.

Sec. 4616. [Statement of claim to share in prize.] If any vessel of the United States shall claim to share in a prize, either as having made the capture, or as having been within signal distance of the vessel or vessels making the capture, the commanding officer of such vessel shall make out a written statement of his claim, with the grounds on which it is founded, the principal facts tending to show what vessels made the capture, and what vessels were within signal distance of those making the capture, with reasonable particularity as to times, distances, localities, and signals made, seen, or answered; and such statement of claim shall be signed by him and sent to the court in which proceedings shall be had, and shall be filed in the cause.

Act of June 30, 1864, ch. 174, 13 Stat. L. 307. Prizes or bounty for destruction of enemy's

[R. S.]

Sec. 4617. [Duties of prize-master.] The prize-master shall make his way diligently to the selected port, and there immediately deliver to a prizecommissioner the documents and papers, and the inventory thereof, and make affidavit that they are the same, and are in the same condition as delivered to him, or explaining any absence or change of condition therein, and that the prize-property is in the same condition as delivered to him, or explaining any loss or damage thereto; and he shall further report to the district attorney and give to him all the information in his possession respecting the prize and her capture; and he shall deliver over the persons sent as witnesses to the custody of the marshal, and shall retain the prize in his custody until it shall be taken therefrom by process from the prize-court. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 307.

See R. S. sec. 5441, infra, p. 87.

Sec. 4618. [Libel and proceedings by district attorney.] Upon receiving the report of the prize-master directed by the preceding section, the attorney of the United States for the district shall immediately file a libel against such prize property, and shell forthwith obtain a warrant from the court, directing the marshal to take it into his custody, and shall proceed diligently to obtain a condemnation and distribution thereof; and to that end shall see that the proper preparatory evidence is taken by the prize-commissioners, and that the prize-commissioners also take the depositions de bene esse of the prize-crew, and of other transient persons cognizant of any facts bearing on condemnation or distribution. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 397.

Decree for damages against United States. A decree may properly be entered against the United States for damages where a vessel has been captured as a prize of war and thereafter restitution decreed to the claimants of the vessel, where the libels were filed by the United States on its own behalf. The Paquete Habana, (1903) 189 U. S. 453.

Decree for restitution with damages and

costs against captors. The statutes seem to contemplate that the libels filed by the United States were filed on its own behalf, and where a capture is made pursuant to instructions from the President, and a decree is rendered by the prize court that restitution, with damages and costs, should be made to the claimants, a decree cannot be entered against the captors of a vessel on such libel filed by the United States. The Paquete Habana, (1903) 189 U. S. 453.

Sec. 4619. [Duties of district attorneys.] The district attorneys of the several judicial districts shall represent the interests of the United States in all prize-causes, and shall not act as separate counsel for the captors on any

private retainer or compensation from them, unless in a question between the claimants and the captors, on a demand for damages. They shall examine all fees, costs, and expenses, sought to be charged on any prize-fund, and protect the interest of the captors and of the United States. The district attorneys of all districts in which any prize-causes are or may be pending shall, as often as once in three months, send to the Secretary of the Navy a statement of the condition of all prize-causes pending in their districts, in such form and embracing such particulars as the Secretary of the Navy shall require. [R. S.]

Sec. 4620. [Special counsel for captors.] [Repealed.]

This section was as follows:

"SEC. 4620. In any case of capture made by vessels of the Navy, the Secretary of the Navy may employ special counsel for captors, when, in his judgment, the services of such special counsel are needed in the particular case, for the due protection of the interests of the captors and of the Navy-pension fund;

and, under the direction of the Secretary of the Navy, such counsel may institute and prosecute such proceedings in the case as may be necessary and proper for the protection of such interests." Act of June 30, 1864, ch. 174, 13 Stat. L. 307.

It was struck out" by Act of Feb. 27, 1877, ch. 69, 19 Stat. L. 252.

Sec. 735. [Captures of insurrectionary property, where cognizable.] Proceedings for the condemnation of any property captured whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or acquired, sold or given, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Government of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. [R. S.]

Act of Aug. 6, 1861, ch. 60, 12 Stat. L. 319.

66

The words as prize," which appeared in the section as originally enacted, following the words "any property captured," were stricken out by the Act of Feb. 18, 1875, ch. 80, 18 Stat. L. 318.

Somewhat similar provisions are contained in R. S. sec. 564, in JUDICIARY, vol. 4, p. 236.

General rule of application. "It is sufficiently obvious that the general object of the enactment was to promote the suppression of rebellion by subjecting property employed in aid of it with the owner's consent to confiscation. It extended to all descriptions of property, real or personal, on land or on water. All alike were made subjects of prize and capture, and, under the direction of the President, of seizure, confiscation, and condemnation." Union Ins. Co. v. U. S., (1867) 6 Wall. (U. S.) 759.

What property included.. "This Act was intended for private, not public, property – for such property of persons as required, under the laws of war, a judicial sentence of condemnation to divest the title of its owner not such property of a hostile government as had already been captured by an army and

subjected to the complete and undisputed dominion and ownership of the conquering power. It applies to all property, personal as well as real." Titus v. U. S., (1874) 20 Wall. (U. S.) 475.

Seizure necessary." If, for any reason, whether from the act of the defendant himself or from any cause whatever, the government cannot seize the property, it cannot enforce the forfeiture." U. S. v. Stevenson, (1869) 3 Ben. (U. S.) 119, 27 Fed. Cas. No. 16,396. No property capable of seizure. The Prize Acts do not contemplate "any proceeding as in admiralty where there existed no specific property or proceeds capable of seizure and capture." Morris v. U. S., (1868) 7 Wall. (U. S.) 578.

Power to award restitution. - Every District Court of the United States possesses all the powers of a court of admiralty, both instance and prize, and may award restitution of property claimed as prize of war by a foreign captor. Glass v. The Sloop Betsey, (1794) 3 Dall. (U. S.) 6.

Forfeiture of stock of foreign corporation. "A District Court of the United States in New York cannot acquire jurisdiction in rem

to declare a forfeiture under these acts of shares in the capital stock of an Illinois corporation." U. S. v. 1,756 Shares Capital Stock, (1865) 5 Blatchf. (U. S.) 231, 27 Fed. Cas. No. 15,961.

What court may decree final distribution.

- No court of the United States is empowered to decree final distribution in prize, except the court which first acquires jurisdiction over the res or its representative proceeds. Winchester's Case, (1878) 14 Ct. Cl. 53.

Sec. 4621. [Appointment of prize commissioners.] Any district court. may appoint prize-commissioners, not exceeding three in number; of whom one shall be a retired naval officer, approved by the Secretary of the Navy, who shall receive no other compensation than his pay in the Navy, and who shall protect the interests of the captors and of the Department of the Navy in the prize-property; and at least one of the others shall be a member of the bar of the court, of not less than three years' standing, and acquainted with the taking of depositions. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 307.

Sec. 4622. [Duties of prize commissioners.] The prize-commissioners, or one of them, shall receive from the prize-master the documents and papers, and inventory thereof, and shall take the affidavit of the prize-master required by section forty-six hundred and seventeen, and shall forthwith take the testimony of the witnesses sent in, separate from each other, on interrogatories prescribed by the court, in the manner usual in prize-courts; and the witnesses shall not be permitted to see the interrogatories, documents, or papers, or to consult with counsel, or with any persons interested, without special authority from the court; and witnesses who have the rights of neutrals shall be discharged as soon as practicable. The prize-commissioners shall also take depositions de bene esse of the prize-crew and others, at the request of the district. attorney, on interrogatories prescribed by the court. They shall also, as soon as any prize-property comes within the district for adjudication, examine the same, and make an inventory thereof, founded on an actual examination, and report to the court whether any part of it is in a condition requiring immediate sale for the interests of all parties, and notify the district attorney thereof; and if it be necessary to the examination or making of the inventory that the cargo be unladen, they shall apply to the court for an order to the marshal to unlade the same, and shall, from time to time, report to the court anything relating to the condition of the property, or its custody or disposal, which may require any action by the court, but the custody of the property shall be in the marshal only. They shall also seasonably return into court, sealed and secured from inspection, the documents and papers which shall come to their hands, duly scheduled and numbered, and the other preparatory evidence, and the evidence taken de bene esse, and their own inventory of the prize-property; and if the captured vessel, or any of its cargo or stores, are such as in their judgment may be useful to the United States in war, they shall report the same to the Secretary of the Navy. [R. S.]

Act of June 30, 1864, ch. 174, 13 Stat. L. 308. See also R. S. sec. 5441, infra, p. 87. "The word 'ship' embraces her boats, tackle, apparel, and appurtenances, because part of the ship as a going concern, and for the same reason 'ship or vessel of war' includes her armament, search lights, stores, everything, in short, attached to or on board the ship in aid of her operations." Prize Cases, (1903) 188 U. S. 268.

Manila

"The words 'ship or vessel of war belonging to the enemy' are sufficiently comprehen

sive to embrace not only everything essential to the ship's navigation, but to the purposes of her existence." Manila Prize Cases, (1903) 188 U. S. 270.

A ship or vessel of war belonging to an enemy includes armament, outfit, and appurtenances, comprising provisions, money to pay the crew or for necessary expenditures, everything necessary to be used for the purposes of the vessel and as a vessel of war. The Infanta Maria Teresa, (1903) 188 U. S. 283.