Prize Law. An Ordinance relative to the Capture and Condemnation of Prizes. The United States in Congress assembled, taking into consideration the implacable war waged against them by the king of Great Britain, and judging it inconsistent with their dignity, as a free and independent nation, any longer to continue indulgencies and exemptions to any of the subjects of their enemy, who is obstinately bent upon their destruction or subjugation, have thought it proper to ordain and order, and it is hereby ordained and ordered, that henceforward, general reprisals be granted [*115 against the ships, goods, and subjects of the king of Great Britain; so that, as well the fleets and ships of these United States, as also all other ships and vessels commissioned by letters of marque or general reprisals, or otherwise, by the authority of the United States in congress assembled, shall, and may lawfully seize all ships, vessels, and goods, belonging to the king or crown of Great Britain, or to his subjects, or others inhabiting within any of the territories or possessions of the aforesaid king of Great Britain, and bring them to judgment in any of the courts of admiralty that now are, or hereafter may be, established in any of these United States, by the authority of the United States in congress assembled; and the said courts of admiralty are hereby authorised and required, to take cognisance of, and judicially to proceed upon, all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are, or shall be taken, and to hear and determine the same, and, according to the course of admiralty, and the laws of nations, to adjudge and condemn all such ships, vessels, and goods, as shall belong to the king of Great Britain, er to his subjects, or to any others inhabiting within any of the countries, territories or dominions or possessions, of the aforesaid king of Great Britain. And that the board of admiralty, or secretary of marine, forthwith prepare, and lay before the United States in congress assembled, a draught of instructions, for such ships or vessels as shall be commissionated for the purposes above-mentioned. And it is hereby further ordained, that the destruction of papers, or the possession of double papers, by any captured vessel, shall be deemed and taken as just cause for the condemnation of such captured vessel; and that, when any prize, having been taken and possessed by the enemy twenty-four hours, shall be retaken from them, the whole of such re-captured prize shall be condemned for the use of the re-captors; but in cases where the prize shall have continued in the possession of the enemy less than twenty-four hours, it shall be restored to the original owner or owners, except one-third part of the true value thereof, which shall be allowed as salvage to the recaptors. [*116 And it is hereby further ordained, that the citizens and inhabitants of these United States be, and they hereby are, strictly enjoined and required to abstain from all intercourse, correspondence or dealings whatsoever, with the subjects of the said king of Great Britain, while at open war with these United States, as they will answer the same at their peril; and the executives of the several states are hereby called upon to take the most vigilant and effectual measures for detecting and suppressing such intercourse, correspondence or dealings, and bringing the authors thereof, or those concerned therein, to condign punishment. And in order the more effectually to remove every colorable pretence for continuing such intercourse, it is hereby ordained, that from ane after the first day of November next, no benefit shall be claimed from, nor countenance or regard paid to, any letters of passport or safe-conduct, heretofore granted by the congress of the United States, to any of the citizens or inhabitants thereof, or to any person or persons whatever, for the removal of their property or effects from places within the dominions or possessions of the said king of Great Britain: Provided, always, that this ordinance shall not extend to authorise the capture or condemnation of any vessel belonging to any inhabitant of Bermudas, which being loaded with salt only, may arrive in any of these United States, on or before the first day of May next. 5 WHEAT.-17 257 Prize Law. And it is hereby ordained, that all former acts or resolutions of congress, contrary to the tenor, true intent, and meaning of this ordinance, be and they are hereby repealed. Saturday, April 7th, 1781. On a report of a committee, consisting of Mr. Varnum; Mr. Bee and Mr. Van Dyke, to whom was referred the draught of *instructions to the captains of private armed vessels, reported by the board of admiralty:(a) *117] Be it ordained, and it is hereby ordained, by the United States in Congress assembled, that the following instructions be observed by the captains or commanders of private armed vessels, commissioned by letters of marque or general reprisals or otherwise, by the authority of the United States in congress assembled. 1. You may, by force of arms, attack, subdue and seize all ships, vessels and goods, belonging to the king or crown of Great Britain, or to his subjects, or others inhabiting within any of the territories or possessions of the aforesaid king of Great Britain, on the high seas, or between high-water and low-water marks. And you may also annoy the enemy by all means in your power, by land as well as by water, taking care not to infringe or violate the laws of nations, or laws of neutrality. 2. You are to pay a sacred regard to the rights of neutral powers, and the usage and customs of civilized nations; and on no pretence whatever, presume to take or seize any ships or vessels belonging to the subjects of princes or powers in alliance with these United States; except they are employed in carrying contraband goods or soldiers to our enemies; and in such case, you are to conform to the stipulations contained in the treaties subsisting between such princes or powers and these states; and you are not to capture, seize or plunder any ships or vessels of our enemies, being under the protection of neutral coasts, nations or princes, under the pains and penalties expressed in a proclamation issued by the congress of the United States, the ninth day of May, in the year of our Lord 1778. *118] 3. You shall permit all neutral vessels freely to navigate *on the high seas, or coasts of America, except such as are employed in carrying contraband goods or soldiers to the enemies of these United States. 4. You shall not seize or capture any effects belonging to the subjects of the belligerent powers, on board neutral vessels, excepting contraband goods; and you are carefully to observe, that the term contraband, is confined to those articles which are expressly declared to be such in the treaty of amity and commerce, of the sixth day of February, 1778, between these United States and his most Christian Majesty, namely, arms, great guns, bombs, with their fuses, and other things belonging to them, cannon balls, gun-powder, matches, pikes, swords, lances, spears, halberts, mortars, petards, grenadoes, salt-petre, muskets, musket balls, bucklers, helmets, breast-plates, coats of mail, and the like kind of arms proper for arming soldiers, musket-rests, belts, horses with their furniture, and all other warlike instruments whatever. 5. You shall bring all such ships and vessels as you shall seize or capture, with their guns, rigging, tackle, apparel and furniture, and ladings, to judgment, in any of the courts of admiralty that now are, or hereafter may be, established in any of these United States, in any court authorised by his most Christian Majesty, or any other power in alliance with these United States, to take cognisance of captures and seizures made by the private armed vessels of these states, and to judicially hear and dertermine thereon. 6. You shall send the master or pilot, and one or more principal persons of the company, of every ship or vessel by you taken, in such ship or vessel, as soon after the capture as may be, to be by the judge or judges of such court as aforesaid, examined (a) This ordinance was passed by congress in consequence of the temporary recognition, by the United States and France, of the principles of the armed neutrality, as laid down in the de claration of her Majesty, the Empress of Russia, of February 26th, 1780. 2 Dall. 18. See also Darby v. The Brig Erstern, Id. 34. Prize Law. upon oath, and make answer to such interrogatories as may be pronounced, touching the interest or property of the ship or vessel and her lading; and at the same time, you shall deliver, or cause to be delivered, to the judge or judges, all passes, sea-briefs, charter-parties, bills of lading, cockets, letters, and other documents and writings found on board, proving the said papers, by the affidavit of yourself, or of some other person present at the capture, to be produced as they were received, without fraud, addition, subduction or embezzlement. [*119 7. You shall keep and preserve every ship or vessel, and cargo, by you taken, until they shall, by sentence of a court properly authorized, be adjudged lawful prize, or acquitted; not selling, spoiling, wasting or diminishing the same, or breaking the bulk thereof, nor suffering any such thing to be done. 8. If any of your officers or crew shall, in cold blood, kill or maim, or by torture, or otherwise, cruelly, inhumanly, and contrary to common usage, and the practice of civilized nations in war, treat any person or persons surprised in the ship or vessel you shall take, the offender shall be severely punished. 9. You shall, by all convenient opportunities, send to the board of admiralty, or secretary of marine, written accounts of the captures you shall make, with the numbers and names of the captives, and intelligence of what may occur, or be discovered, concerning the designs of the enemy, and the destinations, motions and operations of their fleets and armies. 10. One-third, at least, of your whole company shall be landsmen. 11. You shall not ransom or discharge any prisoners or captives, but you are to take the utmost care to bring them into port; and if, from necessity, you shall be obliged to dismiss any prisoners at sea, you shall, on your return from your cruise, make report thereof, on oath, to the judge of the admiralty of the state to which you belong, or in which you arrive, within twenty days after your arrival, with your reasons for such dismission; and you are to deliver, at your expense, or at the expense of your owners, the prisoners you shall bring into port, to a commissary of prisoners nearest the place of their landing, or into the nearest county jail. 12. You shall observe all such further instructions as *shall hereafter be given by the United States in congress assembled, when you shall have notice [*120 thereof. 13. If you shall do anything contrary to these instructions, or to others hereafter to be given, or willingly suffer such thing to be done, you shall not only forfeit your commission, and be liable to an action for breach of the condition of your bond, but be responsible to the party grieved, for damages sustained by such malversation. Ordered, that the board of admiralty report, as soon, as may be, proper regulations for the conducting and governing the vessels of war of the United States, and other armed vessels. An Ordinance, ascertaining what Captures on water shall be lawful. In pursuance to the powers delegated by the Confederation in cases of capture on water: Be it ordained, by the United States in congress assembled, that from and after the first day of February next, all resolutions and ordinances of congress relating to captures or re-captures on water, and coming within the purview of this ordinance, except as is hereinafter excepted, shall be null and void; but questions of this nature arising before, or which shall be undetermined at that day, shall be determined at any time, during the war with Great Britain, according to them, in the same manner as if this ordinance had never been made. It shall be lawful to capture, and to obtain condemnation of the property hereinafter enumerated, if found below high-water mark; that is to say, all ships and other vessels of whatsoever size or denomination, belonging to an enemy of the United States, with their rigging, tackle, apparel and furniture. All goods, wares and merchandises belonging to an enemy, and found on board of a ship or other vessel of such enemy. All contraband goods, wares and merchandises, to whatever nation Prize Law. belonging, although found in a neutral bottom, if destined for the use of an enemy; but the goods, wares and merchandises *belonging to an enemy, con *121] traband goods, and goods destined to a blockaded, invested or besieged port, being always excepted, found in a vessel belonging to a foreign nation, other than an enemy, shall, in no case, be subject to condemnation: Provided, nevertheless, that from and after the first day of March, in the year 1782, all goods, wares and merchandises, of the growth, produce or manufacture of Great Britain, or of any territory depending thereon, if found within three leagues of the coasts, and destined to any port or place of the United States, in any ship or vessel belonging to the citizens of the said States, or the subjects of any neutral power, shall be liable to capture and condemnation, unless the same shall have been previously captured from the enemy and condemned, or, in consequence of capture, may be proceeding to some port or place, not in the power of the said enemy, for trial and condemnation. All ships or other vessels, goods, wares and merchandises, belonging to any power, or the subjects of any power against which letters of marque or reprisal shall have issued. All ships or other vessels, with their rigging, tackle, apparel and furniture, and with their cargoes, to whatsoever nation belonging, destined to any port or place, invested, besieged or blockaded, by a sufficient force belonging to, in the service of, or co-operating with the United States, so effectually as that one cannot attempt to enter into such port or place without evident danger. All ships or other vessels, with their rigging, tackle, apparel and furniture, and with their cargoes, found in the possession of pirates. The goods, wares, and merchandises, to be adjudged contraband, are the following, that is to say cannons, mortars, fire-arms, pistols bombs, grenadoes, bullets, balls, fuses, flints, matches, powder, saltpetre, sulphur, carcasses, pikes, swords, belts, pouches, cartouch-boxes, saddles and bridles, in any quantity beyond what may be necessary for the ship's provision, and may properly appertain to, and be adjudged *122] necessary *for, every man of the ship's crew, or for each passenger. If it shall manifestly appear, that of any entire thing of which division cannot be made without injury to its value, a subject of the enemy, and a citizen or a subject of a foreign power, not being an enemy, are joint holders, the whole shall be condemned and sold for gold or silver, the proper proportion of the net proceeds of which shall be deposited in the treasury of the state in which the sale shall be, to be paid to the order of such citizen, or the subject of such foreign power. If such division can be accomplished, but neither the citizen, nor the subject of a foreign power, nor his agent, shall require specific restitution of his property, there shall be a sale in the same manner as if the property were indivisible. But if, in such case, a requisition be made to this effect, the due proportion shall be specifically restored. Where property shall have been originally captured on land from a state, or a citizen of the United States, and shall be re-captured, below high-water mark, by another citizen thereof, restitution shall be made to the former owner, upon the payment of a reasonable salvage, not exceeding one-fourth part of the value; no regard being had to the time of possession by the enemy. In all cases of re-capture by an armed vessel, fitted out at the expense of the United States, of a vessel, or other effects belonging to a citizen, the court shall adjudge the proportion which would be due to the United States, to be remitted to such citizen, no regard being had to the time of possession by the enemy. On the re-capture by a citizen, of any negro, mulatto, Indian, or other person, from whom labor or service is lawfully claimed by a state, or a citizen of a state, specific restitution shall be adjudged to the claimant, whether the original caputre shall have been made on land or water, and without regard to the time of possession by the enemy, a reasonable salvage being paid by the claimant to the re-captor, not exceeding one-fourth of the value of such labor or ser*123] vice, to be estimated *according to the laws of the state under which the claim shall be made. But if the service of such negro, mulatto, Indian, or other person, captured below high-water mark, shall not be legally claimed within a year and a day from the sentence of the court, he shall be set at liberty. In all other cases of Prize Law. re-capture, restitution shall be made to the owner, upon payment of one-third part of the true value for salvage, if the property shall have been retaken in less than twentyfour hours after the capture. But if it shall not have been retaken, until the expiration of twenty-four hours after the capture, restitution shall not be made of any part. Besides those who are duly authorized to make captures by special commission, captures of the property of an enemy shall be adjudged lawful when made: 1st. By a private vessel not having such commission, satisfactory proof being produced that they were made in pursuing the course of her voyage, and repelling a previous attack from an enemy. 2d. By any body or detachment of regular soldiers. 3d. By inhabitants of the country, if inade within cannon-shot of the shore. 4th. By an armed vessel, sailing under a commission of his most Christian Majesty. 5th. By the crews of British vessels, while captures of this sort are licensed by the British. Recaptures shall be made by no other persons than those authorized to make captures, except the crews of vessels retaken. The destruction of papers, or the possession of double paper by any captured vessel, shall be considered as evidence for condemnation, unless good cause be shown to the contrary. From and after the first day of February, which shall be in the year of our Lord 1782, any letters of passport or safe-conduct, granted before the 27th of March last, under the authority of congress, to any person whatsoever, for removal of pro- [*124 perty from a place beyond sea within the dominions or possessions of the British king, shall be void. Upon the capture of a vessel commissioned as a man of war or privateer, by any of the vessels of war of the United States of America, the whole of the property condemned shall be adjudged to the captors, to be divided in the following manner (saving to all persons who shall lose a limb in any engagement, or shall be otherwise disabled in the service of the United States, every benefit accruing to them under the resolutions of congress of the 28th day of November, 1775,) that is to say: To the commander-in-chief of the navy of the United States, shall be allotted one-twentieth part of all prizes taken by an armed vessel or vessels, under his orders and command; when there shall be no such commander-in-chief, the one-twentieth part allotted to him shall be paid into the treasury of the United States. To the captain of any single armed vessel, two twentieth parts; but if more ships or vessels be in company when a prize is taken, then the two twentieth parts shall be divided equally among all the captains. To the captains of marines, lieutenants and masters, three twentieth parts of all prizes taken when they are in company, to be divided equally among them. To the lieutenants of marines, surgeons, chaplains, pursers, boatswains, gunners, carpenters, master's mates, and the secretary of the fleet, two twentieth parts, and one-half of one-twentieth part, to be divided equally among them. To the following petty warrant-officers, viz., midshipmen, (allowing for each ship six, for each brig four, and for each sloop two), captain's clerks, surgeon's mates, stewards, sail-makers, cooper's, armorers (allowing for each vessel one of each only), boatswain's mates, gunner's mates, carpenter's mates (allowing for each vessel two of each), cooks, cockswains (allowing for each vessel one of each), serjeants of marines (allowing two for each ship, and one for each brig and *sloop), three twentieth parts, to be divided equally among them: and [*125 when a prize is taken by any vessel, on board, or in company of which the commander-in-chief is, then the commander-in-chief's cook, or cockswain, shall be added to the petty-warrant officers, and share equally with them. The remaining eight twentieth parts, and half of the one-twentieth part, shall be divided among the rest of the vessels company or companies, as it may happen, share and share alike. No officer nor man shall have any share but such as are actually on board their several vessels, when any prize or prizes shall be taken, excepting only such as may have been ordered on board any other prizes, before taken, or sent away by his or their commanding officers. Upon the capture of any vessel, if made by a vessel of war belonging to the United States, one-half of the property condemned shall be decreed to the United States, and |