the Emulous, (d) though the court gave no opinion as to the right of the admiralty to take cognizance of mere captures made on the land, exclusively by land forces, yet it was declared to be very clear, that its jurisdiction was not confined to captures at sea. It took cognizance of all captures in creeks, havens, and rivers, and also of all captures made on land, where the same had been made by a naval force, or by coöperation with a naval force; and this exercise of jurisdiction was settled by the most solemn adjudications. A seizure may therefore be made in port, in our own country, as prize, if made while the property was water-borne. Had it been landed, and remained on land, it would have deserved consideration; and no opinion was given, whether it could have been proceeded against as prize, under (d) 1 Gall. 563.

Cotton, 1 Woolw. 236; 25 Law Rep. 451. But Congress enacted (act of July 2, 1864, ch. 225, § 7, 13 U. S. St. at L. 377) that no property seized or taken upon any of the inland waters of the United States by the naval forces thereof should be regarded as maritime prize, but that it should be delivered to the proper officers of the courts, or as provided in that act and the act approved March 12, 1863, 12 U. S. St. at L. 820, as to abandoned and captured property. See the Cotton Plant, 10 Wall. 577.

Private property captured on land by the naval forces has been held not to be maritime prize, subject to the prize jurisdiction of the United States courts, though a proper subject of capture. Mrs. Alexander's Cotton, 2 Wall. 404; ante, 91, n. 1; United States v. Weed, 5 Wall. 62, 71; United States v. 2694 Bales of Cotton, sup. But the first case was put partly on the act of July 17, 1862; and see 680 Pieces of Merchandise, 2 Sprague, 233; 103 Casks of Rice, Blatchf. Pr. 211; 282 Bags of Cotton, ib. 302, which were decided the other way, on their peculiar circumstances.

It has been said that captures by the army and navy jointly are not distributable in the admiralty apart from statute; and in this country they accrue exclusively

to the benefit of the United States. The Siren, 1 Lowell, 280, 283; 13 Wall. 389.

The English court of admiralty has now jurisdiction of booty and property captured on land by land forces exclusively by St. 3 & 4 Vict. c. 65. Banda & Kirwee Booty, L. R. 1 Ad. & Ec. 109, 129. Sée also as to the jurisdiction of the United States court under the Confiscation Act of August 6, 1861, ante, 302, n. 1. Union Insurance Co. v. United States, 6 Wall. 759; Armstrong's Foundry, ib. 766. See more especially the act of July 17, 1862, ch. 195, § 7, 12 U. S. St. at L. 591, which gave a proceeding in rem in the district courts, conformable to those in admiralty or revenue cases, against the property of rebels during the late war. In proceedings relating to a seizure on land, when the case is of common law jurisdiction, it must be tried by jury at the demand of either party. Union Ins. Co. v. United States, 6 Wall. 759; Armstrong's Foundry, ib. 766; Miller v. United States, 11 Wall. 268, 304; Morris's Cotton, 8 Wall. 507; Confiscation Cases, 7 Wall. 454, 462; Ex parte Graham, 10 Wall. 541.

A nice question as to whether cotton picked up at sea was prize or derelict was decided in favor of the former view in Seventy-eight Bales of Cotton, 1 Lowell, 11.

358

the admiralty jurisdiction, or whether, * if liable to seizure and condemnation in our courts, the remedy ought not to have been pursued by a process applicable to municipal confis

cations.

It is understood in England, that the admiralty, merely by its own inherent powers, never exercises jurisdiction as to captures or seizures, as prize, made on shore, without the coöperation of naval forces. In the case of the Ooster Eems, cited by Sir William Scott in the case of the Two Friends, (a) and decided by the highest authority, that of the lords commissioners of appeal, in 1784, it was held, that goods taken on shore as prize, where there had been no act of capture on the high seas, were not to be considered as prize, and that the prize courts had no jurisdiction in such a case. But it is admitted, that if the jurisdiction has once attached, and the goods have been taken at sea, they may be followed on shore by the process of the prize court, and its jurisdiction over them still continues. In this respect, the prize court seems more extensive, and to hold a firmer jurisdiction, than the instance court; for, as to cases of wreck and derelict, if the goods are once on shore, or landed, the cognizance of the common law attaches. (b) 1

Though the prize be unwarrantably carried into a foreign port, and there delivered by the captors upon security, the prize court does not lose its jurisdiction over the capture, and the questions incident to it. (c) So, if the prize be lost at sea, the court may, notwithstanding, proceed to adjudication, and at the instance of the captors or the claimants. (d) It has jurisdiction, likewise, though the prize be actually lying within a foreign neutral territory. This is the settled law of the prize jurisdiction, both in England and in this country. The principle is, that the possession of the captor, though in a neutral country, is considered to be the possession

of his sovereign, and sub potestate *359 curiæ. (a) But it is admitted, that if possession of the thing seized be actually as well as constructively lost, as by recapture, escape, or a voluntary discharge of the captured vessel, the jurisdiction of the prize court over the subject is lost.

(a) 1 C. Rob. 271.

(c) The Peacock, 4 C. Rob. 185. (a) Vide supra, 104.

(b) The Two Friends, 1 C. Rob. 271. (d) The Susannah, 6 C. Rob. 48.

See The Nassau, 4 Wall. 634; also, ante, 357, n. 1.

Though captured property be unjustifiably or illegally converted by the captors, the jurisdiction of the prize court over the case continues; but it rests in the sound discretion of the court, whether it will interfere in favor of the captors in such cases; and it is equally discretionary in all cases where the disposition of the captured vessel and crew has not been according to duty. (b) The prize court may always proceed in rem, whenever 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 had been taken for the property. And it is a principle perfectly well settled, and constantly conceded and applied, that prize courts have exclusive jurisdiction, and an enlarged discretion, as to the allowance of freight, damages, expenses, and costs, in all cases of captures, and as to all torts, and personal injuries, and ill treatments, and abuse of power, connected with captures jure belli; and the courts will frequently award large and liberal damages in those cases. (c) 1

360

1

The prize courts may apply confiscation by way of penalty, for fraud and misconduct, in respect to property captured * as prize, and claimed by citizens or neutrals. (a) They may decree a forfeiture of the rights of prize against captors guilty of gross irregularity or fraud, or any criminal conduct; and, in such cases, the property is condemned to the gov ernment generally. (b)

(b) The Falcon, 6 C. Rob. 194; The Pomona, 1 Dods. 25; L'Eole, 6 C. Rob. 220; La Dame Cecile, 6 C. Rob. 257; The Arabella and Madeira, 2 Gall. 368.

(c) Le Caux v. Eden, Doug. 594; The Amiable Nancy, 1 Paine, 111; Chamberlain v. Chandler, 3 Mason, 243, 244. Probable cause of seizure is a sufficient excuse in the case of captures jure belli, and as to marine torts generally, or the exercise of belligerent rights to a limited extent under statute provisions. The Palmyra, 12 Wheaton, 1.

(a) The Johanna Tholen, 6 C. Rob. 72; Oswell v. Vigne, 15 East, 70. (b) Case of the George, 1 Wheaton, 408; 2 Wheaton, 278, s. c.

1 The Jane Campbell, Blatchf. Pr. 101; and see cases cited ante, 156, n. 2. The district court, moreover, may hear and determine all questions respecting claims arising after the capture of the vessel. Thus where a vessel which had been captured by a United States war steamer and which was in charge of a prize crew,

wrongfully sunk another, and was afterwards libelled by the government, condemned and sold, it was held that the owners of the sunken vessel and cargo should be paid out of the proceeds before they were distributed. The Siren, 7 Wall. 152. See The Davis, 10 Wall 15; Case v. Terrell, 11 Wall. 199, 201.

2. Criminal Jurisdiction of the Admiralty.--The ordinary admiralty and maritime jurisdiction, exclusive of prize cases, embraces all civil and criminal cases of a maritime nature; and though there does not seem to be any difficulty or doubt as to the proper jurisdiction of the prize courts, there is a great deal of unsettled discussion respecting the civil and criminal jurisdiction of the district court as an instance court, and possessing, under the Constitution and Judiciary Act of 1789, admiralty and maritime jurisdiction.

The Act of Congress (c) gives to the district courts, exclusive of the state courts, and concurrently with the circuit courts, cognizance of all crimes and offences cognizable under the authority of the United States, and committed within their districts, or upon the high seas, where only a moderate corporal punishment, or fine or imprisonment, is to be inflicted. This is the ground of the criminal jurisdiction of the district courts; and it is given to them as district courts; and as it includes the minor crimes and offences committed on the high seas, and cognizable in the courts of admiralty under the English law, the district courts may be considered as exercising the criminal jurisdiction of a court of admiralty in those cases. The Constitution of the United States declares, that the judicial power of the Union shall extend to all cases of admiralty and maritime jurisdiction; and it has been supposed (d) that the federal courts might, without *any statute, and under this general delegation of admi- *361 ralty powers, have exercised criminal jurisdiction over maritime crimes and offences. But the courts of the United States have been reluctant to assume the exercise of any criminal jurisdiction, in admiralty cases, which was not specially conferred by an act of Congress. In the case of The United States v. M' Gill, (a) the defendant was indicted and tried in the Circuit Court in Philadelphia, for murder committed on the high seas, and the jurisdiction of the court was much discussed. One of the judges observed, that he had often decided, that the federal courts had a common law jurisdiction in criminal cases; but he considered that the crime charged (a mortal stroke having been given on the high seas, and the death in consequence of it

VOL. I.

(c) Act of September 24th, 1789, secs. 9 and 11.

(d) Du Ponceau on Jurisdiction, 59–61.

(a) 4 Dallas, 426.

26

[401]

happening on land), was not a case of admiralty and maritime jurisdiction within the meaning of the Constitution, or of the English admiralty law, and the prisoner, on account of this defect of jurisdiction, was acquitted. The other judge of the court gave no opinion, whether that case was one of admiralty and maritime jurisdiction, upon the general principles of the admiralty and maritime law; and he confined himself to the 8th section of the penal act of Congress of April 30th, 1790, c. 9; and the case charged was not, by that act, within the jurisdiction of the circuit court.

Afterwards, in the case of The United States v. Bevans, (b) the Supreme Court, on a a case certified from the Massachusetts Circuit, decided that, even admitting that the United States had exclusive jurisdiction of all cases of admiralty and maritime jurisdiction, and admitting that a murder committed on the waters of a state where the tide ebbs and flows was a case of admiralty and maritime jurisdiction, yet that Congress had not, by the 8th section of the act of 1790, c. 9, "for the punishment of certain crimes against the United States," conferred

on the courts of the United States jurisdiction over *362 * such murder. The act confined the federal jurisdiction

to murder and other crimes and offences committed on the high seas, or in any river, harbor, basin, or bay, out of the jurisdiction of any particular state; and the murder in question. was committed on board of a ship of war of the United States in Boston harbor, and within the jurisdiction of Massachusetts. There was no doubt of the competency of the powers of Congress to confer such a jurisdiction in the case of a crime com mitted on board of a ship of war of the United States, wherever the ship might be; but no such power had, to that extent, been as yet exercised by Congress; and it must have followed of course, in that case, that the state courts had jurisdiction of the crime at common law, for it was committed within the territory of the state. (a) It was admitted to be a clear point, that the

(b) 3 Wheaton, 336.

(a) In official opinions communicated to the executive government in 1812 and 1814, it was considered to be a clear point, that for grave crimes committed within the jurisdictional limits of the United States, on board national vessels of war, the trial and punishment did not belong to naval courts-martial, but to the ordinary courts of law. Op. Att.-Gen. i. 114, 120. But the act of Congress of April 23d, 1800, c. 83, "for the better government of the navy of the United States," art. 21, declared that