There is no pretence of claim on the part of courts of common law, to any share in the prize jurisdiction of the courts of admiralty. It is necessarily and completely exclusive; and we will first take a view of the jurisdiction and powers of the district courts in prize cases, and then of their ordinary admiralty jurisdiction. As prize questions are applicable to a state of war, and are governed chiefly by the rules of the law of nations, and the usages and practices of the maritime powers, I do not propose to enlarge on that subject. My object will be, to ascertain the exact jurisdiction of the District Court, in all its various powers and complicated character. I shall consider, (1.) its character as a prize court; (2.) as a court of criminal jurisdiction in admiralty; (3.) the division line between the admiralty and the courts of common law; (4.) its powers as an instance court of admiralty; (5.) its jurisdiction as a court of common law, and clothed, also, with special powers.

Prize courts. (1.) Jurisdiction of the prize courts.

*

The ordinary prize jurisdiction of the admiralty extends to all captures in war made on the high seas. I know of no other definition of prize goods, said Sir William Scott, in the case of The Two Friends, (a) than that they are goods *357 taken on the high seas, jure belli, out of the hands of the enemy. The prize jurisdiction also extends to captures in foreign ports and harbors, and to captures made on land by naval forces, and upon surrenders to naval forces, either solely, or by joint operation with land forces. (b) It extends to captures made in rivers, ports, and harbors of the captor's own country. But as to plunder or booty in a mere continental land war, without the presence or intervention of any ships or their crews, Lord Mansfield admitted, in Lindo v. Rodney, there was no case, or authority, or principle, to enable him to bring it within the cognizance of a prize court. (c) The prize court extends, also, to all ransom bills upon captures at sea, and to money received as a ransom or commutation, on a capitulation

(a) 1 Rob. Rep. 271.

(b) Lindo v. Rodney, Doug. Rep. 613, note.

(c) In the case of Alexander v. The Duke of Wellington, 2 Russ. & Mylne, 35, Lord Brougham said, that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it.

to naval forces alone, or jointly with land forces. (a) The federal courts have asserted for the prize courts in this country, a jurisdiction equally as ample and extensive as any claimed for them in England. In the case of The Emulous, (b) 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 court, 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 the admiralty jurisdiction, or whether, if liable to seizure and condemnation *358 in our courts, the remedy ought not to have been pursued by a process applicable to municipal confiscations.

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, (c) 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

(a) Ships taken at Genoa, 4 Rob. Rep. 388. Anthon v. Fisher, Doug. Rep. 649, note. Maisonnaire v. Keating, 2 Gallison, 325.

(b) 1 Gallison, 563.

(c) 1 Rob. Rep. 271.

1 Questions of Army Prize were referred by Act 3 & 4 Vict. c. 65, to the Court of Ad-. miralty. 8 Law Rev. 281.

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. (a)

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. (b) 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. (c) 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 pos

session of the captor, though in a neutral country, is *359 considered to be the possession of his sovereign, and

sub potestate curiæ. (d) 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. 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. (e) 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

(a) The Two Friends, 1 Rob. Rep. 271.

(b) The Peacock, 4 Rob. Rep. 185.

(c) The Susannah, 6 Rob. Rep. 48.

(d) Vide supra, 104.

(e) The Falcon, 6 Rob. Rep. 194. The Pomona, 1 Dodson's Rep. 25. L'Eole, 6 Rob. Rep. 220. La Dame Cecile, 6 Rob. Rep. 257. The Arabella and Madeira, 2 Gallison, 368.

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. (a)

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. (b) *360 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 government generally. (c)

(2.) Criminal jurisdiction of the admiralty.

Admiralty

jurisdiction

in criminal

The ordinary admiralty and maritime jurisdiction, of the disexclusive of prize cases, embraces all civil and criminal trict courts cases of a maritime nature; and though there does matters. 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 (d) 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

(a) Le Caux v. Eden, Doug. Rep. 594. The Amiable Nancy, 1 Paine's Rep. 111. Chamberlain v. Chandler, 3 Mason's Rep. 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, 1.1

(b) The Johanna Tholen, 6 Rob. Rep. 72. Oswell v. Vigne, 15 East's Rep. 70. (c) Case of The George, 1 Wheaton, 408. 2 Wheaton, 278, S. C. (d) Act of September 24th, 1789, secs. 9 and 11.

VOL. I.

1 See The Ostsee, 33 E. L. & Eq. 28. The Elise, 33 Id. 591.

34

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 (a) that the *361 federal courts might, without any statute, and under this general delegation of admiralty 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, (b) 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 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, (c) the Supreme Court, on a case certified from the Massachusetts

(a) Du Ponceau on Jurisdiction, pp. 59-61.

(b) 4 Dallas, 426.

(c) 3 Wheaton, 336.