should be defeated by laying them under a Abandonment rests on the election of the dependent on the success of the effort at salvage. The loss, which might have been total, became, on success, partial,-that is, confined to the extent of the expenditure; and the taking possession to accomplish that result, became, by success, appropriation to use. The case of the Albemarle is in point, although apparently no opinion ruled the question in terms. The Albemarle was sunk by Lieutenant Cushing on the night of October 27, 1864; was raised in March, 1865; reached Norfolk, April 27, 1865, and was appropriated to the use of the United States. She was The vessels were not derelict, abandoned without hope of recovery, but, on the contrary, their preservation was recommended, and, in the circumstances, Commodore Dewey, having duly taken the steps prescribed by the statute in respect of vessels confessedly captured, was not obliged to determine at once at his peril into which class these particular vessels fell, and to literally comply with § 4615 (U. S. Comp. Stat. 1901, p. 3127), in regard to captured prop-appraised by a duly-appointed board of erty "not in condition to be sent in for ad- naval officers and the value found was dejudication." posited by the Secretary of the Navy with the Assistant Treasurer of the United States at Washington. Proceedings to condemn the Albemarle as prize were instituted in the district court of the United States for the District of Columbia and went to a decree of condemnation. The case was not reported, but the proceedings will be found in Swan v. United States, 19 Ct. Cl, 51, in the course of subsequent litigation; as also in United States v. Steever, 113 U. S. 747, 28 L. ed. 1133, 5 Sup. Ct. Rep. 765., No appeal was taken, and the conclusion that a *vessel thus situated could be decreed to be[267] prize was accepted by all the departments. We perceive no adequate reason to depart from that precedent. War is not waged for predatory purposes, but Congress chose to grant reward for success, and in doing so cannot be assumed to have intended that such reward should be subjected to the restrictions of close bargains. The intention was that either prize money or bounty should be paid. Of course, by capture without destruction the government might obtain distinct acquisitions, and the captors would be recompensed at the expense of the enemy. Circumstances have frequently occurred in which the public interest has required the destruction of vessels capable in themselves of being brought in,-as, for example, at the battle of the Nile, when Nelson was obliged to burn prizes in order to avoid the delay in refitting them, and the loss of the service of other ships to convoy them to Gibraltar; but there his government could not assist him, or take the captured vessels off his hands. Section 4635 (U. S. Comp. Stat. 1901, p. 3134) provided that bounty should be paid in all cases where an enemy vessel of war was sunk or otherwise destroyed, either in an engagement, or in consequence of injuries [266] received in action, or after capture when the destruction was for the public interest; but the statute does not demand the construction that every vessel must be considered as destroyed, which, though susceptible of salvage and saved, could not have been, and was not saved, by the unaided resources of the capturing force. It is true that when the government succeeded in raising and restoring the vessels, it saved them for itself, but it may reasonably be held that this was subject by relation to the right of the captors to an adjudication giving them, after the costs and expenses were deducted, a share in the resi due of value. If the effort at salvage had failed, or if the cost had equaled or exceeded the value, the captors would still be entitled to bounty, for it was not intended that the grant 2. As to the property taken from the vessels raised and reconstructed, and that taken from the vessels destroyed, we think its legal status must be regarded as the same as that of the vessel to which it belonged. By § 4613 (U. S. Comp. Stat. 1901, p. 3126) it is declared that the provisions of Title LIV. 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." The taking must be under such conditions as make the subject of the capture prize, and the sections preceding § 4635 (U. S. Comp. Stat. 1901, p. 3134) recognize that property other than vessels may be prize, using the words "ship and cargo," "vessel, arms, munitions, or other material," "captured property," "prize property." But & 4635 (U. S. Comp. Stat. 1901, p. 3134) refers to the destruction of "a ship or vessel of war," which could not be "sunk or other"prize" under the preceding sections, and, wise destroyed" under that section, and be as we have already said, the grant of bounty, to be divided "in the same manner as prize money," appears obviously to have been "intended as a substitute for the prize itself," as ruled by Lowell, J., in The Selma, Low. Dec. 30, Fed. Cas. No. 12,647, or as given in lieu of prize money, as observed by Mr. Justice Field, in Porter V. United 1902. UNITED STATES V. DEWEY. States, 106 U. S. 607, sub nom. United | guns, ammunition, and other appurtenances *And the acts of April 23, 1800 (2 Stat. [269] No question of cargo is involved. Cargo is the lading of a ship or vessel, and may be prize when the vessel is not, or the vessel The inquiry inay be when the cargo is not. here relates to things belonging to the out fit of vessels of war, for whose capture prize money is paid, and for whose destruction bounty is paid. The injury to the enemy Parsons, in his work on Marine Insuris the same in either case, but the reward cannot be the same, as it is arbitrary in the ance, says that "insurance on the ship covone case, and not in the other, and arriveders all that belongs to it, as hull, sails, rigat in accordance with the general rules pre-ging, tackle, apparel, or furniture;" and he scribed as required by the circumstances. quotes from Emérigon (chap. 10, § 2, p. The statute did not contemplate a division | 234): of the grant and an award of prize money and bounty in respect of the same transae tion, unless, indeed, the capture embraced distinct and separate properties. [268] *What is included then by the term "a ship or vessel of war," under § 4635 (U. S. Comp. Stat. 1901, p. 3134)? Whatever the toleration extended in courts of admiralty to the use, in practice, of words apparently superfluous, 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. The first congressional legislation regulating prize was the act of March 2, 1799 (1 Stat. at L. 715, chap. 24), providing: "The expression 'on the body' em- 1 Ma And in his work on Shipping and Admiralty, vol. 1, p. 78, the same author says: "How much passes by the word 'ship,' or the phrase 'ship and her appurtenances.or apparel,-or furniture,'--or the like, cannot be positively determined by any definition. Stowell and Abbott agree that whatever is on board a ship for the objects of the voyage and adventure in which she is engaged, belonging to the owners, constitutes a part of the ship and her appurtenances, within the meaning of the English statute of 53 Geo. III. chap. 159.” “Sec. 5. And be it further enacted, That "Sec. 6. And be it further enacted, That the produce of prizes taken by the ships of the United States, and bounty for taking the ships of the enemy, be proportioned and distributed in the manner following, to wit: [Then followed twelve subdivisions in respect of the distribution of prize money.] "13. The bounty given by the United States on any national ship of war, taken from the enemy and brought into port, shall be, for every cannon mounted, carrying a ball of twenty-four pounds, or upwards, two hundred dollars; for every cannon carrying a ball of eighteen pounds, one hundred and fifty dollars; for every cannon carrying a ball of twelve, pounds, one hundred dollars; and for every cannon carrying a ball of nine pounds, seventy-five dollars; for every smaller cannon, fifty dollars; and for every officer and man taken on board, forty dollars, -which suns are to be divided agreeably to the foregoing articles." These sections admit of no other meaning than that the tackle, sails, apparel, stores, In The Dundee, 1 Hagg. Adm. 109, the question arose whether the value of certain Lord fishing stores should be included. Stowell held that it should, and that the word "appurtenances" distinguished between cargo, which was intended to be disposed of at the foreign port, and having a merely transitory connection with the ship, and those accompaniments that were indispensable instruments, without which the ship could not perform its functions. The owners declared in prohibition in the King's Bench, Gale v. Laurie, 5 Barn. & C. 156, and Abbott, Ch. J., afterwards Lord Tenterden, announced the same conclusion, and, among other things, said: "The fishing stores were not carried on board the ship as mer-[270] chandise, but for the accomplishment of the objects of the voyage; and we think that whatever is on board a ship for the object of the voyage and adventure on which she is engaged, belonging to the owners, constitutes a part of the ship and her appurte nances within the meaning of this act [53 Geo. III. chap. 159], whether the object be warfare, the conveyance of passengers or goods, or the fishery. This construction furnishes a plain and intelligible general 471 ule; whereas, if it should be held that nothing is to be considered as part of the ship that is not necessary for her navigation or motion on the water, a door would be opened to many nice questions, and much discussion and cavil." this property to be prize, because captured These were naval stores taken at a naval In The Witch Queen, 3 Sawy. 201, Fed. To be sure, the words tackle, sails, apparel, boats, appurtenances, are not used in Title LIV., but we think that such minuteness was unnecessary, and that the words "ship or vessel of war belonging to the enemy" are sufficiently comprehensive to embrace not only everything essential to the ship's navigation, but to the purposes of her existence. Necessarily, there is nothing in the distinction attempted to be drawn between the ship and her "appliances and outfit;" nor can we concur in the view that the latter may be regarded as cargo in any aspect. It is said that the destroyed hostile vessel of war should be held the subject of bounty, and property taken from her the subject of prize money, because bounty alone would be an inadequate reward. [271] *This, even if true, would not justify us in attributing to the statute a scope not permitted by its terms. Mr. Justice Story and Mr. Wheaton thought that the jurisdiction in prize extended "as well to goods taken on land by a naval force, or in consequence of the operations of a naval force, as to property captured on the water." Wheaton, Captures, 278; Pratt's Story, Notes on Prize Courts, 28; 2 Wheat. Appx. 1, 4 L. ed. 281. Both these learned authors cite English authorities, and among them the leading case of Lindo v. Rodney, 2 Dougl. 613, note. The *In that case the property was captured [272] on the island of St. Eustatius, and a writ of prohibition to restrain the prize court was applied for. It was stated that the only question was "whether the goods being tak en on land, though in consequence of a surrender to ships at sea, excludes the only prize jurisdiction known in this kingdom." The question was answered in the negative in an elaborate opinion and the rule discharged. Lord Mansfield, among other things, said: "In short, every reason which created a prize court as to things taken upon the high seas, holds equally when they are thus taken at land. The original cause of taking is here at sea. force which terrified the place into a surrender was at sea. If they had resisted, the force to subdue would have been from the sea. Mr. Piggott candidly said, it would be spinning very nicely to contend, if the enemy left their ship, and got ashore with money, were followed upon land, and stripped of their money, that this would not be a sea capture. I agree with him, but I cannot distinguish that case from this. Both takings are literally upon land. In both, the prey is, as it were, killed at sea, and taken upon land. Here the capture of the goods on land is the immediate consequence of the surrender at discretion to a 3. The battle of Manila was fought on sea force. Would a sum paid by capitulathe 1st day of May, and on the 3d the tion upon land have made it a sea or a land enemy's forces evacuated the Cavite arse- prize? Cui bono, should all this subtlety nal, which was taken possession of by a land-be spun, when the reason for a jurisdiction ing party. This naval station contained a to judge a capture at sea and such a capconsiderable amount of arms, munitions, ture at land is exactly the same?" and material, for the repairing, equipment, This reasoning shows that even though and fitting out of ships, and some nonsea- the general proposition may have been statgoing boats were in use there. The proper-ed somewhat broadly by Story and Wheat ty was appraised in due course: some of it was used in the Navy prior to the exchange of ratifications of the treaty of peace, and the remainder restored to Spain thereafter. The district court declined to adjudicate Section 4635 (U. S. Comp. Stat. 1901, p. 3134) is couched in the same language as when enacted July 17, 1862, after the battle between the Monitor and the Merrimac had admonished us of the impending change in the construction of vessels of war, yet the bounty provision was re-enacted in 1864, and incorporated into the Revised Statutes, and while, in these days, the amount of bounty may seem inconsiderable in comparison with the value of the vessel destroyed, we must take the statute as we find it. on, circumstances may bring particular In The Siren, 13 Wall. 389, 392. sub nom. United States Ships of War v. United from the sea; that the place captured was [273] *It was there decided that a seagoing ves- Hence, captures are made as prize for the benefit of captors when they come within the scope of our prize statutes, and not otherwise. In the case of Mrs. Alexander's Cotton, 2 Wall. 404, sub nom. United States v. Alexander, 17 L. ed. 915, a joint expedition of gunboats under Rear Admiral Porter and a body of troops under Major General Banks proceeded up the Red River, and, during its In The Emulous, 1 Gall. 575, Fed. Cas. advance, seventy-two bales of cotton, the No. 4,479, Mr. Justice Story said: "The private property of Mrs. Alexander, were adiniralty, therefore, not only takes cogni- taken from her plantation, where they were zance of all captures made at sea, in creeks, stored in a cotton gin house about a mile from havens, and rivers, but also of all captures the river. by a party from one of the gunmade on land where the same have been boats. The cotton was hauled by teams to made by a naval force, or by co-operation the river bank, sent to Cairo, libelled as with a naval force. This exercise of juris- prize of war in the district court for the diction is settled by the most solemn adju-southern district of Illinois, May 18, 1864; dications." The decree in The Emulous was reversed in Brown v. United States, 8 Cranch, 110, 3 L. ed. 504, but that was on the ground of the unlawfulness of the taking, and so referred to by Mr. Justice Gray in The Paquete Habana, 175 U. S. 711, 44 L. ed. 332, 20 Sup. Ct. Rep. 290. claimed by Mrs. Alexander; sold pendente lite, and the proceeds decreed to her. The United States appealed and asked the reversal of the decree and the condemnation of the cotton as maritime prize. This court held that the capture was justified by legis lation and by public policy, but that the property was not maritime prize; that In United States v. 269 Bales of Cotton, there was no authority to condemn any Woolw. 236, Fed. Cas. No. 16,583, an officer property as prize for the benefit of the cap of the Army embarked a battalion of cav- tors except under the act of July 17, 1862 alry on vessels of the United States, and in (12 Stat. at L. 600, chap. 204); and that the service of the government, but not part as the second section of that act provided of the naval force, and, proceeding by river that "the proceeds of all ships and vessels, and by land, penetrated into a certain dis- and the goods taken on board of them, trict of Mississippi then held by the enemy, which shall be adjudged good prize," should and by force of arms overpowered a body of be the property of the captors, in whole or hostile troops and took from their posses-in part, property on land was excluded from sion 269 bales of cotton, which were subse- the category of prize for the benefit of capquently libelled. And Mr. Justice Miller, tors, and that this was decisive of the case on circuit, held that the cotton was cap-*so far as claims of captors were concerned. [275] tured by the Army, and not by the Navy, The decree was reversed and the cause reand dismissed the libel. While Mr. Justice manded with directions to dismiss the libel. Miller there remarked that the result of In that case the capture was the result of Brown v. United States was "that property a joint expedition; the property was prion land is not, without the aid of the stat-vate property; unprotected and stored at a ute, liable to capture and condemnation as distance from the river; valuable for doprize of war," yet, after considering many mestic use, and so valuable as to be of peEnglish cases at some length, and referring culiar assistance to the enemy, but not in to The Emulous and the case of 680 Pieces any sense war material. Merchandise, 2 Sprague, 233, Fed. Cas. No. 12,915, he said: "In every one of the cases where the court has sustained its jurisdiction in prize, it appears that the force making the capture, or co-operating in the act, was the naval arm, or, by its presence and [274]active assistance it *contributed immediately in effecting the capture; that it operated In the present case the capture was made by naval force alone; the property was public property, consisting of arms, munitions, and naval material; in a naval station taken through the operations of the fleet from the sea. For the reasons indicated by Mr. Justice Miller, in harmony with the observations of Lord Mansfield, the rulings in that case and in The Siren are not controlling in this, and, moreover, the terms of the applicable statute are not the same. The sections constituting Title LIV. of the Revised Statutes were brought forward from the act of June 30, 1864 (13 Stat. at L. 306, chap. 174). Section 2 of the act of July 17, 1862, referred to by Mr. Chief Justice Chase in the case of Mrs. Alexander's Cotton, reads as follows: "That the proceeds of all ships and vessels, and the goods taken on board of them, which shall be adjudged good prize, shall, when of equal or superior force to the vessel or vessels making the capture, be the sole property of the captors; and when of inferior force, shall be divided equally between the United States and the officers and men making the capture." This section was identical with § 5 of the act of April 23, 1800, and was expressly repealed by § 35 of the act of June 30, 1864, while 10 of the latter act, afterwards 8 4630 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3132), provided: "That the net proceeds of all property condemned as prize shall, when the prize was of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and when of inferior force, one half shall be decreed to the United States and the other half to the captors;" and § 33: "That the provisions of this act shall be applied to all captures made as prize by authority of the [276] United States, or adopted and ratified by the President of the United States;" which was re-enacted as § 4613 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3126). The effect of this legislation was not to revive § 5 of the act of 1800, as contended, nor to give jurisdiction in admiralty in respect of property captured on land by land forces, but, if the language of the act of 1862 confined the rights of captors to the proceeds of ships and cargoes, it seems clear that the language of the act of 1864, that the captors should be entitled to "the net proceeds of all property condemned prize," operated to so far remove the restriction as to permit the statute to extend to other property fairly coming within accepted rules of prize. as ought not to be given the restrictive force We are also unable to see that the sig The act of March 12, 1863 (12 Stat. at L. 820, chap. 120), provided for the collection of all abandoned or captured property in insurrectionary districts, and "that such property shall not include any kind or de scription which has been used, or which was intended to be used, for waging or carrying on war against the United States, such as arms, ordnance, ships, steamboats, or other water craft, and the furniture, forage, military supplies, or munitions of war." Section 7 read: "That none of the provisions of this act shall apply to any lawful maritime prize by the naval forces of the United[277] States." The property excepted had been declared "lawful subject of prize and capture wherever found;" and it was made the duty of the President "to cause the same to be seized, confiscated, and condemned," by the confiscation act of August 6, 1861 (12 Stat. at L. 319, chap. 60). This act referred to property taken when used, or intended to be used, in waging war against the United States, while the act of 1863 referred to property not so used or intended to be. By the 2d section of the act of March 3, 1863, "further to regulate proceedings in prize cases" (12 Stat. at L. 759, chap. 86), it was provided that "any captured vessel, any arms or munitions of war, or other material," might be taken "for the use of the government," and the value deposited in the Treasury of the United States, and for prize proceedings. This act was expressly repealed by § 35 of the act of June 30, 1864, 8 10 of which act, as already seen, provided that the captors might share in the net proceeds of all property condemned as prize. March twelve, eighteen hundred and sixty- Section 7 of the act of July 2, 1864 (13 Stat. at L. 377, chap. 225), reads: "That no property seized or taken upon any of the inland waters of the United States by the naval forces thereof shall be regarded as maritime prize; but all property so seized or taken shall be promptly delivered to the The district court thought the words in- proper officers of the courts, or as provided adequate to produce this result, and care-in this act and in the said act approved fully examined other sections of the act of 1864, which referred to vessels and cargoes as the usual subjects of prize. But we should remember that that statute, and Title LIV., into which it was carried, embraced prize in general, and that vessels and their cargoes most frequently constituted prize property brought in for adjudication. So that in making provision in that regard, Congress was obliged to use such terms as even to give color to the argument that an enemy's vessels of war could not be condemned at all for the benefit of captors, and that bounty was their only reward, as was the case under the act of 1799 [1 Stat. at L. 709, chap. 24]. But it is conceded that this is not so, and we think that these sections And neither these acts, nor §§ 5308 to 5311 (U. S. Comp. Stat. 1901, p. 3614), in respect of insurrection, and ¶ 9 of § 563 (U. S. Comp. Stat. 1901, p. 457), and ¶ 6 of § 629, Revised Statutes (U. S. Comp. Stat. 1901, p. 504), affect the result we have reached. In our opinion it would be spinning altogether too nicely to hold that because enemy property on land cannot be taken in prize by land operations, public property de |