ground, of opinion, that Admiral Digby alone cannot be compelled to proceed to adjudication under this monition. The loss which the claimant has sustained is extremely to be lamented, but I cannot give relief on mere grounds of humanity; humanity is only the second virtue of courts; justice is unquestionably the first; and justice would be grossly violated by providing relief for one innocent man, at the expense of another, who is not legally subject thereto." (See also The Faderlandt, 5 Rob. 123.)

In cases of illegal capture, vindictive damages are not usually given, unless where the misconduct has been very gross, and left destitute of all apology. Great indulgence is allowed to errors, and even improprieties of captors, where they do not appear to have acted with malignity and cruelty. (The Lively and cargo. 1 Gall. 29; The Anne, 3 Wheat. 435; The George, 1 Mason, 24.) If a captor destroys a ship of an enemy protected by the licence of his own government, he or his government is responsible for the loss. occasioned by such destruction. (The Felicity, 2 Dod. 381; The Acteon, Ib.52); but when the captor acts bonâ fide in pursuance of his rights, in an ignorance, honest and invincible on his part, of a foreign fact not governed by his own domestic law, but dependent on transactions with which he is unavoidably unacquainted till actually communicated to him, he will be protected by the court. (The John, Ib. 339.)

The rule that a captor takes cum onere must be understood to apply, where the onus is immediately and visibly incumbent. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the owner of the ship,

because the owner has the cargo in his possession, subject to that demand by the general law, independently of all contract. But this rule does not apply to mere rights of action, such as bottomry bonds, liens, &c., which are claims which no Admiralty court can examine with effect; the captor has no access whatever to the original private understanding of the parties in forming such contracts, and it is therefore unfit that he should be affected by them. The Tobago (5 Rob. 218); The Diana (Ib. 67); The Ann Green (1 Gall. 293); The Twilling Riget (5 Rob. 82); The Francis (8 Cranch, 418); The Constancia Harlessen, (1 Edw. 232); The Mariana (6 Rob. 24), are cases in which questions relating to freight, liens, &c., on prizes, have been decided on a similar principle.

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Captors must proceed to adjudication with all practicable speed. In The Madonna Del Burso (4 Rob. 169), demurrage, damage and compensation were pronounced due on the ground of great and unnecessary delay in the proceeding by the captor to adjudication. "Unless the captor," said Lord Stowell, " culpate himself with respect to delay in this matter, he is guilty of no inconsiderable breach of his duty. It would be highly injurious to the commerce of other countries, and disgraceful to the jurisprudence of our own, if any persons, commissioned or non-commissioned, could lay their hands on valuable foreign ships and cargos without bringing such act to judicial notice with prompitude." (See also The San Juan Battista and The Purissima Concepcion, 5 Rob. 33; The Corier Maritimo, 1 Rob. 287; The Susanna, 6 Rob. 51.) It is the duty of the captor immediately to commit the prize to the care of a competent prize master

and crew; not because the original crew, when left on board in the case of a seizure of the vessel of a citizen or neutral, are released from their duty without the assent of the master, but from the want of a right to subject the captured crew to the authority of the captor's officer. (The Eleanor, 2 Wheat. 345.)

The captor must send his prize to some convenient port for adjudication. "The Prize Act," said Lord Stowell," undoubtedly gives the captor some latitude in this subject, but it must be a place where the captor can get advice, and still more where the claimant can learn in what manner to proceed, or where to resort for justice. The captor is certainly not justified in selecting any port that he pleases. It must be a convenient port, and in that consideration the convenience of the claimant, in proceeding to adjudication, is among one of the first things to which the attention of the captor ought to be directed. (Wilhelmsberg, 5 Rob. 143; The Lively and cargo, 1 Gall. 318; The Washington, 6 Rob. 275.) Where a captor is unable to bring in enemy's property clearly ascertained to be such, his duty is to destroy it; but where the character of the property is doubtful, and it is impossible to subject it to legal adjudication, the safe and proper course is to dismiss it. (The Felicity, ubi supra.) Captors have no right to convert property, till it has been brought to legal adjudication; they are not even to break bulk; they can have no justification for converting such property, except in cases of physical necessity, which overpowers all ordinary rules, as where the case arises in a distant part of the world, and it can be shown that the goods were perishing. (L'Eole, 6 Rob. 220.) It is the duty of captors, immediately upon arrival in port, to deliver

upon oath into the registry of the court all papers found on board the captured ship (The Diana, 2 Gall. 95); and also to bring in the prize crew, or at least the master and principal officers, with the prize, for adjudication. (The Bothnea and The Janstoff, 2 Gall. 88.)

The right to capture enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. In 1780, the Empress of Russia proclaimed the principles of the Baltic code of neutrality, which she declared she would maintain by force of arms; one of the articles of that code being that all effects belonging to the subjects of belligerent powers should be looked upon as free on board of neutral ships, except only such as were contraband. Sweden, Denmark, Prussia, Germany Holland, France, Spain, Portugal, and Naples, and also the United States, acceded to the Russian principle of neutrality; but, in consequence of the more effective resistance of Great Britain, the conventional term of neutrality thus attempted to be set up was abandoned in 1793, as not sanctioned by the law of nations, except in those cases where a positive compact had been made by treaty. In 1801, a second attempt was made by the Baltic powers to enforce the doctrines of armed neutrality asserted in 1780, but the attempt was again defeated by the undoubted naval superiority of Great Britain and Russia, by a convention with England, in June, 1801, expressly agreeing that enemy's property was not to be protected on board of neutral ships. The entire question of free ships free goods is thus ably reviewed by Mr. Wheaton, in his Elements of International Law, 162-183:

"Although by the general usage of nations, inde

pendently of treaty stipulations, the goods of an enemy found on board the ships of a friend are liable to capture and condemnation; yet the converse rule, which subjects to confiscation the goods of a friend on board. the vessels of an enemy is manifestly contrary to reason and justice. It may, indeed, afford, as Grotius has stated, a presumption that the goods are enemy's property, but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians call presumptiones juris et de jure, and which are conclusive upon the party."

"But, however unreasonable and unjust this maxim may be, it has been incorporated into the prize code of certain nations, and enforced by them at different periods. Thus by the French ordinances of 1538, 1543, and 1584, the goods of a friend laden on board the ships of an enemy are declared good and lawful prize. The contrary was provided by the subsequent declaration in 1650; but by the marine ordinance of Louis XIV. of 1681, the former rule was again established. Valin and Pothier (De Proprieté, No. 96) are able to find no better argument in support of this rule, than that those who lade their goods on board an enemy's vessels thereby favour the commerce of the enemy, and by this act are considered in law as submitting themselves to abide the fate of the vessel; and Valin asks (lib. 3, tit. 9, Des Prises, art. 7), 'How can it be that the goods of friends and allies found in an enemy's ship should not be liable to confiscation, whilst even those of subjects are liable to it; to which Pothier himself furnishes the proper answer-that in respect to goods, the property of the King's subjects, in lading them on board an enemy's vessels they con