
    (PRIZE.)
    The Mary.
    Where an enemy’s vessel was captured by a private armed vessel of the Uuited States, and subsequently dispossessed by the force or terror of another; the prize .was, under the circumstances of the ease, adjudged to the first captor, with costs and damages.
    Appeal froto the circuit court for the district of Massachusetts.
    The British schooner Mary, whereof Charles 'Thomas, jr. a British subject, domiciled at St. Johns, New Brunswick, was late owner and master, sailed under convoy from St. Johns,. New Brunswick, bound to Castine, then in the military occupation of the British, laden with a cargo, thé growth, produce, and manufacture of British possessions, shipped by British merchants domiciled, in St. Johns, N. B.'to merchants resident in Castine.
    The schooner Mary was captured by the private armed schooner Cadet, between Duck Island and Mount Desert, on the night of the 25th of Deeember, 1814, between the hours of 11 and 12; the convoy under which the Mary sailed, was iri sight of the Mary at the time of her capture; but no other vessel was in sight at that time. The Cadet came up with-the Mary so suddenly, that she had' no opportunity to make resistance, or give notice io the convoy of her-danger.
    After the capture of the Mary, the principal part. of her cargo was taken on board: the Cadet, carried into the district of Massachusetts, add, in the district court of said district, condemned to the Cadet as prize of war.
    On the morning of the 2$th of December, after Sun-rise, the Cadet add Mary being then in company, an armed brig, the Paul Jones, was discovered. by them, under such suspicious circumstances* as to in-, duce them to believe her to be a British cruiser, and, in consequence, to part, and steer different courses. The. sails of the Paul Jones were of English canvass. $he pursued the Mary, firing at her, until between 4 and 5 o’clock, r. m. of the 26th of December; the Mary had then arrived in a bay of the United States, to wit, Wheeler’s bay, a bay frequented by American vessels. The Mary being within half a mile of the shore, and within the same distance of the Paul Jones, and being in such a situation as rendered it certain that she must be intercepted by the Paul Jones, the prize master and crew, considering it certain, from her appearance and actions, that the Paul Jones was án English cruiser, left' the Mary for the shore, after. having thrown over, her anchor, and ordered the British captain, and his son of twelve years of age, who were left on board, to pay away the cable.
    After the prize crew left the Mary, the British, master hoisted English colours, aud steered the schooner towards the Paul Jones.
    
    Ten minutes after the prize crew left the. Mary, she was boarded by a boat from the Paul Jones, when the English captain informed them that the Mary was an English vessel, prize to the Cadet, when the Paul. Jones immediately stood off from the land with the Mary in company, with English colours still flying.
    A Boat, then out to the windward of the Mary, and within musket shot, or a quarter of a mile distant from her, (the crew then lying on their oars, the sea smooth, and the wind light,) repeatedly hailed the Mary, both before and -after .she was hoarded, by the Paul Jones, and received no answer.
    The prize master of the Mary, immediately on his getting on shore, despatched a boat on board hér to ascertain the national character of the vessel by whom she was boarded, and claim her if the. boarding vessel should prove American; but, before the boat could get off, the Paul Jones had sailed with the Mary in company.
    Libels against the Mary and cargo were filed in the district court for. the district of Maine, by David Elwell, in behalf of himself, and the owners, Officers, and crew, of. the private armed, schooner Cadet, ‘and by John Thomson Hilton, in behalf of himself, and the Owners, officers, and crew, of the private armed brigantine Paul Jones. The Mary and cargo were condemned in the district court for the'district of Maine, to John Thomson Hilton, and the owners, officers, and crew, of the Paul Jones. An appeal was entered from said decree by David Elwell, and the owners, officers, and crew, of the Cadet, in the circuit court Of Massachusetts. In- consequence of the affinity of-the judges to the parties, the decree, of the district court of Maine was, by consent of parties, affirmed pro forma, and the cause brought, by anneal, to this court.
    Feb. 12th.
    Mr. Jones, for the appellants.
    This is a case of novel impression as to the circumstances, but long since settled in principle. The prize crew of the Cadet were driven out of the Mary by the terror or the force of the Paul Jones. It is not the case of a prize abandoned and taken as res nullius, nor retaken by the original British crew, and recaptured by the Paul Jones. The prize was. in a place of safety, infra pnesidia; not constructively, as of a fleet, or a neutral port, but of a port ol the captor’s country. In order to constitute a dereliction of the property acquired in the thing captured, the abandonment must be voluntary, and with intent to relinquish the right acquired. The. origin of this principle is to be found in the Roman code, which distinguishes between a voluntary and compulsory abandonment of possession; the first changing the-right of property, whilst the latter has no such effect. If is applied to the law of prize by the different elementary writers. It was practically enforced in the case of the Lord Nelson, and by this court in the. case of the? Mary Ford. Striking the colours is to be deemed the real deditio, and the. consummation of the capture. So, also, the capturéis held to be consummated where the prize is completely under the dominion of the captor, has no ability to resist, and no prospect of escape. Here was no recapture by the enemy crew, because no resistance nor escape; and the British master could clearly notjiave maintained a claim for salvage in the courts of his own . country had the Paul Jones turned out to be a British privateer.
    Mr. Webster, contra.
    This is a case of voluntary relinquishment of the prize; and even if it was produced by terror of a supposed enemy, that will not make it involuntary. The case of the Lord Nelson dees not determine the present case; but Sir William Scott there puts the very case now before the court, and decides it by asking, “ Suppose, therefore, that after this voluntary abandonment, the, ship had been met with by . some French cruiser, and that by means of jury-másts, they had succeeded in carrying her into a French port; can there be any doubt that she would have been prize to the second captor ?’ In the case, of the Ann, which was a question of jurisdiction in a revenue cause, the - seizure being abandoned before adjudication, this court illustrate their opinion by analogy to the prize law, holding, that, capture gives no authority to proceed to adjudication, if abandoned before judicial proceedings are commenced. So, also, in the case of the Astrea, it was determined, that an interest acquired by possession is devested by the loss, of possession, from the. very nature of a title acquired in war. The case of the Adventure is likewise in point. There was no fraud on the part of the Paul Jones. She had a right to chase under any colours; hut she neither chased nor fired under enemy’s colours:/whilst the prize showed, np colour^, and therefore invited, pursuit-; and was found in the possession of heir original British master, and therefore authorized detention, She was not infra prmidia whilst lying in Wheeler’s Bay; but even supposing she had been, if she was. afterwards.abandoned by her original captor, the Paul Jones had a right to take possession. The prize master did not think it worth while to risk being taken prisoner, and therefore abandoned his prize.
    Mr. Jones in reply.
    Tile case supposed by Sir William Scott, in delivering his judgment in the Lord Nelson, is of a voluntary abandonment, and-not one produced by the application of force or terror. In the case of the Ann, this court, though incidentally describing the general doctrine, adhere to their accustomed accuracy and precision of language. “ A voluntary abandonment” is the phrase used by the. learned , judge, who delivered the opinion of the court; and he proceeds to state, “ It is not meant to assert that a tortious ouster of possession, or fraudulent rescue or relinquishment after seizure, will devest the jurisdiction.” The precedent of the Asirea does not apply. In that case there was a capture and recapture, and a second recapture; but no question whether the abandonment by the first captors was voluntarv or not. The case of the Adventure was not a question of derelict; but whether the bclligerant may invest a neutral with his rights at sea, in-fraud of the contingent right of recapture by the other belligerant. The question here is not whether force was used, but whether force was used: The. prize crew supposed they were surrendering to British captors : but the Mary was not in a situation to, be captured by a cruiser of the United States; she. was not derelict, but lying in a ruadstead, which is a presidium, though not guarded by forts and castles.
    Feb. 14th.
    
      
      
         Just. Inst. L. 2.t.1, sec. 46. 47, Alia sane cansa est earum reruni, quae in tempestate levandss navis bausa ejiciuntur. Hae enim dominorum, permanent: quia palam est, eas non eo anima ejici, quod quis eas habere nolit, sed quo magis cum ipsa navi maris pericuium effugiat. Qua de causa, si quis eas fluctibus expulsas, vel etiani in igso mari nactus, lucrandi animo abstalerit, furtum committit. So also D’Habreu, in commenting on tbe 9th article of the French prize ordinance, (whiqh prescribes that, if a captured vessel, not having been recaptured, is abandoned by the enemy, or if by storms or other.accidents, it returns into the possession of French subjects, before having been carried into. any enemy’s port, it shall be restored to the former owner, if claimed within a year and a day. although the possession of the enemy may have continued more than. twenty-four hours,) makes the following observation, “ Queique Particle tie l’ordouuance ne paroisse pas faire la difference en-^,_,un vaisseau abandonné par les ennemis, ét celui qui l’a été par l’effet d’une tempéte ou de .queique autre accident imprévu ; il est néanmoins - Certain qn’il y en á quelqu’une. Notts n’entre-' prendrons point ici de la faire sentir : outre que cela nous écarterait de notre objet-, il. n’ést personae, taqt soit peu versé dans la jurisprudence, qui ignore qualification volontaire fait perdre la propnété, tout an contraire de celui qtii est forcée.” D'Habreu on Prizes, ch. 5. §10, tom. 2. p. 95. of M. Bonnemant’s Translation.
    
    
      
      
         Bynkershoek, Q. J. Pub. ch. 4. p.35 of Du Ponceau’s Translation, Id. ch. 5. p. 36. 2 Azuni, Part 2. ch. 4 art. 2. § 1. 3. 7. 2. Woodeson, 454. See also 2 Sum 693. Goss et al. v. Withers. In that, case the true distinction oa this subject is alluded to by Lord Mansfield, that by whatever-length of time, or other circumstance the property in prizes-is vested, so as to bar the former owner in case of recapture or sale,. “ the instant the captor has got possession, no.friend, no-fellow-soldier, or ally, can take it from him ; because it would be a violation of his properly.” And it is in this sense must be undefstood what is repeated by so'many writers from the civil law, Qwe ex hostibus capiuntur, statim capi.entium Jiunt. An inchoate title immediately- accrues as against - any cr.ufser of the same nation or its allies in, the war, which title' cannot be devested but by á voluntary abandonment on the part of the first captor. 2 Woodeson, 455.
    
    
      
      
         Edwards, 79.
    
    
      
      
         3 Dall. 198.
    
    
      
       1 Rob. 195. The Rebeckah.
    
    
      
       3 Rob. 246. The Edward and Mary.
    
    
      
       9 Cranch, 289.
    
    
      
       1 Wheat. 125.
    
    
      
      
         Ib. note (f.)
    
   Mr. Justice Johnson

delivered the opinion of the. court.

We are of opinion that the facts stated, in this appeal, mane a clear case of. tortious dispossession ori the part of the Paul Jones. The privateer Cadet had, with great gallantry, captured the Mary, and been in possession of her part of á night and day. The prize ivas close in upon the American coast, and making for a port which was open before her. It was not until the superior sailing of. the Paul Jones- made it manifest that the prize must be cut oif from this port, and until she had been repeatedly fired úpon, that the jprize crew abandoned her. There exists not. a pretext in the case that this abandonment was voluntary, or would have taken place but for the hostile approach, of the Paul Jones. Whether the vis major acted upon the force or the fears of the prize crew is immaterial!, since actual dispossession ensued.

But it is argued that the Paul Jones showed American colours; the Mary ought not therefore to have feared her: the Maiy showed no colours, she, therefore, invited pursuit ; and, finally, that the Paul Jones found her in the actual possession of her original master, and, therefore, could not have done otherwise than detain her.

We think otherwise. It was more probable that an enemy would show false than true colours. The circumstance of the Mary standing in for a friendly shore, was less equivocal evidehce of her character than the exhibition of colours; and, after boarding the Mary, and learning that she was a prize to the Cadet, it was the duty of the captor to have repaired, the injury he had done, and, either by making signals, sending a boat on shore, or a message by the boat that did come off, to have recalled the prize crew of the Cadet. But, instead of this, she. instantly mans the prize, bears away from the harbour, which was close under their lee, and, by carrying English colours until out of sight, completes the conviction of the prize crew that the re-capture-w-as by an enemy.

We are of opinion that the decision of the circuit and district courts should be reversed ; that the prize should be adjudged, to the Cadet;- arid the case remanded for the assessment of reasonable damages in favour of the Cadet. But, considering that the prize arrived in safety, and probably in a more secure harbour than that for which she was sailing, when seized by the Paul Jones, ('although it is certainly a case for damages,) we are of opinion the damages should be moderate.

Sentence reversed. 
      
       Mr Justice Story did not sit in this cause.
     