
    [Prize. Non-Commissioned Captor.]
    The Dos Hermanos. Shields, Claimant.
    
    Seizures made, jure belli, by non-commissioned captors, are made for the government, and no title of prize, can be derived but' from the Prize Acts.
    A non-commissioned captor can only proceed in the Prize Court as for salvage, the amount of which is discretionary.
    The appellate Court will not interfere in the exercise of this discretion, as to the amount of salvage allowed, unless in a very, clear case of mistake.
    An appeal, under the Judiciary Acts of 1789, c. 20. s. 22. and of 1803, c. 353. [xciii.] prayed for, and allowed within five years; is Valid, although the security was not given until after the lapse of five years.
    The mode of taking the security, and the time for perfecting it, are within the discretion of the Court below, and this Court will not interfere with the exercise of that discretion.
    APPEAL from the District Court of Louisiana.
    This was the same case, reported ante, voL II. p. 76. where the decree of the Court below, condemning the cargo as enemy’s property, was affirmed by this Court, reserving the question as to the distribution of the prize proceeds. The original capture was made by Mr. Shields, a Purser of the navy, in the year 1814, in a barge armed and fitted out to cruise, but not regularly, attached to the navy. The cause was remanded to the Court below for further proceedings, and that Court decreed the proceeds to be equally distributed between the United States and the captor, without deducting the captor’s. expenses. From this decree the captor . appealed to this Court.
    
      March 5th.
    
    Mr. C. J. Ingersoll, for the appellants,
    stated, that it had been generally considered by the text writers, and Courts of Prize, that the right to captures, jure belli, was in the government, and that no individual could derive any rights of prize but from the express grant of the government. But, on principle, every individual is in a state of war with the enémies of his country; and the common law certainly considers the law of nations as authorizing any subject of the belligerant state to seize enemy’s property within the realm, or the property of other subjects previously captured by the enemy, to the exclusion of the king, the admiral, and the owner, unless the latter came the same day they were taken, and claimed them ante occasum solis.
      
       To the same effect is the case in the book of the 7th Edw. IV. 14.
    The principle is, that personal effects, seized in war, are acquired to the taker by occupancy; and immoveables, such as cities, lands, &c. to the public. But the crown, always rapacious, and seeking to extend, its final prerogative, subsequently introduced the doctrine of public title to personal things taken in war. Thus the statute 34 Edw. III. c. 1. declares, that the crown was always seized of the forfeitures of war; and hence came the doctrine of the droits of admiralty. It does not appear that this assumption has ever been expressly recognised by this Court as a part of the law of this country; and, unquestionably, a non-commissioned captor may seize enemy’s property, and after a. condemnation, as in this case, it must be adjudged to the captors. It is now toó late for the government to interpose its claim. The act of the 23d April, 1800, c. 189. [xxxiii.] s.. 5. and the. Prize Act of 1812, c. 430. [cvii.] gives the proceeds of vessels and goods, adjudged good prize, to the captors. But at all events, the captors are entitled to be repaid their expenses, and to a liberal salvage.
    
    The Attorney General, contra,
    argued, that it was established as an elementary principle in the law of prize, that all captures jure belli, enured to the public, and that the actual captors could only derive their title from the grant óf the government. This was the case with commissioned captors, and still more emphatically as to non-commissioned captors; who, though they had a right to seize enemy’s property, could claim no title to the proceeds upon adjudication, except what was derived from the bounty of the public. Whatever might.have been the ancient common law doctrine in England, it had been long since settled in that country, that all rights of prize were derived from the grant of the crown. Without entering into all the distinctions as to the capacity in which the crown took, whether in the. king’s office of . Admiral, or jure coroná, it might be laid down as a general proposition, that non-commissioned captors, aá a matter of strict right, were not entitled tó any share of the prizes captured by them. Captures made by tenders-or boats, sent .out by officers of the navy, but not regularly attached bf public authority, to the navy, are condemned as droits of admiralty. But in these, and all other cases of seizures by non-commissioned captors, it was usual to reward the takers with a liberal, share of the property, in the discretion of the Court of Admiralty. There was no reason why-any different principle or mode of proceeding should be adopted in this country. It does not depend upon any peculiar municipal regulations, but grows out of a principle' recognised by all the writers on public law : Bello parta cedunt reipublica.
      
       In the present case, a moiety of the proceeds had been allowed to the actual captors as salvage; but the provisions in the Prize Acts fot the distribution of prizes, were confined to commissioned public and private armed vessels,
    
      
      March 7th.
    
    
      
      
         2 Wheat. Rep. Appx. Note I. p. 71.
    
    
      
       3 Reeves’ Hist. Eng. Law, 371, 372.
    
    
      
      
        Wood’s Inst. Imp. Law, 154. b. 2. c. 3.
    
    
      
      
         1 Ruffh. 302. 2 Reeves’ Hist. Eng. Law, 454.
    
    
      
      
         2 Wheat. Rep. Appx. Note I. p. 7.
    
    
      
       The San Bernardo, 1 Rob. 178. The Haase, Id. 24.
    
    
      
      
         2 Wheat. Rep. Appx. Note I. p. 7. 71.
      
    
    
      
      
         The Melomasne, 5 Rob. 41. The Charlotte, Id. 280. and note.
    
    
      
      
         The San Bernardo, 1 Rob. 178. The Haase, Id. 286. The Amor Parentum, Id. 303.
    
    
      
       The Elsebe, 5 Rob. 173. 181
    
   Mr. Chief Justice Marshall

delivered the opinion of the Court, that whatever might,have been the ancient doctrine in England in respect to captures in. war, it is now clearly established in that kingdom, that all captures jure belli, are made for the government, and that ho title of prize can be acquired but by the public acts of the government conferring rights on the captors. If the original law of England authorized an individual to acquire to his own use the property of an individual, without any express authority from the public, that law was changed long before the settlement of .this country. It never Was the law of this country. Before the revolution, all captures from the enemy accrued to the government, to be distributed according to law ; and the revolution could not strip the government of this exclusive prerogative, and vest it in individuals. It is, then, the settled law of the United States, that,all captures made by non-commissioned captors, are made for the government; and since-the provisions in the Prize Acts, as to the. distribution of prize proceeds, are confined to public and private armed vessels, cruising under a regular commission, the, only claim which can be sustained by the captors in cases like the present, must be in the nature of. salvage for bringing in and preserving the-property.

In the present case, the District Court'have awarded, one half of the prize .proceeds, or salvage, to the captors; It was an exercise of sound discretion; and this Court would, with extreme reluctance, interfere with that, discretion, unless in a very clear case of mistake. We perceive no. such mistake in this case, and are well satisfied with the amount of the salvage as decreed by the District Court.

As to the question which has been made, whether the appeal wás in due time, it appears, that the appeal was prayed for within five years, and was actually allowed by the Court within that period. It is true that the security required by law was not given until after the lapse of the five years ; and, under such circumstances, the Court might have disallowed the appeal, and refused the security. But, as the Court accepted it, it must be considered as a sufficient compliance with the order of the¡.Court, and that it had relation back to the time of the allowance of the appeal. The mode of taking the security, and the time for perfecting it, are matters of discretion, to be regulated by the Court granting the appeal; and when its order is complied with, the whole has relation-back to the time when the appeal was played. We must presume , the security was given, in this case, according to the rule prescribed by the District Court, and the appeal was, therefore, in.time.

Decree affirmed, with costs.  