The Mary

¶1(PRIZE.)

¶2Where 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.

¶3Appeal froto the circuit court for the district of Massachusetts.

¶4The 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.

¶5The 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.

¶6After the capture of the Mary, the principal part. *124of 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.

¶7On 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.

¶8After the prize crew left the Mary, the British, master hoisted English colours, aud steered the schooner towards the Paul Jones.

¶9Ten 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 *125Mary 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.

¶10A 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.

¶11The 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.

¶12Libels 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, *126by consent of parties, affirmed pro forma, and the cause brought, by anneal, to this court.

¶13Mr. Jones, for the appellants.

¶14This 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.a If is applied to *127the law of prize by the different elementary writers.b It was practically enforced in the case of the Lord Nelson,c and by this court in the. case of the? Mary Ford.d Striking the colours is to be deemed the real deditio, and the. consummation of the capture.e 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.f Here was no recapture by the enemy *128crew, 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.

¶15Mr. Webster, contra.

¶16This 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.g 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.h The case of the Adventure is likewise in point.i There was no fraud on the part of the Paul Jones. She had a right to chase under any colours; *129hut 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.

¶17Mr. Jones in reply.

¶18Tile 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 *130other 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.