(PRIZE.)

The MARY.

Where an enemy's vessel was captured by a private armed vessel of the United States, and subsequently dispossessed by the force or terror of another; the prize was, under the circumstances of the case, adjudged to the first captor, with costs and damages.

APPEAL from 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, the 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 December, 1814, between the hours of 11 and 12; the convoy under which the Mary sailed, was in 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 to the convoy of her danger.

After the capture of the Mary, the principal part

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of her cargo was taken on board the Cadet, carried into the district of Massachusetts, and, in the district court of said district, condemned to the Cadet as prize of war.

On the morning of the 26th of December, after sun-rise, the Cadet and Mary being then in company, an armed brig, the Pau! Jones, was discovered by them, under such suspicious circumstances, as to induce 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. She pursued the Mary, firing at her, until between 4 and 5 o'clock, P. 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, consider ing it certain, from her appearance and actions, that the Paul Jones was an 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, and 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 boarded 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 her 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,

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The Mary.

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The Mary.

Feb. 12th.

by consent of parties, affirmed pro forma, and the cause brought, by appeal, to this court.

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 It is not the case of a

the force of the Paul Jones.
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, in-
fra præsidia; not constructively, as of a fleet, or a
neutral port, but of a port of 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 be-
tween a voluntary and compulsory abandonment of pos-
session; the first changing the right of property,
whilst the latter has no such effect." It is applied to

a Just. Inst. L. 2. t. 1, sec. 46. 47. Alia sane causa est earum rerum, quæ in tempestate levandæ navis causa ejiciuntur. Hæ enim dominorum permanent: quia palam est, eas non eo animo ejici, quod quis eas habere nolit, sed quo magis cum ipsa navi maris periculum effugiat. Qua de causa, si quis eas fluctibus expulsas, vel etiam in ipso mari nactus, lucrandi animo abstulerit, furtum committit. So also D'Habreu, in commenting on

the 9th article of the French prize ordinance, (which 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

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 capture is 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

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