effectually to preserve it from injury and pillage,(n) or because the ship stands in a predicament altogether distinct from that of her cargo.(o) In all these and other proper cases, the Prize Court will, upon proper application, decree an unlivery. Upon ordering an unlivery, a warrant or commission of unlivery is directed to some competent person, and usually to the Marshal, to unlade the cargo, and to make a true and perfect inventory thereof.(p) At the same time, a warrant or commission of *appraisement is usually directed to some competent persons, who are to reduce into writing a true and perfect inventory of

the

[*632]

cargo, and upon oath to appraise the same according to its true value. In England, this commission is sometimes directed to a person who is authorized to choose and swear the appraisers himself.(g) But in the North American United States, the general practice is, for the Courts to appoint the appraisers, in the first instance. And where it becomes necessary or proper to unlade the cargo for inspection of its nature or quality, a commission of inspection is issued, directed to some competent persons, in like manner, to return an inventory thereof, with a certificate of the particulars, names, descriptions, and sortments of the goods, together with their several marks and numbers, and the nature, use, quantities, and qualities thereof. (r) The Court may also, in its discretion, order the ship, or cargo, or both, to be removed to another place or port; for, having the custody of the things, it is bound to use all reasonable precautions to preserve it, and to consult the best interests of all parties; and in such case a commission of removal is issued, which is usually directed to the Marshal; but the Court may direct it to any other person. (8)

An unlivery of the cargo is considered as done for the benefit of all parties, and therefore the expense is generally borne by the party ultimately prevailing. If the captors apply for an unlivery, and the property is condemned, the *expense falls on the captors; but if restitution be awarded, the Court, in its discretion, usually makes the expense a charge on the cargo.(t)

[*633]

After unlivery and appraisement, the Court sometimes decrees a sale,

(n) Marriott's Form, p. 323.

(o) The Hoffnung, 6 Rob., p. 231. The Prosper, Edwards, p. 72. Marriott's Form, p. 224. (p) Ibid.

(q) Marriott's Form, p. 227.

(r) Ibid., p. 229. "S'il est nécessaire avant le jugement de la prise, de tirer les marchandises du vaisseau, pour en empêcher le dépérissement, il en sera fait inventaire en présence de notre procureur et des parties intéressées, qui le signeront, si elles peuvent signer, pour ensuite être misès sous la garde d'une personne solvable, ou dans des magasins fermans à trois clefs différentes, dont l'une sera delivrée aux armateurs, l'autre au receveur de l'Admiral, et la troisième aux réclamateurs, si aucun se présente, sinon à notre procureur."-L'Ordonnance de 1687, liv. iii. tit. ix., Des Prises, art. 27.

(8) Marriott's Form, p. 234. The Rendsberg, 6 Rob., p. 142. The Sacra Familia, 5 Ib., p. 360.

(t) The Industrie, Ib., p. 88. "Qu'a l'avenir, tous les frais faits tants pour la conservation ou la vente des marchandises des prises, dans le cas où elle sera permise, que pour la subsistance du maître et autres officiers mariniers ou matelots qui y seront restés seront pris sur le bâtiment, et payés par le réclamateur qui en aura obtenu la main levée, lorsquil en sera remise en possession.”—Arrêt du Conseil du 23 Decembre, 1705.

or delivery, on bail, of the property to the captors or the claimants. Where a sale is ordered, which is usually done where the ship and cargo are in a perishing condition, or liable to deterioration pending the process, (u) in England a commission of appraisement and sale issues to some competent persons, jointly and severally, to reduce into writing a true inventory of the goods, and to choose appraisers who are to appraise the same on oath; and after appraisement, the commissioners are to expose the same to public sale, and bring the proceeds into the registry of the Court.(x) And in England it is the regular practice of the Court, that one of the commissioners should be named by the claimant.(y) And in the United States, a sale is sometimes ordered, without a previous appraisement; or if an appraisement be ordered, the appraisers are always named by the Court itself. In case of an appraisement and sale, the expenses of taking out the commission, &c., are, in the first instance, borne by the party applying for the sale, and ultimately *as the Court [*634] may direct ;(z) and such sale is usually, in England, made by the Marshal; but it seems that the Court may direct it to be made by any other person.(a) In the United States, the sale is invariably made by the Marshal and it would seem highly proper in all cases, to have a previous inventory and appraisement, with a view to check any attempt of fraud, and to establish the proper responsibility of the officers of the Court, in cases of negligent custody. This is the regular practice of the Prize Court; and the most obvious reasons of public policy require a strict adherence to it.

DVIII. The subject of delivery has been already partially discussed; to the observations already made upon the subject may be added the following (6) Sometimes the property is delivered on bail to return the same, or the full value to answer the decree, and in such case, the Court have a right to inquire what is the full value, and to decree accordingly.(c) And if the bail security be taken by way of recognizance (which is irrregular,) and not by way of stipulation, still the Court may enforce it as a stipulation.(d) Upon such a delivery on bail, the sureties are not responsible beyond the sum in which they become bound ;(e) but the principal may be made to respond the full value of the property. In ordinary cases, however, the property is delivered on bail at an appraised value; and in such cases, the principal and sureties are bound to the stipulated value but not farther. If, therefore, there be a delivery on bail at an admitted value, the Court will not listen to an application to diminish

(u) The St. Lawrence, 1 Gallison's (Amer.) Rep., p. 467. 451. Jennings v. Carson, 4 Cranch's (Amer.) Rep., p. 2. Dallas's (Amer.) Rep., p. 40. Marriott's Form, pp. 237, 318. 3 Rob., p. 178.

(x) Marriott's Form, pp. 237, 318.

(y) The Carl Walter, 4 Rob., pp. 207, 211. (2) The Carl Walter, 4 Rob., p. 207.

The Frances, Ib., p.
Stoddart v. Read, 2
The Copenhagen,

(a) The Rendsberg, 6 Ib., p. 142.

(b) The Rendsberg, 6 Rob., pp. 142, 144. The Euphrates, 1 Gallison's (Amer.)

Rep., p. 451. The Diana, 2 Ib., p. 93.

(c) Brymer v. Atkins, 1 H. Blackstone's Rep., p. 264.

(d) Ibid, p. 164. The Alligator, 1 Gallison's (Amer.) Rep., p. 145.

(e) Smart v. Wolff, 3 Durnford & East's Rep., p. 323.

the amount *to the proceeds of a subsequent sale, but will hold the parties to the appraised or admitted value. (f) In case of a [*635] delivery on bail, the expenses of the delivery are to be borne by the delivering party, unless it is otherwise directed by the Court.(g) But generally the Court directs the expenses of the application to be borne by the party who applies for the delivery on bail; and all expenses after the delivery are exclusively borne by the party receiving the property.(h) Bail bonds or securities to answer adjudication, are not discharged by lapse of time; but may, at any distance of time, be enforced by the Court; but after a great length of time the Court will, in its discretion, refuse a monition or attachment to enforce the bond, unless some reasonable ground for the delay is established.(¿) Nor are these bonds considered as mere personal securities given to the individual captors, although taken in their names; they are considered as securities given to the Court, to abide the adjudication of all events at the time impending before it. The Court is not in the habit of considering bonds precisely in the same limited way as they are viewed by the Courts of Common Law. In those Courts they are very properly considered as mere personal securities for the benefit of those parties to whom they are given. In Prize Courts they are subject to more enlarged considerations; they are there regarded as pledges or substitutes for the thing itself, in all points fairly in adjudication before the Court. If, therefore, a bond be given to the actual captors to answer the adjudication of the property, which should, from the locality of the capture, or from other circumstances, be condemned to the government, the bail, would, in such case, be answerable, in the Admiralty, to the government.(k) But if the property at the time of capture *was neutral, and delivered on bail pending the proceedings, and hostilities [*636] subsequently intervene with the neutral country, and, in consequence thereof, the property is condemned to the government, it seems that the Court is not in the habit of enforcing the bail bond in such cases; because the event was not originally in the contemplation of the parties, at the time they entered into the security.() Whether this doctrine would be sustained in the North American United States, is, according to Mr. Justice Story, a question upon which there is no decision to guide the judgment; but he is of opinion that certainly much argument may be used against the asserted exemption; for, the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the Court.(m)

(f) The Betsey, 5 Rob., p. 295, and p. 296, note (a).

(g) The Rendsberg, 6 Ib., p. 142.

(i) The Vreede, 1 Dodson, p. 1.

(2) The Nied Elwin, 1 Dodson, p. 50.

(h) 5 Ib., p. 296, note (a).

(k) The Nied Elwin, Ib., p. 50.

(m) As to the jurisdiction of the Prize Court over, 1. The Distribution of Prize proceeds, the reader is referred to the following decisions in the English and North American United States Courts:

ENGLISH.-The Herkimer, Stewart's Rep. p. 128. Home v. Camden, 1 H. Blackstone's Rep. pp. 476, 524. S. C., 2 Ib., p. 633. 4 Durnford & East's Rep., p. 382. Duckworth v. Tucker, 2 Taunton's Rep., p. 7. The Diomede, 1 Acton's Adm. Rep., pp. 63, 239. Gardiner v. Lyne, 13 East's Rep., p. 574. Drury v. Gardiner, 2

PART THE TWELFTH.

[*638]

*CHAPTER I.

OF THE MANNER OF ENDING WAR, AND OF RE-ESTABLISHING PEACE.

DIX. "In totâ Belli administratione non potest securus et Deo fidens animus retineri, nisi semper in Pacem prospectet ;" and again, " Bellum pacis causa suscipitur," are the maxims of Christianity, justice, and reason, expressed by their noble expounder, the ever illustrious Grotius. (a)

When, by use of the legal means of War, the invaded right has been obtained or secured, or the inflicted injury redressed, or the threatened danger averted, -post juris consecutionem(b)--the abnormal state of War must cease, the normal state of Peace must be re-established.(c)

We are, indeed, admonished by Grotius, that if a Peace sufficiently safe can be had, it is not ill obtained even by the condonation of injuries,

Maule & Selwyn, p. 150. Duncan v. Mitchell, 4 Ib., p. 105. Pill v. Taylor, 11 East's Rep., p. 414. Lumley v. Sutton, 8 Durnford & East's Rep., p. 224. The Nostro Signoro del Carmen, 6 Robinson, p. 302. Wemys v. Linzee, Douglas's Rep. p. 324. The Alert, 1 Dodson, p. 236. Several Dutch Schuyts, 6 Rob., p. 48. L'Alerte, 6 Ib., p. 238. The San Joseph, Ib., p. 331. The Babilion, Edwards's Adm. Rep. p. 39. La Clorinde, 1 Dodson's Adm. Rep., p. 436. L'Elise, 1 Dodson's Adm. Rep., p. 442. The Matilda, Ib., p. 367. The Frederick and Mary Ann, 6 Rob., p. 213. Bynkershoek, Q. J. P., l. i. c. xviii., Du Ponceau's ed., pp. 139, 141. AMERICAN.-The St. Lawrence, 2 Gallison's (Amer.) Rep., p. 19. Kean v. The Brig Gloucester, 2 Dallas's (Amer.) Rep., p. 36. Penhallow v. Doane, 3 Ib., p. 54. The Herkimer, 2 Hall's (Amer.) Law Journ., p. 133. Bingham v. Cabot, 3 Dallas's (Amer.) Rep., p. 19. Decatur v. Chew, 1 Gallison's (Amer.) Rep., p. 506. Ex parte Giddings, 2 Ib., p. 56.

As to Prize Agents, see the following decisions:

ENGLISH.-Home v. Camden, 1 H. Blackstone's Rep., pp. 374, 524. S. C., 2 Ib., pp. 5, 33. Willis v. Commissioners, &c., 5 East's Rep., p. 22. The Noysomhed, 7 Vesey's Rep., p. 593. Smart v. Wolff, 3 Durnford & East's Rep., p. 323. The Pomona, 1 Dodson's Adm. Rep., p. 25. The Herkimer, Stewart's Rep., p. 128. The Louis, 5 Robinson, p. 146. The Polly, Ib., p. 147, note. The Printz Henrick von Preussen, 6 Ib., p. 95. The Exeter, 1 Ib., p. 173. The Princessa, 2 Ib., p. 31. AMERICAN.-The St. Lawrence, 2 Gallison's (Amer.) Rep., p. 19. The Brutus, Ib., p. 526. Bingham v. Cabot, 3 Dallas's (Amer.) Rep., p. 19. Kean v. Brig Gloucester, 2 Ib., p. 36. The Herkimer, 2 Hall's (Amer.) Law Journ., p. 133. Hill v. Ross, 3 Dallas's (Amer.) Rep., p. 331. Penhallow v. Doane, Ib., p. 54. (a) L. iii. c. xxv. s. 2. L. i. c. i. s. 1. (c) Albericus Gentilis, 1. iii. c. i. Grotius, 1. iii. c. vi. viii. ix. XV. xvi. xx. Zouch, pars ii. sect. ix. p. 25, ad finem. Wolff, cap. viii., De Pace et Pactione Pacis. Vattel, 1. iv., Du Retablissement de la Paix, &c., ch. i. ii. iii. iv. De Martens, D. des G., 1. viii. c. viii. Ompteda, i. 49, 62, 63, ii. 604, continuat, by Carl Albert Von Kamptz, ss. 321, 331, (356, 360.) Klüber, 2 Abschnitt, c. iii., Recht des Friedens, ss. 317, 329. Hefters, ii. B. 4, Abschnitt: "Die Beendigung des Krieges die Usurpation, und das Postliminium." This part of the work, as indeed the work generally, deserves careful study.

(b) Vide ante, Vol. I. pp. 11, 12.

[*639]

damages, and expenses, especially *among Christians, (d)-for to them their Lord has bequeathed Peace as his peculiar legacy, to them the chosen interpreter of their Lord's Testament has made .peace the theme of his most earnest exhortations. (e) If this admirable doctrine be too excellent for the present condition of the Society of States, it may at least be propounded as an unquestionable proposition of International Jurisprudence that there is a legal as well as moral necessity that, with the ceasing of the causes which justified the inception of the War, the War itself should cease.

Moreover, it is to be remembered that in this cessation every state is interested; because by the conflict between the Belligerents every state, neutral as well as belligerent, is to a certain extent injured; for War, as has been shown, (f) necessarily disturbs the relations and affects the condition, in a greater or less degree, of all states.

In the event, therefore, of a War unlawfully continued, though lawfully begun, it would be morally and legally competent to states who have taken no part in the conduct of the contest, to combine for the purpose of compelling the termination of War and the restoration of Peace.(g)

The state which continues the evils and horrors of War unrighteously, is but little, if at all, less than an offender against the Society of Societies, against the great Commonwealth of States, (h) than the original wrongdoer.

*The duty which Cicero inculcates on the private citizen with [*640] respect to Civil War, is equally the duty of a state in a War of Nations: "Initia belli invitum suscipere extrema libenter non persequi." (i)

DX. There appear to be three ways by which War may be concluded and Peace restored.(k)

1. By a de facto cessation of hostilities on the part of both Belligerents, and a renewal, de facto, of the relations of Peace.

2. By the unconditional submission of one Belligerent to another.

3. By the conclusion of a formal Treaty of Peace between the Belligerents.

DXI. A formal declaration on the part of the Belligerents that War

(d) Vide ante, Vol. I. pp. 22-7.

(e) See this noble passage, 1. iii. c. xxv. s. 3: "Pax ergo tuta satis haberi si potest, et malefactorum et damnorum et sumtuum condonatione non malè constat: præcipuè inter Christianos quibus pacem suam Dominus legavit. Cujus optimus interpres nos vult quantum fieri potest quantum in nobis situm est cum omnibus Pacem quærere."

(f) P. 47. As to what are causæ belli justificæ.
(g) Vide ante, Vol. I. pt. iv. ch. i. On Intervention.
(h) Vide ante, Vol. I. pt. ii. s. vi.

"Cæde nocentûm

Se nimis ulciscens, exstitit ipse nocens."

Ovid, De Pont., i. Eleg. viii. 19, 20. (i) "Ostendistique (Cicero writes to Marcellus) sapientem et bonum civem initia belli civilis invitum suscipere, extrema libenter non persequi."-Epist. ad Fam.,

1. iv. 7.

Grotius (1. iii. c. xxv. s. 3,) misquotes this passage and ascribes it to Sallust. (k) Heffters, p. 311, s. 176.

*St. Paul. Rom. xii. 18.

a