damage which he has occasioned, and that error on his part cannot relieve him from this reparation, the Judge proceeds in these terms :— "En matière des prises l'imprudence des capturés, leur négligence dans l'observation de certaines formes, des procédés équivoques, peuvent souvent compromettre leur sûreté et faire suspecter leur bonne foi. Il peut arriver alors qu'en examinant l'ensemble des faits on reconnaisse qu'une prise est invalide. Mais on peut reconnaître aussi que les capturés par leur conduite ont donné lieu à la méprise des capteurs. Dans ce cas il serait injuste de rendre ceux-ci responsables d'une erreur que l'on ne peut raisonnablement regarder comme leur ouvrage. Mais quand l'injustice des capteurs ne peut être excusée, les capturés ont incontestablement droit à une adjudication de dommages-interêts." In that case there would appear to have been some colour for the capture, for the tribunal of First Instance had decreed restitution; that order had been reversed by a superior court at Morbihan, which decreed condemnation of the ship and cargo, and this sentence was again reversed by the Conseil des Prises, which decreed restitution, with costs and damages. The same doctrine is laid down by the same eminent authority, about the same period, in the case of the Statira (2 Cranch, 98). The cases in the American Courts fully bear out the statement of the law by Mr. Justice Story in the treatise already referred to, which is in these terms:-" Every capture, whether made by commissioned or non-commissioned ships, is at the peril of the captors. If they capture property without reasonable or justifiable cause, they are liable to a suit for restitution, and may also be mulcted in costs and damages. If the vessel and cargo, or any part thereof, be good prize, they are completely justified, and although the whole property may, upon a hearing, be restored, yet, if there was probable cause of capture, they are not responsible in damages." It may be observed that there is a misprint in this passage in Pratt's edition of Story, p. 35, where the words "possible cause" are substituted for "probable cause." On referring to the Appendix to 2 Wheat. Rep. 8, from which this part of the treatise is copied, the mistake appears; and, indeed, it is obvious from the context. Mr. Justice Story then proceeds to enumerate a great variety of circumstances which have been held to constitute probable cause, but all of a character to throw suspicion on the ship or cargo, and all attributable, in a greater or less degree, to some act or omission on the part of the owners. At p. 39 he lays it down generally :- "If the capture is made without probable cause, the captors are liable for damages, costs, and expenses to the claimants." In the case of the Maria Schroeder, in 1800 (reported 3 Rob., 152), Lord Stowell says:-" It is not necessary that the captor should have assigned any cause at the

time of the capture; he takes at his own peril, and on his own respousibility, to answer in costs and damages for any wrongful exercise of the rights of capture. In the case of the Triton, in 1801 (4 Rob., 79), the same learned Judge expresses himself thus:-"This being the case of a voyage between two neutral ports, without any doubt on the destination, and without any sufficient ground of seizure, I think the claimants are entitled to costs and damages." In the case of the William (6 Rob., 316), the same learned Judge states :-" When a capture is not justifiable, the captor is answerable for every damage.” And the same law is laid down in the case of the Acteon (2 Dods., 51), which we shall presently have occasion to state more fully. In the case of the Elizabeth, before the Lords of Appeal in 1809 (1 Acton, 13) Sir William Grant-an authority upon such subjects second only, if second, to Lord Stowell-is reported to say "We order the vessel to be restored; and, as we are of opinion there appears scarcely any ground for justifying the detention of the vessel, condemn the captor in costs." There appears in that case to have been, in the opinion of the Court, some, though but little, ground for the seizure, and the decree is for restitution without damages; but the captor, who had obtained a decree in the Court below, is condemned in the costs of the appeal. We have referred to the original order in the minute book, the case being loosely stated in the report. The result of these authorities is, that in order to exempt a captor from costs and damages in case of restitution, there must have been some circumstances connected with the ship or cargo, affording reasonable ground for belief that one, or both, or some part of the cargo, might prove, upon further inquiry, to be lawful prize. What shall amount to probable cause, so as to justify a capture, cannot be defined by any exact terms. The question was discussed before Mr. Justice Story, in the case of the George (1 Mason, 26), when it was contended that, in order to exempt captors from costs and damages, the case against the ship at the time of seizure must be such as primâ facie to warrant condemnation, or at all events that a restoration by a Court of Prize, without further proof, is conclusive evidence of a defect of probable cause. Mr. Justice Story expresses his dissent from these propositions, in which we agree with him; and he then expresses himself in these terms:- "If, therefore, there be a reasonable suspicion of illegal traffic, or a reasonable doubt as to the proprietary interest, the national character, or the legality of the conduct of the parties, it is proper to submit the cause for adjudication before the proper prize tribunal; and the captors will be justified although the Court should acquit without the formality of ordering further proof." In this case there was abundant ground of suspicion, and the demand of damages was

rejected. Neither in the text, nor in the decided cases to which we have thus referred, do we find it stated that, in order to subject captors to condemnation in costs and damages, vexatious conduct on their part must be proved (except as some degree of vexation is necessarily implied in the detention of a vessel without reasonable cause after she has been searched), or that honest mistake, though occasioned by the act of the Government of which they are subjects, can relieve them from their liability to make good to a foreigner and neutral—and with this case alone we are dealing-the damage which by their conduct he has sustained. Nor is it easy to perceive upon what grounds of reason or justice such excuses could rest. If costs and damages were inflicted as a punishment on captors, honest intention would be a consideration of the greatest weight, but the principle on which they are awarded is that of affording compensation to a party who has been injured. Vexatious conduct on the part of the captors has in some cases been alluded to as removing all reluctance on the part of the Judge to award costs and damages, as in the Nemesis (Ed. R., 50); or, as forming a ground for what are termed vindictive damages; or, for subjecting the captors to costs and damages, or depriving them of their expenses, when, but for such conduct, they might have been entitled to their expenses against the claimants, as in the cases of the Speculation (2 Rob., 254), the Washington, (2 Rob., 275), and several others: but no case was cited to us at the bar, nor have we been able to find any, in which wilful misconduct on the part of the captors has been stated to be a necessary ingredient in an ordinary condemnation in costs and damages. So as to error occasioned by the proceedings of their own Government. The captors act as the agents of the State of which they are citizens, and which must ultimately be responsible for their acts. Prize courts afford the remedy as between the individuals, which otherwise must be sought by the Government of the claimants against the Government of the captors; but the mode of proceeding cannot affect the right to redress, and if the State could not urge its own mistakes as a justification of its own wrong, neither, it should seem, should individual citizens be permitted to do 80. The law of nations upon these points appears to us to be settled by decisions both in the American and European courts. In the case of the Charming Betsy in 1804 (2 Cranch, 123), the captain of an American ship of war had seized in America a vessel which was held upon the evidence to have become Danish property. The Court was of opinion that the orders issued by the American government were such as might well have misled the captor; but it was decided (the judgment being delivered by a most eminent lawyer, Chief Justice Marshall) that the claimants were entitled to costs and damages

against the captors (though not vindictive damages, which had been awarded in the Court below), and that the officer, if he had acted in obedience to orders, or had been misled by his Government, must be indemnified by the State. Precisely the same doctrine, though without reference to this decision, was laid down some years afterwards in the case of the Acteon (2 Dods., 51). There an American ship, sailing under a British license, had been captured by one of His Majesty's frigates, under the command of Captain Capel, who, being unable to spare men to take charge of her, had destroyed the vessel and cargo. It was a case, therefore, in which all possible suspicion of selfish or improper motives for the capture were out of the question; yet Lord Stowell decreed restitution with costs and damages, and laid down the principles of his decision in these terms :-" This question arises on the act of destruction of a valuable ship and cargo by one of His Majesty's cruisers. On the part of the claimants restitution has been demanded, and there can be no doubt they are entitled to receive it; indeed, I understand that it is not now opposed by the captor himself, but it remains to be settled what is to be the measure of restitution, and how far it is to be carried. The natural rule is, that if a party be unjustly deprived of his property, he ought to be put as near as possible in the same state as he was before the deprivation took place-technically speaking, he is entitled to restitution with costs and damages. This is the general rule upon the subject, but, like all other general rules, must be subject to modification. If, for instance, any circumstances appear which show that the suffering party has himself furnished occasion for the capture-if he has by his own conduct in some degree contributed to the loss-then he is entitled to a somewhat less degree of compensation to what is technically called simple restitution. This is the general rule of law applicable to cases of this description, and the modification to which it is subject; neither does it make any difference whether the party inflicting the injury has acted from improper motives or otherwise. If the captor has been guilty of no wilful misconduct, but has acted from error and mistake only, the suffering party is still entitled to full compensation, provided, as I before observed, he has not, by any conduct of his own, contributed to the loss." His Lordship then, after observing that the act of Captain Capel in destroying the vessel might have been a very meritorious act as regarded his own Government, and that he was not chargeable with any corrupt or malicious motives, but acted in all probability in obedience to orders, concludes his judgment in these words :-" But this will not affect the right of the American claimant, whom I must pronounce to be entitled to restitution with costs and damages; and I beg it may be understood that I

do so without meaning in the slightest degree to throw any imputation on the conduct or character of Captain Capel, but merely for the purpose of giving a due measure of restitution to the claimant." This judgment was pronounced by Sir William Scott in the month of April, 1815, almost at the very close of the war, and it is in perfect conformity with the rules laid down at its commencement, in the paper already referred to, in the year 1794. The same decision, on the same grounds, was pronounced by the same learned judge immediately afterwards, in the case of the Rufus. It is needless to refer to all the other cases which were cited at the bar, but there is one large class which so strongly illustrates the principle, that it may be proper to advert to it. We allude to what are called the Cape Nicola Mole cases. In the early part of the last war, a number of French and Dutch vessels and cargoes were captured by British ships, and sent in for adjudication to the Court of Admiralty of St. Domingo. Several of the ships and cargoes were condemned, and the proceeds of the captures distributed in the years 1797 and 1798. It was afterwards discovered that, although the Court of St. Domingo was properly constituted as a Civil Court of Admiralty, and His Majesty's instructions had been addressed to it as a Prize Court, yet, by mistake, no warrant had been issued to give it a prize jurisdiction against France or Holland, although there had been a prize warrant against Spain. Some time afterwards some of the owners of the captured property, having discovered this error, the effect of which was that the Court had no jurisdiction, instituted proceedings in the High Court of Admiralty, calling upon the captors to proceed to adjudication. These proceedings were instituted nearly two years after the sentence, when the property had been distributed, the crews dispersed, the papers probably lost or destroyed, and when it was scarcely probable that the truth of the cases could be made to appear on the part of the captors. In one of these cases Lord Stowell, in 1801, overruled the protest of the captors against the proceedings; and in 1804, in determining a question upon the Registrar's Report (the Driver, 5 Rob. 145), he speaks of it "as one of that unfortunate class of cases in which this Court has felt itself under the necessity of decreeing restitution with costs and damages." In all these cases where restitution was ordered, we believe that, on reference to the Registrar's books, it will be found that the captors were condemned in the costs of the proceedings in the Court at Cape Nicola Mole. Surely, if the absence of misconduct on the part of the captors-if honest error, occasioned by the blunders of the Government, or the consideration of hardship upon individual officers acting in discharge of their duties, could in any case afford a protection against the claims of a neutral, such pro