The Dos Hermanos — 23 U.S. 306

23 U.S. 306 (____) 10 Wheat. 306 The DOS HERMANOS. SHIELDS, Claimant. Supreme Court of United States. *307 Mr. C.J. Ingersoll, for the appellants. The Attorney General, contra. *309 *310 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 no 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 *311 in a very clear care 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 was 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 prayed. 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.

Public-domain opinion of the United States Supreme Court, reproduced from the court record (U.S. Reports). Historical text may contain OCR artifacts. Provided for reference — not legal advice.