case are not at all, like those of the schooner Emulous, Simpson, &c. claimants in this court, alluded to at the bar. There, the hazard was not for the moment so imminent, nor the means of other succour so distant, doubtful or unattainable. If succour had not been given by the Magnolia, there is every reason to suppose, that none could at a subsequent period have been effectual; for every hour of delay was fraught with additional danger from the nature of the cargo, the situation of the vessel, and the drift of currents. The rule of the maritime law here is, as in other cases, where public policy points to promptitude. and zeal in rendering services, bis dat, qui cito dat.

In cases of derelict the well known and favored rule in ordinary cases is to allow one half as salvage. Although it is not an inflexible rule; yet, is rarely deviated from, except in cases of very extraordinary value, or of very slight hazard. The value of the Boston and cargo, are not so large as to call for any deviation from the common rule on that account; for they do not exceed the sum of nine thousand four hundred dollars; the value of the vessel being $ 4,500, and that of the cargo, $4,894 70.

The hazards encountered by the salvors were not, indeed, very great, beyond putting the Magnolia and her cargo, at the risk of the owner of the vessel. It is said, that the Boston was so hitched to the Magnolia by the chain cable, that from want of suitable implements to unlock the cable, in case the Boston had gone down, the Magnolia must have shared a common fate. If this were so, it ought not to enhance the measure of salvage; for the master of the Magnolia ought to have guarded against any such probable danger, and he cannot avail himself of his own negligence to found any additional title to salvage. On the other hand, I should be sorry to lay down any doctrine, by which it should be supposed, that if in a highly meritorious case of salvage, of derelict, or quasi derelict, there was subsequently no great hazard or labor of an exhausting nature, the salvage was therefore subject to great diminution. I should fear, that such a doctrine would be found as mischievous in practice, as it would be unjust in principle.

Upon questions of this nature, a large discretion must of necessity belong to the public tribunals. It is of great importance, as far as it can be done, to avail ourselves of fixed rules, and habits, in the administration of this delicate duty; and not to

deviate from them, except upon urgent occasions. The rule of salvage in cases of derelict usually is, (as has been said) to give one half; and it has rarely been below two fifths of the value of the property. The learned Judge of the District Court has adopted this latter proportion, and I am unable to see any solid ground of objection to this exercise of judginent.

There is another rule, which has been repeatedly enforced in this court, and in the Supreme Court of the United States, in cases of this nature; and that is, not to encourage appeals upon slight grounds of difference in cases or in opinions. Probably, no two minds acting often independently of each other, would always arrive at exactly the same conclusion, as to amount, in cases of discretionary salvage. Yet each might act for itself with the utmost caution and care and sagacity. I have endeavored in all cases to keep this consideration in view; and the decisions of the Supreme Court admonish me rigidly to adhere to it. Where I cannot perceive a plain and palpable departure from the true principles of salvage, I shall not feel at liberty to reverse a decree upon the mere ground, that I might not originally have awarded the same amount. In the present case, I need not put myself upon this peculiar reason; since I entirely concur in the rate of salvage given by the District Court.

We come next to the consideration of the question of embezzlement, a charge of a most serious nature and deeply affecting the character of the parties implicated. The maritime law demands from all persons engaged in maritime concerns scrupulous good faith and uprightness of conduct. And it prescribes this most emphatically to salvors, giving them a liberal reward for fidelity and vigilance, and visiting them with severe reprobation and diminished compensation for every negligence.' But in cases of embezzlement the law would fall short of its usual foresight, if it did not inflict a more admonitory punishment. Accordingly, it will be found, I believe, in the maritime jurisprudence of the whole world, that embezzlement by salvors, directly or by connivance, is punished by a forfeiture of all claim to salvage. In morals, in general justice, in sound policy, it should be so; for what can be more inhuman, or more thoroughly without apology, than to plunder the distressed, or to add

1 See Mason v. The Blaireau, 2 Cranch R. 240. Abbott on Shipping, P. 4. Ch. 3. S. 5. p. 272 and note. Spurr v. Pearson, 1 Mason R. 104.

the losses of fraud to the unavoidable calamities of shipwreck? In the American and English law, the doctrine is fully recognized; and it is applied with an unfaltering firmness, whenever the fact is clearly established.'

In the present case the embezzlement is charged to have taken place, not during the voyage, but after the arrival in port, but whether before or after the schooner and cargo were in the custody of the Marshal, under the admiralty proceedings for salvage, or before, during, or after the time of the entering of the cargo, is left uncertain in the answer. I say it is charged to have been in port; not indeed in the supplemental answer, as it ought to have been, (for in this respect the answer is quite too loose, and uncertain, and open to exception,) but in the argument on both sides, and in the evidence adduced to support and repel the charge. Under these circumstances a question has been made on the part of the libellants, whether supposing the embezzlement to be established in proof, after the cargo was in the custody of the Marshal, it amounts to any thing more than mere theft, punishable in a criminal proceeding, but not touching in any manner the right to salvage. The argument is, that the embezzlement, to work a forfeiture, must be perpetrated by the salvors during the voyage, or at least during their possession of the salvage property; and that it cannot apply after the property is in the custody of the law. And great reliance is placed on the reasoning in the case of the Blaireau, (2 Cranch, 240) as confirming this distinction. It is a sufficient answer to that case, to say, that no decision was had upon this point. The argument was indeed, pressed by council; but the court, without in the slightest degree countenancing the validity of the distinction, held that it did not apply to the case; for whether the asserted embezzlement took place at sea or in port, it occurred before the salvors had parted with the possession of the vessel or cargo.

I take it to be very clear, according to the course of admiralty proceedings, that no person can come into that court and ask its assistance, unless he can ex aequo et bono make out a case fit for its interposition. A court of admiralty is to the extent of its jurisdiction, at least in cases of this sort, a court of

1 See Mason v. The Blaireau, 2 Cranch, R. 240. Abbott on Shipping, P. 4. Ch. 3 S. 5. p, 272 and note. Spurr v. Pearson, 1 Mason, R. 104.

equity; and the same rule applies here, as in other courts of equity, that the party who asks aid, must come with clean hands. In cases of salvage the party founds himself upon a meritorious service, and upon the implied understanding, that he brings before the court for its final award all the property saved, with entire good faith; and he asks a compensation for the restitution of it uninjured, and unembezzled by him. The merit is not in saving the property alone: but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently lost, and never reaches the owner, no compensation can be claimed or decreed. The proceeding need not indeed, be in rem; for if the thing has come to the possession or use or benefit of the owner, a compensation may be equally decreed upon a libel in personam. So is the doctrine of the Hope, (3 Rob. 215) and the Trelawney, (3 Rob. 216 note ;) and it is founded in the very nature of the admiralty jurisdiction, which primarily acted in personam; and now acts in rem, only as auxiliary to its general authority. The compensation to be awarded, therefore, presupposes good faith, meritorious service, complete restoration and incorruptible vigilance, so far as the property is within the reach or under the control of the salvors. What claim could be more extraordinary than an annunciation by a salvor, in a court of justice, that he had saved the property, and had afterwards perpetrated a gross fraud or theft upon the owner, for the purpose of withdrawing the property from him; and then to ask in the same breath for a compensation for his labor, notwithstanding his iniquity? Such a claim it seems to me, would be at war with the first principles of justice, and certainly with those of all maritime jurisprudence. I hold, that every act of misconduct of the salvors as to the property, fraudulently or wantonly done to the injury of the owners at any time, before the salvage is decreed, is to be treated in the same way, as if it had occurred while the property was in their exclusive possession. They are not responsible, indeed, for embezzlement or fraud committed by strangers, after the property has passed into the custody of the Marshal; nor indeed, before, unless it has been occasioned by their own gross negligence.

But it is not quite correct in point of fact to say, that the possession of the salvors was in this case absolutely divested by

the custody of the Marshal, under the process. His possession is not adverse to that of the salvors; but the property is deemed in the possession of the law for the benefit of all concerned. It is notorious, that in practice the Marshal is accustomed to allow the salvors to have free access to the property, (at his own peril, indeed,) and to place great confidence in them. In the present case the master and mate of the Magnolia, superintended the delivery, under the direction of the Marshal; and the master is stated in the evidence to have watched over it during the night. He was confided in by all parties for this purpose, and if he has abused that confidence, I should hope, that the law was strong enough to deal out to him a due measure of retribution. Suppose, by a connivance between the under officers of the Marshal and the salvors, embezzlement should take place, after the property is in the custody of the law, what answer will it be, that they were criminally liable for the theft, but that they stood civiliter blameless? For myself, I cannot entertain a doubt, that salvors are responsible civiliter for their conduct in relation to the salvage property, so long as it is subject to the decree of the court. It is a wholesome doctrine; and it makes it the interest, as well as the duty of salvors, to act with good faith and never to sleep on their posts, nor to make a merit of their frauds.

There is another point raised in the argument, which is necessary to be discussed, before we proceed to the examination of the facts respecting the asserted embezzlement. The testimony of the master and the mate, (both of whom are libellants) has been taken as evidence in the case, not simply to the facts occurring at the time of the salvage service; but to all the other facts in the case touching the embezzlement. Their testimony is objected to as incompetent; and its competency must now be determined on by the court.

In general, it may be said, that the rules as to competency and incompetency of witnesses known to the common law, are adopted in the Court of Admiralty in the exercise of its jurisdiction as an Instance Court. The proceedings on the prize side of the court are of a peculiar nature, and are governed by a peculiar mode of practice. Generally, speaking, in instance

1 See 2 Wheaton R. Appx. p. 25, 26. The Die Gebroedres, 5 Rob. 343. The Amitie, 5 Rob. 344, note S. C. D. Rob. R. 269 note. Robimett v. The Exeter. 2 Rob. R. 267.