CCCLVI. By a Treaty between England and the United Provinces, in 1654, if the ships of either party were taken by an enemy in the port of the other, being Neutral, the latter engaged to pursue and oblige the captor to restore his prize. A similar engagement was made by the Treaty of 1669, between England and Denmark, with the clause that such pursuit was to be at the expense of the captured ship.(a) 4. To whose benefit does the Capture enure ?

The right to all captures vests primarily in the Sovereign. When the benefit of a capture enures to the benefit of an *individual, it is [*459] in consequence of a grant of the State of which he is a subject. Some States, indeed, like Portugal, seem, during the last war, to have reserved the property for the use and benefit of the State; others, as Great Britain, grant out the property to its captors. The original right is in all cases in the State.

If two States join their forces for a common capture, one of which has granted out its interest to captors and the other has not, the only effect which the difference of practice, in dealing with the booty, will have, is that the proportion of the value will pass to the captor in one instance, and will remain to the State in the other, if that State chooses to assert its rights against the pretensions of its own captors. (b)

The general practice, indeed, of States(c) is to distribute the proceeds of the capture when duly condemned as prize among the captors.

*But the general principles of public jurisprudence is that [*460] «bello parta cedunt Reipublicæ." The distribution of the pro

ceeds of prizes, therefore, depends upon the regulations of each State, and unless the local law has otherwise provided, the prize vests in the Sovereign ;(d) and it has been decided by the English Prize Court, that and the British Minister (Lord Ashburton) relative to the case of the steamboat Caroline, on the Canadian border, and seemingly admitted by Lord Ashburton, that to justify a hostile entrance upon neutral territory, there must exist a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.

(a) Dumont, Corps Dipl., VI. i. p. 129, and vi. ii. p. 76. (b) The ships taken at Genoa, 4 Rob., p. 403.

(c) The French Guiana, 2 Dodson's Adm. Rep., p. 157.

The present Prize Act, (17 Vict. c. 18,) in accordance with many precedents, begins as follows, "Whereas her Majesty, by her Order in Council, dated the 29th day of March, in the year 1854, was pleased to order that general reprisals be granted against the ships, vessels, and goods of the Emperor of All the Russias, his subjects, and others inhabiting within any of his countries, territories, or dominions, so that her Majesty's fleets and ships shall and may lawfully seize all ships, vessels, and goods belonging to the Emperor of All the Russias, or his subjects, or others inhabiting within any of his territories, countries or dominions, and bring the same to judgment in such Courts of Admiralty within her Majesty's dominions, possessions, or colonies, as shall be duly commissioned to take cognizance thereof: and whereas her Majesty hath of her royal munificence been graciously pleased, by her proclamation bearing the same date, to declare her intention to give the benefit of all prizes taken during the present war to the captors thereof, being in her Majesty's service (save as therein excepted.) Now, for the encouragement of the officers, and crews of her Majesty's ships and vessels of war, and for inducing all British seamen, who may be in any foreign service, to return into this kingdom, aud become serviceable to her Majesty; and for the more effectually securing and extending the trade of her Majesty's subjects: be it enacted," &c.

(d) “At de his quæ actu bellico capit alia est ratio. Ibi enim singuli reipub

the power of the Crown to direct, before adjudication and against the will of the captors, the release of property seized as prize, is not taken away by any grant of prize conferred in the Order of Council, the Proclamation, or the Prize Act, these being the instruments which in England regulate the distribution of the proceeds of captures. (e)

It requires but little reflection to see how necessary the preservation. of such a power must be to the Government of any State in its relations with foreign States.

CCCXLVII. 5. When does it so enure?

Strictly speaking, and as regards the belligerents only, the title passes and is vested when the capture is complete; and that is complete when the deditio has taken place, or when the battle is over and the spes recuperandi is gone.(ƒ)

[*461]

*Grotius(g) and other writers who have followed in his track, the Marine Ordinances of certain countries, e. g., those of France and of the North American United States, make twenty-four hours' quiet possession the test of title by capture. Bynkershoek maintains that a firm possession at any time vests the property in the captor; and that there can be no doubt but that the ownership of captured property brought infra præsidia is vested in the captors.

Voet argues strongly that it vests immediately upon capture. (h) This is clearly the opinion which is warranted by the reason of the thing.(i) It is not, however, to be regretted that by the modern usage of States, neither the twenty-four hours, nor the bringing the prize infra præsidia, is sufficient to change the property of a captured vessel.

licæ personam sustinent, ejusque vice funguntur, ac proinde per eos populus, si lex civilis aliud non statuat, ut possessionem ita et dominium nanciscitur, et id in quos vult transfert."-Grotius, 1. iii. c. vi. s. 14.

"Naturellement ce butin n'appartient pas moins que les conquêtes au souverain qui fait la guerre, car lui seul a des prétentions à la charge de l'ennemi, qui l'autorisent à s'emparer de ses biens et à se les approprier. Ses soldats, et mêmes les auxiliaires, ne sont que des instruments dans sa main pour faire valoir son droit. Il les entretient et les soudoie; tout ce qu'ils font, ils le font en son nom et pour lui. S'ils ne sont pas pas associés dans la guerre, elle ne se fait point pour eux; ils n'ont pas plus de droit au butin qu'aux conquêtes. Mais le souverain peut faire aux troupes telle part qu'il lui plaît du butin."-Vattel, 1. iii. c. ix. s. 164.

(e) The Elsebe, (the leading case) 5 Rob. p. 173. (f) 1 Kent's Comm., p. 101. (g) L. iii. c. 9, s. 16. "Eæ vero res quæ intra præsidia perductæ nondum sunt, quanquam ab hostibus occupatæ, ideo postliminii non egent quia dominum nondum mutarunt ex gentium jure. This doctrine is taken from the Roman Law. See-Dig. Ixix. tit xv. De Captivis et de Postliminio, &c. Ib., s. v. 3 1: "In bello cum hi, qui nobis hostes sunt, aliquem ex nostris ceperunt, et intra præsidia sua perduxerunt." See, too, analogies furnished by-Dig., xli. t. i.: "De acquirendo rerum domino," s. 44. Dig. x. t. ii.: "Familiæ erciscundæ," s. 8. On the other hand-Dig. xli. t. ii.: "De acquirendâ vel amittendâ possessione." Ib., s. 1. 2 1: "Item bello capta. ejus fiunt, qui primus possessionem eorum nactus est.' (h) Comm. ad Pandectas, t. iv. (ed 1829, Constantiis) p. 644, lib. xlix. tit xv. iii. (i) "By some writers (Lord Stowell says) possession alone has been deemed sufficient; but that rule, however agreeable to notions of natural occupancy, is defective in practical convenience; and therefore a middle doctrine has generally prevailed, under which it has been held, that something of a secure and definite possession is required to establish and complete the property in prize; that it should be in the possession of the captor twenty-four hours, or that it should be brought infrà præsidia." The Henrick and Maria, 4 Robinson, p. 46, De Martens, Précis du Dr. des G., 1. iii. c. vii. s. 322. Lampredi, s. 13. The Henrick and Maria, 4 Robinson, p. 55.

[*462]

International Law now requires that a judicial tribunal *should exercise, according to the known laws and approved practice of nations, a scrutiny into the circumstances of the capture, and that a regular sentence of condemnation should be pronounced by a court of competent jurisdiction; that is, as will presently be seen, a Court belonging to the sovereign of the Captor; documentary evidence of this fact must be produced in support of any title on behalf of any person other than the original owner.

CCCLVIII. This proposition of International Law was firmly incorporated into the Common Law of England by a decision of Lord Mansfield in 1758.(k)

The case which gave rise to this result related, indeed, to a question of insurance. The judgment decided that an insured ship being taken, the insured may demand as for a total loss, and abandon to the insurer.

It was agreed by all the Judges, that whether by the capture in question the property was or was not transferred to the enemy by International Law, was immaterial as between the insurers and the insured.

That question, it was truly said, could only arise in two cases:

1. Between the owner and a Neutral who had purchased from the

enemy.

2. Between the owner and a recaptor.

Nevertheless this eminent jurist and judge proceeded to consider this question and expressed himself as follows:

"If the ship taken by an enemy escapes from the enemy, or is retaken, or if the owner redeems (ransoms) the capture, his property is thereby revested, which property in the ship taken was, by the Law of Nations, obtained by the captor.

[*463] в дисе

"The general proposition of writers upon this subject is, *that ab hostibus capiuntur, statim capientium fiunt,' which is to be understood when the battle is over.' Indeed, nothing can be said to be taken till the battle is over, and the battle is not over till all immediate pursuit has ceased, and all hope of recovery is gone. This is the definition of a capture, referred to by our Prize Act, 29 Geo. II. c. 34, of a ship taken by the enemy. And, accordingly, Voet in his Commentary upon the Pandects, lib. xlix. tit. xv. vol. ii. p. 1155, and many authors he refers to, maintain with great strength, 'per solam occupationem dominium prædæ hostibus acquiri.'

"One argument used to prove it is, that the instant the captor has got possession, no friend, no fellow-soldier or ally, can take it from him, because it would be a violation of his property.'

"But other writers and States have drawn other lines by arbitrary rules, and partly from policy, to prevent too easy dispositions to Neutrals ; and partly from equity, to extend the jus postliminii in favour of the owner. No wonder there is so great uncertainty and variety of notions amongst them about fixing a positive boundary by the mere force of rea

(k) Goss and another v. Withers, 2 Burrows's Reports, p. 693. In this case reference will be found to some old cases at common law, from which it would appear that formerly goods taken from the enemy belonged at once to the captor.

son, where the subject-matter is arbitrary, and not the object of reason alone.

“Some have said, from the Roman law (which was introduced in favour of the liberty and condition of a Roman citizen taken captive,) that the prize must be brought infra præsidia;' but what custody at sea should be equal to præsidia at land,' is a new fund of dispute, and leaves the matter just where it was.

"The writers whom Grotious follows, and many more who follow him, and some nations,(7) have made twenty-four hours' quiet possession by the enemy the criterion. But this Bynkershoek, (m) and other writers whom he follows, and several nations, absolutely deny.

* Some have said that the ship must be carried into the enemy's port, condemned there, sail out again, and arrive in a [*464]

friend's port. All these circumstances are very arbitrary, and therefore this is generally exploded.

"I have taken the trouble to inform myself of the practice of the Court of Admiralty in England, before any Act of Parliament commanded restitution, or fixed the rate of salvage; and I have talked with Sir George Lee, who has examined the books of the Court of Admiralty, and informs me, that they held the property not changed, so as to bar the owner, in favour of a vendee or re-captor, till there had been a sentence of condemnation; and that in the reign of King Charles II., Sir Richard Floyd (father of the late Sir Nathaniel) gave a solemn judgment upon the point, and decreed restitution of a ship retaken by a privateer, after she had been fourteen weeks in the enemy's possession, because she had not been condemned. Another case, upon the same principle, against a vendee, is cited at the end of Assievedo v. Cambridge,(n) in 1695, after a long possession, two sales, and several voyages."

CCCLIX. With respect to the vesting of the right of capture, according to the law of England, Lord Loughborough remarks, that before the sixth year of the reign of Queen Anne, there were no laws made on this subject. Previous to that time, all prizes taken in war were of right vested in the Crown, and questions concerning the property of such prizes were not the subject of discussion in Courts of Law. But in order to do justice to claimants, from the first year after the restoration of Charles the Second, special commissions were issued to enable the Courts of Admiralty to condemn such captures as appeared to be lawful prizes, to give relief where there was no colour for the taking, and *generally [*465] to make satisfaction to parties injured. By the Act of the 13 Car. II. c. 9,(o) indeed, some regulations were made concerning the treatment of ships taken, but no provisions enacted respecting any security to be given on delivery: the sole interest in the thing condemned being in the Crown, it was in public custody, and the disposition of it a mere matter of prerogative; no such provisions therefore was necessary. But in the sixth year of Queen Anne, it was thought proper, for the encouragement of seamen, to vest in them the prizes they should take; and for

(1) Vide the Ordonnances of Louis XIV. (m) Q. J. Pub. 1. i, c. iv. (n) Lucas's Reports, p. 79; 10 Modern Reports, p. 77.

(0) Repealed by 22 Geo. II. c. 33,

that purpose the statutes 6 Anne, c. 13, and c. 37, were passed. The first of these Acts only respects proceedings in the Courts of Admiralty in England, but contains no particular directions to them, the practice of those Courts being already settled; the second, 6 Anne, c. 37, is particularly intended for the regulation of the Courts of Vice Admiralty in America, and the operation of it is confined to captures and condemnations there made. One object of that Act was, that the judge should proceed to sentence with all possible expedition. In the fourth section, therefore, this case is provided for; namely, that if, on the preparatory examinations, there should arise a doubt in the breast of the judge whether the capture were prize or not, and further proof should appear to be necessary, the ship and cargo should be appraised by persons named on the part of the captor, and be delivered up to the claimants on their giving good and sufficient security to pay to the captor the full value thereof according to such appraisement, if the ship should be adjudged lawful prize by the same judge. By this provision, the claimant is entitled to the immediate possession of the subject in dispute, which the captor cannot obtain but on the refusal of the claimant to give security for the appraised value. After a sentence of condemnation, the captor has a right to the possession. No appraisement is to *be made

[*466] in case of an appeal; nor is there any provision for a sale by

authority of the Court, in order to ascertain the value. But (by the 8th section of the Act) the appeal is to be allowed in like manner as appeals from the Courts of Admiralty in England, with a special direction that the appellant shall enter into security to prosecute the appeal, answer the condemnation, and pay treble costs, if the sentence shall be affirmed: no direction is given as to any security to be taken from the party appellate, but by reference to the practice of the Court of Admiralty in England on appeals to the Sovereign; and it is added, that the execution of the sentence shall not be suspended by reason of any appeal.(p)

CCCLX. Before this part of the subject be dismissed, it should be observed, that in cases where a captured ship has been purchased, under a title invalid indeed, but not notoriously bad, it has been the practice of the English Court of Prize to decree restitution to the original owner, but at the same time to allow the vendor for an amelioration beyond the ordinary repairs, but not for ordinary repairs. (9)

CCCLXI. 6. What must be done by the Captor after capture, and to what ports may the captured property be taken?

It is incumbent on the captor-as will be seen more at length in a subsequent chapter-to bring his prize as speedily as may be consistent with his other duties within the jurisdiction of the Court which has the power of adjudicating upon it. But he may find it necessary to touch at a neutral port, or to deposit, if permitted, for a while his prize therein: of course, no doubt can arise as to the lawfulness of taking the prize into the port of an ally. According to the law of the English Prize Court, it

(p) Brymer v. Atkins, 1 H. Blackstone's Rep., pp. 189-190.

(2) The Kierlighett, 3 Rob., p. 96 The Perseverance, 2 Ib., p. 239. See Dig., v. 1. iii. 38, de hæred petit.