booty vests almost immediately on possession, while that to prize is acquired, as a general rule, only after condemnation by a competent court. Another cause of this result is the very small value of booty taken in modern wars, as compared with the rich prizes captured on the ocean. Moreover, matters connected with military operations on land have usually been determined by the varying decisions of courts-martial, and of the executive and ministerial departments of government; while those springing from maritime captures have been carefully investigated and decided by judges learned in the law, whose opinions, preserved in printed reports, are discussed by the tribunals of other countries, and commented on by the text-writers of different ages. We propose here to treat only of maritime captures, leaving the subjects of military occupation and conquest for another chapter. consti character § 2. The courts have decided that an act of taking posses- What sion is not indispensably necessary to a capture; an obedience tutes a to the summons of the hostile force, though none of that force maritime be actually on board, is sufficient. The real surrender (deditio) of a vessel is dated from the time of striking her colours. But there must be a manifest intention to retain as prize, as well as an intention to seize, otherwise the capture will be regarded as abandoned. It is therefore generally necessary for the officer who seizes a prize to commit her to the care of a competent prize master and crew, because of a want of a right to subject the captured crew to the authority of the captor's officer. But the capture is not abandoned, though only a prize master is put on board, if the captured crew be subjects of the same government as the captor. It has been shown that, as a general rule, all property belonging to the enemy, found afloat upon the high seas, and all property so afloat, belonging to subjects, neutrals, or allies, who conduct themselves as belligerents, may be lawfully captured. All property condemned is, by fiction, or rather by intendment, of law, the property of enemies—that is, of persons to be considered in the particular transaction. Hence, prize acts and laws of capture, with reference to enemy's property, are construed to include that of subjects, neutrals, and allies, who, in the particular transaction, are to be regarded as enemies. It has also been shown that a belligerent can exercise no rights of war within the territorial jurisdiction of a neutral State, and that this jurisdiction extends, not only within ports, headlands, bays, and the mouths of rivers, but to a distance of three miles from the shore itself. All captures, therefore, made by belligerents, within these limits, are, in themselves, invalid. But this invalidity can be set up only by the government of the neutral State, for, as to it only, is the capture to be considered void; as between enemies, it is deemed, to all intents and purposes, rightful. With respect to the enemy, no right is thereby violated; but with respect to the neutral, an offence has been commited, and he may restore the prize if in his power, or otherwise demand satisfaction. But if he omits or declines to interpose any claim, it is condemnable, jure belli, to the captors. Captures, as already shown, may be made not only by public ships of war and vessels commissioned as privateers, but also by non-commissioned vessels, boats, tenders, &c. This general right to make captures results from the law of war, which places all the inhabitants of one belligerent State in the position of public enemies toward all the inhabitants of the other belligerent State. There, however, is a marked distinction between the rights of the captured property, acquired by public and commissioned vessels, and by those acting without any commission or authority.' Το enable a vessel to make captures which shall enure to the benefit of the captors, it is necessary that she should have a commission; but non-commissioned vessels of a belligerent nation may not only make captures in their own defence, but may, at all times, capture hostile ships and cargoes, without being deemed by the law of nations to be pirates, though they can have no interest in the prizes so captured. 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 possible cause of capture, they are not responsible in damages. 1 Phillimore, On Int. Law, vol. iii. §§ 345, 349; Pistoye et Duverdy, Traité des Prises, tit. ii. 4; Dalloz, Répertoire, verb. 'Prise Maritime,' sec. ii. art. 3; Merlin, Répertoire, verb. 'Prise Maritime,' §§ 2, 4; the 'Julia,' 8 Cranch. R., 189; the 'Esperanza,' 1 Hagg. R., 91; the 'Hercules,' 2 Dod. R., 63; the 'Resolution,' 6 Rob., 386. § 3. The right to all captures vests primarily in the so- The Naval Prize Act, vereign. By the Naval Prize Act, 1864, 27 and 28 Vict., cap. 1884 25, 'nothing in this Act shall give to the officers and crew of any of her Majesty's ships of war any right or claim in or to any ship or goods taken as prize, or the proceeds thereof, it being the intent of this Act that such officers and crews shall continue to take only such interest (if any) in the proceeds of prizes' as may be from time to time granted to them by the Crown.' By s. 29 of the same Act any ship or goods taken as prize by any of the officers and crew of a ship other than a ship of war shall, on condemnation, belong to her Majesty in her office of Admiralty. When the capture enures to the benefit of individuals, it is in consequence of a grant by the State. The distribution of the proceeds of prizes, as has already been stated, must therefore depend upon the regulations of each State. Some are much more liberal in this respect than others. It has been held by the British prize courts that the power of the Crown to direct, before adjudication, the release of captured property, is not taken away by any grant of prize in a prize act, the preservation of such a power in the Crown being necessary in its relations with foreign States. The laws regulating the distribution 1 By royal proclamation of May 16, 1871, ships or vessels being in sight of a prize, as also of the captor, under circumstances to cause intimidation to the prize and encouragement to the captor, shall be alone entitled to share as joint captors. This proclamation provides for the distribution of all net proceeds of prizes, rewards, allowances, salvage awards, and of all bounties and grants whatsoever distributable to the royal navy in the manner of prize money. Under the repealed prize proclamations a captain of marines who happened to be on board a man-of-war when she took a prize, but who did not belong to her complement, only shared as a passenger. (Wemys v. Linzee, 1 Dougl., 324.) A captain of a ship being on board at the time that his ship took a prize was entitled to prize money, even though he was in arrest, and another officer had been sent on board to command. (Lumley v. Sutton, 8 T. R., 224.) * The original right of the Crown to the entire disposal of all maritime prize requires a brief explanation with reference to the office of Lord High Admiral. This office, when not held by a subject, reverts to the Sovereign, but in a capacity distinct from the regal character, and thus continues to have an uninterrupted legal existence. For the maintenance of this high office, when conferred upon a subject, an ancient royal grant was made of certain kinds of maritime prize, which became wholly divested from the Crown and permanently attached as perquisites to the office of Lord High Admiral. These perquisites are called droits of the Admiralty; and the ancient grant is recognised by an Order of Council of King Charles II. (1665-6). See Hay and Marriotts Reports, 50; 2 and 3 Will. and Mary, c. 2; 7 and 8 Geo. IV., c. 65. Title, when of the proceeds of captures apply only after condemnation.1 §4. On the completion of the capture, the title to the capchanged tured property vests in the captor, or rather in his Sovereign ; and, as a general rule, capture is deemed complete when the surrender has taken place, and the spes recuperandi is gone. With respect to booty, it is universally conceded that twentyfour hours' possession completes the title of the captor, and the same rule formerly prevailed with respect to maritime captures; but modern usage, after much fluctuation, is likely to settle upon the principle, that the captor acquires an inchoate title by possession alone, and that, to make this complete and perfect, a condemnation by a competent court of prize is necessary.2 By the ancient law of Europe, the perductio infra præsidia, infra locum tutum, was considered necessary for the conversion of the property captured; but much difficulty arose as to what constituted a perductio infra præsidia. By a later usage a possession of twenty-four hours was sufficient to divest the title of the former owner. This, according to the commentaries of Grotius and Barbeyrac, is the meaning of the 287th article of the Consolato del Mare. Bynkershoek and Grotius express themselves to the same effect, and Loccenius considered this rule as the general law of Europe. Lord Stair decided this to be the rule of law in Scotland, and, according to Valin, a similar practice prevailed in France. It was also the ancient law of England, that the former owner was divested of his property, unless it was reclaimed ante occasum solis. But the Ordinance of 1649 directed a restitution upon salvage to British subjects, although the Common Law still prevailed where the enemy had fitted out the prize as a vessel of war. As England became more commercial, it became her settled policy to regard the property of a captured vessel as not changed, without a regular sentence of condemnation, pro 1 De Cussy, Droit Maritime, liv. i. tit. iii. § 26; the Elsebe,' 5 Rob., 173; the 'Gertruyda,' 2 Rob., 211; the 'Eutrusco,' 4 Rob., 262; Ships taken at Genoa, 4 Rob., 388; the 'Thorshaven,' Edw. R., 102; Thurgar v. Morley, 3 Merivale R., 20. A captor of a prize may legally assign his share therein, before condemnation. (Morrough v. Comyns, 1 Wils., 211.) 2 It is a principle of the prize procedure of the United States, that belligerent captors are discharged of liens, or equities, of neutral creditors, resting upon the effects of an enemy seized at sea. (The 'Sally Magee,' Blatchf., Pr. Cas., 382.) nounced by a court of competent jurisdiction, and the title, from the time of capture, till such condemnation, as in abeyance, and not capable of being transferred. This principle is not only recognised by her prize courts, but is now firmly incorporated into her Common Law. The rule, however, is not inflexible, and necessity requires that occassional exceptions should be made to it; this was done in the case of the 'Felicity,' an American prize, taken by H.M.S.'Endymion' in 1814, and destroyed by that cruiser,' the reason of this being that the captain of the 'Endymion' could not send his prize to any British port for adjudication, without reducing his own force, the reduction of which would have sacrificed an immediate and important service on which he was detached. The above rule is adopted by the courts and incorporated into the statutes of the United States. But, as most of the Continental States of Europe adhere, in a measure, to their ancient practice, both Great Britian and the United States adopt toward them, in case of recaptures, the rule of reciprocity, giving to them the same measure of justice which they mete out to others. But this question belongs more properly to another branch of the subject, and will be discussed in chapter xxxv., on the rights of postliminy and recapture.2 § 5. It is incumbent on the captor to bring his prize, as where speedily as may be consistent with his other duties, within prizes the jurisdiction of a court competent to adjudicate upon it.3 1 2 Dods. R., 381; see also the 'Leucade,' Spinks, 220. 2 Wheaton, Elem. Int. Law, pt. iv. ch. ii. §§ 11, 12; Phillimore, On Int. Law, vol. iii., §§ 407 et seq.; Grotius, De Jure Bell. ac Pac., lib. iii. cap. vi. § 3; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. v.; Loccenius, Jus Maritimum, ii. iv. vi. §§ 4, 8; Goss et al. v. Withers, 2 Burr. R., 693; the Ceylon,' 1 Dod. R., 105; 'L'Actif,' Edw. R., 185; Assievedo v. Cambridge, 10 Mod. R., 77; Brymer v. Atkins, 1 H. Black. R., 189; the 'Flodoyen,' 1 Rob., 117; the 'Estrella, 4 Wheat. R., 298. 3 Bello, Derecho Internacional, pt. ii. cap. v. § 5; the 'Peacock,' 4 Rob., 192; Jecker et al. v. Montgomery, 13 Howard R., 516; the 'Principe,' Edw. R., 70; the 'Wilhelmina,' 5 Rob., 143; the Washington,' 6 Rob., 275; the 'Madonna del Burso,' 4 Rob., 169; the 'Corrier Maritimo,' 1 Rob., 287. In the United States the duties of captors of prize are prescribed, by the Act of June 30, 1864, s. 1, 13 Stat. at L., 306. must be taken The following were among the regulations issued by the Navy De- Rules of partment of the United States, August 7, 1876, for the government of United all persons attached to that service : States CH. XX.-2. When a vessel is seized as a prize, it shall be the duty of Navy as the commanding officer of the vessel making the capture to cause all the to prize hatches and passages leading to the cargo to be secured and sealed, except such as it may be indispensably necessary to keep open. The log-book, and all papers relating to the vessel and cargo, shall also be |