his way diligently to the selected port, and deliver to the proper authorities of his nation the documents and papers and the inventory, and make affidavit that they are the same, and in the same condition as delivered to him by the commanding officer of the ship making the capture, or explaining any absence or change of condition therein, and that the prize is in the same condition as delivered to him, or explaining any loss or damage thereto; and must deliver the persons sent as witnesses into the custody of the prize court, and retain the prize in his charge until it shall be taken therefrom by process from the prize court.

Act of Congress of the United States, June 30, 1864, § 3, 13 U. S. Stat. at Large, 306.

Persons and things captured as contraband to be brought before a prize court.

885. Except in the case of a voluntary surrender, by the master of a ship captured or detained, as provided in article 877, or of a sale under article 876, all persons and things captured at sea as contraband of war, must be brought on shore in presence of the competent officers of the prize court, and an inventory of such things be made by them; and any interference with such persons or things, and any sale of the things, without lawful process of a prize court, is unlawful.

Treaty between the United States and

Dominican Feb. 8, 1867, Art.
Republic, S

Venezuela, Aug. 27, 1860,

XX., 15 U. S. Stat. at L., (Tr..) 167. XIX., 12 Id., 1143.

Restoration after unlawful capture.

886. It is the duty of a belligerent, having seized persons and things in violation of the provisions of this Book, to set such persons at liberty, to restore such things to their owners, and to give indemnity for the injury.

By the existing rule, a prize captured in violation of neutrality is only restored on demand of the neutral nation; but it seems to be in harmony

with the other provisions of this Book, to disallow this qualification of the obligation, although the usual mode of obtaining redress may be by application by the neutral government.

Lushington, (Naval Prize Law, p. 62, §§ 266, 267,) says, that a ship in neutral territorial waters is not liable to visit, search or detention, even though beyond those limits when first descried or chased. And he adds, that if a commander ascertain that his capture was made in such waters, he must release the prize, if express application be made by the authorities of the neutral territory.

Liability of commander.

3

6

887. The commander' of a visiting ship is responsible, in person and property, for making a capture without probable cause; and for all losses by inevitable accident resulting therefrom, during the detention of the ship; for any extortion, insult or violence caused to persons on board the visited ship; for any embezzlement,' wrongful spoliation of property on board such ship, or other abuse of his lawful authority; and, upon a restoration of the property, for any loss occurring to ship or cargo from neglect of ordinary care in respect thereto, or in consequence of a deviation from a direct route to the port of adjudication; for unnecessary delay in sending the ship into port," or in initiating or prosecuting proceedings for adjudication."

1 The existing rule in respect to captures by public ships is, that the actual wrongdoer alone is responsible for any wrong done or illegality committed on the prize, excepting acts done by members of the seizing vessel in obedience to the orders of their superiors. The Louisa Agnes, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 107. By the above Article the commander alone is made responsible; but perhaps the liability should be extended to others engaged with him.

2 Every marine capture is at the peril of the party. The captor must show just grounds for the violence, or he is liable for damages. Miller v. The Resolution, 2 Dallas' (Fed. Ct. of App.) Rep., 1; Del Col v. Arnold, 3 Dallas' (U. S. Supr. Ct.) Rep., 333; Murray v. The Charming Betsey, 2 Cranch's U. S. Supr. Ct. Rep., 64; Nealey v. Shattuck, 3 Id., 458; affirming S. C., 1 Washington's U. S. Circ. Ct. Rep., 245; Hollingsworth v. The Betsey, 2 Peters' Adm. Rep., (U. S. Dist. Ct.,) 330.

A belligerent cruiser that with probable cause seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrongdoer; the act is not tortious. The order of restoration proves that

the property was neutral; not that it was not taken without probable cause. Jennings v. Carson, 4 Cranch's U. S. Supr. Ct. Rep., 2. To similar effect, The Liverpool Packet, 1 Gallison's U. S. Circ. Ct. Rep., 513; The Rover, 2 Id., 240; Maisonnaire v. Keating, 2 Id., 328.

If a captor transcend his powers and rights, he becomes guilty of a marine trespass, and is amenable in damages for the injury sustained; and where the vessel has been lost in consequence of such illegal acts, the value of the vessel, the prime cost of the cargo, with all charges and the premium of insurance, are to be allowed in ascertaining the damages. The Anna Maria, 2 Wheaton's U. S. Supr. Ct. Rep., 327.

If a ship be detained without probable cause, the liability of the commander extends, says Lushington, (Naval Prize Law, p. 9. §§ 56, 57,) to the extent of making good losses by inevitable accident while the prize was in his hands. If there was probable cause, he is not liable for casualties.

4 By the treaty between the United States and

Dominican) Feb. 8, 1867, Art. XVIII., 15 U. S. Stat. at L., (Tr.,) 167.
Republic, S
Bolivia,

May 13, 1858,

66

XXI., 12 Id., 1003,

the commanders of the public armed ships of either nation, are made responsible with their persons and property for any extortion, violence or ill-treatment caused, when visiting ships of the other nation on the high

seas.

And by the treaty between the United States and Venezuela, Aug. 27, 1860, Art. XXII., 12 U. S. Stat. at L., 1143, the commander is also made liable for all damages, and the interest thereof, of whatever nature the damages may be.

5 Lushington's Naval Prize Law, p. 20, § 109.

6 Misconduct on the part of the captors,-e. g., a wrongful spoliation of property on board a prize,—or separation of the officers or crew from her, may destroy the legality of the capture, and subject the captors, personally, to punishment for the infringement of the laws of maritime warfare. The right of seizure by the belligerent is dependent upon the lawful use of that power by the captors at sea. The Jane Campbell, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 101.

7 Treaty between France and Peru, March 9, 1861, Art. XXV., 8 De Clercq, 201.

8 There is no rule of law which requires a captor to exercise extraordinary diligence in the care of a prize. The case is not distinguishable in this respect from that of a bailment, beneficial to both parties; and the captor is liable for ordinary diligence only. The George, 1 Mason's U. S. Circ. Ct. Rep., 24.

9 The commander is bound to use the strictest care. Omission to employ a pilot in places where pilotage is usual is want of care. Lushington's Naval Prize Law, p. 19, §§ 105-108.

10 Lushington's Naval Prize Law, p. 13, § 71; and cases cited, 11 Id., p. 21, § 115.

The same.

888. The commander of a visiting ship is responsible in damages for the wrongful acts of all under his command, whether he himself is present or absent, when they are committed. He is not exonerated by being under a superior officer, unless the latter was actually present and co-operating, or issued express orders to do the act in question.

Lushington's Naval Prize Law, p. 2, § 7; The Mentor, 1 Ch. Robinson's Rep., 179; The Diligentia, 1 Dodson's Rep., 404; The Acteon, 2 Id., 48; The Eleanor, 2 Wheaton's U. S. Supr. Ct. Rep., 346.

Right of all ships to defend against attack.

889. Subject to the provisions of this Chapter, every ship, whether public or private, has a right to repel the attack of an enemy,' and to capture and send in as prize the attacking ship.

1 Haven v. Holland, 2 Mason's U. S. Circ. Ct. Rep., 230; The Marianna Flora, 11 Wheaton's U. S. Sup. Ct. Rep., 1; affirming 3 Mason's U. S. Circ. Ct. Rep., 116.

2 The Anne, 3 Wheaton's U. S. Circ. Ct. Rep., 435.

Salvage.

890. Where property captured in war is recaptured at sea, the recaptors may send it in to a port of adjudication, in order to have their claim of salvage established.

See Halleck, Intern. Law & Laws of War, p. 867; and note to Article 893.

It is believed that the abandonment of the right of making purely commercial blockades will be but a small sacrifice of belligerent power, compared with the immense diminution it will effect in the evils of war. It has been well remarked by Lushington, (Naval Prize Law, Intro.,

p. xiii.,) that the effect of steam commerce will be to make such blockades, if not more rare, at any rate, of less significance than formerly; since only to ports very exceptionally situated will the temporary loss of maritime intercourse be a very serious matter so long as there is left open to them land communication by railway.

ARTICLE 891. Objects of blockade.

892. "Military port" defined.

Objects of blockade.

891. A belligerent may blockade military ports, and no others, and so far only as is necessary to capture contraband of war.

"Military port" defined.

892. A military port is a fortified port or one occupied by a military force larger than is necessary for the preservation of domestic order.

The principal existing rules, as modified by modern treaties, may be indicated as follows:

1. Objects of blockade. A belligerent may blockade all or any part of the coasts, ports and roadsteads of the hostile nation, so far as necessary for attaining the object of the war.

A war must exist de facto; but a civil war in which one party claims sovereign rights as against the other, is within the rule. Prize Cases, 2 Black's U. S. Supreme Court Rep., 635. And in the case of The Mary Clinton, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 556, it was held that the proclamation of the blockade is sufficient and conclusive evidence of the existence of the war.

2. Classes of blockades. Blockades are either, 1, simple; or, 2, public. A public blockade is one which has been duly notified to other nations by the nation establishing it. All others are simple blockades. ;

In the case of a simple blockade, captors are bound to prove its existence at the time of capture; while in the case of a public blockade, the claimants are held to proof of discontinuance, in order to protect themselves from the penalties of attempted violation. The Circassian, 2 Wallace's U. S. Supr. Ct. Rep., 135. Bluntschli, Droit International Codifié, § 831, allows an effective blockade in anticipation of notice.

3. Authority of officer. A blockade of any port established by a commanding officer is not void for want of special authority, unless disavowed by his government. Some authorities question the right of an