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sovereign, and no individual can have any interest in a prize,

whether made by a public or private armed vessel, but what 101 he receives under the grant of the state. This is a gen

eral principle of public jurisprudence, bello parta cedunt reipublicæ, and the distribution of the proceeds of prizes depends upon the regulations of each state; and unless the local laws have otherwise provided, the prizes vest in the sovereign. (a) But the general practice, under the laws and ordinances of the belligerent governments, is, to distribute the proceeds of captured property, when duly passed upon and condemned as prize (and whether captured by public or private commissioned vessels), among the captors, as a reward for bravery and a stimulus to exertion. (b)

When a prize is taken at sea, it must be brought, with due care, into some convenient port, for adjudication by a competent court; though, strictly speaking, as between the belligerent parties, the title passes, and is vested when the capture is complete ; and that was formerly held to be complete and perfect when the battle was over, and the spes recuperandi was gone. Voet, in his Commentaries upon the Pandects, (c) and the authors he refers to, maintain with great strength, as Lord Mansfield observes in Goss v. Withers, (d) that occupation, of itself, transferred the title to the captor, per solam occupationem dominium prædæ hostibus acquiri. The question never arises but between the original owner and a neutral purchasing from the captor, and between the original owner and a recaptor. If a captured ship escapes from the captor, or is retaken, or if the owner ransoms her, his property is thereby revested. But if neither of these events happens, the question as to the change of title is open to

(a) Grotius, b. 3, c. 6; Vattel, b. 3, c. 9, sec. 164; The Elsebe, 5 C. Rob. 173; Home . Earl Camden, 2 H. Bl. 533. At common law, the goods taken from an enemy belong to the captor. Finch's Law, 28, 178; 12 Mod. 135; 1 Wils. 213. See infra, 357.

(b) Lord Loughborough, 1 H. Bl. 189-191; 2 Wheaton, App. 7, note c, and 71. (c) ii. 1155.

1 The Siren, 7 Wall. 152, 162, 163; The Banda & Kirwee Booty, L. R. 1 Ad. & Ec. 109, 134; Jecker v. Montgomery, 13 How. 498, 515; The Anglia, Blatchf. Pr. 566; The Aigburth, ib. 635; Stewart v. United States, 1 Ct. of Cl. (Nott & H.)

(d) 2 Burr. 683.

113. For a discussion as to who are entitled to share as joint captors at sea and on land, see The Cherokee, 2 Sprague, 235; The Selma, 1 Lowell, 30; Banda & Kirwee Booty, supra.

dispute; and many arbitrary lines have been drawn, partly from policy, to prevent too easy dispositions of the property to

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neutrals, and partly from equity, to extend the jus postli- *102 minii in favor of the owner. Grotius (a) and many other

writers, and some marine ordinances, as those of Louis XIV. and of Congress during the American war, (b) made twenty-four hours' quiet possession by the enemy the test of title by capture. Bynkershoek (c) says that such a rule is repugnant to the laws and customs of Holland; and he insists that a firm possession, at any time, vests the property in the captor, and that ships and goods brought infra præsidia do most clearly change the property. But by the modern usage of nations, neither the twentyfour hours' possession, nor the bringing the prize infra præsidia, is sufficient to change the property in the case of a maritime capture. A judicial inquiry must pass upon the case, and the present enlightened practice of commercial nations has subjected all such captures to the scrutiny of judicial tribunals, as the only sure way to furnish due proof that the seizure was lawful. The property is not changed in favor of neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor;1 and the purchaser must be able to show documentary evidence of that fact, to support his title. Until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. It cannot be alienated or disposed of, but the possession of it by the government of the captor is a trust for the benefit of those who may be ultimately entitled. This salutary rule, and one so necessary to check irregular conduct and individ

(a) B. 3, c. 6.

(b) Valin, lib. 3, tit. 9, art. 8; Journals of the Confederation Congress, March 27, 1781, vii. 59.

(c) Q. J. Pub. b. 1, c. 4 and 5; Martens, Summary, b. 8, c. 3, sec. 11, s. p.

1 The Peterhoff, Blatchf. Pr. 620. A captor does not forfeit his rights as such, and render himself liable to be treated as a trespasser, by delay in sending home his prize for adjudication, if he thinks it necessary, and uses discretion

and good faith. Jecker v. Montgomery. 18 How. 110; Fay v. Montgomery, 1 Curt. 266. See act of Congress, June 30, 1864; 13 U. S. St. at L. pp. 306, 814, c. 174, §§ 1, 28.

ual outrage, has been long established in the English admi* 103 ralty, (d) * and it is now everywhere recognized as the law and practice of nations. (a)

The condemnation must be pronounced by a prize court of the government of the captor sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be, (b) that the sovereign of the captors has a right to inspect their behavior, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally, but it is not lawful for such a court to act in a neutral territory. Neutral ports are not intended to be auxiliary to the operations of the power at war; and the law of nations has clearly ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations. (e)

It was for some time supposed that a prize court, though sitting in the country of its own sovereign, or of his ally, had no jurisdiction over prizes lying in a neutral port, because the court wanted that possession which was deemed essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted to be correct by Sir William Scott, in the case of * 104 the Henrick and Maria, (d) and he acted upon it in a

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(d) Carth. 423; 10 Mod. 79; 12 Mod. 143; 2 Burr. 694; 3 C. Rob. 97, in notis; 1 C. Rob. 139.

(a) The Flad Oyen, 1 C. Rob. 135; The Henrick and Maria, 4 C. Rob. 45; Vattel, b. 3, c. 14, sec. 216; Heineccii Opera, ed. Geneva, 1744, ii. 310, 360; 5 C. Rob. 294; Doug. 591; 8 Cranch, 226; 4 Wheaton, 298; 6 Taunt. 25; 2 Dallas, 1, 2, 4. Every court has the right to inquire into the competency of the jurisdiction of a foreign court to condemn captured property, and if it has none, the sentence is null. The consul of a belligerent in a neutral country has no power to condemn prizes. See cases, Abbott on Shipping, 5th Amer. ed., Boston, 1846, 30-32. But a prize carried into the country of an ally may be condemned there, and even by a consul belonging to the country of the captors; ib. 33.

(b) Rutherforth's Institutes, b. 2, c. 9.

(c) Glass v. The Sloop Betsey, 3 Dallas, 6; The Flad Oyen, 1 C. Rob. 135; Havelock v. Rockwood, 8 T. R. 268; Oddy v. Bovill, 2 East, 475; Answer to the Prussian Memorial, 1753; L'Invincible, 1 Wheaton, 238; The Estrella, 4 Wheaton, 298; The Comet, 5 C. Rob. 285; The Victoria, Edw. Adm. 97.

(d) 4 C. Rob. 43.

prior case. (a) But he considered that the English admiralty had gone too far, in supporting condemnations in England of prizes abroad in a neutral port, to permit him to recall the vicious practice of the court to the acknowledged principle; and the English rule is now definitively settled agreeably to the old usage and the practice of other nations. The Supreme Court of the United States has followed the English rule, and it has held valid the condemnations, by a belligerent court, of prizes carried into a neutral port, and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war; and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub potestate, of the captor. (b) 1

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5. Ransom Bills. Sometimes circumstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to ransom it. It was formerly the general custom to redeem property from the hands of the enemy by ransom; and the contract is undoubtedly valid, when municipal regulations do not intervene. It is now but little known in the commercial law of England, for several statutes in the reign of George III. absolutely prohibited to British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity, to be judged of by the court of admiralty. (c) A ransom bill, when not locally prohibited, is a war contract, protected by good faith and the law of nations; and notwithstanding that the contract

(a) Note to the case of the Herstelder, 1 C. Rob. [119] 100, Philadelphia ed.

1810.

(b) 6 C. Rob. 138; note to the case of the Schooner Sophie; Smart v. Wolff, 3 T. R. 323; Bynk. by Duponceau, 38, note; Hudson v. Guestier, 4 Cranch, 293; Williams v. Armroyd, 7 Cranch, 423. In the treaty between the United States and the Republic of Colombia, in 1825, art. 21, and of Chili, in 1832, art. 21, it was agreed that the established courts for prize causes in the country to which the prize may be conducted should alone take cognizance of them.

(c) 1 Chitty, Comm. Law, 428.

1 The Polka, Spinks, Prize C. 57; The Zavalla, Blatchf. Pr. 173; Jecker v. Montgomery, 13 How. 498, 515; s. c.

r1 See Revue de Droit International, passim, for articles on prize law, and for

18 id. 110. See act of June 30, 1864 13 U. S. St. at L. 306, 814, c. 174, § 28.x1

discussions of the proposition to establish an international prize court.

is considered in England as tending to relax the energy of * 105 war, and * deprive cruisers of the chance of recapture, it is, in many views, highly reasonable and humane. Other maritime nations regard ransoms as binding, and to be classed among the few legitimate commercia belli. They have never been prohibited in this country; and the act of Congress of August 2, 1813, interdicting the use of British licenses or passes, did not apply to the contract of ransom. (a)

The effect of a ransom is equivalent to a safe-conduct granted by the authority of the state to which the captor belongs, and it binds the commanders of other cruisers to respect the safe-conduct thus given; and under the implied obligation of the treaty of alliance, it binds equally the cruisers of the allies of the captor's country. (b) From the very nature of the connection between allies, their compacts with the common enemy must bind each other, when they tend to accomplish the objects of the alliance. If they did not, the ally would reap all the fruits of the compact, without being subject to the terms and conditions of it; and the enemy with whom the agreement was made would be exposed, in regard to the ally, to all the disadvantages of it, without participating in the stipulated benefits. Such an inequality of obligation is contrary to every principle of reason and justice. (c)

The safe-conduct implied in a ransom bill requires that the vessel should be found within the course prescribed, and within the time limited by the contract, unless forced out of her course by stress of weather or unavoidable necessity. (d) If the vessel ransomed perishes by a peril of the sea, before arrival in port,

the ransom is, nevertheless, due, for the captor has not * 106 insured the prize against the perils * of the sea, but only against recapture by cruisers of his own nation, or of the allies of his country. If there should be a stipulation in the ransom contract, that the ransom should not be due if the vessel was lost by sea perils, the provision ought to be limited to

(a) Azuni on Maritime Law, ii. c. 4, art. 6; 1 Emerigon, c. 12, sec. 21; 2 Valin, art. 66, p. 149; Le Guidon, c. 6, art. 2; Grotius, b. 3, c. 19; Goodrich v. Gordon, 15 Johns. 6.

(b) Miller v. The Resolution, 2 Dallas, 15.

(c) Miller v. The Resolution, 2 Dallas, 15; Pothier, Traité du Droit de Propriété, No. 134.

(d) Pothier, Traité du Droit de Propriété, Nos. 134, 135.

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