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depends in some degree upon the time of capture. If such vessel be seized on her way to such intermediate port, the presumption of law is that she was going thither for the purpose of violating the licence. But if taken after leaving the intermediate port, with the identical cargo which she carried in, and while actually proceeding for her lawful destination, the presumption of mala fides would be removed. Touching at an interdicted port vitiates the licence, unless expressly permitted in the licence itself.1

§ 26. The fifth point to be considered is the time limited in the licence. There is a material distinction between the construction of a licence for the exportation of goods to an enemy's port, and one for an importation merely. Where the licence requires that the goods to which it relates shall be exported on or before a certain day, a delay for a single day beyond that which is specified, renders the licence wholly void. But not so with respect to importations. If the party having a licence be prevented from commencing the voyage, or be delayed in its prosecution by stress of weather, the acts of a hostile government, or other similar cause, over which he has no control, the time thus consumed is not to be considered in computing the period that the government intended to allow. But if he takes upon himself, at his own discretion, to extend the period specified, he loses the protection to which he would otherwise have been entitled.2

§ 27. A licence does not act retrospectively, and cannot take away any interest which is vested by law in the captors. Thus a vessel was captured on the 24th January, with an expired licence on board. Another licence was obtained, and its date carried back to January 20th. It was held by the court that the vessel at the time of capture was not protected either by the licence which had expired, or by that subsequently obtained.3

The 'Europa,' 1 Edw. R., 342; the Frau Magdalena,' 1 Edw. R., 367; the Hoppet,' 1 Edw. R., 369.

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The 'Sarah Maria,' 1 Edw. R., 361; the 'Diana,' 2 Act. R., 34; theolus,' Dod. R., 300; Williams v. Marshall, 6 Taunt. R., 390; Tullock v. Boyd, 7 Taunt. R., 468; Freeland v. Walker, 4 Taunt. R.. 478; Effurth v. Smith, 5 Taunt. R., 329; Siffken v. Glover, 4 Taunt. R., 77; Leevir v. Cormac, 4 Taunt. R., 483; Siffken v. Allnut, I M. and Sel., 39; Gronting v. Crockatt, 3 Camp. R., 55

Duer, O Insurance, vol. i. p. 618; Wildman, Int. Law, vol. ii. p. 265; the Vrouw Deborah,' 1 Dod. R., 160; the 'St. Ivan,' Edw. R.,

§ 28. Moreover, a licence, not on board at the time of capture, but afterwards endorsed for it by the shipper, is no protection. If the licence be general in its terms, the mere fact of its being found on board is not sufficient, unless it has been appropriated to such ship by an endorsement to that effect, or by some positive evidence that this application was intended by the parties entitled to its use. These rules are obviously necessary to prevent a misapplication of the licence by persons not having a right to avail themselves of its protection.1

§ 29. A licence is vitiated and becomes a mere nullity by an alteration of its date. In this respect licences are governed by the same rules as other grants issued by the supreme power of the State; they are utterly vitiated by any fraudulent alteration, and any change is primâ facie fraudulent. It may, however, be explained.2

§ 30. A licence to trade with a port of the enemy does not serve as a protection for a breach of blockade, in case the port is blockaded; nor does it afford any protection for carrying goods contraband of war, enemy's despatches, or military persons, or for a resistance of the right of visitation and search; in fine, it can cover no act not expressly mentioned in the licence or implied as a means necessary for its execu

tion.3

376; the Edel Catharina,' 1 Dod. R., 45; Henry v. Stanniforth, 4 Camp. R., 270.

The 'Speculation,' Edw. R., 344; the 'Fortuna,' Edw. R., 236; the 'Carl,' Edw. R., 339.

2 The 'Louise Charlotte,' 1 Dod. R., 308; the 'Aurora,' 4 Rob., 218;

the 'Diana,' 2 Act. R., 54.

The Nicoline,' 1 Edw. R., 364; the 'Acteon,' 2 Dod. R., 54; the 'Byfield,' 1 Edw. R., 190.

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CHAPTER XXXI.

RIGHTS AND DUTIES OF CAPTORS.

1. Of captures generally-2. Of maritime captures-3. To whose benefit they enure-4. Title, when changed-5. Where prizes must be taken-6. Of joint captures generally-7. Constructive captures by public vessels of war-8. When actual sight is not necessary-9. Of joint chase-10. Antecedent and subsequent services-11. Ships associated in same enterprise-12. Mere association not sufficient-13Convoying ships-14. Vessels detached from fleet-15. Joint captures by land and sea forces-16. By public ships of allies-17. Constructive captures not allowed to privateers-18. Revenue cutters under letters of marque-19. Joint captures by boats-20. By tenders-21. By prize masters-22. By non-commissioned vessels-23. Public vessels of war and privateers, etc.-24. Effect of fraud on claims to benefit of joint capture-25. Distribution of prize to joint captors— 26. Distribution of head-money-27. Collusive captures-28. Forfeiture of claims to prize-29. Liability of captors for damages and costs-30. Of commanders of fleets and vessels-31. Of owners of privateers-32. Duties and responsibilities of prize masters and prize agents.

§ 1. WE have discussed, in the preceding chapters, the general rights of war over enemy's property, or property rendered hostile by the acts of its owners, or by the circumstances of its use or disposition; it remains to point out more particularly the rights and duties of its captors. As a general principle, capture is not dependent upon the element on which it happens to be made; nevertheless, usage and the decisions of courts have established rules for maritime capture, very different from those applicable to captures on land; and while the latter have, for a long time, undergone very little change, the former have been moulded into a system of regular practice. This has resulted, in part, from the fact that title to ́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 place.1

§ 2. The courts have decided that an act of taking possession is not indispensably necessary to a capture; an obedience to the summons of the hostile force, though none of that force be actually on board, is sufficient. The real surrender (deditio) of a vessel is dated from the time of striking her colours.

In matters of prize, held for adjudication, the tenure of the property seized is eminently qualified, provisional, and destitute of absolute ownership. The captors, by the universal rule of the modern law of civilised nations, become only keepers of the arrested property, for the purpose of submitting it to judicial inquiry and judgment; the question of its confiscability, for violation of the laws of war, preceding and over-riding all other questions of title, or possession by the captors. The distinction between the capture of property by a belligerent, during war waged on land, and a prize seizure, is as definitively marked in consequence and effect as if the two had no common foundation of authority. When property is captured on land by a belligerent, the title passes and is vested so soon as the capture is complete, and the property then belongs absolutely to the sovereign. In regard to a prize taken at sea, the right of property is not changed by the seizure alone. The prize remains in the hands of the captor, lawfully sequestrated, under a species of trusteeship, awaiting a trial at law, in the courts of the nation seizing it. Until the decree of the prize court has transferred the title of the prize to the capturing power, the lawful proprietorship continues with the original possessor, subject to no other use or appropriation by its occupant than that of safekeeping, under arrest, pending judicial proceedings seeking its forfeiture. There is no shadow of authority, existing in a tribunal from whose jurisdiction a subject of litigation is carried, by appeal, to a superior one, to recur to and exercise a renewed power over the subject matter, after it has been submitted to the exclusive judgment of the ultimate tribunal.—The 'Peterhoff, Blatchf. Pr. Cas., 620.

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As to what constitutes probable cause, which will justify a capture, see the Dashing Wave,' 5 Wall., 170 ; the ‘George,' 1 Mas. 24; the 'La Manche,' 2 Sprague, 207. Vessels which pick up enemy's goods, thrown overboard during a chase, are entitled to them as captors, and not as salvors.-The Victory,' Ibid. 226.

The captor has no such interest in the vessel, which is re-captured before condemnation, as entitles him to require the government to press a claim for damages against the neutral government, in one of whose courts the prize was illegally re-captured.-Stewart v. U. S., 1 Ct. of Cl. R., Nott, 2 H., 113.

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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 so 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 committed, 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, etc. 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 pro

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