retains its custody, notwithstanding an unlivery and deposit in public warehouses. (Phillimore, On Int. Law, vol. 3, §§ 442-444; Smart v. Wolff, 3 Durn. and East. Rep., pp. 323, 329; The Herkimer, Stewart Rep., p. 128; The Maria, 4 Rob. Rep., p. 348; The Rendsberg, 6 Rob. Rep., pp, 142, 174; The Concord, 9 Cranch. Rep., p. 387; The Nereide, 1 Wheat. Rep., p. 171; The Hoop, 4 Rob. Rep., p. 145; Bello, Derecho Internacional, pt. 2, cap. 5, § 5.) § 22. As has already been remarked, it is the duty of the captors to send their prize into a convenient part of their own country, and to immediately bring the case before the proper court for abjudication. If they fail to do this, the claimant may apply to the court for a monition to the captors to proceed forthwith for adjudication, and if they neglect to do so after service and return of such monition, the court will, if a proper case be laid before it, proceed to award not only restitution, but also damages and costs. Even if the captors agree to a restitution, if they have unreasonably delayed to make it, demurrage will be allowed against them. The libel filed by the captors is usually in very general terms, setting forth the facts of the capture, and alleging the captured property to be a subject of prize rights; but the captors are not required at the commencement of the suit to allege the particular grounds upon which they base their claim to a condemnation. But the court may, in its discretion, afterwards order special pleadings. In case of joint captures, the libel is filed by the actual seizors, and those claiming the benefit of joint capture afterwards file their claim, giving bonds to the required amount for costs. On the filing of the libel, the usual practice is to issue a monition, citing all persons who are interested to appear by a given day, and show cause why the specified property should not be condemned as prize, etc. (Bello, Derecho Internacional, pt. 2, cap. 5, §5; Wildman, Int. Law, vol. 2, p. 378; Phillimore, On Int. Law, vol. 3, § 470, et seq.; The Betsey, 1 Rob. Rep., p. 93; The Mentor, 1 Rob. Rep., p. 181; The Huldah, 3 Rob. Rep.. p. 239; The Der Mohr, 3 Rob. Rep., p. 129; The George, 3 Rob. Rep., p. 212; The William, 4 Rob. Rep., p. 215; The Susanna, 6 Rob. Rep., p. 48; The Adeline, 9 Cranch. Rep., p. 244; The Fortuna, 1 Dod. Rep., p. 81; The Conqueror, 2 Rob. Rep., p. 303; Prize Act, 17 Vic. C. 18, § 47.) . § 23. As a general rule, the subject of the enemy cannot appear as a claimant, for he has no persona standi in the court. But if the captured vessel was sailing under a cartel, or flag of truce, and was captured by mistake or under circumstances of suspicion, it is considered to form an exception to this rule, and the enemy master is allowed to appear and claim restitution. A party to be entitled to assert a claim in a prize court, must be the general owner of the property; a person who has a mere lien on the property for a debt, whether liquidated or unliquidated, is not entitled to assert his claim; nor can the mortgagee assert any claim, where the mortgagor has been left in possession. An appearance by a proctor for the claimants, duly entered, cures all defects of process, such as the want of monition or of due notice. And, even assuming, that one partner has no authority to appoint a proctor for all the parties, yet a general appearance for all by a proctor is good and legally binding. A claim must be made by the parties interested, if present, or, in their absence, by the master of the ship, or some agent of the owners. A mere stranger will not be permitted to interpose a claim merely to speculate on the chances of an acquittal. (Phillimore, On Int. Law, vol. 3, §§ 461-466; The Falcon, 6 Rob. Rep., p. 199; The Daifjie, 3 Rob. Rep., p. 143; The Mary, 5 Rob. Rep., p. 199; The Eenrom, 2 Rob. Rep., p. 1; The Tobago, 5 Rob. Rep., p. 218; The Frances, 8 Cranch. Rep., pp. 355, 418; The Marianna, 6 Rob. Rep., p. 24; Balch v. Darrel, Bees Rep., p. 74: Penhallow v. Doane, 2 Dallas Rep., p. 54; Hills v. Ross, 3 Dallas Rep., p. 231.) § 24. A claimant who wishes to procure the restitution of any property captured as prize, must, after the libel is filed, and at or before the return of the monition thereon, or within the time assigned by the court, enter his claim for such property, accompanied with an affidavit, stating briefly the facts respecting the claim and its verity. If the parties themselves are not within the jurisdiction of the court, or at a very great distance, the claim may be sworn to by an agent. Before the claim, duly sworn to, is put in, the claimants are not, as a general rule, permitted to examine the ship's papers, as this might lead to great abuses, but sometimes, on special application, the court will permit so many of the papers to be examined as it may deem proper, in order to enable the claimant to set forth the particular grounds of his claim. The pleadings both on the part of the captors and claimants, are of a very simple character, formed upon the rules and practice of the Roman law. Both the libel and claim are of a general character, special allegations of particular circumstances not being usually made. With respect to the reception of evidence, courts allow every relaxation of technical rules which are permitted to prevail in the country in which it is taken. As a general rule no claim is admitted which stands in entire opposition to the ship's papers and to the preparatory examinations. Nor can any person be permitted to claim in a prize where the transaction in which he is engaged is in violation of the municipal law of his own country, or of that where the court is sitting. Claimants must give bonds for costs and expenses to the amount required by statute or the rules of the court. (Phillimore, On Int. Law, vol. 1, §§ 466–470; The Port Mary, 3 Rob. Rep., p. 233; The Vrouw Anna Catharina, 5 Rob. Rep., pp. 15-19; La Flora, 6 Rob. Rep., p. 1; The Walshingham Packet, 2 Rob. Rep., p. 77; The Eutrusco, 4 Rob. Rep., p. 262; The Cornelis and Maria, 5 Rob. Rep., p. 23; The Abby, 5 Rob. Rep., p. 251; The Recovery, 6 Rep. Rep., p. 341; The Peacock, 4 Rob. Rep., p. 185; The Arabella and Madeira, 2 Gallis. Rep., p. 368.) § 25. When a sentence is pronounced either of acquittal or condemnation, it is generally, in the English prize court, by an interlocutory decree, but in the United States it is the more common practice, to reserve a decree until a final decision of all the questions before the court. Decrees of acquittal, may be either with or without damages and costs, or on condition of paying costs and expenses. If the specific property remains in the custody of the court and restitution is decreed, it is directed to be delivered to the claimant; but if disposed of, the proceeds are so delivered. In case of condemnation in favor of a privateer, it is usual in England, to deliver a decree, with a proper commission to the master of the privateer to make sale of the prize and return an account to the court; but in the United States all sales before and after condemnation, are made by the marshal, who returns the funds to the court to be distributed by its order. (Phillimore, On Int. Law, vol. 3, §§ 493-497; Marriott's Forms, pp. 194, 196; Benedict, Admiralty, §§ 558, 559; The Lively, 1 Gallis. Rep., p. 315; The Rendsberg, 6 Rob. Rep., p. 142; The Fortuna, 4 Rob. Rep., p. 278; The Venus, 4 Rob. Rep., p. 235; U. S. Statutes at Large, vol. 2, pp. 792, 793.) CHAPTER XXXII. RIGHTS OF MILITARY OCCUPATION. CONTENTS. 1. Military occupation and complete conquest distinguished-§2. When rights of military occupation begin-23. Submission sufficient-4. Effect upon political laws-25. Upon municipal laws-6. Punishment of crimes in such territory-87. Laws of England instantly extend over conquered territory-28. Territory so occupied no part of the American Union, but a part of the United States with respect to other countries-29. Effect of this distinction - 10. American decisions-11. Powers of the President respecting such revenues-12. Change of ownership of private property during military occupation-13. Laws relating to such transfers - 14. Allegiance of inhabitants of occupied territory-15. Lawful resistance and insurrection 16. Implied obligation of the conquered- 17. Of the conqueror 18. Right of revolution - 19. Right of insurrection in war - 20. Punishing military insurrections - 21. Historical examples 22. Alienations of territory occupied by an enemy- 23. Alienations made in anticipation of conquest - 24. Private grants so made -25. Transfer of territory to neutrals- 26. Effect of military occupation on incorporeal rights-27. Debts due to the government of the territory occupied28. If former government be restored- 29. Examples from ancient history-30. Examples from modern history. - § 1. The term conquest, as it is ordinarily used, is applicable to conquered territory the moment it is taken from the enemy; but, in its more limited and technical meaning, it includes only the real property to which the conqueror has acquired a complete title. Until the ownership of such property so taken |