*4. To whose benefit does the Capture enure?

5. When does it so enure?

[*450]

6. What must be done by the Captor after Capture? and to what Ports may the captured property be taken?

7. In the Courts of what country must it be adjudicated upon ? 8. Where must the captured property be at the time of condemnation? 9. The forfeiture by misconduct, of the Captor's title to Prize? CCCXLVII. 1. What may be captured?

This question has already been answered in the foregoing chapters. The summary of the details discussed in these chapters is, that all property belonging to the enemy found afloat upon the high seas, and all property so afloat of Subjects or Neutrals conducting themselves as Belligerents may be lawfully captured. (d)

The limitations and mitigations by which this abstract principle of International justice has been curtailed and softened must be sought for in the preceding pages of this volume.

CCCXLVIII. 2. What constitutes Capture?

An act of taking possession is not indispensably necessary to a Capture : an obedience to the summons of a hostile attack or hostile force, though none of the enemy's crew be on board, is sufficient. (e) The attack on an enemy's ship *and the compelling her to run into the port of an ally amounts to legal capture. (ƒ)

[*451]

But if one party take a vessel and afterwards abandon her, and then another take the same vessel, the last seizor is in law the only Captor.(g) But the inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, the property of the Captor may be retained as well by a prize master alone, as by a considerable detachment from his crew." (h)

The real surrender (deditio) of a vessel is to be dated from the time of striking the colours. () Restitution after a first seizure does not bar a second by another seizor, though, if judicially recorded, it would bar the first seizor; but otherwise a second seizure by the same seizor is lawful, though it is made under peril of costs and damages.(k)

(d) See Mr. Justice Story's judgment in the Julia, 8 Cranch's (Amer.) Rep., p. 189. "By fiction, or rather by intendment of law, all property condemned is the property of enemies, that is, of persons so to be considered in the particular transaction."-The Elsebe, 5 Rob. Adm. Rep. p. 176. (e) La Esperanza, 1 Haggard's Adm. Rep., p. 91. Rob. Adm. Rep., p. 305. The Hercules, 2 Dodson's Adm. Rep. p. 363. The Resolution, 6 Rob., p. 13. The William and Mary, 4 Rob., p. 386.

(f) La Esperanza, 1 Haggard's Adm. Rep., p. 91.

(g) The Diligentia, 1 Dodson's Adm. Rep., p. 405.

The Edward and Mary, 3

The Polly and the Margue

ritte, note to the John and Jane, 4 Rob., p. 217. The Lucretia, 1 Hay and Mar

riott's Adm. Rep., p. 227.

(h) The Alexander, 8 Cranch's (Amer.) Rep., p. 180.

(i) The Rebeckah, 1 Rob., p. 233.

(k) The Mercurius, 1 Rob. p. 80. The Woodbridge 1 Haggard, p. 74.

CCCXLIX. 3. Where may Capture be made?

It has been already shown in preceding portions() of this work, that it is not competent to a belligerent to exercise any Rights of War within the territorial jurisdiction of a Neutral State,(m) and that this jurisdiction extends not only *within ports, headlands, and bays, but to [*452] a recognized distance at sea from the shore itself. Thus Captures made by armed vessels stationed in a river of a Neutral Power, or in the mouth of his river, or in his harbours, for the purpose of exercising the rights of War from that river or harbour, are invalid; and where a belligerent ship, lying within neutral territory, made a Capture with her boats sent out of the neutral territory, the Capture was also held to be invalid; for though the hostile force employed was applied to the captured vessel lying out of the territory, yet no such use of a neutal territory for the purpose of War is to be permitted. (n)

CCCL. All Captures, therefore, made by Belligerents within these limits are, at the request of the Government of the Neutral State,(o) pronounced by Courts of International Law to be invalid.

But here two important observations must be made. First, that the request for restitution must be made by some person clothed with authority to represent his Government *in negotiations with foreign States, [*453] and not by a merely public agent, such as a Consul, whose authority extends only to commercial matters. Secondly, as between enemies, a Capture made within Neutral waters is deemed, to all intents and purposes, rightful; it is only by the Neutral Sovereign that its legal validity can be called in question; and as to him, and him only, is it to be considered void. The enemy has no right whatsoever; and if the Neutral Sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the Captors. "This," says Mr. Justice Story, is the clear result of the authorities; and the doctrine rests on well-established principles of public Law."(p)

CCCLI. This restitution as Mr. Wheaton observes, (q) is generally made

(2) Vol. i. chap. iv. viii.

(m) "Jure Belli adversus hostem duntaxat utimur in nostro, hostis, aut nullius territorio. In nostro si hostem deprehendamus, nihil utique prohibet, quominus, si sine libero commeatu ad nos pervenerit, hostiliter eum excipiamus. Ipsum hostis territorium ingredi, et ibi prædam agere, ratio belli permittit. In medio mari, utpote nullius territorio, id ipsum licet. Sed in territorio utriusque amici cui hostem agit, agit et adversus principem, qui ibi imperat, et omnem vim, a quocunque factam, legibus coercet.". -Bynkershoek, Q. J. P., 1. i. c. viii.

(n) The Twee Gebroeders, 3 Robinson, p. 162, (leading English case.) The Anna, 5 ib., p. 373. The Vrow Anna Catharina, ib., p. 15. See the arguments of counsel in the Topaz, 2 Acton's Adm. Rep., p. 20.

(0) Merlin Rep., t. xiii. pp. 111-114. Prise Maritime, ? iv., en quels lieux peut être exercé le droit de prise maritime. See the report of two cases:

1. La Christiana Colbiornsen, restored, as being within neutral territory.

2. Le Daniel Frederick, condemned as having been à plus d'une double portée du canon from the neutral coast at the time of capture. In this case the Procureur-général (Collet Descotils) said: "Le conseil, sait qu'après de longs débats entre les publicistes sur l'entendue que l'on devait donner à la franchise de la mer territoriale, cette éntendue a été définitivement fixée par le droit commun à la portée du canon du rivage."-Ib., p. 113.

The Anne, 3 Wheaton's (Amer.) Rep., p. 447.

Wheaton's Elements of International Law, (Lawrence,) p. 495.

through the agency of the Courts of Admiralty and Maritime Jurisdiction. Traces of the exercise of such a jurisdiction are found in the writings of Sir Leoline Jenkins. () In a letter to the King in Council, dated October 11, 1675, relating to a French privateer seized at Harwich with her prize (a Hamburg vessel bound to London,) Sir Leoline states several questions arising in the case; among which was, "Whether this Hamburger, being taken within one of your Majesty's chambers, and being bound for one of your ports, ought not to be set free by your Majesty's authority, notwithstanding he were (if taken upon the high seas out of those chambers) a lawful prize. I do humbly conceive he ought to be set free, upon a full and clear proof that he was within one of the King's chambers at the time of the seizure, which he, in his first memorial, sets forth to have been eight leagues at sea, over against Harwich. King James (of blessed memory) his direction, by proclamation, March 2, 1604, being, that all *officers and subjects, by sea and [*454] land, shall rescue and succour all merchants and others as shall fall within the danger of such as shall await the coasts, in so near places to the hindrance of trade outward and homeward; and all foreign ships, when they are within the King's chambers, being understood to be within the places intended in those directions, must be in safety and indemnity, or else, when they are suprised, must be restored to it,"otherwise they have not the protection worthy of your Majesty, and of the ancient reputation of those places. But this being a point not lately settled by any determination, that I know of (in case where the King's chambers precisely, and under that name, come in question,) is of that importance as to deserve your Majesty's declaration and assertion of that right of the Crown by an Act of State in Council, your Majesty's coasts being now so much infested with foreign men-of-war, that there will be frequent use of such a decision."(s)

CCCLII. In 1793, the North American United States, remaining Neutral, thought it necessary to define the extent of the distance from their coast within which they claimed jurisdiction; and Mr. Wheaton remarks that Washington, then President, gave instructions to the executive officers to consider it as restrained, for the present, to the distance of one sea league, or three geographical miles, from the sea shores. This distance it was supposed, could admit of no opposition, being recognized by treaties between the United States and some of the Powers with whom they were connected in commercial intercourse, and not being more extensive than was claimed by any of them on their own coasts. As to the bays and rivers, they had always been considered as portions of the territory, both under the Laws of the former Colonial Government and of the present Union, and their immunity from belligerent operations was sanctioned by *the general Law and Usage of nations. The 25th article of the Treaty of 1794 between Great Britain and the [*455] United States, stipulated that "neither of the said parties shall permit the ships or goods belonging to the citizens or subjects of the other to be

(r) Judge of the English High Court of Admiralty in the reign of Charles II. and James II.-Vide antè, vol. i. preface, pp. xxx. xxxi. xxxii.

(8) Life and Works of Sir L. Jenkins, vol. ii. p. 780.

taken within cannon-shot of the coast, nor in any of the bays, ports or rivers of their territories, by ships of war, or others having commissions. from any Prince, Republic, or State whatever. But in case it should so happen, the party whose territorial rights shall thus have been violated, shall use his utmost endeavours to obtain from the offending party full and ample satisfaction for the vessel or vessels so taken, whether the same be vessels of war or merchant vessels." Previously to this treaty with Great Britain, the United States were bound by treaties with three of the belligerent nations (France, Prussia, and Holland,) to protect and defend, “by all the means in their "power," the vessels and effects of those nations in their ports or waters, or on the seas near their shores, and to recover and restore the same to the right owner when taken from them. But they were not bound to make compensation if all the means in their power was used, and failed in their effect. Though they had, when the war commenced, no similar treaty with Great Britain, it was the President's opinion that they should apply to that nation the same rule which, under, this article, was to govern the others above mentioned; and even extend it to captures made on the high seas, and brought into the American ports, if made by vessels which had been armed within them. In the constitutional arrangement of the different authorities of the American Federal Union, doubts were at first entertained whether it belonged to the executive government, or the judiciary department, to perform the duty of inquiring into Captures made within the Neutral territory, or by armed vessels originally equipped, or the force of which had been augumented within the same, and of making restitution to the injured party. But it has been long since settled that this duty *appropriately belongs to the federal tribunals, acting as Courts of Admiralty and Maritime Jurisdiction.(t)

[*456] CCCLIII. It has been judicially determined by the Prize Courts of the North American United States, that this peculiar jurisdiction to inquire into the validity of Captures made in violation of the neutral immunity, will be exercised only for the purpose of restoring the specific property when voluntarily brought within the territory, and does not extend to the infliction of vindictive damages, as in ordinary cases of maritime injuries. And it seems to be doubtful whether this jurisdiction will be exercised where the property has been once carried infra præsidia of the captor's country, and there regularly condemned in a competent Court of Prize. However this may be in cases where the property has come into the hands of a bonâ fide purchaser, without notice of the unlawfulness of the Capture, it has been determined that the Neutral Court of Admiralty will restore it to the original owner where it is found in the hands of the captor himself, claiming under the sentence of condemnation. But the illegal equipment will not affect the

(t) Wheaton's Elements of International Law, (Lawrence,) pp. 496-97. Mr. Wheaton cites the following authorities in support of the doctrines in the text:— Mr. Jefferson's Letter to M. Genet, Nov. 8, 1793. Waite's State Papers, vol. i. p. 195. Opinion of the Attorney-General on the capture of the British ship Grange, May 14, 1793. Ibid, vol. i. p. 75. Mr. Jefferson's Letter to Mr. Hammond, Sept. 5, 1793. Waite's State Papers, vol. i. p. 165. Wheaton's (Amer.) Reports, vol. iv. p. 65, note a.

validity of a Capture, made after the cruise to which the outfit had been applied is actually terminated.(u)

*CCCLIV. An exception to the general rule of the immunity [*457] of Neutral territory has been attempted to be raised in the case of a vessel met on the high seas and pursued thereon, but which, during the chase, enters the Neutral limits. Bynkershoek expresses his private opinion that in such a case the continuance, "dum fervet opus," of the pursuit and Capture within the Neutral jurisdiction is lawful.(x)

“True it is,” Lord Stowell says, "that that great man (Bynkershoek) does intimate an opinion of his own to that effect; but with many qualifications, and, as an opinion, which he did not find to have been adopted by any other writers. I confess I should have been inclined to have gone along with him to this extent, that if a cruiser, which had before acted in a manner entirely unexceptionable, and free from all violation of territory, had summoned a vessel to submit to Examination and Search, and that vessel had fled to such places as these, entirely uninhabited, and the cruiser had, without injury or annoyance to any party whatever, quietly taken possession of his prey, it would be stretching the point too hardly against the captor to say that on this account only it should be held an illegal capture. If nothing objectionable had appeared in the conduct of the captors before, the mere following to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful."(y) CCCLV. It seems, indeed, as Mr. Chancellor Kent observes, that Casaregis, and several other foreign jurists mentioned by Azuni, held a similar doctrine. But D'Abreu, Valin, Emerigon, Vattel, Azuni, and others, maintain the *sounder doctrine, that when the flying [*458] enemy has entered neutral territory, he is placed immediately under the protection of the neutral power. The same broad principle that would tolerate a forcible entrance upon neutral ground of waters, in pursuit of the foe, would lead the pursuer into the heart of a commercial port.

To the writer of these pages it certainly appears a much safer and juster construction of International Law, altogether to reject the private opinion of Bynkershoek, which he admits to be at variance with usage and authority, and to preserve strictly, under all circumstances, the sacred immunity of the neutral territory, and to say, with Mr. Chancellor Kent, that "there is no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful."(z) (u) La Amistad de Rues, 5 Wheaton's (Amer.) Rep., p. 385. La Nereyda, 8 Ib., p. 108. The Fanny, 9 Ib., p. 658. The Arrogante Barcelones, 7 Ib., p. 519. The Santissima Trinidad, Ib., p. 283. Wheaton's Elements of Internation Law, (Lawrence,) p. 497. (x) Bynk., Q. J. P., 1. i. c. viii. : "An hostem liceat aggredi vel persequi iu amici territorio vel portu." Sed aliud est vim inchoare, aliud calente negotˆo, vị instare. Scilicet novum non est, valere quid etiamsi in eam causam deductum sit unde incipere non possit. Uno verbo: territorium communis amici valet ad piohibendam vim, quæ ibi inchoatur, non valet ad inhibendam, quæ extra territorium inchoatur, dum fervet opus, in ipso territorio continuatur."

(y) The Anna, 5 Robinson's Adm. Rep., p. 385, d.

(2) 1 Kent's Comm., (120,) p. 125. Vattel, 1. iii. c. vii. s. 133. 1 Emerigon, Traité des Ass., p. 449. Azuni, vol. ii. p. 223. It was observed by the American Secretary of State, (Mr. Webster,) in the diplomatic correspondence between him AUGUST, 1857.-22