Repertoire, verb. Domicile, §§ 1-4; The Anna Catharina, 4 Rob. Rep., p. 118; The Rendsborg, 4 Rob. Rep., p. 121; The Leisbet, 5 Rob. Rep., p. 283; The Susa, 2 Rob. Rep., p. 251; Wildman, Int. Law, vol. 2, pp. 48, 49; The Vigilante, 1 Rob. Rep., p. 15; The Embden, 1 Rob. Rep., p. 17.) § 35. There is, however, a very material distinction between the hostile character impressed by domicil, and that which results solely from the nature of the traffic in which the individual is engaged. A foreign merchant domiciled in the country of the enemy, is himself an enemy, in the same sense and to the same extent as a native subject; and all his property on the ocean, wherever it may be found, and whatever may be the nature of the commerce in which it is embarked, is liable to confiscation. But the hostile character which arises solely from the nature of the traffic, is limited, in its noxious and penal effects, to the transactions and property that the prohibited trade embraces; in all other respects, such individual still retains all the rights and immunities of a neutral, a subject, or an ally, as the case may be. (Phillimore, On Int. Law, vol. 3, § 85; Duer, On Insurance, vol. 1, pp. 523, 524; The Anna Catharina, 4 Rob. Rep., p. 119; The Portland, 3 Rob. Rep., p. 41; The Nancy, 1 Rob. Rep., pp. 14, 15; The Friendschaft, 4 Wheaton Rep., p. 107; The San Jose Indiano, 2 Gallis Rep., p. 268.) §36. The habitual employment of an individual, may also affect his national character. Thus, a person employed habitually and constantly, as a master or mariner, or as a supercargo or commercial agent, in the trade and navigation of a hostile country, although he has no domicil there, in the civil and legal sense of the term, is impressed with its national character, and this hostile character spreads itself, in its consequences, generally over his affairs. It follows and involves all his property, in whatever trade employed, that does not appear, from other circumstances, to have acquired a distinct national character. In order to redeem it from confiscation on this ground, the burthen of proof is cast upon him. The principle seems founded in reason; for persons so employed are as much incorporated with the commerce of the hostile country, as persons who have their permanent residence in the enemy's territory. (Phillimore, On Int. Law, vol. 3, §85; Duer, On Insurance, vol. 1, p. 526; The Embden, 1 Rob. Rep., p. 17; The Vriendshap, 4 Rob. Rep., p. 167; The Endraught, 1 Rob. Rep., p. 22; The Bernon, 1 Rob. Rep., p. 102.) owners. § 37. The national character of ships is, as a general rule, determined by that of their owners. But, as already shown, this rule is subject to many exceptions, a hostile character being not unfrequently impressed upon the vessel, while its owners are neutrals or friends. Thus, a hostile flag and pass, the carrying of military persons or despatches of an enemy, trading between enemy's ports, etc., will give to the vessel a hostile character, no matter what may be that of its The national character of goods, as a general rule, follows that of their owner; but, as shown in the preceding chapters, this rule is sometimes varied by the character and conduct of the vessel in which they are found, by the acts of the commander or supercargo in whose hands they have been placed, and by the nature of the documentary evidence by which the ownership is attempted to be proved. The origin, nature and destination of the goods themselves are sometimes conclusive of their national character, whatever may be that of their proprietor. Thus, where the goods are the produce of an estate or plantation in an enemy's territory or colony, the soil impresses upon them a hostile character, although the owner may be a neutral, and resident in a neutral country. Although his general national character may be neutral or friendly, he is considered an enemy, with respect to that particular produce, which, therefore, in its course of transportation to another country, is liable to capture as enemy's property. The rule applies even where such produce has been shipped in time of peace. The other questions here alluded to have already been sufficiently discussed. (Wildman, Int. Law, vol. 2, pp. 84, 112; Phillimore, On Int. Law, vol. 3, §§ 485, 487; Duer, On Insurance, vol. 1, pp. 451, 535; The Phoenix, 5 Rob. Rep., p. 25; The Maustrom, 5 Rob. Rep., p. 21, cited; The Anna Catharina, 5 Rob. Rep., p. 167; Bentzon v. Boyle, 9 Cranch. Rep., p. 191; The Herstelder, 1 Rob. Rep., p. 115; The Packet de Bilboa, 2 Rob. Rep., p. 133; The Carolina, 1 Rob. Rep., p. 305; The Fortuna, 1 Dod. Rep., p. 87; The Success, 1 Dod. Rep., p. 130; The Endraught, 1 Rob. Rep., p. 20; The Omnibus, 6 Rob. Rep., p. 71; The Welvaart, 1 Rob. Rep., p. 124; The Johanna Tholen, 6 Rob. Rep., p. 72; The San Jose Indiano, 2 Gallis. Rep., p. 283; The Sisters, 5 Rob. Rep., p. 159; The Planter's Wensch, 5 Rob. Rep., p. 22; The Magnus, 1 Rob. Rep., p. 31; The Commercen, 1 Wheaton Rep., p. 382; The Dree Gebroeders, 4 Rob. Rep., p. 232; De Cussy, Droit Maritime, liv. 1, tit. 3. § 17; Pistoye et Duverdy, Des Prises, tit. 6.) 46* CHAPTER XXX. RIGHTS AND DUTIES OF CAPTORS. - CONTENTS. 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- -88. 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- 13. Convoying 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 marque19. Joint captures by boats- 20. By tenders- 21. By prize masters— 22. By non-commissioned vessels- 23. Pubiic vessels of war and privateers, etc.-24. Effect of fraud on claims to benefit of joint capture-8 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-8 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. (Phillimore, On Int. Law, vol. 1, § 345; Wildman, Int. Law, vol. 1, p. 36; Bentzon v. Boyle, 9 Cranch. Rep., p. 198; Brown v. The United States, 8 Cranch. Rep., p. 135; Pistoye et Duverdy, des Prises, passim.; Bello, Derecho Internacional, pt. 2, cap. 5, § 3; Dalloz, Repertoire, verb. Prises Maritimes; De Cussy, Droit Maritime, liv. 1, tit. 3, § 26.) § 2. The courts have decided that an act of taking possessiou 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 colors. 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 |