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 offense 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. Cuptures, 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 property, acquired by public and commissioned vessels, and by those acting without any commission or authority. (Phillimore, On Int. Law, vol. 3, §§ 345, 349; Bynhershoek, Quaest. Jur. Pub., lib. 1, caps. 8, 20; Grotius, de Jur. Bel. ac Pac., lib. 3, cap. 6, § 10; Pistoye et Duverdy, Traité des Prises, tit. 2, 4; Bello, Derecho Internacional, pt. 2, cap. 5, §§ 3-5; Dalloz, Repertoire, verb. Prise Maritime, sec. 2, art. 3; Merlin, Repertoire, verb, Prise Maritime, §§ 2, 4

Wildman, Int. Law, vol. 2, pp. 147, 311; De Cussy, Droit Maritime, liv. 1, tit. 3, § 23; liv. 2, chs. 12, 24; The Elsebe, 5 Rob. Rep., p. 176; The Julia, 8 Cranch. Rep., p. 189; The Esperanza, 1 Hagg. Rep., p. 91; The Hercules, 2 Dod. Rep., p. 363; The Resolution, 6 Rob. Rep., p. 386.)

§ 3. The right to all captures vests, primarily, in the sovereign. When the capture enures to the benefit of individuals, it is in consequence of a grant by the state. The distribution of the proceeds of prizes, as has already been stated, must therefore depend upon the regulations of each state. Some are much more liberal in this respect than others. It has been held by the British prize courts, that the power of the crown to direct, before adjudication, the release of captured property, is not taken away by any grant of prize in a prize act, the preservation of such a power in the crown, being necessary in its relations with foreign states. The laws regulating the distribution of the proceeds of captures, apply only after condemnation. (De Cussy, Droit Maritime, liv. 1, tit. 3, § 26; Wildman, Int. Law, vol. 2, pp. 295, 300–305; Phillimore, On Int. Law, vol. 3, § 356; The Elsebe, 5 Rob. Rep., p. 173; The Gertruyda, 2 Rob. Rep., p. 211; The Eutrusco, 4 Rob. Rep., p. 262; Ships taken at Genoa, 4 Rob. Rep., p. 388; The Thorshaven, Edw. Rep., p. 102.)

§ 4. On the completion of the capture, the title to the captured property vests in the captor, or rather, in his sovereign; and as a general rule, capture is deemed complete when the surrender has taken place and the spes recuperandi is gone. With respect to booty, it is universally conceded that twentyfour hours possession completes the title of the captor, and the same rule formerly prevailed with tespect to maritime captures; but modern usage, after much fluctuation, is likely to settle upon the principle, that the captor acquires an inchoate title by possession alone, and that, to make this complete and perfect, a condemnation by a competent court of prize is necessary. By the ancient law of Europe, the perductio infra praesidia, infra locum tutum, was considered necessary for the conversion of the property captured; but much difficulty arose as to what constituted a perductio infra praesida. By a later usage, a possession of twenty-four hours was sufficient to divest the title of the former owner. This, accord

ing to the commentaries of Grotius and Barbeyrac, is the meaning of the 287th article of the Consolato del Mare. Bynkershoek and Grotius, express themselves to the same effect, and Loccenius considered this rule as the general law of Europe. Lord Stair, decided this to the rule of law in Scotland, and, according to Valin, a similar practice prevailed in France. It was also the ancient law of England, that the former owner was divested of his property, unless it was reclaimed ante occasum solis. But the ordinance of 1649, directed a restitution upon salvage to British subjects, although the common law still prevailed where the enemy had fitted out the prize as a vessel of war. As England became more commercial, it became her settled policy to regard the property of a captured vessel as not changed, without a regular sentence of condemnation, pronounced by a court of competent jurisdiction, and the title, from the time of capture, till such condemnation, as in obeyance, and not capable of being transferred. This principle is not only recognized by her prize courts, but is now firmly incorporated into her common law. The same rule is adopted by the courts, and incorporated into the statutes of the United States. But, as most of the continental states of Europe adhere, in a measure, to their ancient practice, both Great Britain and the United States, adopt toward them, in case of recaptures, the rule of reciprocity, giving to them the same measure of justice, which they mete out to others. But, this question belongs more properly to another branch of the subject, and will be discussed in the chapter on the rights of postliminy and recapture. (Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 11, 12; Wildman, Int. Law, vol. 2, pp. 277-280; Phillimore, On Int. Law, vol. 3, §§ 407, et seq; Grotius, De Jur. Bel, ac Pac., lib. 3, cap. 6, § 3; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 5; Loccenius, Jus. Maritimum, 2, 4, 4, §§ 4, 8; Dalloz, Repertoire, verb. Prises Maritimes, sec. 2; Voet. J. Comm. ad Pandectas, lib. 49, tit. 15, § 3; Kent, Com. on Am. Law, vol. 1, pp. 101, 102; Martens, Precis du Droit des Gens, liv. 3, ch. 7, § 322; Goss et al v. Withers, 2 Burr. Rep., p. 693; The Henrick and Maria, 4 Rob. Rep., pp. 46, 55; The Ceylon, 1 Dod. Rep., p. 105; The L'Actif, Edw. Rep., p. 185; The Nostra Signora, 3 Rob. Rep., p. 10; Assievedo v. Cambridge, 10 Mod. Rep., p. 77; Brymer v. Atkins, 1 H. Black. Rep., pp.

189-190; The Flodoyen, 1 Rob. Rep., p. 117; The Estrella, 4 Wheaton, Rep., p. 298.)

§ 5. It is incumbent on the captor to bring his prize, as speedily as may be consistent with his other duties, within the jurisdiction of a court competent to adjudicate upon it. But, if prevented by imperious circumstances from bringing it in, he may be excused for taking it to a foreign port, or for selling it, provided he afterwards reasonably subjects its proceeds to the jurisdiction of a competent court of prize. The court within whose jurisdiction the proceeds of the sale are brought, takes cognizance of the case, and adjudicates not only upon the validity of the original capture, but also upon the disposition which has been made of the captured property. But this subject will be more particularly considered in another place. (Bello, Derecho Internacional, pt. 2, cap. 5, §5; Phillimore, On Int. Law, vol. 3, §§ 361–364; Wildman, On Int. Law, vol. 2, pp. 164, 168-170; The Peacock, 4 Rob. Rep., p. 192; Jecker et al. v. Montgomery, 13 Howard Rep., p. 516; The Principe, Edw. Rep., p. 70; The Wilhelmina, 5 Rob. Rep., p. 143; The Washington, 6 Rob. Rep., p. 275; The Madonna del Burso, 4 Rob. Rep., p. 169; The Corier Maritimo, 1 Rob. Rep., p. 287.)

§ 6. Joint captures are those made by two or more vessels acting in conjunction, or by one or more vessels with the coöperation of land forces. Where all captured property is condemned to the government, it is of very little importance who are to be considered the real captors, where several lay claim to that title; but where captured property is condemned as prize to the benefit of the captors, it becomes a question of special interest to determine who are, in law, to be considered as captors, and, consequently, to share in the prize. As a general rule, all the parties who are actually engaged in the seizure, or who directly contribute to the surrender, are properly to be considered as joint captors, and, consequently, share in the prize, but the actual amount of assistance necessary to constitute joint capture, under the different circumstances of chase and surrender, as determined by the decisions of courts of prize, depends in a great measure upon the character of the vessels and their position at the time of actual seizure. (Phillimore, On Int. Law, vol. 3,

§§ 386, et seq.; Wildman, Int. Law, vol. 2, pp. 327, et seq.; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 18; Pistoye et Duverdy, Traité des Prises, tit. 9, ch. 2, sec. 4; Dalloz, Repertoire, verb. Prises Maritimes, sec. 8.)

war.

§ 7. We will first consider joint capture by public vessels of All ships of war which are in sight at the time of the actual seizure, are deemed to be constructively assisting, and, therefore, are entitled to share in the prize. The reason of this rule is, that public ships are under a constant obligation to attack the enemy wherever seen, and, therefore, from the mere circumstance of being in sight, a presumption is sufficiently raised that they are there animo capiendi; and this rule is additionally supported by the obvious policy of promoting harmony in the naval service. But the vessel claiming such constructive assistance, must be actually in sight at the time of capture, or at least at the commencement of the engagement or chase, for there must be some actual contribution of endeavor as well as of general intention. If the circumstances of the case repel the presumption of the animus capiendi, as where the public ship is steering an opposite or a different course, inconsistent with the notion of an intent to capture, the claim to joint capture cannot be sustained. But the mere sailing on a different course is not sufficient to defeat this claim; for it is not always necessary that two vessels should pursue the same line, where, acting with an unity of purpose, the same object being sometimes better accomplished by one vessel sailing in one direction, and another in a different direction. But, if the ship claiming as joint captor has changed her course before the actual capture, in such a manner as to show that she had abandoned all design of continuing the pursuit, the claim is defeated. So, also, if the prize has been merely reconnoitered, without any attempt at pursuit. It is very doubtful whether merely seeing the prize from masthead, however clearly the animus capiendi may be proved, will bring the case within the rule of being in sight. In all cases of constructive joint capture, the onus probandi rests upon the party claiming the benefit of the rule. Nor is it sufficient to prove that the joint captor was in sight of the actual captor; it is also necessary that she was seen by the prize. Both these facts must be established;