§ 31. In the case of privateers, the owners, as well as the masters, are responsible for the damages and costs occasioned by illegal captures, and this to the extent of the actual loss and injury, even if it exceed the amount of the bond usually given upon the taking out of the commission. But such owners who are only constructively liable, are not bound to the extent of vindictive damages, although the original wrongdoers, in case of gross and wanton outrage in an illegal seizure, may be made responsible beyond the loss actually sustained. The sureties to the bond are responsible only to the extent of the sum in which they are bound. But, if a person appear on behalf of the captain of a privateer, and give security in his own name as principal in the stipulation, with other sureties, he is liable, in the same manner as the captain, as principal. A part owner of a privateer is not exempted from being a party to the suit, in consequence of having made compensation for his share to the claimant and received a release from him. A person may be holden a part owner of a privateer, although his name has never been inserted in the bill of sale or in the ship's register. (Dalloz, Repetoire, verb. Prises Maritimes, sec. 2, art. 3; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 13; Brown, Civil and Adm. Law, vol. 2, p. 140; Phillimore, On Int. Law, vol. 3, § 458; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 19; Pothier, De Propriété, No. 92; Valin, sur l'Ordonnance, liv. 3, tit. 9.; Talbot v. Three Brigs, 1 Dal. Rep., p. 95; The Die Fire Damer, 5 Rob. Rep., p. 318; The Der Mohr, 3 Rob. Rep., p. 129; The Gerolama, 3 Hagg. Rep., p. 187; Del Col. v. Arnold, 3 Dall. Rep., p. 333; The Anna Maria, 2 Wheaton Rep., p. 327; King v. Ferguson, Edw. Rep., p. 84; The Karasan, 5 Rob. Rep., p. 260; The William, 4 Rob. Rep., p. 214; Bello, Derecho International, pt. 2, cap. 5, § 5; Code de Commerce, liv. 2, tit. 3, art. 217; Bedarride, Droit Com., §§ 300, et seq.)

§ 32. It is the duty of the prize master, immediately on his arrival in port, to institute proceedings in the proper court for the adjudication of his prize. He should also deliver over to the commissioner, or proper officer of the court, all the papers and documents found on board, and, at the same time, make affidavit that they are delivered up as taken, without fraud, addition, subdivision or embezzlement. He

should also have the master and principal officers, and some of the crew, of the captured vessel, brought in for examination. This examination should take place as soon as possible after the arrival of the vessel. Prize-masters are considered as bailees to the use of the captors, who are to share in prize money. If the prize be lost by the misconduct of the prizemaster, or for neglecting to take a pilot, or to put on board a proper prize-crew, the captors are held responsible. So, also, in claims for demurrage in not bringing in the prize in due time, or neglecting to have the case adjudicated before a competent court. Courts of prize have jurisdiction of all prize agents, and determine upon the legality of their appointment, and the disposition which they may make of the proceeds of sales of prizes, etc. If they pay such proceeds over to the captors without an order of the court, they are responsible to the owners of the captured property for the net amounts so received by them, in case restitution is received. The duties and responsibilities of prize-agents, where not regulated by statutes, are usually determined by the rules and orders of the courts. (Bello, Derecho Internacional, pt. 2, cap. 5, § 5; Phillimore, On Int. Law, vol. 3, §§ 472, et seq.; The Der Mohr, 3 Rob. Rep., p. 129; The Speculation, 2 Rob. Rep., p. 293; The William, 6 Rob. Rep., p. 316; Del. Col. v. Arnold, 3 Dall. Rep., p. 333; Wilcox v. U. Ins. Co., 2 Binn. Rep., p. 574; Home v. Camden, 1 H. Black. Rep., pp. 374, 524; Willis v. Commissioners, 5 East. Rep., p. 22; The Noysomhed, 7 Ves. Rep., p. 593; Smart v. Wolff, 3 Durn. and East. Rep., p. 323; The Pomona, 1 Dod. Rep., p. 25; The Herkimer, Stew. Rep., p. 328; The Louis, 5 Rob. Rep., p. 146; The Polly, 5 Rob. Rep., p. 147, note; The Printz Henrick, 6 Rob. Rep., p. 95; The Exeter, 1 Rob. Rep., p. 173; The Princessa, 2 Rob. Rep., p. 31; The St. Lawrence, 2 Gallis. Rep., p. 19; The Brutus, 2 Gallis. Rep., p. 526; Bingham v. Cabot, 3 Dallas Rep., p. 19; Kean v. Brig Gloucester, 2 Dall. Rep., p. 36; Hill v. Ross, 3 Dall. Rep., p. 331; Penhallow v. Doane, 3 Dall. Rep., p. 54.)

CHAPTER XXXI.

PRIZE COURTS, THEIR JURISDICTION AND PROCEEDINGS.

CONTENTS.

1. Title to property captured at sea- -22. Must be tried by prize court of captor-3. Apparent exceptions to rule- 4. Rule varied by municipal regulations5. By treaty stipulations- 6. Prize courts in general — § 7. In Great Britain- 8. In the United States- 9. The President cannot confer prize jurisdiction - 10. Court may sit in the country of captor or his ally— 11. But not in neutral territory — 12. In conquered territory -13. Extent of jurisdiction-14. Location of prize-15. Decision conclusive 16. But state responsible for unjust condemnation — § 17. Cases of England and Prussia in 1753, and the United States and Denmark in 1830-18. When jurisdiction may be inquired into — § 19. How far governed by municipal laws - 20. Character of proceedings, of proofs, etc.-21. Custody of property - 22. Conduct of suit by captors - 23. Who may appear as claimants- 24. Duties of claimants — 25. Nature and form of decrees.

§ 1. It has been shown elsewhere, that in war on land, the title to personal and movable property is considered as lost to the owner as soon as the captor has acquired a firm possession, which, as a general rule, is considered as taking place after a lapse of twenty-four hours; but, that this rule does not, at least in Great Britain and the United States, apply to maritime captures, which are held in abeyance till the legality of the capture is determined by some court of competent jurisdiction. A different principle, however, is applied in

case of the recapture of property of the continental nations of Europe, who adhere to the old rule of perductio infra praesidia, or of reclamation ante occasum solis. Kent, and other modern writers of authority, contend for the absoluteness of the rule, as one fully established by usage and incorporated into the code of international jurisprudence, that, "the property is not changed in favor of the neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact to support his title." Such is undoubtedly the practice of Great Britain and the United States, but with respect to recaptures, it is by no means universal, some states retaining the ancient practice, and others adopting the rule of reciprocity. But this question will be particularly considered under the head of recaptures. (Kent, Com. on Am. Law, vol. 1, pp. 101, 102; Bello, Derecho Internacional, pt. 2, cap. 5, §4; Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 11, 12; Dalloz, Repertoire, verb. Prises des Maritimes; 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; Valin, Comm. sur l'Ordonnance, liv. 3, tit 9, § 8; Pistoye et Duverdy, Des Prises, tits. 7, 8.)

§ 2. The validity of a maritime capture must be determined by a prize court of the government of the captor, and cannot be adjudicated by the court of any other country. The reason of this rule is based upon the responsibility which the law of nations imposes upon the government of the captor in case of unlawful condemnation of the captured property. If the court of any country other than that of the captor were to condemn, the government of the captor could not be held responsible to the government whose citizen is unlawfully deprived of his property. This rule necessarily excludes the jurisdiction of a prize court of an ally over captures made by his co-belligerent. The government of the captor is held responsible to other states for the acts of his own subjects, but not for those of his allies. It is, therefore, evident that the courts of an ally cannot deter

mine whether captured property shall be restored to the original owner, or whether the captor's government shall assume the responsibility of its condemnation. Mr. Phillimore asserts, that the question of prize may be adjudicated in "the court of the captor or of his ally," on the ground that unam constituunt civitatem; but none of the authorities to which he refers support his position; they refer to the locality of the prize when condemned, or to the place where the court was sitting at the time of condemnation, but not to the origin of the court itself; in none of the cases to which he refers was it held that the court of an ally may condemn. On the contrary, Chancellor Kent says distinctly, "The prize court of an ally cannot condemn;" and Mr. Wheaton is equally distinct and emphatic: "Where the property is carried into the port of an ally, there is nothing to prevent the government of the country, although it cannot itself condemn, from permitting the exercise of that final act of hostility, etc." For the same reason, the condemnation of a capture cannot be pronounced in the prize court of a neutral; for, as the government of the captor is answerable to other states for such condemnation, it is proper that it should be made by its own courts. Moreover, if the courts of neutral countries were allowed to determine such questions, their decisions would inevitably involve their respective governments in hostilities with one or the other of the belligerent parties, or with other neutral states, the property of whose citizens might be condemned for some violation of neutral duties. Their exclusion rests not only on the fact that the exercise of this authority would be inconsistent with the neutral character, but also, on the well established practice and usage of nations. (Kent, Com. on Am. Law, vol. 1, p. 103; Wheaton, Elem. Int. Law, pt. 4, ch. 2, §§ 13, 16; Phillimore, On Int. Law, vol. 3, §§ 365, et seq.; Manning, Law of Nations, pp. 379–390; Hubner, de la Saisie des Batimens, etc., liv. 1, ch. 11, § 8; Martens, Precis du Droit des Gens, liv. 8, ch. 7, § 312; D'Hauterive and De Cussy, Traités de Commerce, t. 9, p. 375; Pistoye et Duverdy, Des Prises, tit. 8; The Flad Oyen, 1 Rob. Rep., p. 135; The Perseverance, 2 Rob. Rep., p. 240; The Kierlighett, 3 Rob. Rep., p. 95; Havelock v. Rockwood, 8 Durn. and East Rep., p. 268; Donaldson v. Thompson, 1 Cowp. Rep., p. 429; The