Capture alone devests an enemy of his property jure belli. Upon the surrender of a vessel under an enemy's flag on the High Seas, a belligerent may destroy her under the general Law of Nations; and if the captor is unable to bring her into port, he will be justified towards his own Government in destroying her. The instruction of his own Government may indeed require him to bring into port every capture which he may make, but he may be actually engaged in a service, which will not allow him to put a prize crew on board the vessel which he has captured, in order that she may be taken into port. Under such a collision of duties, Lord Stowell has held that nothing is left to the belligerent vessel but to destroy the enemy vessel which she has taken; for she cannot consistently with her general duty to her own country, or indeed under its express injunctions, permit enemy's property to sail away unmolested. If it should be impossible to bring in, her next duty is to destroy enemy's property. When it is doubtful whether it is enemy's property, and it is impossible to bring it in, no such obligation arises, and the safe and proper course is to dismiss. When it is neutral, the act of destruction cannot be justified to the neutral owner by the gravest importance of such an act to the captor's own State. To the neutral it can only be justified, under any such circumstances, by a full restitution in value2. essential to § 168. In order to constitute a capture at sea, an What is act of taking possession is not absolutely necessary: the state of the weather alone may be such that the a capture. captor cannot safely take possession of the enemy's vessel, and yet he cannot with humanity continue hostilities, after the master and crew have signified 2 The Felicity, 2 Dodson, p. 386. their intention not to resist. The real surrender of the vessel is therefore held to take place when she lowers her flag. But there must be an intention manifested by the captor to make prize of the vessel, which has surrendered, by some act beyond that of compelling it to surrender, otherwise the capture will be regarded as abandoned by him in such a sense, that it may enure to the benefit of another party, who subsequently takes possession of the enemy's vessel. It is therefore the general rule for the commander of the vessel which has made a capture at sea to put a prize-master on board the captured vessel; but many captures have been held effectual where no man has been even put on board, but the ship only has been compelled to steer in the direction prescribed by the captor. Lord Stowell has observed that “if a merchant vessel is obliged to lie to and obey the orders of the enemy-vessel, she is completely under the dominion of the enemy; and that if a captured vessel remains under the coercion of the guns of the captor, she is as much in his possession, as if the men, who were otherwise to work those guns, had been put on board." On the other hand it is a sufficient act of taking possession of a vessel, if a single man is put on board by the captors as prize-master. It is usual to put a prize-crew on board of sufficient strength to prevent any chance of a successful attempt to rescue the vessel; and sometimes a part of the crew of the captured vessel are taken out of her as a measure of precaution against their attempting to overpower the prize-crew; but it is competent for a captor, if he places confidence in the promise of the master of a captured vessel, to retain the possession of the prize as against all sub 3 The Hercules, 2 Dodson, p. 368. The Edward and Mary, 3 Ch. Rob. p. 306. 4 sequent captors by placing a single man on board of her. "It is clear," says Mr. Justice Washington in delivering the judgment of the Supreme Court of the United States, "that some act should be done indicative of an intention to seize and retain as prize; and it is always sufficient if such intention is fairly to be inferred from the conduct of the captor." Accordingly it was held by the Supreme Court that the presence of a single man on board, although he did not interfere with the navigation of the ship, has been sufficient to retain possession of a prize on behalf of the captor. Lord Stowell, to a similar purport, held that the presence of two men on board, although they had not taken possession of the ship's papers nor had interfered with the navigation of the vessel, was sufficient to retain possession of a prize in favour of the first captor against a privateer, which had seized the vessel a second time and put one man on board of her, as well as against a King's ship which had subsequently assisted to prevent the master of the captured vessel from carrying into effect his intention to take his vessel into an enemy's port. Upon the ground of the latter act of assistance the commander and crew of the King's ship attempted to maintain a title of capture, but the Court held that the assistance which they had afforded was only sufficient to found an interest on their behalf in the nature of a claim for military salvage, and decreed them only a salvage remuneration". in Great § 169. The right to all captures is vested in the Forms of Sovereign Power, which has granted to the Com- proceeding mander of an armed ship a Commission to make Britain to capture of enemy's property; but the capture of Prize 4 The Grotius, 9 Cranch, p. 370. 23. 5 The Resolution, 6 Ch. Rob. constitute Courts. such property may enure to the benefit of the actual captor by a grant from the Sovereign Power, and under such limitations and conditions as it may be pleased to impose. In Great Britain it is usual at the outset of war for the crown to issue in the first place an order in Council, granting General Reprisals "against the ships, vessels, and goods of the Enemy Sovereign and of his subjects and others inhabiting within any of his countries, territories, or dominions," so that her Majesty's Fleets and Ships may lawfully seize them and "bring the same to judgment in such Courts of Admiralty within her Majesty's dominions, possessions, or colonies, as shall be duly commissionated to take cognisance thereof.” The Crown thereupon issues a Commission under the Great Seal (which is prepared by Her Majesty's Advocate General and Her Majesty's Advocate in her Office of Admiralty) addressed to the Lord High Admiral, or the Commissioners for executing his office, authorising him or them to require the High Court of Admiralty of England and the Lieutenant or Judge thereof, as also the several Courts of Admiralty within her Majesty's dominions, which shall be duly commissionated, to take cognisance of and judicially proceed against all and all manner of captures, seizures, prizes, and reprisals of all ships, vessels, and goods that are or shall be taken, and to hear and determine the same, and according to the course of the Admiralty and the Law of Nations to adjudge and condemn all ships, vessels, and goods as shall belong to the Enemy Sovereign, or his subjects, or others inhabiting within any of his countries, territories, or dominions. Instructions are subsequently prepared by the same Law Officers, and are issued to the several Courts of Admiralty 6 Order in Council of 29 March 1854. within her Majesty's dominions for their guidance. Under the authority of the Commission issued pursuant to such Order in Council, the Lord High Admiral or the Commissioners for executing his office issue a Warrant to the Judge of the High Court of Admiralty, who is thereby authorised to adjudicate upon all captures, seizures, prizes, and reprisals, of all ships, vessels, and goods, according to the course of its established practice; and it is not necessary for the High Court of Admiralty to obtain the direct sanction of the Legislature to enable it to act as a Court of Prize. Lord Stowell has observed that "it is the common practice of European States in every war to issue proclamations and edicts on the subject of Prize; but till they appear, Courts of Admiralty have a law and usage on which they proceed from habit and ancient practice, as regularly as afterwards they conform to the express regulations of their Prize Acts'. The original and exclusive Jurisdiction of Courts of Admiralty over questions of Prize or no Prize, and who are the captors, notwithstanding any of the Prize Acts, has also been repeatedly recognised by the Common Law Courts at Westminsters. tion of Prize. § 170. It is competent for the Legislature of every Jurisdic country to grant to its Courts of Admiralty a juris- Courts to diction over questions, which they do not possess by distribute Ancient Usage; as for instance, a jurisdiction to distribute the proceeds of prize amongst the captors in certain fixed proportions. On the other hand, the Legislature of a country may restrain its Courts of Admiralty from proceeding in certain matters according to the general Law of the Admiralty; as for in 7 The Santa Cruz, 1 Ch. Rob. p. 62. 8 Lord Camden and others v. Home in Error, 4 Term Reports, |