and there is no present prospect of the general discontinuance of a practice as unjust in principle as it is inefficient as a means of redressing an international wrong. The Right of Maritime Capture. Of the right to capture private property at sea, which has been recognized from the earliest times, there can be no serious doubt; no principle, indeed, is better established at international law. As to the justice of the practice, however, and as to its efficiency as a means of injuring an enemy, there is a wide divergence of opinion. It is defended on the ground that a belligerent has the same right to injure his enemy by crippling and destroying his maritime commerce as by conducting operations against his armies on land; the destruction of his commerce operates less directly, it is true, but in some cases it redresses as decisively the wrong for which the war was undertaken as do victories gained over his armies and fleets; at the same time, as property is captured or destroyed, instead of human life, the purpose of the war is accomplished with greater humanity in the one case than in the other. It is also contended that, by attacking a single powerful interestmaritime commerce-in which large amounts of capital are invested and large numbers of persons employed, a considerable influence, in the interest of peace, is brought to bear upon the government of the enemy. It cannot be doubted that, in former times, these arguments were considerably more forcible than they are at present. Maritime commerce now belongs to the world and to humanity at large, and not, as formerly, to a state or to several states, and causes which operate to injure the commerce of a single state operate, with equal power, to injure not only the commercial interests but the material well-being of the entire civilized world, and so to inflict injury upon states which are in no sense parties to a particular war. Moreover, as peace is now the rule and war the exception, the effects of war should be restricted, more rigidly than ever before, to the nations directly concerned in its operations, either as belligerents or allies; and other states, not parties to the controversy, should be made to suffer the least possible inconvenience in consequence of its existence.1 Position of the United States. The position occupied by the United States in this regard, since it became an independent member of the family of nations, has been altogether creditable; its influence has been steadily exerted in behalf of the extension of the rights and immunities of neutrals, and it has constantly adhered to and advocated the complete immunity of private property, not contraband of war, from capture or destruction on the high seas in time of public war. It declined to become a party to the Declaration of Paris, for reasons which were satisfactory to itself and consistent with its established policy in respect to maritime warfare, but signified its entire willingness to become a party to that convention on the single condition that all private property at sea, not contraband of war, should be exempt from the operation of the right of maritime capture. As a further evidence of its disposition in this regard, the United States, at the close of the war of 1898 with Spain, by a formal enactment of Congress, abolished the practice of distributing prize-money among the crews of capturing vessels, and prohibited the award of bounty, or head-money, to the officers and crews of public armed vessels, for the capture or destruction of public armed ships of the enemy." Vattel, liv. iii. chap. viii. §§ 195, 196; Ibid. chap. xv. § 229; Hall, pp. 445-447. note; Dana's Wheaton, § 355, note 171; Lawrence's Wheaton, p. 628, note 192; II Ortolan, pp. 35-56; II Twiss, §§ 72-77; II Ferguson, §§ 198-201; IV Calvo, §§ 2294-2410; II Lorimer, pp. 94-114; Bluntschli, §§ 664, 665; Manning, pp. 183, 184, note; Woolsey, § 147; Lawrence, Int. Law, §§ 206, 207, 216, 217; III Dig. Int. Law, §§ 342-346; Amos, Political and Legal Remedies for War, pp. 196-215, note. III Dig. Int. Law, § 342; Upton, Maritime Warfare, pp. 179 – 185; Dana's Wheaton, §§ 358, note 173, 3 475, note 223; Woolsey, § 128; II Ortolan, pp. 38, 69. The prohibition here referred to was accomplished by the passage of the following enactment: "All provisions of law authorizing the distribution among captors of the whole or any portion of the proceeds of vessels, or any property hereafter captured, condemned as prize, or providing for the payment of bounty for the sinking or destruction of vessels of the enemy hereafter occurring in time of war, are hereby repealed."-Act of March 3, 1899, 30 Stat. at Large, p. 1007. "The allowance of prizemoney to public armed vessels is Forces Employed in Maritime War. The forces that may be employed in naval operations have already been described, and may consist of the regular naval establishment of the belligerent state, supplemented by such maritime volunteer or militia forces as may be deemed necessary by the state which employs them. Unless the right to use that species of force has been formally abandoned, or prohibited by the stipulations of treaties, a state may also make use of privateers. Captures, where made. In addition to the operations directed against the naval power of the enemy, and their employment in the attack or defence of fortified places on the coasts of the several belligerents, an important part of the duty of the naval forces of a state, in time of war, consists in the exercise of the right of search, in the establishment and maintenance of blockades, and in harassing the enemy's commerce by the capture or destruction of his merchant ships and their cargoes on the high seas. No such captures are lawful, or can be made, however, save with the express authorization of the captors' state; the making of captures without such governmental authorization constituting the offence of piracy. Captures may be made on the high seas, or within the territorial waters of either belligerent.' Under no circumstances, however, can they be lawfully made in neutral waters; such of relatively recent origin; it was allowed by the Dutch in 1702, and by the French in 1692."-IV Dodson, Adm. Rep. p. 316, note. 1 The Joseph, i Gallison, 545; the Grotius, 9 Cranch, 368; the Hercules, 2 Dodson, Adm. Rep. p. 363; II Ortolan, p. 57; III Phillimore, SS 347-349; Hall, §§ 270-274; III Dig. Int. Law, §§ 341–346; IV Calvo, $$ 2310-2315; Upton, p. 190. "It is a universal principle, which applies to those engaged in a partial as well as to those engaged in a general war, that where there is probable cause to believe the vessel met with at sea is in the condition of one liable to capture, it is lawful to take her and subject 1 captures being unlawful, and prizes thus taken must be restored to their owners, with suitable apology and reparation to the neutral government whose territorial sovereignty has been invaded.' Prize. The term "prize" is applied to all captures of property made at sea, or in the territorial waters of a belligerent, in time of war; it corresponds to the term "booty," which is applied to similar captures of property on land.' As the capture is made on its authority and upon its responsibility, the title to the captured property first vests in the captor's government, and its further disposal is regulated by its municipal law. It may therefore make such disposition of its prize as it deems best; it may convert it to its own use, or cause it to be destroyed or sold; and it may distribute the whole or a part of the proceeds of the sale among the captors, in accordance with the provisions of its municipal law.' There has been some difference of opinion as to the precise instant when the title to a prize passes from the original owner and vests in the captor's government. Three rules have been applied: 1. The twenty-four-hour rule, based upon twenty-four hours of secure possession on the part of the captor; 2. The rule of pernoctation, according to which the prize must have 1 See the title “ Neutral Rights in the chapter entitled "Neutrality." "If a ship or cargo is enemy property, or if either be otherwise liable to condemnation, the circumstance that the vessel at the time of the capture was in neutral waters would not, by itself, avail the claimants in a prize-court. It might constitute a ground of claim by the neutral power, whose territories had suffered trespass, for apology or indemnity. But neither an enemy nor a neutral acting the part of an enemy can demand restitution of captured property on the sole ground of capture in neutral waters." The Sir William Peel, 5 Wallace, 517; the Adela, 6 Wal lace, 266; the Anne, 3 Wheaton, 435; III Phillimore, $$ 349-355; IV Calvo, §§ 2654-2667; Upton, Maritime Warfare, pp. 198 - 200; the Twee Gebroeders, 3 Robinson, Adm. Rep. pp. 162, 164; the Vrow Anna Katharina, 5 Rob. 15; the Anna, 5 Ibid. 373. 2 Vattel, liv. iii. chap. xii. § 196; Dana's Wheaton, § 359; II Halleck, p. 115; Hall, § 149; III Phillimore, 347; Risley, p. 144; V Calvo, §§ 3005, 3009. Hall, § 150; III Phillimore, § 356; the Felicity, 2 Dodson, Adm. Rep. pp. 381, 386; the Acteon, Ibid. p. 52; Dana's Wheaton, § 388, note 186, par. v.; V Calvo, §§ 3010, 3011. been in possession of the captor during the period between sun and sun; 3. The rule of cessation of resistance, by which the title is held to pass to the captor when armed resistance ceases and the flag is struck or a voluntary surrender is made. The last rule is now the one most generally accepted.' The title to captured property, since it is acquired by an act of force, is inchoate and incomplete until it has been taken before a prize-court of the captor's state and the legality and regularity of its capture have been authoritatively determined. Until such adjudication has been had, the right of property is in abeyance, and the title vests in the captor's government, in trust for the benefit of those who may ultimately become entitled to share in its distribution." Duty of Captor: Prize-Crews. It is the first duty of a captor to convey his prize into a court of his own country for adjudication. In former times he was permitted to take his prize into a neutral port. This is still the rule of international law, but the almost invariable practice of neutrals in recent wars has been to forbid such a use of their ports except in cases of distress or emergency.' Vessels captured on the high seas are sent into port under 1II Halleck, pp. 383, 384; III Phillimore, §§ 348, 357; Dana's Wheaton, $359; Vattel, liv. iii. chap. xii. §196; the Peterhoff, Blatchford, Prize Cases, p. 620. 2 Manning, p. 476; II Halleck, p. 383; Hall, § 149; Snow, p. 166; Dana's Wheaton, § 388, note 186 3 II Phillimore, §§ 361 - 364; Dana's Wheaton, § 388, note 186; Vattel, liv. iii. chap. xiii. § 196; II Halleck, p. 385; Hall, § 277; V Calvo, §§ 3012-3033; Snow, p. 166; the Wilhelmsbrog, 5 Robinson, Adm. Rep. p. 143; the Catharina Elizabeth, i Acton, Adm. Rep. p. 309. A captured vessel must be brought within the jurisdiction of the country to which the captor belongs before a regular condemnation can be awarded."-I Opin. Att.-Gen. p. 78. 64 Captures must be determined upon competent evidence, and no rules for determining the competency of such evidence are more proper for the use of the executive department than those which prevail. in the courts of admiralty."-I Ibid p. 401. "Though it is the duty of the captor, under the law of nations, affirmed by the act of Congress (Rev. Stat., § 4615), to send in captured property for adjudication by a court of his own country having competent jurisdiction, yet he may be excused by imperative circumstances for making a sale of such property and afterwards seasonably subjecting the proceeds to the jurisdiction of a proper court of prize."-Jecker vs. Montgomery, 13 Howard, 498. |