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the captor to regard the convenience of the claim. ant in proceeding to adjudication.'
Where it is not possible to bring the enemy's property into port, and it is beyond all doubt the property of the enemy, the captor's duty is to de. stroy it; where a reasonable doubt exists as to the character of the property, the more safe and proper course is to dismiss it.2
Until an adjudication, captors have no right to convert the property, nor even to break bulk. In cases, however, of an overruling necessity, as in the case of a capture of perishing property in a distant part of the world, the rule is necessarily re
laxed, and the property may be sold. Duty on arri.
On arrival at the port, it is the duty of the captors forthwith to deliver, upon oath, into the registry of the court, all papers found on board the captured ship.
It is also their duty to bring on the prize crew, or at least the master and principal officers, with
the prize, for adjudication.” To proceed With all practicable celerity, the captors are adjudication. bound to proceed to adjudication. Demurrage,
damage and compensation have been frequently awarded on the ground of unreasonable delays in the proceedings of the captors.
The Wilhelmsburg, 5 Rob., 143; The Washington, 6 Rob., 275; The Lively, 1 Gall., 318.
? The Felicity, ubi supra.
6 The Madonna del Burso, 4 Rob., 169; The San Juan Battista and The Purissima Conception, 5 Rob., 38; The Corier Maritima, 1 Rob., 287; The Susanna, 6 Rob., 51.
“Unless the captor," says Lord Stowell, in the first case here cited, “can exculpate himself with respect to the delay in this matter, he is guilty of no inconsiderable breach of duty. It would be highly injurious to the commerce of other countries, and disgraceful to the jurisprudence of our own, if any persons, commissioned or non-commissioned, could lay their hands on valuable foreign ships and cargoes, without bringing such act to judicial notice with promptitude.”
It is the duty of the captor immediately to com. Prize-master mit the prize to the care of a competent prize-master and crew, not for the reason that the prize or original crew, when left on board in the case of a seizure of a citizen or neutral, are released from their duty without the assent of the master, but because the captured crew are not subject to the authority of the captor's officer.
The right to capture enemy's property on board a neutral ship, and neutral property on board an enemy's ship, has been the subject of discussion by the elementary writers, and has frequently been passed upon by the courts both of the United States and Great Britain.
Although a subject connected with that of capture, it may be more properly reviewed when we come to consider the effect of war upon the commerce of neutrals.
Besides the capture de facto, which we have been considering, there is another capture, by construction, or joint-capture. Joint-captors are those who,
'The Eleanor, 2 Wheat., 345.
Doctrine of constructive
“not having contributed actual service, are still supposed to have rendered a constructive assistance, either by conveying encouragement to the captors, or intimidation to the enemy."
Who are entitled to be considered joint-captors is a question of exceeding interest and importance. Like most other questions in the law of nations,
as affecting commercial interests during war, it will assistance dis- be found nowhere so learnedly considered and
illustrated as by the invaluable opinions of that great luminary of this law-Lord Stowell
. He says: “The benefit of prize is given to the takers, by which term are naturally to be under stood those who actually take possession, or those affording an actual contribution of effort to that event; either of these persons is naturally included under the denomination of takers, but the courts of law have extended the term takers to another description of persons; to those who, not having con. tributed actual service, are still supposed to have rendered a constructive assistance, either by convey. ing encouragement to the captor, or intimidation to the enemy. Capture must therefore be divided into capture de facto and capture by construction.
“Capture by construction must remain on the terms the law has already recognized, and not a new unauthorized construction—for as the word has already traveled a considerable way beyond the meaning of the act of Parliament, the disposi. tion of the court will be, not to extend it still fur. ther, but to narrow it and bring it nearer to the terms of the act than has been done in former cases,
| The Vryheid, 2 Rob., 21.
The case of the Mars is a strong authority in point, in which the claim to joint-capture was not allowed to ships not in company, but stationed at different outlets to watch for the enemy, who were known to be under the necessity of passing through one of them.
“ In all cases, the onus probandi lies on those setting up the construction, because they are not persons strictly within the words of the act, but let in only by the interpretation of those having authority to interpret it. It lies with the claimants in jointcapture, therefore, either to allege some cases in which their construction has been admitted in former instances, or to show some principle in their favor so clearly recognized and established as to have become almost a first principle in cases of this nature. “The being in sight, generally, and with some few Vessels in
sight. exceptions, has been so often held to be sufficient to entitle parties to be admitted joint-captors, that where that fact is alleged, we do not call for partio ular cases to authorize the claim-but where that circumstance is wanting, it is incumbent on the party to make out his claim, by an appeal to decided cases, or at least to principles, which are fairly to be extracted from these cases."
The Vestal frigate claimed to share in the proceeds of the capture of the Dutch fleet by Captain Trollope, in October, 1798, on the ground that although not taking part, or even in sight of the engagement, she was one of the ships under the captor's command on that station, and was only absent on the occasion, in consequence having been dispatched by him on a special mission.
In disallowing the claim, Lord Stowell said:
"There are no cases cited as being directly in point, but the case of The Senor San Josef (House of Lords, May 4, 1784), has been alluded to. That is a case which I perfectly recollect—having been concerned in arguing it—but it was, in its principal circumstances, entirely different from the present case. That was a case of two vessels detached from the fleet, under the command of Admiral Pigot, in the West Indies, to chase two strange ships appearing in sight, the fleet bearing up all the time as fast as possible to support them. The chasing vessels took the two ships first appearing, and also a third, on which the dispute arose.
There was much con. trariety of evidence whether the fleet, which was continuing to sail in the same direction, was not up and in sight, and the chief doubt arose owing to the night coming on, for if it had been day, the fleet would clearly have been in sight, and it was at all events known to be at hand, and ready to have given any support that might be wanting. Under these circumstances, the Court of Appeals affirmed the sentence of the court below, pronouncing for joint-capture—and in that sentence it is, I believe, true, as it has been stated by the counsel, that some mention was made of the words joint-enterprise. But, taking the case together, it can by no means be said to go the length of the present claim.
“As far as cases go, then, there is an entire failure of authority on the part of The Vestal. But the usage of the navy has been resorted to, and a case has been cited of The Audacious, one of the fleet under command of Lord Howe, being permitted to share in the victory of the first of June, 1794.
“ It is admitted, and it is certainly true, that the