of 'dominion' implies rightful possession and authority; as applied to private property it signifies not merely possession, but possession with rights of property, that of which the person is dominus; and as applied to public possession, it is the right of legal authority. Accordingly as the British Government had declared there were parts of the island, which were neither in the possession nor in the dominion of France, trade with such parts would be innocent. "It is not necessary," he observed, "that this declaration should amount to a perpetual recognition of the independence of those places, as in the case of a formal and permanent Cession. It is sufficient that there is a rightful and acknowledged suspension of the authority of France, that will of itself exempt the parties from the penalty of trading from an enemy's colony 45." It is however not for the Prize tribunals, but for the Executive Government of a Nation, to decide, when the inhabitants of a revolted territory are entitled to be recognised as an independent Nation. Until that decision has been made, Courts administering the Law of Nations are bound to regard the Sovereignty of the ruling or Mother State to be still subsisting of Right. 45 The Manilla, Edwards, p 5. Johnson v. Greaves, 2 Taunton, p. 344. Blackburn v. Thompson, 15 East, p. 81. Rose v. Himely, 4 Cranch, p. 272. CHAPTER IX. Duty of Captors to bring in their cap tures for adjudica tion as Prize. ON CAPTURE AND ITS INCIDENTS. Duty of Captors to bring in their captures for adjudication as Prize-Enemies have no locus standi in a Prize Court-What is essential to constitute capture-Forms of proceeding in Great Britain to constitute Prize Courts-Jurisdiction of Courts to distribute Prize-Absolute Control of the Crown over all captures— Recapture subject to the jus postliminii-Rule of twenty-four hours' possession-Salvage on Recapture-Practice of Great Britain and of the United States of America-Practice of France, Spain, Denmark, Sweden, and Holland-Insurable interest of British captors —Ancient practice as to prisoners of war-Modern Cartels for the exchange of prisoners-Cartel Ships-Ransom of Captures at Sea -Ransom Bills-Hostages-Modern Restraints upon RansomJoint Captures-Distribution of Prize amongst joint CaptorsCondemnation of Prizes brought into the port of an ally. § 166. THE object of captures at sea having been originally to make Reprisals ad damni dati modum, and the right to make Reprisals ceasing upon sufficient security (pignoratio) having been taken to make good the damage, for which Letters of Reprisals had been granted by the Sovereign Power, it was an usual condition of Letters of Marque and Reprisals that the captures should be brought into port and submitted to the adjudication of a competent Court, in order that the validity of each capture should be determined, and permission be granted or refused to the captor to convert the property to his own use. Hence very different rules have been established in regard to maritime captures from those which are applicable to captures on land. The nature of hostilities, which are carried on within an enemy's territory, requires that an invading army should not encumber itself with booty; and accordingly the Commander of an army carries with him authority to make immediate enquiry, and to determine summarily all questions of title to booty. In very early times the Admiral of a fleet of armed cruisers determined in like manner the question of Prize or no Prize summarily, or, as it was said, velis levatis. The capturing vessel conducted its capture to the Admiral-Ship, upon the deck of which enquiry was made by inspecting the papers of the captured vessel and interrogating her master and crew, and thereupon the vessel and her cargo were adjudged to be good prize, or were forthwith allowed to pursue their voyage. Under the present practice of warfare upon the High Seas, it is the duty of the captors to send their captures to a convenient port of their own country or of an allied country, and to submit them immediately for enquiry and adjudication before a lawfully constituted Prize Court. If the captors should fail to do this, it is competent for the party who claims the ship and cargo to apply to a Prize Court of the captors' country for a Monition against the captors to proceed forthwith to adjudication; in which case if the captors should neglect to appear and proceed to adjudication, the Court may condemn them to make restitution with costs, and sometimes with damages. It is immaterial in such a case whether the captors have acted in good faith or not in making the capture. "If the captor," observes Lord Stowell', "has been guilty of no wilful misconduct, but has acted from 1 The Acteon, 2 Dodson, p. 52. Enemies have no Court. error or mistake only, the suffering party is still entitled to full compensation, provided he has not by any conduct of his own contributed to the loss. The destruction of the property by the captor may have been a meritorious act towards his own Government, but still the person, to whom the property belonged, must not be a sufferer. As to him it is an injury, for which he is entitled to redress from the party who has inflicted it upon him; and if the captor has by the act of destruction conferred a benefit upon the public, he must look to the Government for his indemnity. The loss must not be permitted to fall upon the innocent sufferer." $167. The personal obligation of a captor to bring his captures into port for enquiry and adjudication is founded upon the instructions, which he has received from the Government, which has authorised him to make captures. The obligation of every locus standi Government on the other hand to require its cruisers in a Prize to bring their captures into port for adjudication before a competent Court of Prize rests upon the general Law of Nations. But this obligation under the common Law of Nations exists only with respect to vessels navigated under a Neutral flag, the object of the enquiry before a competent Court being to ascertain whether the captured property in each case belongs to a neutral or an enemy, and to restore the property if it belongs to a neutral, and so to restrain the captor in the eager pursuit of gain from doing injustice to innocent merchants, whereby national quarrels might arise. Enemies on the other hand have no locus standi in a Prize Court under the general Law of Nations, and they cannot claim of Right that their property upon capture by a belligerent cruiser should be taken into the port of the belligerent or his ally for enquiry and adjudication. 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. : Droit Dangerie essential to § 168. In order to constitute a capture at sea, an What is act of taking possession is not absolutely necessary constitute 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 The Felicity, 2 Dodson, p. 386. |