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§ 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 wrong. doers, 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.1

port with an immense quantity of specie, which they were bringing from Monte Video. On Oct. 5 the four British frigates sighted the Spanish frigates and immediately made sail in chase, and upon the refusal of the Spanish commanding officer to allow the squadron to be detained, an action was commenced, during which one of the Spanish ships blew up and the other three were taken by the British ships. Their cargoes netted very little short of a million sterling. Many persons, who concurred in the expediency, doubted the right of detaining these ships; and many again, to whom the legality of the act appeared clear, were of opinion that a more formidable force should have been sent to execute the service, in order to have justified the Spanish admiral in surrendering without an appeal to arms. On Nov. 27 an order was made to make reprisals on English property, and on Dec. 12 war was declared against England by Spain.-Jas. Nav. Hist. vol iii. 280.

Riquelme, Derecho Pub. Int., lib. i. tit. ii. c. 13; Brown, Civil and Adm. Law, vol. ii. p. 140; Pothier, De la Propriété, No. 92: Valin, Sur POrdonnance, liv. iii. tit. ix.; Talbot v. Three Brigs, 1 Dal. R., 95; the 'Die Fire Damer,' 5 Rob., 318; the Der Mohr,' 3 Rob., 129; the 'Gerolama,' 3 Hagg. R., 187; Del Col. v. Arnold, 3 Dall. R., 333; the 'Anna Maria,' 2 Wheat. R., 327; King v. Ferguson, Edw. R., 84; the Karasan,' 5 Rob., 260; the William, 4 Rob., 214; Bello, Derecho Internacional, pt. ii. c. v., §5; Code de Commerce, liv. ii. tit. iii., art. 217; Bedarride, Droit Com., §§ 300 et seq.

The distribution of the prize proceeds is generally directed by the agreement between the owners, officers, and crew; but if no agreement is executed, the Admiralty court will make distribution in proportion to the number, interest, and merits of the captors.-Keane v. the Glouces ter,' 2 Dall., 36.

Lord Nelson, writing to the Minister Plenipotentiary at the Court of

§ 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 prize-master, 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.'

Sardinia in 1804, says :—'With respect to the history about the French privateers from Ancona, and the conduct of the English privateers at Fiumesino, I believe you are correct, but our enemies never adhere to it. They go in and out of the Spanish and Sicilian ports at all times night and day-in short, to examine all vessels passing. But all privateers are very incorrect, and I sincerely wish there were no such vessels allowed. They are only one degree removed from pirates; but I believe an English armed vessel never yet trusted his cause to any court but an English Court of Admiralty. However, I have no power over them. But certainly if the custom of the government of Fiumesino has invariably been not to allow any corsair to sail out of the port until the 24 hours after the sailing of a neutral, then our privateer ought to have been forced to conform. But I daresay the French go in and out of Ancona as they please, and if so, the court of Rome has no great cause of complaint. I can only again repeat that over privateers I have no control.'

The 'Speculation,' 2 Rob., 293; Del. Col. v. Arnold, 3 Dall. R., 333; Wilcox v. U. Ins. Co., 2 Binn. R., 574; Willis v. Commissioners, 5 East. R., 22; the 'Noysomhed' 7 Ves. R., 593; Smart v. Wolff, 3 Durn. & East., 323; the Pomona,' 1 Dod. R., 25; the 'Herkimer, Stew. R., 328; the Louis,' 5 Rob., 146; the 'Polly,' 5 Rob., 147, note; the 'Printz

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Henrick,' 6 Rob., 95; the 'Exeter,' 1 Rob., 173; the 'Princessa,' 2 Rob., 31; the 'St. Lawrence,' 2 Gallis. R., 19; the Brutus,' 2 Gallis. R., 526 ; Bingham v. Cabot, 3 Dallas. R., 19; Kean v. Brig Gloucester, 2 Dall. R., 36; Hill v. Ross, 3 Dall. R., 331; Penhallow v. Doane, 3 Dall.” R., 54.

A sale of captured property, by authority of the captors, before sentence of condemnation, if the property be afterwards condemned, is valid.-Williams v. Armroyd, 7 Cranch., 423.

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CHAPTER XXXII.

PRIZE-COURTS, THEIR JURISDICTION AND PROCEEDINGS. 1. Title to property captured at sea-2. Must be tried by prize-court of captor-3. Apparent exceptions to rule-4. Rule varied by municipal regulations-5. 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 claimants25. Nature and form of decrees.

§ I. 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 præsidia, 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 favour 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

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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.1

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§ 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-bellige 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 determine whether captured property shall be restored to the original owner, or whether the captor's government shall assume the responsibility of its condemnation. Sir R. Phillimore asserts, that the question of prize may be adju dicated 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

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1 Kent, Com. on Am. Law, vol. i. pp. 101, 102; Bello, Derecho Inter nacional, pt. ii. cap. v. § 4; Phillimore, On Ínt. Law, vol. iii. §§ 407, et

seq.

The proceedings of a prize-court of the late Confederate States were of no validity in the United States, and a condemnation and sale by such a court did not convey any title to the purchaser, or confer upon him any right to give a title to others.-The 'Lilla,' 2 Sprague, 177.

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