708 



PRIZE. 



the prize courts of the captors, whose sentence is 

 conclusive ujum all the world, we are next to in- 

 quire, uiuler what circumstances this conclusive 

 jurisdiction attaches. It is not permitted to any 

 nation to assume to itself the final adjudication up- 

 on all rights of property in which the subjects of 

 other nations are concerned, whenever a court of 

 prize lias undertaken to pass sentence upon it. Such 

 a sentence is not obligatory, unless a rightful juris- 

 diction has attached to such court ; and, therefore, 

 in all cases where property, captured and condemn, 

 ed as prize, comes afterwards in judgment before 

 the courts of other nations, and the title is contro- 

 verted, the first question is, whether the court of 

 prize pronouncing the sentence had jurisdiction over 

 the property. The foundation of its jurisdiction is, 

 that the property has been captured, and is in the 

 possession of the captors, and capable of being 

 reached directly or indirectly through the process 

 of the court. Every court of prize, therefore, pro- 

 ceeds in rem, and, in order to maintain its jurisdis- 

 diction, it must be capable of asserting its claim 

 over the thing or over its proceeds. The jurisdic- 

 tion, then, gained by capture is lost by a recapture, 

 escape, or voluntary discharge of the property be- 

 fore the court has adjudicated upon it ; and if not- 

 withstanding, it should attempt to bind the property 

 by any subsequent proceedings, its sentence becomes 

 a mere nullity. Upon this ground, it was formerly 

 held that, in order to entitle a court of prize to pro- 

 ceed to adjudication, it was essential that the pro- 

 perty or proceeds should be brought within the 

 ports of the capturing power. But this rule was 

 soon found, in practice, to be too narrow and in- 

 convenient ; and it is now well established, that it 

 is sufficient that the property is in the possession of 

 the captors in the ports of an ally in the war, or 

 even in the ports of a neutral, for, by the capture, 

 the captors acquire such a right and possession as 

 no neutral nation is at liberty to divest or impugn. 

 This rule is so inflexible that, even if a belligerent 

 captures a neutral vessel and cargo, and brings it 

 into the ports of the neutral nation to which the 

 vessel and cargo belong, the courts of the latter are 

 bound to abstain from all exercise of jurisdiction 

 over the property, except so far as to inquire whether 

 the captors are entitled to make the capture, or are 

 mere pirates. And this leads to the remark, that the 

 capture must be made in a place where it can, by 

 the law of nations, be rightfully made by the belli- 

 gerent. Every neutral nation has a right to an ex- 

 clusive jurisdiction within its own ports, and over 

 its territorial seas to the extent of a marine league 

 on its sea-coast. A belligerent has no right to 

 make any captures within those limits ; for it is 

 undertaking to carry on war within the neutral 

 territory, which is a plain violation of neutral rights: 

 so a belligerent has no right to equip, or arm, or 

 man, his ships for war in any neutral port ; and, if 

 he does it is the duty of the neutral to vindicate his 

 his own exclusive sovereignty. If therefore in 

 either of these cases of violation of territorial sove- 

 reignty, or of illegal equipments, the captured pro- 

 perty is brought within the neutral jurisdiction, it is 

 the right and duty of the neutral to restore it to the 

 original owner A prize court may not only lose 

 its jurisdiction by circumstances occurring after it 

 has once rightfully attached, but it may be incom- 

 petent from the locality of the exercise of its juris- 

 diction. Thus a prize court must sit in the country 

 of the captors, or, at least, in the territory of a co- 

 belligerent ; for if it sits in a neutral country, its 

 sentence of condemnation will be deemed invalid, 

 and, of course, will be disregarded as a violation of 

 the proper duty of the neutral sovereign. 



II. The next inquiry is, Who are entitled to make 

 captures > In general, every belligerent sovereign 

 reserves to himself the exclusive right to grant com- 

 missions to make captures in time of war. The 

 object of this regulation is, in the first place, to se 

 cure neutrals against predatory warfare and pirati- 

 cal attacks ; and in the next place, to enable the 

 sovereign to limit the operations of war, and con- 

 trol the persons who are engaged in it so as to se- 

 cure a perfect responsibility to himself for any mis- 

 conduct. But unless the sovereign actually prohibits 

 any uncommissioned subjects from engaging in the 

 war, they are not absolutely incompetent to make 

 captures; for all the subjects of the hostile nations are 

 deemed enemies to each other. But such captures 

 are always made at the peril of the parties ; and 

 the uncommissioned captors acquire no interest 

 therein, but the same are at the free disposal of the 

 sovereign. Indeed, the general principle of the 

 law of nations is, that all captures are for the sove- 

 reign ; and no beneficial interest can be acquired 

 therein by the captors, except by the grace and 

 bounty of their sovereign. It is usual for the sove- 

 reign, in cases of public ships of war, as well as in 

 cases of private commissioned ships, to give the 

 captors, after adjudication, the whole of the pro- 

 ceeds of prizes, according to some stipulated mode 

 of apportionment and distribution. But this is a 

 mere act of grace, and not of duty. In cases of 

 non-commissioned vessels, captures may certainly 

 be made by them in self-defence, if they are attack- 

 ed ; and they are usually permitted to make hostile 

 attacks and captures, which are not in mere self- 

 defence. Indeed, so far as other nations are con- 

 cerned, such captures are to be deemed lawful, and 

 not piratical ; though, if not authorized by their 

 sovereign, the captors may incur an onerous respon- 

 sibility to him. And, with a view to the exigencies 

 of war, it is a general policy among sovereigns not 

 to allow any rights to vest in the captors until after 

 a final sentence of condemnation, so that, if any in- 

 termediate negotiations take place, the prizes may 

 be restored without any infringement of the vested 

 rights of the captors. 



III. In the next place, Who are to be 'deemed 

 enemies ? and what property is liable to capture ? 

 In general, it may be laid down that all the subjects 

 of the belligerents are to be deemed enemies to 

 each other, and their property is deemed to belong 

 to enemies ; but the rule has some qualifications. 

 In cases of prize, the question of enemy or not, de- 

 pends, not upon the native or adopted country of 

 the party, but upon his actual residence or domicil. 



He is deemed to belong to the country in which 

 he has his actual residence or domicil. Hence a 

 neutral domiciled in an enemy's country is deemed 

 an enemy, and a subject of a belligerent domiciled 

 in a neutral country is deemed a neutral ; and the 

 masters and officers and crews of ships are deemed 

 to belong to the country, and to possess the national 

 character of the ships in which they are employed, 

 during the time of their employment. And the 

 hostile character may be impressed upon a person 

 who goes into a belligerent country originally for 

 temporary purposes, if other objects of a more 

 permanent nature become engrafted upon that ori- 

 ginal purpose. Ambassadors and public ministers 

 are always deemed to retain the national character 

 of their sovereigns ; and so consuls, while they con- 

 fine themselves to their mere official duties. But 

 if they engage in commerce, so far as their com- 

 merce is concerned, they partake of the national 

 character of their place of domicil. A national 

 character which is acquired solely by domicil ceases 

 with the change of that domicil; and the native char. 



