PRIZE. 



Ill 



found on board a neutral ship, and the conduct of 

 the neutral is bonafide, he is entitled to receive the 

 stipulated freight of carriage from the captors. If 

 neutral property is found on board an enemy ship, 

 the neutral must, if the captors are willing to com- 

 plete the voyage, pay to the captors the stipulated 

 freight upon due delivery and restitution. 



VII. As to the nature and proofs of proprietary 

 interest in ships and cargoes. In the ordinary 

 course of things, the proprietary rights must be 

 judged of by the documents and evidence found on 

 board, and the general principles of national juris- 

 prudence applicable to such subjects. No nation 

 has a right to decide such questions by its own mere 

 municipal regulations, as to the rights of property, 

 but must decide them upon the general doctrines of 

 the law of nations. Every ship navigating the ocean 

 is expected to have on board some papers, which, 

 under proper verifications, shall establish her na- 

 tional character. The usual papers, therefore, 

 which the laws of her own country require as evi- 

 dence of that character, ought to be on board ; and 

 if they are not, that very circumstance creates a 

 suspicion of a false and assumed character. The 

 like rule applies to cargoes ; for these are expected 

 to be accompanied by suitable documents to prove 

 the ownership and national character, and to be 

 verified by some public or customary authentica- 

 tions of public officers. The general criterion, 

 therefore, adopted by the law of nations to distin- 

 guish the property of different nations found on the 

 sea, is to require the production of such documents 

 as the laws of the nation itself require, as evidence 

 of proprietary interest. But these papers are not 

 deemed conclusive, but only prima facie, evidence, 

 until they are impeached. There are, however, 

 some peculiar rules of evidence adopted in prize 

 courts, which require to be mentioned. In the first 

 place, it is a rule of prize courts, in all cases of 

 capture, that the burden of proof is on the claimant 

 to prove a neutral proprietary interest. If he fails 

 so to do, the property is deemed hostile. One reason 

 for this rule is, the difficulty of the captors estab- 

 lishing the contrary, as they have no privity with 

 the shippers ; and another is, the extreme facility 

 and frequency of covering belligerent property 

 under neutral disguises in time of war. Another 

 rule is, that the circumstance of property being 

 found on board of an enemy's ship affords a pre- 

 sumption, that it is enemy's property ; and that pre- 

 sumption will prevail, until it is clearly displaced by 

 satisfactory evidence to the contrary. Another rule 

 is, that where a party claims under a title by cap- 

 ture, he must show a sentence of condemnation ; for 

 though, as between belligerents, the property is, or 

 may be changed by mere capture, neutrals or others 

 purchasing from them, must show a good title under 

 the sale, which can only be by such a sentence. 

 Goods are usually accompanied by bills of lading, 

 invoices, and letters of consignment. But a mere 

 consignment to a party is no absolute proof of pro- 

 perty ; for he may be the mere agent of the shipper. 

 It is, therefore, a rule, that in such a case, the goods 

 must appear by the documentary evidence to be 

 really shipped on account and risk of the consignee. 

 The consignment must amount to an absolute trans- 

 fer of the property to the consignee ; for, if it is con- 

 tingent, or dependent upon future occurrences, it is 

 deemed to remain still in the shipper. Thus, if the 

 shipment is made on the joint account of the snipper 

 and consignee, or on the sole account of the con- 

 signee at his option, the property, during the voy- 

 age, remains in the shipper, and may be captured as 

 his, for, until the option is made, there is no absolute 

 transfer: so, if a sale made during war be-condi- 



tioual or contingent, or dependent upon future acts 

 or circumstances, the proprietary interest is deemed 

 to belong to the vender : so, if the goods are sent 

 by the vender to the vendee without orders, though 

 on account of the latter, the interest remains in the 

 vender. It is also a rule of the prize court, that 

 property cannot, in time of war, be transferred in 

 transitu ; so that, for all the purposes of capture, it 

 is treated as belonging to the same party, during the 

 whole voyage, to whom it belonged at its com- 

 mencement. Another rule is, that no lien upon 

 enemy's property by way of pledge, or hypotheca- 

 tion, or lor advances made by the consignee, or in 

 virtue of a general balance of accounts due to the 

 consignee, as factor, is regarded in the prize court 

 as sufficient to defeat the rights of captors ; nor, 

 indeed, any liens except such known liens as accom- 

 pany the very goods by the universal commercial 

 law, such as a lien for freight. The reason for this 

 rule is, that the liens created by private persons 

 must be essentially dependent upon and connected 

 with the municipal laws of the countries where the 

 parties live, and the courts of prize would be in- 

 volved in endless perplexity in the examination of 

 them, and they would open a wide door for the in- 

 troduction of false and fraudulent claims, which such 

 courts could have no adequate means to detect. 



VIII. Another inquiry is, how far the property of 

 belligerent subjects engaged in trade with their 

 enemies, is liable to capture and condemnation. 

 The declaration of war puts (as has been seen) all 

 the subjects of the different nations at war with each 

 other, as well as the nations themselves, in their 

 sovereign capacity : hence all traffic between such 

 subjects being enemies, is prohibited by the law of 

 nations, and not only all traffic and commerce, 

 strictly so called, but all commercial dealings. 

 Therefore, entering into contracts with an enemy, 

 making remittances to him, or paying debts to him, 

 during the war, is deemed an illegal intercourse, 

 which may interfere with the national policy, and, 

 in some cases, paralyze the operations of the war. 

 A belligerent has no right to go into the enemy's 

 country at all without the license of his own gov- 

 ernment, even for the purpose of bringing away 

 goods which were purchased before the war com- 

 menced. The same principle applies to the subjects 

 of an ally in the war ; for the duties of each are the 

 same. Hence the property of a subject, or of an 

 ally, found engaged in commerce with the enemy, 

 is liable to capture, and treated as enemy's property; 

 for no person can be permitted to set up in a court 

 of prize a claim to property founded on a violation 

 of the law of nations. And it matters not whether 

 the trade be carried on directly or indirectly with 

 the enemy, directly with the enemy's ports, or indi- 

 rectly through a neutral port ; or whether there be 

 an actual trade, or only an attempt to trade, for the 

 voyage is itself illegal. And if a belligerent be 

 engaged in any trade in violation of the municipal 

 laws of his own country, and the property so en- 

 gaged is captured, he cannot maintain any claim for 

 it in the courts of prize of his own country ; for he 

 cannot be permitted to set up his own offence against 

 the laws to protect his property from condemnation; 

 and his claim being rejected, the property is of course 

 confiscated, as enemy property, for want of a proper 

 claim. If a vessel is captured during the same 

 voyage in which the offence of illegal traffic is com- 

 mitted, although after it has been committed, she is 

 still deemed in deliclo, and subject to confiscation. 

 And perhaps the same rule of confiscation would be 

 applied to the return voyage, as is applied in cases 

 of 'breach of blockade and contraband of war. 



IX. It is often an important question, how far 



