PRIZE. 



715 



ing in sight is not sufficient, unless they are purposely 

 and previously associated together; but there must be 

 actual intimidation, and actual or constructive assis- 

 tance. The reason of this distinction is, that public 

 ships are under a constant obligation to attack the 

 enemy; and, therefore, from the mere circumstance 

 of their being in sight, a presumption arises that they 

 have an intention to capture. But, in the case of pri- 

 vateers, no such obligation exists; and the law does 

 not, therefore, give them the benefit of a like pre- 

 sumption. Besides, in cases of public ships, the 

 rule ensures harmony in the service ; and in favour 

 of public ships, the rule prevails even when the 

 actual capture is made by a privateer. There are 

 exceptions, however, to the rule, even in relation 

 to public ships, where the circumstances of the case 

 repel the presumption of constructive assistance. 

 Thus, if the public ship be pursuing a course 

 inconsistent with any notion of capture, or if she 

 have given up the chase, or otherwise abandoned 

 all intention of co-operation or pursuit, the claim of 

 joint capture will be repelled. But, even in cases 

 of public ships, the rule of being in sight is strictly 

 construed. The ship must, at the time of capture, 

 be actually in sight ; it is not sufficient that she has 

 been so the day before : she must also be in sight 

 at the commencement of the engagement, or chase, 

 or during its continuance. A convoying ship, not- 

 withstanding her special employment, may be 

 entitled to share as joint captor, if, by chase or 

 intimidation, she aids in a capture, without inter- 

 fering with convoy duty. In captures made by 

 boats, it is a general rule that the ships to which 

 they belong are entitled to share. In respect to 

 public ships associated in the same service, or 

 engaged in a joint enterprise, the general rule is, 

 that they are entitled to share in each other's 

 prizes made while in such service or enterprise. 

 Thus, where a fleet is engaged in a blockade, the 

 service is considered as joint, and all the fleet are 

 entitled to share in captures made by any one of 

 the ships. But it will be otherwise as to vessels 

 previously detached upon a separate service, or 

 to captures made in another service, for which they 

 were not associated. In regard to conjunct opera- 

 tions by land and naval forces, how far captures 

 made by the latter are to be shared by the former, 

 depends upon circumstances. A mere general co- 

 operation for the same general objects is not suffi- 

 cient. But an actual co-operation is clearly 

 sufficient. So an ally co-operating by land or sea 

 in a capture is entitled to share in it. In respect 

 to joint captures by public ships, the rule, as to the 

 proportion in which they are to share, is generally 

 settled by statute. In the United States of America, 

 it is provided by an act of congress, that capturing 

 ships shall share according to the number of men 

 and guns on board each ship in sight. In respect 

 to joint captures by privateers, no statute regula- 

 tions exist ; and the general rule of the prize law, 

 in such cases, is, that they are to share in proportion 

 to their relative strength. In Great Britain and 

 'the United States of America, this relative strength 

 is measured by the number of men on board 

 assisting in the capture. The rule is the same 

 where an ally co-operates in the capture, and in 

 cases of joint capture by a public ship and a private 

 ship, whether commissioned or not. 



XIV. The effects of a suspension of hostilities, 

 and a treaty of peace. An armistice, truce, or 

 other suspension of hostilities, is binding between 

 the parties from its date; and all captures made 

 subsequently thereto must be restored by the 

 sovereign. But the actual captors, if they have 

 no notice, are riot to be deemed guilty of a wrong- 



ful act to the extent of being liable for vindictive 

 costs and damages, at least, if they have not been 

 guilty of gross misconduct or wilful negligence. 

 There may, indeed, be special cases in which igno- 

 rance of a treaty of peace, or of a suspension of 

 hostilities, either generally or in particular places, 

 might not excuse a party from responsibility for a 

 capture, or other wrongs done to the injured party, 

 and in which the sovereign would be bound to 

 indemnify him. But such cases are rare, and are 

 governed by their own circumstances. To avoid 

 inconveniences of this sort, it is customary to fix 

 certain distant periods at which hostilities shall 

 cease in different places, so that all parties may 

 have suitable opportunities of notice. In cases 

 where such stipulated periods are fixed, subse- 

 quent captures are deemed utterly invalid. But as 

 to captures antecedently made, especially after 

 notice of the existence of the peace, some diversity 

 of opinion exists among writers on public law. 

 The better opinion, however, seems to be, that if 

 the treaty does not otherwise provide, the rule of 

 uti possidetis prevails. A treaty of peace has the 

 effect of quieting all titles of possession acquired 

 during the war, unless a different stipulation is 

 made. It therefore operates as conclusively between 

 the belligerents as the most formal sentence of con- 

 demnation. And whatever defect may exist in the 

 title, the infirmity is cured, or at least it can no 

 longer be insisted on. And neutrals, who have 

 acquired property from belligerents, under defec- 

 tive titles, have a right to avail themselves of this 

 confirmatory operation, by a treaty of peace. What- 

 ever rights existed antecedent to hostilities between 

 the subjects of the belligerents, if no confiscation or 

 action upon them has taken place during the war, 

 are revived, and may be pursued and claimed, upon 

 the return of peace. 



XV. Such is a brief outline of some of the more 

 important principles of prize law, applicable to 

 maritime captures. A full examination of all of 

 them, in their details, could be made only in a 

 large and voluminous treatise. This sketch will 

 be closed by a summary of some of the principles 

 which regulate the general practice of the English 

 and American courts of prize. 1. As soon as the 

 captured ship arrives in port, the prize-master is 

 bound to give notice thereof to the proper court of 

 prize, and to deliver, upon oath, into the registry 

 of the court, all the papers found on board of the 

 ship. It is the duty of the captors to send in, with 

 the ship, the master or some of the principal officers 

 and crew of the ship, in order that their testimony 

 may be taken, upon standing interrogatories, which 

 are prepared under the direction of the prize court. 

 The prize-master accordingly gives notice to the 

 commissioners appointed to take the examinations 

 of the master and crew of the captured ship, so 

 brought in, upon these interrogatories ; and these 

 examinations are made immediately after the 

 arrival in port; and in order to prevent frauds and 

 concealments, the witnesses, before examination, 

 are not allowed to have any communication with, 

 or to be instructed by, counsel. Each witness is 

 separately examined, and his answers written 

 down, and the whole are then subscribed by him, 

 and verified by the commissioners, and then certi- 

 fied, under seal, to the prize court. These exami- 

 nations being completed, a libel is filed in the prize 

 court, alleging the facts in the most general form, 

 and asserting the property to belong to enemies ; 

 and a monition is thereupon issued and duly pub- 

 lished, requiring all persons who have any interest 

 or claim to appear, at a given day, in court, 

 and show cause why the ship and goods should 



