his government did not furnish a defence to the demand of the creditor in this country, and judgment was given against him accordingly.

The rights of embargo, reprisals, and confiscation may be roughly described as rights more especially internal—that is, which can be exercised by a belligerent against the enemy within the national territory. Other and more important or, at any rate, better known rights are those to be exercised outside the jurisdiction. Foremost amongst these stands the right to seize and confiscate enemy shipping on the high seas. This we will now consider.

CAPTURE OF ENEMY VESSELS AND ENEMY CARGO

THEREIN.

Capture may for present purposes be defined as the forcible seizure of the ships and goods of an enemy, or of enemy subjects, with intent to appropriate the same to the captors' use, and it may be effected either (1) by the public vessels or national forces; or (2) by individuals commissioned by letters of marque to engage in hostilities against the enemy on the high seas and within the enemy jurisdiction. The subjects of Letters of Marque and Privateers will be specially considered presently (s), and the subject of Neutral Territory (as opposed to "enemy jurisdiction") will be referred to in its place under the general head Belligerent Obligations (t).

On the outbreak of hostilities the right of capture at once becomes active, but having regard to the example in moderation set by the belligerent powers in recent wars, it is not unreasonable to suppose that the right to capture any enemy vessels within the dominions on the outbreak of hostilities will henceforth be postponed. Thus, in the war with Russia in 1854, six weeks was allowed for Russian merchant vessels within British territory to load and proceed; whilst such vessels which had sailed for British ports prior to the outbreak were permitted to enter, discharge, and proceed unmolested to any port not blockaded (u). And on the occurrence of the

Franco-German war in 1870, thirty days were allowed for German merchant vessels in French ports to load or unload and depart, whilst those vessels which had sailed prior to the war with cargoes on French account were also to be free from capture (v). To French vessels in German ports a period of six weeks was allowed in which the vessels might load or unload and depart (x).

To constitute a capture it is not necessary that the captured vessel should be actually boarded and seized by the enemy, or even that a prize master should be sent on board. The striking of the colours of the assailed vessel is deemed a token of surrender and capture (y); or the vessel may be driven on shore or into port (). In The Edward and Mary (a) Sir W. Scott mentioned as an instance of this a famous case in which a small British vessel, having only three men on board, and with no weapons except two swivel-guns, drove into Ostend, then the port of an ally, a French row-boat full of heavily armed men. The British seamen dared not attempt to board the row-boat, but forced the enemy into port, by following them all the way at a suitable distance, covering the boat meantime with the swivels. And in another case, that of The Resolution (b), which was seized by a British vessel and claimed as a capture, it was held that the vessel had already been captured by another British vessel, although the first captors, instead of putting a prize crew on board, had accepted the master's voluntary promise that he would proceed to a

(v) 60 State Papers, 879; and vide p. 269, infra.

(x) 60 State Papers, 899.

(y) The Rebekah, 1 Rob. 233.

(2) Cf. Powell v. Hyde, p. 79, infra, where an abandoned ship, deliberately sunk by the enemy, was held to have been "captured."

(a) 3 Rob. 306.

(b) 6 Rob. 13.

British port, which promise, however, was not kept. The vessel was a neutral, and had been seized on the ground that she had enemy goods on board.

A capture is none the less a capture if illegally made, or if it prove on adjudication that the property is not subject to condemnation (c). A reasonable suspicion on the part of the captors will justify seizure, and a ship may be liable to capture though not to condemnation. But every capture, whether by a public vessel or by a privateer, is at the peril of the captors, who, on failure to show reasonable and sufficient justification, are liable to a suit for restitution, and may in addition be mulcted in costs and damages (d).

All captured vessels must be brought without unnecessary delay and with due care to a port within the jurisdiction of the nation of which the captor is a member, or to the port of an ally, for adjudication (e). The Prize Act (vide Appendix) allows captors considerable latitude as to the port to which to take their prize, but they must not select any port they please. It must be a convenient port, and one of the first considerations in this connexion should be the convenience of the claimants in proceeding to adjudication (ƒ).

If a captor finds himself unable to bring his prize into port -because, for example, he cannot spare men to man her; or because his own national ports are too closely watched by the enemy; or for any other sufficient reason-in default of other means of disposing of the vessel he may destroy her. But before resorting to such an extreme exercise of the rights of war he should satisfy himself that the vessel, if brought in

(c) Hobbs v. Henning, p. 196, infra.

(d) Story on Prize Courts, p. 35. Vide also p. 324, infra.

(e) Vide p. 316, infra, "Adjudication and Condemnation."

(ƒ) The Wilhelmsberg, 5 Rob. 143; The Lively and Cargo, 1 Gall. 318; The Washington, 6 Rob. 275.

for adjudication, would be condemned, and in case of doubt upon this point she should be released. If destruction be resorted to, the vessel's papers should be preserved, for it will be open to innocent sufferers to demand adjudication and compensation, though ship and cargo be destroyed (g). During the American civil war many Federal vessels were burnt by the Confederate cruisers, and in so doing the Confederates followed, as was subsequently admitted by the Federal law officers, the example of the United States during the war with this country in 1812-1814 (h). And during the recent war between Russia and Turkey, a similar course was, it is alleged, adopted by Russian cruisers against merchant vessels of the latter power (i). But failing such evidence as in captors' opinion would secure the confiscation of the property, the capture should be released (j). If a prize be destroyed on insufficient grounds, compensation may be ordered to the claimants (k). But great indulgence is allowed to errors in cases where captors act in good faith and without gross misconduct (1).

Formerly, fishermen engaged in their occupation were deemed non-combatants and their property exempt from capture, but Sir W. Scott, in The Young Jacob (m), observing that the rule was one of comity and not of law, condemned the vessel as being constantly and exclusively employed in the enemy's trade. But by an Order in Council dated May,

(g) But vide p. 357, infra, relative to neutral property on belligerent vessels destroyed in the Franco-Prussian War.

(h) Vide Jecker v. Montgomery, p. 299, infra. Also Wheat. Int. Law, 2 Eng. ed. 432.

(i) Ibid.

(j) The Felicity, 2 Dod. 381.

(k) The Felicity, supra; The Acteon, 2 Dod. 381.

(1) The Lively and Cargo, supra; The Anne, 3 Wheat. 435; The George,

1 Mason, 24; The John, 2 Dod. 339.

(m) 1 Rob. 20.