The United States and Central America (federation of),

1825.

and France, 1778 and 1800.

France and Great Britain, 1632, 1677, 1713, and 1786. and Morocco, 1682 and 1767.

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and Mecklenburg-Schwerin, 1779.

and Holland, 1646, 1662, 1678, 1697, 1713, and

1739.

and The Ottoman Porte, 1535,

and Russia, 1787.

and Tunis, 1604.

Great Britain and Holland, 1667.

and Morocco, 1721, 1750, 1760, and 1801. and Ottoman Porte, 1675.

and Sweden, 1664, 1802, and 1803. (This last Treaty authorises the exercise of a right of preemption of 10 per cent.) and Tripoli, 1662, 1716, and 1751.

and Tunis, 1662, 1686, and 1751.

and Tunis, 1662, 1704, 1708, and 1713 (t).

(t) De Martens et De Cussy, Rec. de Tr. et Conv. vol. i. pp. 46, 47, index explicatif.

See also, Rec. des Traités de Commerce et de Navigation de la France, par M. le Comte D'Hauterive et M. le Chevalier F. de Cussy, t. ix. pp. 350-358, tit. Neutralité.

The Treaties which have conferred the right of Visitation and Search, in time of peace, upon the ships of certain States in certain latitudes and under certain conditions, for the purpose of extirpating the Slave-Trade, have been mentioned in a former volume of this work (u).

(u) Vol. i. pt. iii. chap. xvii.

CHAPTER IV.

THE RIGHT OF CAPTURE. THE DUTY OF THE CAPTOR.

CCCXLV. THE Right of Capture and the Duty of the Captor are, of course, not dependent upon the element on which they happen to be exercised. For instance, the rules of International Law with respect to the circumstances which are necessary to constitute an actual Capture, the exact time when the contest is at an end, the enemy's property actually acquired, jure victoria, by the conqueror, the recognised signs of surrender, and other questions of the like kind, are equally incident to all war, whether waged by sea or by land.

But with respect to the Rights and Duties incident to Capture, as with respect to the tribunal which adjudicates upon them (a), they have, in maritime affairs, been moulded, by the reason of the thing and by usage, into a more regular system of established practice than has yet been attained in matters connected with military operations by land (b).

It is with the consideration of the law as applied to the Rights and Duties springing from Maritime Capture, that this chapter will be principally occupied.

CCCXLVI. This subject of Maritime Capture (c) presents for solution the following questions:

1. What may be captured?

2. What constitutes Capture?

(a) Vide antè, p. 115.

(b) Ibid.

(c) Effect of War upon the Trade and Property of Neutral and Maritime Capture and Prize, by J. P. Deane, D.C.L. London, 1854.

3. Where may Capture be made?

4. To whose benefit does the Capture enure?

5. When does it so enure?

6. What must be done by the Captor after Capture? and to what Ports may the captured property be taken.

7. In the Courts of what country must it be adjudicated upon?

8. Where must the captured property be at the time of condemnation?

9. The forfeiture by misconduct of the Captors' title to Prize?

CCCXLVII. 1. What may be captured?

This question has already been answered in the foregoing chapters. The summary of the details discussed in these chapters is, that all property belonging to the enemy found afloat upon the high seas, and all property so afloat of Subjects or Neutrals conducting themselves as Belligerents, may be lawfully captured (d).

The limitations which this abstract principle of International justice has from time to time received must be sought for in the preceding pages of this volume.

CCCXLVIII. 2. What constitutes Capture?

An act of taking possession is not indispensably necessary to a Capture: an obedience to the summons of a hostile attack or hostile force, though none of the enemy's crew be on board, is sufficient (e). The attack on an enemy's ship

(d) See Mr. Justice Story's judgment in The Julia, 8 Cranch's (Amer.) Rep. p. 189.

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By fiction, or rather by intendment of law, all property condemned is the property of enemies, that is, of persons so to be considered in the particular transaction."-The Elsebe, 5 Rob. Adm. Rep. p. 176. (e) La Esperanza, 1 Haggard's Adm. Rep. p. 91. The Edward and Mary, 3 Rob. Adm. Rep. p. 305. The Hercules, 2 Dodson's Adm. Rep. p. 363.

The Resolution, 6 Rob. Adm. Rep. p. 13.

The William and Mary, 4 Rob. Adm. Rep. p. 386.

and the compelling her to run into the port of an ally amounts to legal Capture (ƒ).

But if one party take a vessel and afterwards abandon her, and then another take the same vessel, the last seizor is in law the only Captor (g). The inability, however, of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, the property of the Captor may be retained as well by a prize master alone, as by a considerable detachment from his crew (h).

The real surrender (deditio) of a vessel is to be dated from the time of striking the colours (i). Restitution after a first seizure does not bar a second by another seizor; though, if judicially recorded, it would bar the first seizor; but otherwise a second seizure by the same seizor is lawful, though it is made under peril of costs and damages (k).

CCCXLIX. 3. Where may Capture be made?

It has been already shown in preceding portions (1) of this work, that it is not competent to a Belligerent to exercise any Rights of War within the territorial jurisdiction of a Neutral State (m), and that this jurisdiction extends

(f) La Esperanza, 1 Haggard's Adm. Rep. p. 91.

(g) The Diligentia, 1 Dodson's Adm. Rep. p. 405.

The Polly and the Margueritte, note to the John and Jane, 4 Rob. Adm. Rep. p. 217.

The Lucretia, 1 Hay and Marriott's Adm. Rep. p. 227.

(h) The Alexander, 8 Cranch's (Amer.) Rep. p. 180.

(i) The Rebeckah, 1 Rob. Adm. Rep. p. 233.

(k) The Mercurius, 1 Rob. Adm. Rep. p. 80.

The Woodbridge, 1 Haggard's Adm. Rep. p. 74.

() Vol. i. pt. iii. chap. iv. viii.

(m) “Jure Belli adversus hostem duntaxat utimur in nostro, hostis, aut nullius territorio. In nostro si hostem deprehendamus, nihil utique prohibet, quominus, si sine libero commeatu ad nos pervenerit,