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of Browershaven, after the surrender of "Walcheren, in virtue of orders from Commodore Owen, commanding a division of his majesty's ships engaged in the expedition. A claim was made on behalf of Minter & Co., of Browershaven, for this vessel, under the second article of capitulation, by which * it was agreed that "all private property should be protected." Lord Stowell said: "Privateers are private property in one sense; but they h'ave, at the same time, a public character impressed upon them by their employment; though they are private property, they are still private property employed in the public service."1.
By the law of nations, letters of marque or re- Limitation 01
. i i • i i *» authority of
pnsal will not authorize the molestation of embas- letters of sadors, nor of those who travel for religion, nor of TMwqof nastudents, scholars, or their books. tlona
The legality of a capture may exclusively depend legality of upon the orders or ordinances of the governments depend on of the captors; and where captures are made pur- orderTM"*"14 suant to such orders, though manifestly in violation of neutral rights and the law of nations (as in the case of the Berlin and Milan decrees, or the orders in council of 1812), they must be deemed, as to the captors, as rightful; and although a tribunal of prize might not lend its aid to enforce such captures, it would probably be bound to abstain from obstructing the captors.*
To constitute a valid capture, there must always intention to be some, act done manifesting the intention to seize toTvaUd"^ and retain the prize; but such intention may betarR
1 1 Edwards, 271.
'Le Maistonnaire et als. vs. Keating, 2 Gallison, 334.
a proper inference from the conduct of the captor.1
A capture in A capture made within neutral waters, is deemed vaTidaLwabr a rightful capture, as between belligerents. The *^nbemger,neutral power may question its validity; and as . to him, it is considered void, unless, both ships being in neutral waters, the captured vessel commences hostilities upon the other; in such case, the neutral protection is forfeited, and a capture ensuing, it is to be considered rightful, even as against the neutral.2
Question of As to the question when, in point of time, proptime of cap- . , . u ,. , . i
ture consider- erty seized is vested m the captors, there is no other And whether uniform rule among nations than that which requires actual posses- £rm and secure possession. As to what constitutes
sion neces- 11
»ary. such possession, there is considerable diversity.8
"The first question," says Lord Stowell, in the first case, here cited, "that will occur, refers to the time of the capture—whether that is to be dated from the actual taking possession, or the previous striking of colors; and I think that the striking of the colors is to be deemed the real deditio. If the French had succeeded in their attempt to defeat that surrender, then the actual final taking possession must have been alone considered; but as that attempt failed, I am of opinion that the act of formal submission, having never been effectively discontinued, must be deemed the consummation of the capture; and if so, the next question will be, where was the vessel at the time this act took place? and this is proved to have been 'when she
1 The Grotius, 9 Cranch., 368.
3 The Santa Cruz, 1 Rob., 50; The Rebeccah, 1 Rob., 233.
was about to go into the road to anchor there'; for such is the expression of the witness upon the third interrogatory, which points more immediately to the place of capture; although on the nineteenth, which is pointed only to the general course of the vessel on her voyage, he says: 'She put into the road there.' The second witness describes her as merely 'passing by the Isle of Marcon at the time;' and the third says, in the language of the first, that'she was about to go into the road to anchor there.' Clearly, by all these descriptions, she had not entered the road; and she was under sail at the time she struck her colors. In point of locality, then, the claim of the admiral is not founded, for she was not in ipsis faucibus. She was about to enter, but was not actually entering; and that is the point at which the admiralty right commences."
A vessel was captured at Barbadoes, and the captors having returned the ship's papers, intimated to the captain that he had better follow him to Antigua. On the following day the captors took bodily possession, and it was held that the seizure made at Barbadoes was continued throughout, and the actual possession on the second day was not to be regarded as a fresh seizure.1
To constitute a capture, so as to occasion a recapture, no actual possession need be taken.
A vessel was ordered to be-to by a French lugger, calling herself a privateer, but by reason of the boisterous weather, no man was sent on board. Lord Stowell said: "I can by no means agree to what has been advanced in the argument that it
1 The Hercules, 2 Dod., 363.
was on this account no capture. The sending of a prize-master on board is an overt act of possession, but by no means essential to constitute a capture. If the merchantman was obliged to lie-to, and obey the direction of the French lugger, and await her further orders, she was completely under the dominion of the enemy; there was no ability to resist and no prospect of escape. There have been many instances of capture where no man has been put on board, as in ships driven on shore and into port. I remember particularly, a famous case of a British vessel, armed with two swivels, which took a French privateer row-boat from Dunkirk. Having only three men on board, and only armed with the swivels, she was afraid to board the row-boat, which was full of men armed with muskets and cutlasses—but by the terror of her swivels she compelled their submission, and obliged them to go into the port of Ostend, then the port of an ally, she following them all the way at a proper distance."1
A privateer, finding enemy's property on board a neutral vessel, put two men on board, and the master of the vessel promised to proceed into a port of the captain, without resistance to the force put in his possession. It was held that the capture was sufficient, as against the claim of another privateer of like commission as the first, who captured the vessel on finding her proceeding to the port of an enemy.2
"Though the privateer," said Lord Stowell, " had no right to compel such an engagement, if the neu
1 The Herculet, ubi sup.; La Esptrama, 1 Haggard, 91. • The Resolution, 6 Rob., 13.
tral master voluntarily promised to go into the British port, without more force being put upon him, I am of opinion that the act of seizure, under such circumstances, would be fully sufficient in law to constitute a capture. The engagement being made, the neutral nation sustains no injury from it, and it is fully competent for the master of the privateer to act under it. It is a mere question of prudence, whether he will trust to the word of the neutral master, or whether he will take the more effectual precaution of putting an adequate force on board."
But if one privateer takes a vessel, and afterward abandon her, and then another takes the same vessel, the last seizor is, in law, the only captor, and the act of a commander in relinquishing that which would otherwise have been good prize, to himself and his crew, is binding upon the interests of all under him. Commenting upon the circumstances of a case like this, Lord Stowell says: "As it is impossible that the claims should coexist, the court is bound to decide upon them according to their legal merits, which must depend upon this question— which of them was the actual captor? That is, not only who was the person by whom the seizure was actually made, but which is the party legally entitled to the character of captor; for there may be many successive captors, but only one can be legally entitled, as captor, to the benefit of the prize. If a captor dismisses what he has seized upon, the interest of himself and all under him is concluded by this act, and the same vessel lies open to seizure by any other captor who may exercise a similar dis cretion."1
1 The Diligentia, 1 Dod., 404; vide also The Woodbridge, 1 Haggard, 74. 13