have altered, as between the contracting parties, the general International Law respecting the non-interference of Neutrals as to prizes brought into their ports, are the following:

The Treaty of 1654 between England and Portugal, whereby prizes captured by either party, brought into the ports of their ally, are to be restored to their original owners (d).

A Treaty to the like effect between Portugal and Holland in 1661 (e).

A Treaty between Portugal and France in 1797, whereby no prize of either party was to be sold in the ports of the other, and no privateers, except in cases of imminent peril, received (ƒ).

A Treaty between France and the North American United States in 1778, whereby no ship of the enemy of either party was allowed to sell her prize, or discharge her cargo, or buy more than provisions immediately indispensable in the ports of either party (g).

A Treaty between the same parties in 1800, whereby no sale of prizes by either ally is allowed in the ports of the other, and privateers are limited to indispensable provisions (h).

A Treaty between Holland and the North American. United States in 1782, whereby the sale of prizes brought by either party into the ports of the other was legalised (i).

See generally the catalogue of Treaties on this subject between all States. Traités de Commerce de H. et De Cussy, t. ix. p. 375, "Prises et Reprises;" and Manning, p. 368.

(d) Dumont, vi. t. ii. p. 84.

(e) Ib. p. 369.

(f) De Martens, Rec. t. vi. p. 414.

(g) Ib. t. ii. p. 597.

(h) Ib. t. vii. p. 108.

(i) Ib. t. iii. p. 465.

De H. et De C., Tr. de Comm. (2nd Part), t. iii. p. 270, art. 1.

See t. ix. p. 107 of this work, for the mode of reference to the different Volumes and Parts of it.

A Treaty between England and the North American United States in 1794, stipulating that prizes made by the enemies of either of the contracting parties shall not be received in their ports (k).

A Treaty containing similar provisions between the same parties in 1806 (7).

A Treaty in 1829, between Holland and Columbia, allowing the entrance of prizes into their ports (m).

A Treaty between Spain and Denmark, in 1742, authorising the reception and sale of prizes in the ports of the respective parties (n).

A Treaty between England and the Emperor of Germany, in 1795, whereby prizes made from either ally were forbidden to be sold in the ports of the other, and were to remain only twenty-four hours therein, under penalty of confiscation (o).

CCCLXXXI. 9. As to the forfeiture by misconduct of the Captors' title to Prize.

Captors, whether in command of public or private ships of war, may forfeit their rights of prize by misconduct, and this independent of any statutable provision by the oldestablished law of the Admiralty Court (p); and an obstinate neglect or refusal to comply with the instructions of the Government, or the Regulations of the Prize Act, has been held sufficient to authorise an infliction of the forfeiture; and, in such case, the prize is condemned to the Govern

(k) De H. et De C. (2nd Part), tom. iii. pp. 204–5–8, art. 19.

(1) Ib. 228, art. 19.

(m) Ib. (2nd Part), tom. i. p. 369, art. 21.

(n) Ib. (2nd Part), tom. i. p. 425, art. 3.
(0) De Martens, Rec. vi. lxxxii. art. 7.
(p) La Reine des Anges, Stewart, p. 9.
The Cossack, ib. pp. 513-517.

The Herkimer, ib. p. 128.

S. C. 2 Hall's Am. Law Journ. p. 133.

The Clarissa, cited in Stewart, p. 144; and 2 Hall's Am. Law

Journ. p. 145.

ment (q): so in the case of the unlawful rescue of the prize by the Captors from the custody of the Court (r). And where the claimant has not affected his property with a hostile character, as by a trade with the enemy, &c., but has been engaged in some other traffic contravening the municipal law of his own country, so that he cannot entitle himself to a restitution of the property, it will be condemned to the Government, and not to the captors (s).

66

66

By 27 & 28 Vict. c. 25. § 37, it is provided that " a Prize "Court, on proof of any offence against the Law of Nations, "or against this Act, or any Act relating to naval discipline, or against any Order in Council or royal pro"clamation, or of any breach of Her Majesty's instructions relating to prize, or of any act of disobedience to the "orders of the Lords of the Admiralty, or to the com"mand of a superior officer, committed by the captors in "relation to any ship or goods taken as prize, or in re"lation to any person on board any such ship, may, on "condemnation, reserve the prize to Her Majesty's dis

66

posal, notwithstanding any grant that may have been "made by Her Majesty in favour of captors.

The Der Mohr, 3 Rob. Adm. Rep. p. 129.

The Triton, 4 ib. p. 78.

The Barossa, note to the Woodbridge, 1 Haggard Adm. Rep. p. 75. The Nemesis, Edwards' Adm. Rep. p. 50.

With respect to the punishment of the misconduct of Privateers,

vide post.

(q) The Bothnea & Janstoff, 2 Gallison's (Amer.) Rep. pp. 78, 92.

(r) The Cossack, Stewart, p. 513.

(s) The Walsingham Packet, 2 Rob. Adm. Rep. p. 77.

The Etrusco, 4 ib. 262, note (a).

The Venus, 8 Cranch's (Amer.) Rep. pp. 277, 287.

CHAPTER V.

1. NON-COMMISSIONED CAPTORS.-2. JOINT CAPTURE.3. CAPTURES BY TENDERS.

CCCLXXXII. A TREATISE upon International Law does not perhaps, strictly speaking, require a further investigation of the subject of Maritime Capture than has been given in the preceding chapter; but there are certain outlying and collateral questions of a mixed public and International character, which it is the object of the present and following chapter to consider. It is now proposed to consider questions relating to

1. Non-commissioned Captors.

2. Joint Capture.

3. Captures by Boats and Tenders.

CCCLXXXIII. 1. As to Non-commissioned Captors. In cases of non-commissioned ships, and ships commissioned against one enemy, having no commission against another whose property is captured (a), the Captors are not entitled to any share in the prize, and the property is to be condemned to the Government, or to its special grantee, if any such exist. Bynkershoek, indeed, contends, that if a noncommissioned ship is attacked, and captures the assailant in her own defence, the officers and crew are solely entitled to the prize; and this doctrine seems also to be supported by Grotius (b). However, the general Prize Law of France,

(a) Vide antè, vol. i. pt. iii. c. xx.

(b) Bynk, Q. J. Pub. 1. i. c. xx. Du Ponceau's ed. pp. 155-161. Grotius de J. B. et P. 1. iii. c. vi. s. 10.

Vide antè, § ccclvi. for provision on this subject, in § 39 of 27 & 28 Vict. c. 25.

Great Britain, and the United States is as has been above stated (c). If at the time of a Capture by a ship commissioned by letter of marque, the master of the capturing vessel be not on board, the Capture is considered as made without a commission, and it enures to the Government, or its special grantee (d); and if a Capture be made by a cutter fitted out by a captain of a man-of-war as a tender (e), and manned from his ship, but without any authority or commission, it is deemed to be made by a non-commissioned vessel, and the Capture will not enure to the benefit of the man-of-war. It would be otherwise if the tender were attached to the ship by public authority, for then the ship would share (ƒ). And if persons in the navy land from their ships and man a fort, and thereby compel a ship to strike as prize, it is considered as a Capture made at sea by a force upon land, which is a Non-commissioned Capture (g). But it would be otherwise if the place on shore were a resort for naval purposes by persons in the navy only, for then it may be deemed a stationary tender, rather attached to and dependent upon the vessels, than having the vessels attached to and dependent upon it.

CCCLXXXIV. In England, by very ancient grants from the Crown, the Lord High Admiral has the benefit of

Capture of Curaçoa, 1 Dodson, Adm. Rep. p. 220, note (a).

The Dos Hermanos, 2 Wheat. (Amer.) Rep. p. 76.

(g) The Rebeccah, 1 Rob. Adm. Rep. p. 227.