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Of the property in things captured.

garded as a pirate, or sea-robber, as will be seen hereafter, in its proper place.*

ARTICLE II.

Of the Legal Property in Captures.

§ 1. ONE of the modes of acquiring property in a thing, is by occupation; and among the different kinds of occupancy, is one derived from the law of nations, by which a sovereign, and those to whom he delegates his power, acquire the dominion, or to speak more precisely, a property in things captured in a just and lawful war. Thus it is universally established by the law of nations, that whoever makes war in form, and with public authority, becomes the proprietor of whatever he takes from the enemy. (219)†

* In addition to the books cited by the author, in relation to

captures, the reader is referred to a "Treatise on Captures in War," by Sir Richard Lee, taken chiefly from Bynkershoek's Questiones Juris publici ;-An Essay on Privateers, Captures, and Recaptures, by M. De Martens, translated (1801) by T. H. Horne. The rules adopted by the English relative to prizes, and the mode of proceeding in their prize-courts, are fully detailed in Robinson's Reports, and Brown's Civil and Admiralty Law, Vol. II. ch. 6 and 7. See also a paper drawn up by Sir William Scott and Sir John Nicol, at the request of the American minister, dated the 10th September, 1794, published in the Gazettes of the United States....T.

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(219) Jure gentium non tantum is qui ex justa causa bellum gerit; sed et is qui in bello solemni et sine fine modoque, dominus fit eorum qua hosti eripit. Quod dominium quoad effectus exter

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Things lawfully captured belong to the captor.

2. It may be objected to this principle of jurisprudence, that the delivery of a thing cannot transfer the property, unless it be made by the owner himself, or with his consent. But there are several exceptions to this rule, one of which is, that when the effects of a debtor are taken and sold by his creditors, notwithstanding any opposition on his part, the delivery of them on such sale, made pursuant to the judgment of the court, will have its full and legal effect, though done without the consent of the debtor, who was the true proprietor, since the authority of the judge, in this case, supplies the want of his consent. (220) Whoever, therefore, under the sanction of public authority, and in conformity to the laws of war, exposes himself to the dangers necessary to make himself master of an enemy's ship, may, by this act, be enabled to secure the property to himself.(221) Now, if belligerents have, by the laws of war, the right of making captures, wherever they find enemies, as will be shewn in a subsequent article, the

nos licet apellare." Grotius, de Jure belli ac pacis, lib. 3, cap. 6, § 1 & 2. Puffendorf, de Jure nat. et gent. lib. 8, cap, 6. Vattel, Droit des Gens, liv. 3, chap. 13. Selden, Mare Clausum, lib. 2, cap 2. ↑ Rutherforth's Institutes of natural law, book 2, chap. ix. § 16......T.

(220) Non est novum, ut qui dominium non habent alii dominium præbeant; nam ei creditor pignus vendendo, causam dominii præstat quum ipse non habuit. Dig. lib. 41, tit. 1, 1. 46, de adquirenda rerum dominio.

(221) Grotius, de jure belli ac pacis, lib. 3, cap. 6.-Vattel, Droit des gens, liv. 3, ch. 9.

Of the time when the property in the prize vests in the captor.

captor, beyond doubt, ought to be made secure by the same law, and remain the lawful proprietor of the thing captured.

3. It follows from these principles, that a privateer, acknowledged by public authority, when it captures the vessel of an enemy, according to the laws of war, acquires by that means, the lawful property in the vessel.(222) It is a general maxim of Roman jurisprudence, that things taken from an enemy, immediately become the property of the captor. "Quæ ex hostibus capiuntur statim capientium fiunt.”(223)

4. The writers on public law, however, are not agreed among themselves, as to the precise time at which the possession of the prize really transfers the property to the captor. Some assert, that the property in the thing captured commences at the very instant of taking possession, in whatever manner it may be, without the pecessity of any interval of time for that purpose, and even before the prize is carried to a place of safety. (224) There are

others who maintain, that the captor cannot be con

(222) Grotius, ibid. lib. 3, cap. 6, § 1 and 2. Puffendorf, ibid. lib. 6, § 17. Vattel, Droit des gens, liv. 3, ch. 13.

(223) Institut. lib. 2, tit. 1, § 17, de rerum divisione. Dig. lib, 41, tit. 1, 1. 5. §7, de acquirendo rerum dominio,

(224) Burlemaqui, Principes du Droit Politique, part 6, ch. 7, n. 16. Luzac, on Wolfius, § 1204.-D'Habreu, Tratado sobre Jas presas, part. 1, cap. 3, § 5.

Various opinions.-Doctrine of the civil law.

sidered as the unchangeable proprietor of the thing captured, until after it is carried into a place of safety, and beyond the pursuit of enemies; thus he is the true possessor of it while on the high seas, but not the proprietor, because, he is liable to be deprived of the prize by the same law in virtue of which he made himself master of it.(225)

5. The latter opinion may find support in certain principles of the Roman jurisprudence. The word capere, which signifies, to take, ought to be understood of a capture which has had its effect, capere cum effectų accipitur.(226) Thus a prisoner of war did not become really such, nor cease to be a citizen, until he was carried into the enemy's camp, infra præsidia, or into the city of the enemy, ubi fines nostros excessit; until which time he was supposed by law to remain free, manet civis.(227)

6. Notwithstanding the contrariety of these opinions, the present practice among all nations is to con

(225) Grotius, ibid. § 3. Puffendorf, ibid. lib. 8, cap. 5, § 17. Vattel, liv. 3, ch. 13, § 196.

(226) Dig. lib. 50, tit. 16, 1. 71, de verborum significatione.Aliud est capere aliud accipere. Capere cum effectu accipitur. Accipere est, si quis non accepit, ut habeat. Ideoque non videtur quis capere, quod erit restiturus, sicut pervenisse propriè illud dicitur, quod est remansurum.

(227) Dig. lib. 49, tit, 15, 1, 6, § 1, et l. 19. § 3, de captivis et postliminio.

Twenty-four hours undisturbed possession vests the property in a prize.

sider the property in the thing captured as acquired, when the captor has been able to keep it in his undisturbed possession for the space of twenty-four hours, without rendering it necessary to carry it to a place of safety. The principles of the civil law, may be cited in support of this universal doctrine; according to them the word statim is understood to mean a certain interval of time. Quod dixi statim cum aliquo temperamento temporis intelligendum est.(228)*

7. Thus the laws of war give the victor the full right of property in the goods he takes from an enemy: quod occupatio bellica sit modus adquirendi dominium, say all the writers on public law; and according to this incontestible principle of the law of nations, the property in things moveable is acquired by the belligerent the moment they are in his power. If he sell them, even in a neutral nation, the first owner, though present, has no right to reclaim them. Such is the general rule, derived from the principles above laid down; it is adopted by all publicists.(229)

(228) Dig. lib. 35, tit. 2, 1. 1, § 8, lib. 46, tit 3, 1. 106, de solut. et liber. decis. 368, n. 3, ibid. De Luca, n. 3. catori, lib. 2, cap 3, n. 40. Casaregis, 7 and 8.

ad legem Falcidiam. Dig. De Franchis, Decis. Neap. Marquardus, de jure merde commercio, disc. 24, n,

*The rule of twenty-four hours possession, though prevailing on the continent, seems not to have been adopted in England. See note next page. Brown's Civil and Admiralty Law, Vol. 2, p. 242...T.

(229) Casaregis, de commerico et mercatura, disc. 14, n. 1. Vattel, Droit des gens, lib. 3, ch. 14, § 195 and 196. Burlemaqui,

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