CAPTURE.

By pirates.

mortgage, notwithstanding any express, implied or con

structive notice.

(6.) Subject to these rules, every mortgagee whose mortgage
is registered on the certificate has the same rights and
powers, and is subject to the same liabilities, as if his
mortgage had been registered in the register book instead
of on the certificate.

(7.) The discharge of any mortgage registered on the certifi-
cate may be indorsed on it by any registrar or British
consular officer, upon the production of such evidence as
is required by the act to be produced to the registrar on
the entry of the discharge of a mortgage in the register
book; and when this is done, the estate which passed to
the mortgagee vests in the same person in whom it
would have vested if no mortgage had been made.
(8.) Upon the delivery of any certificate of mortgage to the
registrar by whom it was granted, he must, after record-
ing in the register book, in such manner as to preserve
its priority, any unsatisfied mortgage registered on it,
cancel it, and enter the fact of the cancellation in the
register book; and every certificate so cancelled is
void (g).

Title by capture occurs when the vessel of an enemy is taken in time of war, by a ship belonging to a hostile country (), and is condemned by a competent court (i).

Pirates, who have been styled hostes humani generis, are not recognized by the law of nations as enemies, so as to entitle them to the right of capture (j); and if ships or goods taken by them be brought into a port of this country, they ought to be returned to the owner, because goods piratically taken cannot

(g) It is important to bear in mind, that, by sect. 100 of the M. S. Act, 1854, all persons beneficially interested (otherwise than by way of mortgage) in any ship or share which is registered in the name of another person, are made liable to the pecuniary penalties imposed by the statute or any other statute, on owners of ships and shares.

(h) Wilson v. Forster, 6 Taunt. 25. See The Ionian Ships, 2 Spinks, 212.

(i) Molloy, B. 1, c. 2 and 3; Assievedo v. Cambridge, 10 Mod. 77; Bynkershoek Quæst. Publ. Juris, L. 1, c. 4, Lyons edit. 1767; see also per Lord Mansfield in Goss v. Withers, 2 Burr. 690.

(j) Grotius de Jure Belli ac Pacis, ib. 3, c. 9, s. 16; Molloy, B. 1, c. 4; and In re Ternan or Tivnan, 5 B. & S. 645; 33 L. J., M. C. 201; and Attorney-General for Colony of Hong Kong v. Kwok-a-Sing, L.R., 5 P. C. 179.

be transferred to a third person as against their legitimate owner (k).

A person who in good faith and innocently purchases a vessel formerly employed as a pirate, before proceedings have been instituted for her condemnation, may acquire a good title to her as against the Crown (7). The vessels of any established government cannot be treated as pirates (m).

ship or mer

chant vessel.

Capture is usually made by a Queen's ship, or by a mer- By a Queen's chant vessel fighting in self-defence. In former times capture was frequently made by a merchant vessel having letters of marque (n) from the sovereign. It has been doubted whether a private vessel uncommissioned may capture the ships of an enemy (o); the better opinion seems to be, that uncommissioned vessels of a belligerent state, although they can acquire no private property in hostile ships, may at all times capture them, without being deemed by the law of nations to be pirates (p).

prize be

The property in vessels or cargoes taken as and duly adjudi- To whom cated to be prize belongs to the state, and no subject can have property in any interest in them, except by statute, or under a grant from longs. the Crown (g). The distribution of the property in captured

(4) The 27 Edw. 3, stat. 2, c. 13; Jenk. Cent. 165; Molloy, B. 1, c. 4, 8. 22; The Hercules, 2 Dodson, 372.

(1) The Telegrafo, L. R., 3 P. C. 673. See also the 13 & 14 Vict. c. 26, by which jurisdiction is given to the Court of Admiralty to adjudicate on questions arising from engagements with pirates by Queen's ships, or ships of war belonging to the East India Company, and to restore to the owners, on payment of salvage, property re-taken from pirates. See also a Report of the Statute Law Commission relating to piracy, session 1878.

(m) Molloy, B. 1, c. 4, s. 4; The Helena, 4 Rob. 3; Phillimore's Int. Law, vol. 1, p. 425.

(n) These are extraordinary commissions issued, either in time of open war, or in time of peace after all attempts to procure legal redress have failed, by the Lords of the Admiralty, or the vice-admirals of a distant province, to the commanders of merchant ships authorizing reprisals, for reparation of the damages sustained by them through enemies at sea; they are either special, to make reparation to individuals, or general, when issued by the govern

M.P.

ment of one state against all the sub-
jects of another. See 1 Beawes, 311;
1 Black. Com. 258. An interesting
account of the extent to which this
practice was formerly carried will be
found in Hallam's Middle Ages, vol. 2,
PP. 396-7.

(0) 1 Kent, Com. 96; Lord Hale's
Treatise concerning the Customs;
Harg. Law Tracts, 245.

(p) 1 Kent, Com. 96; Kent's International Law, by Abdy, 247. The Johanna Emilia, 1 Spk. 319; The Rebeckah, 1 Rob. 227, 231, n.; The Haase, 1 Rob. 286; The Amor Parentium, ib. 303; Phillimore's Int. Law, vol. 3, pp. 151, 152, ed. 1873; and Brown v. The United States, 8 Cranch, 132. The principal European Powers, by the Declaration of Paris (16 April, 1856), declared that "Privateering is and remains abolished." Hertslet's Treaties, vol. x. p. 547.

(2) See Vattell's Law of Nations, bk. 3, c. 15, s. 229; 1 Black. Com. by Christian, 259, note: the judgment of Lord Stowell in The Elsebe, 5 Rob. 182, the judgment of Sir John Nicholl in The Thetis, 3 Hagg. 231, and the judgment of Sir Robert Phillimore in

F

Condemnation.

By what court.

vessels taken, either by a Queen's ship or by a private vessel of this country acting under letters of marque, became during the French war the subject of legislative enactments (»). During the Crimean war, "The Prize Act, Russia, 1854" (17 Vict. c. 18), was passed for the regulation of rights of prize and capture. This act expired with that war. The act by which naval prizes are now regulated is "The Naval Prize Act, 1864". (27 & 28 Vict. c. 25). This is a permanent statute, and deals with the whole question of prize courts, procedure, special cases of capture, prize salvage, and bounty. By the 27 & 28 Vict. c. 23, all the earlier naval prize acts are repealed, and by the 27 & 28 Vict. c. 24, regulations are made in respect of navy prize agents.

An important branch of this subject is the law and practice of condemnation, inasmuch as in time of peace, a title to vessels may be acquired by purchase in the ordinary course of business, the validity of which may depend upon a previous legal condemnation in time of war, an official copy of which condemnation is required for the purpose of registering as a British ship (s). It has been said, however, that no title to a captured British ship can be acquired by a subject of this country, although the sale to him is subsequent to a legal condemnation by a foreign Court (†).

The proceedings in cases of prize being in rem, the proper tribunal to condemn a captured vessel is the Admiralty Court

The Banda and Kirwee Booty, L. R., 1
A. & E. at p. 134. It would seem that
by the common law goods taken from
an enemy belonged to the captor.
Finch's Law, 28, 178; R. v. Broom,
12 Mod. 135; Murrough v. Comyns, 1
Wils. 213.

(r) The statutes relating to prizes
and prize agents will be found collected
in Pritchard's Admiralty Digest, ed.
1847, tit. "Prize," up to the date of
that work. See also Phillimore, In-
ternational Law, vol. 3; Lushington,
Prize Law; and Pistoye and Du Verdy,
Traité des Prises Maritimes. The in-
structions as to the disposal of cap-
tured vessels, the standing interroga-
tories to be administered in prize cases,
and the principal Orders in Council
issued during the Russian war with
regard to belligerent rights, are set
out in the appendix to the first volume
of Spink's Reports. The Prize Juris-
diction of the High Court of Admiralty

of Scotland was, by the 6 Geo. 4, c. 120, vested in the High Court of Admiralty of England. Since the Act of Union, the Court of Admiralty in Ireland has not taken cognizance of prize questions. See Parliamentary Report, Admiralty Court in Ireland, session 1864, Appendix A.

(s) Thermolin v. Sands, Carth. 423; per Lord Mansfield, Goss v. Withers, 2 Burr. 694; Nostra Signora de los Angelos, 3 Rob. 287; The M. S. Act, 1854, s. 40.

(t) Per Lord Eldon in Woodward v. Larkin, 3 Esp. 288. The 45th section of the 27 & 28 Vict. c. 25, gives power to her Majesty in Council to make such orders as may seem expedient for prohibiting or allowing the ransoming or entering into any contract or agreement for the ransoming of any ship or vessel belonging to her Majesty's subjects, and taken as prize by any of her Majesty's enemies.

of the country of the captor, acting in that country (u). And by the law of nations a prize cannot be legally condemned by a consul, or other minister of the captor's country in the port of a neutral state to which she has been taken (r).

A further consequence of these proceedings being in rem which In what place. is stated by the writers on civil law, and admitted by most of the Admiralty Courts in Europe, is, that at the time of the condemnation the prize must be infra præsidia, that is, within the dominion of the captor's country. The English Court of Admiralty, however, whilst recognizing this principle in theory, has, by its practice, adopted a different rule, holding that a prize taken by a British subject may be condemned by the Court of Admiralty in this country, although she is in a neutral port at the time of the sentence; and in accordance with the rule, that in the conduct of war that must be held to be lawful in your enemy which is practised by yourself, similar condemnations by foreign Courts of Admiralty have been upheld here (y).

For purposes of condemnation ports belonging to allies are considered as ports belonging to the belligerent country to which they are allied, so that a sentence by a consul of the captor's country given in the country of an ally, to a port of which the vessel has been taken, is valid (≈).

The Admiralty Court of Prizes alone has jurisdiction, not only over the question of prize, but also over all its consequences with respect to freight, cargo, and the like; and wherever such questions arise, the Courts of Common Law are guided by its decisions (a).

(u) Molloy, B. 1, c. 2, s. 21; per Lord Stowell, The Flad Oyen, 1 Rob. 139.

(x) The Flad Oyen, ubi sup. ; The Kierlighett, 3 Rob. 96; Havelock v. Rockwood, 8 T. R. 268.

(y) The Heinrich and Maria, 4 Rob. 43; S. C. affirmed in Court of Appeal, 6 Rob. 138, note (a); The Comet, 5 Rob. 285; The Victoria, Edw. 97; The Polka, 1 Spinks, 447. See also the judgment of Sir Robert Phillimore in The Gauntlet, L. R., 3 A. & E. 381, at p. 389. In America this question has been argued on principle, and the Supreme Court of the United States has held that a condemnation of prize property whilst lying in a neutral

port, or in the port of an ally, is valid,
and may be rightfully proceeded with
in the Courts of the captors. See
a note by Mr. Justice Story to the
American edition of Abbott on Ship-
ping, p. 16.

(2) Oddy v. Bovill, 2 East, 473; The
Christopher, 2 Rob. 209.

(a) Hughes v. Cornelius, 2 Show. 232,
"for otherwise," as is quaintly said in
that case,
"the merchants would be in
pleasant condition;" Tompson v. Smith,
Sid. 320; Le Caux v. Eden, 2 Doug.
594; Mitchell v. Rodney, 2 Br. P. C.
423 (1783); Smart v. Wolff, 3 T. R.
323; Oddy v. Bovill, ubi sup. See also
Faith v. Pearson, Holt, N. P. C. 113;
6 Taunt. 439, where a ship was seized

Registry after condemnation.

FOREIGN
ENLISTMENT
Аст.

When, by condemnation, a complete title has vested in the captor, the property in the prize relates back to the time of the capture (b), and, consequently, an assignment by the captor in the meantime is valid (e).

In order to entitle a captured vessel to the privileges of a British ship she must be registered, and, as in this case, no builder's certificate can be obtained, the owner must produce an official copy of the condemnation of the ship, and must state in the declaration of ownership the time, place and Court at and by which she was condemned (d).

Provisions have been made from time to time, regulating the conduct of British subjects during the existence of hostilities between foreign states with which this country is at peace (e). The statute at present in force is "The Foreign Enlistment Act, 1870" (33 & 34 Vict. c. 90), in which are several provisions having a material bearing upon the building, equipment and employment of ships. This act contains most stringent provisions against building or agreeing to build, or causing to be