condemned. It is usual at the commencement of hostilities to allow a certain time, after which all private property may be confiscated. 103 553. The belligerent may also confiscate debts owed by individual enemies to its own citizens at the breaking out of war. But this right, as well as the right to confiscate property mentioned in the preceding section, is rarely exercised. After booty has been in possession of the enemy for twentyfour hours, or carried into a place of safety, infra præsidia of the captor, it becomes absolutely his, without any right of postliminy in favor of the original owner, particularly when it has passed bona fide into the hands of a neutral.104 554. A prize is the apprehension and detention at sea, or places within the jurisdiction of the courts of admiralty, of a ship or other vessel, by authority of a belligerent power, either with the design of appropriating it, with the goods and effects it contains, or with that of becoming master of the whole or a part of its cargo.105 The vessel or goods so taken are also called a prize, and this is the meaning with which the term is generally used. 555. No one has a right to make war but the government duly constituted. This power is vested in congress. It follows of course that no one has authority to make a prize unless he is duly authorized by law. When war has been declared, the public vessels of the United States are employed for this purpose, and their commanders are duly authorized to seize enemy's property on the high seas. Such prizes belong, not to the captors, but to the government. Certain portions are, however, allowed to them in certain cases.106 556. Individuals, called privateers, are also authorized sometimes to arm vessels and to make war upon the enemy's commerce. In this case the privateer receives a commission from the government.107 The power to issue such commission is vested in the supreme power of every government. In this country the congress has power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; " 108 and in 1812 the congress authorized the president to issue commissions to private armed vessels.109 An attempt was made by the treaty of Paris in 1856 to abolish privateering, but the United States refused to become a party to the treaty unless it was also agreed to exempt all private property from seizure at sea unless it was contraband. And in 1863 the president was authorized to issue letters of marque in such form as he should think proper, and to make all needful rules in regard to them.110 557. Every vessel, whether commissioned or not, has a right to defend itself against attack; when in self-defence its commander captures a hostile vessel, he has a right to take possession and man the prize." A vessel without a commission, as far as the enemy is concerned, has a right to capture an enemy's vessel; his own country may punish him, but the enemy has no right to treat him as a pirate. And it is believed there is no instance 10 Ware v. Hylton, 3 Dall. 199. 104 Wheaton, Int. Law, part 4, c. 2, s. 11; 1 Kent, Comm. 110. 105 The Rebekah, 1 C. Rob. Adm. 227. 106 The Dos Hermanos, 10 Wheat. 306; The Joseph, 1 Gall. C. C. 545. In this country the whole proceeds of the prize are given to the captors when the vessel captured is of equal or superior force; in other cases the proceeds are equally divided between the captors and the United States. Act of July 17, 1862, 12 Stat. 600. 107 Murray v. Charming Betsey, 2 Cranch, 64. 108 U. S. Čonst. art. 1, s. 8. 109 Act of June 18, 1812, ch. 102. 110 Act of March 3, 1863, 12 Stat. 758. This act expired in 1866. Haven v. Holland, 2 Mas. C. C. 230. in which such irregular captures have been condemned or punished by the country to which the captor belonged.112 558. If a capture should be made by a non-commissioned captor, it is made for the government; the only claim the captors can sustain is one for salvage, 113 559. In general, all vessels belonging to the enemy may be taken, whether they be public vessels of war, or merchant vessels belonging to individuals; for war is made not only against the government, but against all the individual members of the hostile nation.114 560. But to this general rule there are certain exceptions: 1, when an enemy's vessel has obtained a lawful passport or safe-conduct, which is a privilege granted to the enemy's vessel, exempting it from capture, during a time and to the extent therein prescribed, either from the government or its authorized agent, provided the enemy's vessel has conformed to the conditions of the passport; 1152, when the enemy's vessel has received a license to trade, it is exempted from capture during the time prescribed, provided it has not violated any of the conditions of the license; 3, when an enemy's vessel carries a flag of truce, or is used as a cartel ship.116 561. Goods of an enemy on board of an enemy's ship are of course liable to seizure as well as the ship. But neutral goods in an enemy's ship are not to be taken as prize. It has been the established law until recently that an enemy's goods might be taken in a neutral ship. The parties to the declaration of Paris in 1856 agreed that "the neutral flag covers enemy's goods, with the exception of contraband of war." The United States did not assent to this declaration on account of the article abolishing privateering, but were willing to assent to this article, and acted upon it during the rebellion.' 118 A neutral vessel is liable to seizure and confiscation as prize when engaged in aiding the enemy by attempting to run a blockade, carrying despatches or officers of the enemy." 119 562. A capture may be made on the high seas; it may also be made within the territorial limits of the United States at any place below low-water mark.120 A capture cannot be made on the coast of a neutral power and within its territorial limits. In this case the courts of the neutral have jurisdiction to decide whether it is good prize." 121 533. Capture is the taking of property by one belligerent from another. It is lawful when made by a declared enemy duly commissioned and according to the laws of war, and unlawful when it is against the rules established by the law of nations.122 To make a good capture the ship or vessel must be subdued 112 In 1862, Robert Small, a negro pilot, carried a rebel steamer out of Charleston harbor. The congress directed one half its value to be divided among Small and his associates. Act of May 30, 1862, ch. 87. 113 The Dos Hermanos, 10 Wheat. 306, The Joseph, 1 Gall. C. C. 545; The Amiable Isabella, 6 Wheat. 1. 114 Wheaton, Int. Law, part 4, c. 2, ? 4. 115 Wheaton, Int. Law, part 4, c. 2, ? 2, n. 95. 25; Pothier, Dr. de Prop. part 1, c. 2, s. 2, art. 2, 116 The Venus, 4 C. Rob. Adm. 289, Am. ed.; 1 Dods. Adm. 60; Pet. C. C. 106; Dane, Abr. c. 40 a, 6, 7; Merl. Répert. h. t. The Resolution, 2 Dall. Î; Wheaton, Int. L. ? 444. 118 Decl. of Paris, art. 2; Dipl. Corresp. 1861, pp. 143, 251. 119 The case of The Trent in 1862 which threatened to cause a war with England, only decided that where a neutral ship was carrying the officers of the enemy's government, the captor could at most seize the vessel and carry it into port for adjudication; that a seizure of the officers without seizing the vessel was unjustifiable, as it deprived the neutral of the decision of a competent court. 120 The Joseph, 8 Cranch, 451. 122 Marshall, Ins. B. 1, c. 12, s. 4. 121 The Estrella, 4 Wheat. 298. or taken from the enemy in open war, with intent to deprive the owner of it.123 But if there be submission on one side and possession on the other, the capture is complete, although no prize master be put on board,124 or when only a prize master is put on board." 125 564. Postliminy, jus postliminii, is that right in virtue of which persons and things taken by the enemy are restored to their former state when coming again under the power of the nation to which they belong.126 But this matter is now regulated by act of congress. It is provided that in case of recaptures of persons or goods belonging to persons resident within, or under the protection of, the United States, the same not having been condemned as prize by competent authority before the recapture, shall be restored on payment of salvage of one eighth of the value if recaptured by a public ship; and if the recaptured vessel shall have been set forth and armed before the recapture, then the salvage to be one moiety of the value. If the captured vessel previously belonged to the government of the United States, and be unarmed, the salvage is one sixth if recaptured by a private vessel, and one twelfth if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a private vessel, and one fourth if recaptured by a public ship. In respect to public armed ships, the cargo pays at the same rate of salvage as the vessel by the express words of the act; but in respect to private vessels, the salvage is the same on the cargo whether the ship be armed or unarmed.127 565. Ransom is an agreement between the commander of a capturing vessel and the commander of a vanquished vessel at sea, by which the former permits the latter to depart with his vessel, and gives him a safe-conduct, in consideration of a sum of money which the commander of the vanquished vessel in his own name, and in the name of the owners of his vessel and cargo, promises to pay at a future time named to the other. This contract is usually made in writing in duplicate, one copy of which is kept by the vanquished vessel, and is its safe-conduct, and the other by the conquering vessel, and is properly called a ransom-bill.128 566. After the capture it is the duty of the captor to carry the vessel into a home port for condemnation as prize. The capture alone is sufficient to divest the title of an enemy and to vest it in the captor's government. But many captured vessels belong to neutrals, and their title is not divested until the vessel is condemned by a competent court, nor will the individual captors acquire any title to the prize or its proceeds until it is condemned. Circumstances may excuse the captor from carrying the vessel to a home port, and he may instead carry it to a neutral port, there to await a decree. 567. In the United States the district courts, having admiralty jurisdiction, are alone competent to try the question of prize or no prize.129 As to which of the several courts of the United States shall have jurisdiction in a particular case, the rule is, that when the seizure is made within the waters of one district, the court of that district has exclusive jurisdiction, though the offence may have been committed out of the district; when the seizure is made on the high seas, the jurisdiction is in the district where the property may be brought.130 123 The Grotius, 9 Cranch, 368. 125 The Alexander, 8 Cranch, 169. 124 The Alexander, 1 Gall. C. C. 532. 126 Vattell, lib. 3, c. 14, s. 204; Chitty, Law of Nat. 93 to 104. 1 The Adeline, 9 Cranch, 244. 128 1 Kent, Comm. 105. 1 Sarportus v. Jennings, 1 Bay, So. C. 470; Jenkins v. Putnam, 1 Bay, So. C. 8; Act of September 24, 1789, s. 9; Abbott, Shipp. part 1, c. 1, n. 7; Hallett v. Lamothe, 3 Murph. No. C. 279. 130 6 Cranch, 281; The Abby, 1 Mas. C. C. 360: The Little Ann, Paine, C. C. 40. 568. Foreign courts of admiralty have jurisdiction in prize cases; but the court must be that of one who is a belligerent, for the courts of a neutral have no jurisdiction in such cases. 131 And the courts of an ally have no jurisdiction; the decree must be made by the country of the captor.' 132 569. The prize court has jurisdiction over all property captured within its district, on the high seas, or in foreign ports, and brought within its jurisdiction. It may also condemn captured property lying in the port of an ally,1 or in a neutral port.13 570. The decree of a prize court of competent jurisdiction is binding and conclusive, not only upon the parties actually litigating in the cause, but upon all others, because all who had an interest might have appeared and asserted their rights.135 But if the points decided by a foreign prize court are ambiguous, they may be examined.136 And, until the admiralty has exercised its jurisdiction, the question of property is open for the application of the principles of the common law. 137 131 Findlay v. William, 1 Pet. Adm. 12; The Invincible, 2 Gall. C. C. 29; Santissima Trinidad, 1 Brock. C. C. 478. 132 Wheaton, Int. Law. 386. 133 The Henrick and Maria, 4 C. Rob. Adm. 43. 134 Hudson v. Guestier, 4 Cranch, 293; 6 Cranch, 281; The Arabella, 2 Gall. C. C. 368. 135 Cherriot v. Poussat, 3 Binn. Penn. 220; Sheaf v. 70 hogsheads, Bee, Adm. 163; Armroyd v. Williams, 2 Wash. C. C. 508. 136 Vasse v. Ball, 2 Yeates, Penn. 178. 137 Jenkins v. Putnam, 1 Bay, So. C. 8. 130 CHAPTER III. CONTRACTS. 571. General rules.-Definition. 576-632. Essential conditions of contracts. 577-596. Consent of parties. 581. Mistake. 582. Duress. 585. Fraud. 587-596. Capacity of parties. 588. Persons who want understanding. 592. Persons who have understanding, but not freedom of will. 597-610. The objects of contract. 601. Impossible things. 602. Things indeterminate. 603. Things useless. 604. Things out of commerce. 605. Things unlawful. 610. Choses in action. 611-632. The consideration of a contract. 613. Good considerations. 614-620. Valuable considerations. 616. Consideration arising from benefit or injury. 617. Forbearance. 618. Mutual promises. 619. Assignment of chose in action. 620. Consideration moving from third person. 621. Legal considerations. 622. Illegal considerations. 624. Immoral consideration. 628. Continuing consideration. 629. Divisible and indivisible consideration. 630. Failure of consideration. 633-657. Effect of contracts. 634. General rules as to effect of contracts. 639. Obligation to deliver thing contracted for. 641. Obligation to do or not to do. 643-657. Damages for breach of contract. 644. When damages may be recovered. 647-657. Measure of damages. 650. Penalty and liquidated damages. 651. Damages for breach of covenants in conveyances of real estate. 652. Damages for non-payment of money. 653. Damages in case of sales. 654. Damages from carriers. |