Prize, any property captured in virtue of the rights of war. A difference exists in practice between war on land and on the sea in respect to private property. At sea all the property of every citizen of a belligerent country is liable to capture; but on land it is customary to respect private property. There is, however, no absolute rule on this subject, and in the late civil war both parties passed acts for the confiscation of enemy's property captured on land. Cotton in particular, being the chief resource of the Confederate States, was deemed to be peculiarly a proper subject of capture, and the acts of congress providing therefor were sustained and enforced by the courts. - The general rights of a belligerent are to make captures by his public armed vessels of war, to grant commissions to private persons for the same object, and to establish tribunals of prize for the purpose of examining into all maritime captures, and of judicially deciding upon their validity. By the declaration of war all the citizens of the belligerent countries respectively become enemies, and the citizens of one country may seize any property of the other that they may meet with at sea.
Property so seized belongs to the sovereign of the country, and not to the captors, unless it is given to them as an act of grace on the part of their sovereign. For this reason, and also that the government of the country may have the power to limit and control the operations of the war, commissions are usually granted by the government to private persons, authorizing them to make such captures, and after adjudication by a competent tribunal they are entitled to the proceeds of the prizes thus taken. (See Privateer.) It is obviously necessary that when a capture has been made there should be some tribunal with authority to pass upon the validity of the capture, and to pronounce a decree of condemnation or acquittal. It is therefore the right and duty of the government of a country, on the declaration of war, to establish tribunals of prize; and it is then responsible to all foreign nations for the correctness of the decisions therein made. So far as the property in question is concerned, the sentence of the prize court is conclusive upon all the world. If the sentence is one of condemnation, the title of the former owner is divested, and all nations are bound to respect the new title acquired under it.
But to give the decision of the court this effect, it must appear conclusively that the court had jurisdiction over the property in question. The court must be established in the country of the captor, or. in that of his ally in the war, but it is not necessary that the prize should be brought within a port of one of these countries. It is the practice of Great Britain and of the United States to adjudicate upon captures which have been carried into a neutral port. - The next question to be considered is: Who are enemies, and what property is liable to capture? For this purpose not only the native-born citizens of the belligerent are considered as enemies, but all persons who have their domicile in the hostile country; and the citizens of a country which is under the permanent or temporary dominion of the enemies of another country are considered as the citizens of the latter, and all trade with them is illegal, unless the government chooses to recognize the country as neutral, in which case courts of justice are bound by such recognition.
It is very doubtful whether a citizen of one country can expatriate himself on the breaking out of war, in order to acquire neutral rights and privileges; but it is certain that if he removes in order to mask his mercantile projects under a neutral flag, such an act is fraudulent and of no avail. But if he has removed during peace, and acquired a domicile in a foreign country, he may engage in trade with a country which is at peace with his adopted country, although at war with that of his nativity. A citizen of one country residing and doing business in another, resumes his native character if, on war breaking out, he puts himself in itinere to return to the country of his birth or adoption; but the mere intention without some overt act is not sufficient. A man may Have a neutral residence, and yet his property may acquire a hostile character. So, he may be a merchant in more countries than one, and may thus acquire at least a quasi domicile besides that of his birth and parentage; and this would be respected by the law, provided there was no indication of fraudulent intention, that is, of giving himself two national characters, between which he could choose from time to time, as suited the exigencies of the moment.
The property of a house of trade in an enemy's country is liable to condemnation, whatever be the domicile of the partners who constitute the house. If some of the partners have a neutral residence, their separate property will not be affected by the fact of their being connected with a house of trade in a hostile country. And when a shipment is made by the house to a partner in a neutral country, or by a partner in a hostile country to a house in a neutral country, it depends upon the question to whose account and risk the goods are shipped, whether they are liable to be condemned as prize. Commercial factories in a foreign country, which are free from the control of the government of that country, are considered as belonging to the country by which they are established/and the nationality of persons engaged therein is determined accordingly. But this exception does not apply where the government of the country has the control, although peculiar privileges are granted to the subjects of a particular nation.
A foreign minister does not lose his domicile in his own country by residing in the foreign one to which he is accredited; but if he engages in trade there, he is, in respect to such trade, considered as a citizen of the country where it is carried on. - It sometimes occurs that circumstances will not permit property captured at sea to be sent into port. The captor in such a case may destroy it, or allow the master or owner to ransom it. Such a contract is valid by the laws of nations, but it is prohibited in England by statute. By the ransom bill the vessel is protected from subsequent capture until she reaches her own country, or the country specified in the bill, provided there be no deviation from the course of the voyage. Generally some of the officers and crew are retained as hostages, and if they die, or the vessel is lost by a peril of the sea before her arrival in port, unless it is otherwise stipulated in the bill, the ransom is nevertheless due; for the captors do not insure either the safe arrival of the vessel or the lives of the hostages. If the vessel deviates and is afterward captured and condemned, the better opinion seems to be that the price of the ransom is to be deducted from the proceeds of the prize and given to the first captor, and the residue given to the second.
If the captor himself should after the seizure be taken by an enemy's cruiser, together with the ransom bill, the ransom becomes part of the lawful conquest of the enemy, and the debtors of the ransom are consequently discharged from the contract under the ransom bill. - The right which a captor acquires by the seizure is an inchoate right merely, and is subject to be divested before condemnation. If there is a recapture, escape, or voluntary discharge of the property, a court of prize cannot proceed to adjudication. By the Roman law of jus postliminii, persons or things taken by the enemy were restored to their former state upon coming again into possession of the nation to which they had belonged. Formerly, as between the belligerents, the title to property captured passed after it had been in the possession of the captors 24 hours; and if after that time it was recaptured by third persons, they became the absolute owners of it. Now, however, the property of the original owners is not divested until condemnation, and the recaptors are merely entitled to salvage, the amount of which is in the United States fixed by statute for most cases, and when not so fixed is determined by the general principles of law.
There is some conflict of authority whether the crew of a vessel who recapture it before condemnation are entitled to salvage. It would seem that in the United States they are not, because it is considered to be the duty of the crew to do all that they can to save the vessel until she is condemned. If a treaty of peace makes no particular provisions relative to captured property, it remains in the same condition in which the treaty finds it. In England, as between English subjects, the right of postliminy subsists to the end of the war, and foreign nations are treated with the same liberality which they accord in similar circumstances to England. The property of a subject or an ally engaged in commerce with the enemy is liable to capture; and it makes no difference whether the trade be direct or indirect. The law of nations permits vessels to sail and chase under false colors, but not to fire a gun or capture under them. - It has become an established principle of the law of nations, that a nation which takes no part in a war shall have the same rights which it has in time of peace, except so far as the exercise of these rights would materially interfere with the permanent rights of the belligerents.
Within her own territory, which for this and for other purposes extends a marine league from the shore, a neutral nation is supreme. No belligerent has a right to make a capture in her waters, or to arm or equip his ships of war in her ports, and if either of these things is done the neutral is bound to redress the injury. A ship has no right to station itself in a neutral port and send out boats to make hostile seizures. The neutral nation may allow certain privileges to one of the belligerents, but only such as she is willing to allow to the other. She cannot lend money to one belligerent, but if she is under a previous stipulation, made in time of peace, to furnish a given number of ships or troops to one of the belligerents, the contract may be complied with. If a prize is brought into a neutral port, the neutral government may exercise jurisdiction so far as to restore the property of its own subjects which has been illegally captured. And it has been held in the United States that foreign ships which offend against the laws of that country within its jurisdiction may be seized upon the ocean, and brought back for adjudication.
In 1793 the government of the United States established rules of neutrality which it required foreign belligerent powers to observe in their intercourse with this country. Among others was one which provided that if an armed vessel of one nation should depart from our jurisdiction, no armed vessel within the same port and belonging to an adverse belligerent power should depart until 24 hours after the former. It is now a universally admitted principle of the law of nations that a belligerent has a right in time of war to visit and search all vessels on the ocean, in order to determine whether they or their cargoes are hostile or neutral. This right gives also as a necessary incident the right to seize and send in the vessel for adjudication, whenever its real character, or that of its cargo, is justly open to suspicion. The neutral must submit, and if her crew rise and endeavor to recapture the vessel, it is a hostile act, which subjects the vessel and cargo to condemnation. Neutral goods may be carried in a belligerent vessel even if the latter is armed, according to the law in the United States; and a neutral ship is not subject to seizure if she has belligerent goods on board.
Attempts have been made at different times to engraft on the law of nations the principle that free ships make free goods, but the law remains unchanged, except as it has been modified by treaties between particular nations. The question whether a country, which during peace confines the trade of its colonies to its own subjects, can during war open such trade to a neutral, has been much discussed. In England it has been held that it cannot; but this rule has been repudiated by the government of the United States. Neutrals are not permitted to carry goods which are contraband of war, or to enter a blockaded port. (See Blockade, and Contraband.) Breach of blockade forfeits the vessel, and in some cases the cargo; but according to the modern practice, the carrying of contraband goods only forfeits the goods, and the owner of the vessel loses merely his freight and expenses, unless the same person owns both ship and cargo, or some fraud appears in the transaction, in which cases both ship and cargo are forfeited. If an enemy's cargo is captured in a neutral vessel, the vessel has a claim on the captors for freight. But this rule is limited by the reason of it, and if the cargo be contraband, or the voyage be quasi contraband, then the neutral vessel loses its freight.
The rule that freight is not earned unless the goods are carried to their destination, applies to capture. But if the captor takes the goods where they should have been carried, and even if he does this substantially though not precisely, as by bringing goods to Boston which were destined to New York, freight is due. - All seizures at sea are made at the peril of the captors. If, on being sent in, the vessel and cargo are acquitted, the captors are responsible for all damages and costs, unless the capture was made with probable cause. What is probable cause is a question of some difficulty, and depends very much upon the facts of each particular case. In general, if the papers appeared false or colorable, or were suppressed, mutilated, or spoliated; if the voyage were to or from a blockaded port; or if other circumstances of a like nature occurred, the captors would be justified in sending the vessel in for adjudication. After the vessel is captured, the captors are responsible for any loss which may occur by the negligence, fault, or misconduct of the prize officers and crew; but they are not responsible if a loss occurs from accident, stress of weather, recapture, etc. - While a ship is forfeited by the master's disguising belligerent property on board as neutral, without the authority, assent, or knowledge of the owner, this act does not operate as a breach of neutrality as to the goods on board which are actually neutral and proved to be so by proper documents, and belong to another owner than him who has forfeited the goods.
If neutral interests or property are undistinguishably mixed up with belligerent interests or property, they become liable themselves to all the incidents and effects of a belligerent character. A resistance to search when rightfully demanded, an attempt at rescue, and seeking belligerent protection or receiving it, are all breaches of the duty of a neutral. Some question has arisen as to what is a rescue. It is the duty of the captors to put on board persons competent to navigate the vessel into port for adjudication, and her own master and crew are not bound to do this. If the vessel is given up to them, and they pursue their original course against the wish of the captors, this is not a rescue. But if the neutral crew undertake and promise to navigate the vessel to the desired port for adjudication, and the vessel is given up to them for this purpose, and they violate their promise and take the vessel into their own hands for their own purposes, this is an unlawful rescue. Generally a cargo is considered as liable to condemnation if any act has been committed by the master which subjects the ship to condemnation. But the cargo is not liable to condemnation if it is the property of a person other than the owner of the ship, and its owner was not cognizant of the intended violation.
If, however, the owner of the cargo gave the master discretionary power, he is liable for his acts; or if the cargo was loaded after notification of a blockade, the parties having full knowledge of the fact. Resistance to the right of search, the rescue or recapture of the ship by the master and crew, and the fraudulent suppression or spoliation of papers, affect the owner of the cargo as well as the owner of the ship. The principal grounds for condemning a ship as prize, where the question of nationality is in dispute, are: 1, the entire want of the necessary papers; 2, their destruction; 3, their material alteration or falsification; 4, the time when the papers were made out, as whether before or after the war, is often material; 5, next- in importance is the conduct of the master and officers; 6, their prevarication or evident falsehood in the preliminary proof; 7, their refusal or inability to give a good account of the ship and cargo; 8, the domicile of the master and officers. The spoliation of papers, by which is meant, not merely their total destruction, but such falsification as makes them useless or worse as evidence, is a circumstance of grave suspicion, though it is open to explanation. Possession by an enemy is presumptive proof, though not conclusive, of hostile character.
Ships are presumed to belong to the country under whose flag they sail; and it has been thought that this presumption should be conclusive as against the person using the flag. In joint captures all public ships of war in sight are presumed to assist, and therefore they are entitled to share in the proceeds; and this presumption extends to all the ships of a squadron united by authority for a specific purpose, as for a blockade for example, although not actually in sight; but it does not apply to privateers, because they are not obliged to capture all vessels they meet, as are vessels of war. Revenue cutters, as they are generally employed to protect the revenue, and have no special injunction to capture enemy's vessels, come under the same rule as privateers in this respect. Every ship is expected to have on board the necessary papers to establish her nationality; and these are the papers which the law of her own country requires as evidence of that character. The same rule applies to cargoes. The sale of a ship or cargo under a decree of admiralty, founded on condemnation as prize, is valid and binding upon all courts and parties, unless it is shown to be vitiated by fraud.
But where an attempt is made to establish a revolutionary government, which fails, the adjudications of its prize courts and the sales based upon them will not be recognized, as was held in the case of the late Confederate States.