or, possibly, obstinate and determined declarations of a resolution to break the blockade, might be evidence of an attempt, after warning, to enter the blockaded port. But whether these circumstances or others may or may not amount to evidence of the offense, the offense itself is, attempting again to enter; and unless, “after notice, she shall again attempt to enter," the two nations expressly stipulated that she shall not be detained. Fitzsimmons v. Newport Ins. Co., 4 Cranch's U. S. Supr.

Ct. Rep., 185.

In the absence of such a treaty, however, where a ship knew of the blockade at the time of sailing, her approaching the blockaded port for the purpose of inquiring there, is, in itself, a consummation of the offense; and amounts to an actual breach. The Cheshire, 3 Wallace's U. S. Supr. Ct. Rep., 231: The Delta, Blatchford's Prize Cases, (U. S. Dist. Ct.,) 654. The inquiry can not be lawfully made at the blockaded port, if it can be made elsewhere. The Empress, Id., p. 175.

A clear necessity, however,-e.g., for repairs, supplies or shelter,— will justify an entrance into a blockaded port; but such allegations are regarded with distrust, and satisfactory evidence is required of the reality and urgency of the necessity. The Major Barbour, Id., p. 167; The Sunbeam, Id., p. 316; The Diana, 7 Wallace's U. S. Supr. Ct. Rep., 354.

7. Penalty. The penalty for a violation of blockade is confiscation, and attaches to both ship and cargo; which penalty continues upon a vessel until the end of her return voyage. Woolsey's International Law, § 188; The Wren, 6 Wallace's U. S. Supr. Ct. Rep., 582.

CHAPTER LXVIII.

PRIZE.

ARTICLE 893. Prizes must be brought in for adjudication.

894. Possession necessary to jurisdiction.

895. Adjudication.

896. Title not divested until judgment.

897. Previous liens.

898. Requisites of judgment condemning prize.

899. Capture by unlawful means.

900. Jurisdiction of remedy against wrong-doer, in case of illegal

capture.

901. Trial of contraband persons.

902. Uniform procedure.

Prizes must be brought in for adjudication.

893. All property' captured by a belligerent at sea

or afloat on navigable waters,' except public armed ships of the hostile nation, and their contents, and except in the case provided for by article 876, must be brought into a port within the territory or the lines of military occupation of the belligerent or of its ally,' and submitted with the proofs sustaining the right of capture to a prize court of the captor."

This Article, in connection with others, would extend the requirement of a judicial determination of the lawfulness of a capture, to the case of contraband in an unarmed hostile vessel, and even to public property of the hostile nation, on such a vessel.

The qualification restricting the rule to captures made wholly or partly by naval forces, may properly be omitted. The necessity for adjudication rests on the propriety of submitting the title of water-borne property to judicial inquiry. The kind of force by which the capture is made is not necessarily material.

In the case of the United States v. Bales of Cotton, (1 Woolworth's U. S. Circ. Ct. Rep., 236, 257,) it was held that vessels, which are not armed, and are not commanded by government officers, but are used merely as transports for troops, are not war vessels, and do not bring within the prize jurisdiction a capture on land. Also that conjunct captures on land of enemy's property by both army and navy are brought within the prize jurisdiction only by statute.

The propriety of proceeding in a prize court, in case of a recapture was established in the case of the schooner Adeline, 9 Cranch's U. S. Supr. Ct. Rep., 244, 286; and Story, J., in delivering the opinion of the court, intimates that such proceeding is necessary, but the question of necessity was not directly before the court.

The provisions of this Book would require it where a question of salvage arises, not otherwise.

3 In Brown v. United States, 8 Cranch's Rep., 139, pine timber, part of a ship's cargo, which had been unladened and put into the water in a shallow creek, where at low tide the ends of the logs rested in the mud, was treated as property found on land.

4 Mr. Seward, in his letter in the Trent case, recognizes an exception when it is imposible to bring in the prize, from circumstances beyond the control of the captor, and without his fault.

5 Possession in a neutral port is enough, by the existing law. Hudson v. Guesteer, 4 Cranch's U. S. Supr. Ct. Rep., 293. But the provisions proposed in Division V., concerning NEUTRALS, make this change proper.

The courts of a neutral nation have no jurisdiction of a capture by a belligerent, except in case of a violation of its neutrality. The Divina Pastora, 4 Wheaton's U. S. Supr. Ct. Rep., 52.

Possession necessary to jurisdiction.

894. A prize court has jurisdiction only so long as the nation making the capture, or its ally, has possession of the prize, or its proceeds.

Hudson v. Guesteer, 4 Cranch's U. S. Supr. Ct. Rep., 293; The Invincible, 2 Gallison's U. S. Circ. Ct. Rep., 29. Compare Maissonaire v. Keating, 2 Id., 325; The Arabella, 2 Id., 368.

Adjudication.

895. If, upon examination, the capture is adjudged lawful, the property may be disposed of according to the law of the captor's nation. If adjudged unlawful, either in respect to the cause or the mode of capture, or the authority of the captor, the property must be restored to its owner.

Three principal questions may be expected to arise under the provisions, subjecting only those things which are contraband of war, or engaged in illegal traffic, to capture at sea, and by public vessels alone:

1. Was the subject of capture lawful prize as contraband, or as engaged in interdicted traffic?

2. Was the captor impressed with the military character of a belligerent?

3. Were the place and mode of capture and detention such as to render them legal?

All of these seem to be proper questions for adjudication, under such a rule as is bere proposed.

By the settled rule in England and America, the owner of captured property can not contest the capture on the ground of a want of authority on the part of the persons who made the capture. But this rule seems to be founded on the right of government to adopt a capture by a noncommissioned vessel; and as this right may be renounced, the legality of the capture may properly be contested in this respect, as in others.

Title not divested until judgment.

896. The title to property mentioned in article 893, is not changed by capture, but only by the judgment of a court of prize having jurisdiction under the provisions of this Chapter.

In Josefa Segunda, (5 Wheaton's U. 8. Supr. Ct. Rep., 338,) it was held that where the capture is made by a regularly commissioned captor, he acquires a title to the captured property, which can only be divested by recapture, or by the sentence of a competent prize court.

Previous liens.

897. Capture and condemnation as prize override all previously existing liens.

The Battle, 6 Wallace's U. 8. Supr. Ct. Rep., 498.

As against captors, the ownership of property can not be changed while it is in transit. The capture, followed by condemnation, clothes the captors with all the rights of the owner which subsisted at the commencement of the voyage; and anything done thereafter, designed to incumber the property, or to change its ownership, is a nullity. The Sally Magee, 3 Id., 451.

Requisites of judgment condemning prize.

898. A judgment of a prize court sustaining the validity of a capture must contain or be accompanied by a statement of the grounds on which it is founded. Treaty between France and Peru, March 9, 1861, Art. XXV., 8 De Clercq, 201.

The sentence of a prize court condemning a vessel is not conclusive as to any matter of fact which was the ground of condemnation, unless that matter of fact be clearly and certainly stated in the judgment as a ground of condemnation. Hobbs v. Henning, 17 Comm. Bench Rep., N. S., 791; 11 Jurist, N. S., 223; 34 Law. Jour., C. P., 117; 13 Weekly Rep., 431; 12 Law Times, N. S., 205; Christie v. Secretau, 8 Term Rep., 192; Bolton v. Gladstone, 5 East's Rep., 155; 1 Smith, 372; 2 Taunton's Rep., 85. But such sentence is not evidence of what may be gathered from it by way of inference. Fisher v. Ogle, 1 Campbell's Rep., 418; Dalgleish v. Hodgson, 5 Moore & Payne's Rep., 407.

Capture by unlawful means.

899. A capture made by means involving a violation of neutrality or the breach of any provision of this Book, is an unlawful capture.

An illegal outfit, or augmentation of force, in a neutral country, not only involves liability for personal penalties, but also infects captures subsequently made during the same cruise, with the character of torts, and justifies and requires a restitution to the parties who have been injured by such misconduct. The Santissima Trinidad, 7 Wheaton's U. S. Supr. Ct. Rep., 283; The Grace Para, 7 Id., 471.

Jurisdiction of remedy against wrong-doer, in case of illegal capture.

900. After a capture has been duly adjudged illegal, any court of otherwise competent jurisdiction in any

nation a party to this Code, may give a remedy against the wrong-doer.

The courts of a country have now no jurisdiction to redress torts committed on the high seas against the property of its citizens by a cruiser of a friendly power, unless the cruiser was fitted out in violation of its neutrality laws. The injured neutral must resort to the courts of the captor for redress. L'Invincible, 1 Wheaton's U. S. Supr. Ct. Rep., 238; Moxon v. The Fanny, 2 Peters' Adm. Rep., 309.

But after the foreign prize court has adjudged the capture illegal, the neutral court may decree compensation in damages. McGrath e. The Candelero, Bee's Adm. Rep., 60.

Trial of contraband persons.

901. In the case of persons captured as contraband, proceedings may be taken by them or by the captors to have the legality of the capture judicially determined.

Uniform procedure.

902. The nations uniting in this Code, shall take measures to adopt uniform rules for procedure in cases of prize.

CHAPTER LXIX.

EFFECT OF A STATE OF WAR ON OBLIGATIONS OF NATIONS AND THEIR MEMBERS.

ARTICLE 903. Existing obligations not in general affected.

904. Public debt not confiscable.

905. Treaties unaffected by war.

906. Effect of war on executory contracts.

907. Removal of interdiction.

908. Anticipation of war.

909. Extension of time.

910. Interest, damages, &c., for delay.

Existing obligations not in general affected.

903. Neither a state of war, nor a treaty of peace, annuls existing rights or obligations, except so far as their existence is incompatible with it, or as is otherwise provided in this Book.