American citizens are prohibited from being concerned, beyond the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruize against the subjects of friendly powers.[96]
In the various treaties between the powers of Europe, in the two last centuries, and in the several treaties between the United States and France, Holland, Sweden, Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared, that no subject or citizen of either nation shall accept a commission or letter of marque, to assist an enemy in hostilities against the other, under penalty of being treated as an enemy.[97]
The Title to Property taken in War may, upon general Title to principles, be considered as immediately divested from the original owner, and transferred to the captor. As to personal property, the title is considered as lost to the former proprietor, as soon as the enemy has acquired a firm possession, which, as a general rule, is considered as taking place after the lapse of twenty-four hours.[98]
Ships and goods captured at sea, are excepted from the operation of this rule. The right to all captures rests primarily in the Sovran, and no individual can have any interest in a prize, whether made by a crown or private armed vessel, but what he receives under the grant of the state.
When a prize is taken at sea, it must be brought with due care into some port, for adjudication by a competent court. The condemnation must be pronounced by a prize court of the Government of the captor, sitting either in the country of the captor, or of his ally. The prize court of an ally cannot condemn.[99]
[Sidenote: Proceedings Preliminary to Condemnation.]
The Proceedings Preliminary to Condemnation may be roughly described as follows:—
The captor, immediately on bringing his prize into port, sends up and delivers upon oath to the registry of the Court of Admiralty, all papers found on board the prize. The preparatory examinations of the captain and some of the crew of the captured ship are then taken, upon a set of standing interrogatories, before the commissioners of the port to which the prize is brought. These also are forwarded to the registry of the Court of Admiralty. A written notice, called a monition, is extracted by the captor from the registry, and served upon the Royal Exchange, notifying the capture, and calling upon all persons interested, to appear and show cause why the ship and goods should not be condemned. At the expiration of twenty days, the monition is returned into the registry, with a certificate of its service; and if any claim has been given, the cause is then ready for hearing, upon evidence arising out of the ship's papers and preparatory examinations.
The neutral master or proprietor of the cargo takes measures as follows:—Upon being brought into port, the master usually makes a protest, which he forwards to London as instructions, (or with such further directions as he thinks proper) either to the correspondent of his owners, or to the consul of his nation, in order to claim the ship or such parts of the cargo as belong to his owners, or with which he was particularly entrusted; or the master himself goes to London to take the necessary steps, as soon as he has undergone his examination.
The master, correspondent, or consul, applies to a proctor, who prepares a claim supported by the affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong; and that no enemy has any right or interest therein; security must be given to the amount of sixty pounds, to answer costs, if the case should appear so grossly fraudulent on the part of the claimant as to subject him to be condemned therein. If the captor has neglected in the mean time to take the usual steps, (but which seldom happens, as he is strictly enjoined both by his instructions and by the Prize Act to proceed immediately to adjudication,) a process issues against him, on the application of the claimant's proctor, to bring in the ship's papers and preparatory examinations, and to proceed in the usual way.