capture

A capture, as defined by some of the most eminent writers on insurance within the policy, is a taking by the enemy of vessel or cargo as prize, in time of open war, or, by way of reprisal, with intent to deprive the owner of it. Usage, and the course of decisions by the courts, have very much widened this meaning, and it now may embrace the taking of a neutral ship and cargo by a belligerent jure belli; also, the taking forcibly by a friendly power, in time of peace, and even by the government itself to which the assured belongs.

The taking of property by one belligerent from another. See 6 Allen (Mass.) 373. It is a taking by the military power, as distinguished from a taking by the civil power, which is known as "seizure." 35 Ga. 344. It originally included only a taking by one belligerent from another, but has been enlarged in usage to include taking by pirates, or the taking by a belligerent of neutral goods. 6 Allen (Mass.) 373; 6 Wall. (U. S.) 10.

In International Law. The taking of property by one belligerent from another or from an offending neutral. Private property of the enemy is not subject to capture on land, but the contrary rule holds at sea. When private enemy vessels are seized at sea, title does not immediately vest in the captor, but the vessel must be brought before a prize court and legally condemned. When public enemy vessels are seized, title vests immediately in the captor state. Capture is deemed lawful when made in accordance with the laws of war. Private neutral property is subject to capture by a belligerent for the carriage of contraband (q. v.), breach of blockade {q. v.) and unneutral service (q. v.) The Declaration of Paris (q. v.) laid down the rule that enemy goods, except contraband of war, should not be subject to capture under a neutral flag, nor neutral goods under an enemy flag. It has been a subject of controversy whether captured neutral vessels may be destroyed by a belligerent under exceptional circumstances. British practice held that neutral prizes should be abandoned if they could not be brought into court. Russia followed the opposite rule in the war with Japan in 1905. The Declaration of London (q. v.) compromised the question and allows destruction of a neutral vessel when it is liable to condemnation upon the facts of the case and when the release of the vessel would involve danger to the safety of the war-ship and the success of the operations in which she is engaged at the time. II Opp. 546-558. See Neutrality. CAPUT (Lat. head). In Civil Law. Status; a person's civil condition. According to the Roman law, three elements concurred to form the status or caput of the citizen, namely, liberty, libertas, citizenship, civitas, and family, familia. Libertas est naturalis facultas ejus quod cuique facere libet, nisi si quid vi aut jure prohibetur. This definition of liberty has been translated by Dr. Cooper, and all the other English translators of the Institutes, as follows: "Freedom, from which we are denominated free, Is the natural power of acting as we please, unless prevented by force or by the law." This, although It may be a literal, is certainly not a correct, translation of the text. It is absurd to say that liberty consists in the power of acting as we think proper, so far as not restrained by force; for it is evident that even the slave can do what he chooses, except so far as his volition is controlled by the power exercised over him by his master. The true meaning of the text is: "Liberty (from which we are called free) is the power which we derive from nature of acting as we please, except so far as restrained by physical and moral impossibilities." It is obvious that a person is perfectly free though he cannot reach the moon of another to ourselves, or the precept of morality to behave with decency and^decorum. Civitas— the city— reminds" us of the celebrated expression, "civis sum Romanus," which struck awe and terror into the most barbarous nations. The citizen alone enjoyed the jus Quiritium, which extended to the family ties, to property, to inheritance, to wills, to alienations, and to engagements generally. In striking contrast with the civis stood the peregrinus hostis, barbarus. Familia— the family— conveyed very different ideas in the early period of Roman jurisprudence from what it does in modern times. Besides the singular organization of the Roman family, explained under the head of pater familias,. the members of the family were bound together by religious rites and sacrifices,— sacra familia. The loss of one of these elements produced a change of the status, or civil condition; this change might be threefold; the loss of liberty carried with it that of citizenship and family, and was called the maxima capitis deminutio; the loss of citizenship did not destroy liberty, but deprived the party of his family, and was denominated media capitis deminutio; when there was a change of condition by adoption or abrogation, both liberty and citizenship were preserved, and this produced the minima capitis deminutio. But the loss or change of the status, whether the great, the less, or the least, was followed by serious consequences: all obligations merely civil were extinguished; those purely natural continued to exist. Gaius says, Eas obligations quaz naturalem prcestationem habere intelliguntur, palam est capitis deminutione non perire, quia civilis ratio naturalia jura corrumpere non potest.. Usufruct was extinguished by the diminution of the head: amittitur usufructus capitis deminutione. D. 3. 6. § 28. It also annulled the testament: "Testamenta jure facta inftrmantur, cum is qui fecerit tcstamentum capite deminutus sit." Gaius, 2, § 143. At Common Law. A head. Caput comitatis (the head of the county). The sheriff; the king. Spelman, Gloss. A person; a life. The upper part of a town. Cowell. A castle. Spelman, Gloss. Caput anni. The beginning of the year. Cowell. CAPUT LUPINUM (Lat). Having a wolf's head. Outlaws were anciently said to have caput lupinum, and might be killed by any one who met them, if attempting to escape; 4 Bla. Com. 320. In the reign of Edward III. this power was restricted to the sheriff when armed with lawful process; and this power, even, disappeared, and the process of outlawry was resorted to merely as a means of compelling an appearance; Co. Litt 128 b; 4 Bla. Com. 284; 1 Reeve's Hist Eng. Law 471. See Outlawry.

In international law. A taking or seizure of the goods of an enemy; a taking of prizes in time of war, particularly at sea. V. Seizure.

A taking, seizure. See Capere. In the law of marine insurance, any unlawful taking by force, including a piratical taking as well as such as is made jure belli.^ Synonymous with prize (g. v.), as used in Europe. The popular use of a taking by force or violence from without, to which a vessel in the course of a maritime adventure might be exposed, corresponds with the use in marine insurance." A taking by the enemy of a vessel or its cargo as prize, in time of open war, or by ' Bailey v. Clark, 21 Wall. 886-87 (1874), Field, J. " Sanger v. Upton, 91 U. S. 60, 47 (1875), Swayne, J. s [3 Bl. Com. 4. * Harris v. Lester, 80 III. 311 (1875). 'People V. Bennett, 37 N. T. 182 (1867); Exp. Bain, 121 U. S. 7 (1887): Starkie, Cr. PI. p. 287. 'Dole V. New England Mut. Mar. Ins. Co., 6 Allen, way of reprisal, with intent to deprive the owner of it.i This was probably the primary Idea in instruments of marine insurance. Losses of ships and cargo engaged in commerce, by the public enemy, were the most to be apprehended and provided against. But usage, and the course of decisions by the courts, have very much widened this meaning, and it now may embrace — The taking of a neutral ship and cargo by a belligerent jure belli; also, the taking forcibly by a friendly power, in time of peace, and even by the government itself to which the assured belongs, i Technically, a taking by military power; a seizure, a taking by civil authority. 2 " Captured property " may mean property seized or taken from hostile possession by the military or naval forces of the United States.' As to recapture, see Postliminy. See also Eansom.

[Lat. captura, from capere, to take.] In international law. A taking or seizure of the goods of an enemy; a taking of prizes in time of war, particularly at sea. 2 Bl. Com. 401, 402. 2 Steph. Com. 79, 80. 1 Kent's Com. 91, 92.

war, is the taking of property by one belligerent from another. To make a good capture of a ship, it must be subdued and taken by an enemy in open war, or by way of reprisals, or by a pirate, and with intent to deprive the owner of it. Capture may be with intent to possess both ship and cargo, or only to seize the goods of the enemy, or contraband goods which are on board. The former is a capture of the ship in the proper sense of the word; the. latter is only an arrest and detention, without any design to deprive the owner of it. Capture is deemed lawful, when made by a declared enemy, lawfully commissioned and according to the laws of war; and unlawful, when it is against the rules established by the law of nations. Marsh. Ins. B. 1, c. 12, 8.4. - See generally, Lee on Captures, 2 Caines’s C. Err. 158; 7 Johns. R. 449; 3 Caines’s R. 155; 11 a Johns. R. 241 3 13 Johns. R. 161; 14 Johns. R. 227; 3 Wheat. 183; 4 Cranch, 43; 6 Mass. 197.