393 CHAPTER XXXII PRIZE COURTS, THEIR JURISDICTION AND PROCEEDINGS 1. Title to property captured at sea-2. Must be tried by prize court of captor-3. Apparent exceptions to rule-4. Rule varied by municipal regulations-5. By treaty stipulations-6. Prize courts in general7. In Great Britain-8. In the United States-9. The President cannot confer prize jurisdiction-10. Court may sit in the country of captor or his ally--11. But not in neutral territory-12. In conquered territory-13. Extent of jurisdiction-14. Location of prize-15. Decision conclusive—16. But State responsible for unjust condemnation-17. Cases of England and Prussia in 1753, and the United States and Denmark in 1830-18. When jurisdiction may be enquired into-19. How far governed by municipal laws-20. Character of proceedings, of proofs, &c.-21. Custody of property-22. Conduct of suit by captors-23. Who may appear as claimants-24. Duties of claimants-25. Nature and form of decrees. of a how de § 1. IT has been shown in chapter xxi. that, in war on land, Validity the title to personal and movable property is considered as maritime lost to the owner as soon as the captor has acquired a firm capture, possession, which, as a general rule, is considered as taking termined place after a lapse of twenty-four hours; but that this rule does not, at least in Great Britain and the United States, apply to maritine captures, which are held in abeyance till the legality of the capture is determined by some court of competent jurisdiction. A different principle, however, is applied in case of the recapture of property of the Continental nations of Europe, who adhere to the old rule of perductio infra præsidia, or of reclamation ante occasum solis. Kent, and other modern writers of authority, contend for the absoluteness of the rule, as one fully established by usage and incorporated into the code of international jurisprudence, that 'the property is not changed in favour of the neutral vendee or recaptor, so as to bar the original owner, until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction, belonging to the sovereign of the captor; and the purchaser must be able to show documentary evidence of that fact to support his title.' Such is undoubtedly the practice of Why prize other cannot condemn Great Britain and the United States; but with respect to recaptures it is by no means universal, some States retaining the ancient practice, and others adopting the rule of reciprocity. But this question will be particularly considered in chapter xxxv. under the head of recaptures.' § 2. The validity of a maritime capture must be determined courts of by a prize court of the government of the captor, and cannot countries be adjudicated by the court of any other country. The reason of this rule is based upon the responsibility which the law of nations imposes upon the government of the captor in case of unlawful condemnation of the captured property. If the court of any country other than that of the captor were to condemn, the government of the captor could not be held responsible to the government whose citizen is unlawfully deprived of his property. This rule necessarily excludes the jurisdiction of a prize court of an ally over captures made by his co-belligerent. The government of the captor is held responsible to other States for the acts of his own subjects, but not for those of his allies. It is, therefore, evident that the courts of an ally cannot determine whether captured property shall be restored to the original owner, or whether the captor's government shall assume the responsibility of its condemnation. Sir R. Phillimore asserts, that the question of prize may be adjudicated in 'the court of the captor or of his ally,' on the ground that unam constituunt civitatem; but none of the authorities to which he refers support his position; they refer to the locality of the prize when condemned, or to the place where the court was sitting at the time of condemnation, but not to the origin of the court itself; in none of the cases to which he refers was it held that the court of an ally may condemn. On the contrary, Chancellor Kent says distinctly,' The prize court of an ally cannot condemn ;' and Wheaton is equally distinct. But where the property is carried into the port of an ally, there is nothing to prevent the government of the latter, although it cannot itself condemn, from permitting an officer of the other government to exercise that final act of hostility. For the same reason, the condemnation of a capture cannot be pronounced in the prize court of a neutral; for, as the government Kent, Com. on Am. Law, vol. i. pp. 101, 102; Bello, Derecho Internacional, pt. ii. cap. v. § 4. Oddy v. Bovill, 2 East., 473. of the captor is answerable to other States for such condemnation, it is proper that it should be made by its own courts. Similarly, the liberty of a belligerent to sell prizes in a neutral territory is not a perfect right, but subject to the regulation of the neutral government. Moreover, if the courts of neutral countries were allowed to determine prize questions, their decisions would inevitably involve their respective governments in hostilities with one or the other of the belligerent parties, or with other neutral States, the property of whose citizens might be condemned for some violation of neutral duties. Their exclusion rests not only on the fact that the excrcise of this authority would be inconsistent with the neutral character, but also on the well-established practice and the usage of nations. The sentence of a court of Admiralty, sitting under a commission from a belligerent power, in a neutral country, will not be recognised in the British courts; and this even although, the forms of an independent neutral government being preserved, the belligerent possesses the real sovereignty.2 to rule § 3. There are two apparent exceptions to this exclusive Apparent jurisdiction of the prize courts of the captor's country over exceptions questions of prize : 1st, where the capture is made within the territory of a neutral State, and, 2nd, where it is made by a vessel fitted out within the territory of the neutral State. either of these cases the judicial tribunals of the neutral 1 ་ In Kent, Com. on Am. Low, vol. i. p. 103; Wheaton, Elem. Int. Law, pt. iv. ch. ii. §§ 13, 16; Phillimore, On Int. Law, vol. iii. §§ 365 et seq.; Hubner, De la Saisie des Bâtiments, &c., liv. i. ch. xi. § 8; Martens, Précis du Droit des Gens, liv. viii. ch. vii. § 312; the Flad Cyen,' 1 Rob., 135; the 'Perseverance,' 2 Rob., 240; the Kierlighett,' 3 Rob., 95; Havelock v. Rockwood, 8 Durn, and East, 268; the Invincible,' 2 Gallis. R., 28; 1 Wheat. R., 238; Maissonnaire v. Keating, 2 Gallis. R., 224; the Finlay and William,' I Peters R., 12; Wheelwright v. Depeyster, 1 Johns. R., 471 ; Page v. Lenox, 15 Johns. R., 172. Donaldson v. Thompson, 1 Camp., 429; Smith v. Surridge, 4 Esp., 25. Rule tions State have jurisdiction to determine the validity of captures so made, and to vindicate its own neutrality by restoring the property of its own subjects, or of other States in amity with it. A neutral nation,' says the Supreme Court of the United States, which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law which may arise in the progress of such discussion. But it is no departure from this obligation if, in a case in which a captured vessel be brought, or voluntarily comes infra præsidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on its own neutrality by the vessel which has made the capture. So long as a nation does not interfere in the war, but professes an exact impartiality toward both parties, it is its duty, as well as right, and its safety, good faith, and honour demand of it, to be vigilant in preventing its neutrality from being abused, for the purpose of hostility against either of them. . . . In the performance of this duty, all the belligerents must be supposed to have an equal interest; and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored.' These are not, properly considered, exceptions to the general rule of prize jurisdiction, but are cases where the courts of a neutral State are called upon to interfere for the purpose of maintaining and vindicating its neutrality.' § 4. Attempts have been made by some States to give to varied by their own tribunals prize jurisdiction of all captured property municipal regula- brought within their territorial limits. Such a municipal regulation was made by France, in 1681, and its justice was defended on the ground of compensation for the privilege of asylum granted to the captor and his prizes in a neutral port. There can be no doubt,' says Wheaton, that such a condition may be annexed by the neutral State to the privilege The Estrella,' 4 Wheat. R., 298; the Santissima Trinidad,' 7 Wheat. R., 284; 'La Amistad de Rues,' 5 Wheat. R., 385; Brig Alert and Cargo v. Blas Moran, 9 Cranch R., 359; 'La Concepcion,' 6 Wheat. R., 235; Talbot v. Jansen, 3 Dallas R., 133. of bringing belligerent prizes into its ports, which it may § 5. The rule has sometimes been varied by treaty stipula- By treaty stipulations. Thus, in the treaty between the United States and tions the Republic of Columbia in 1825, art. 21, and between the United States and Chile in 1832, art. 21, it was agreed that the established courts for prize cases in the country to which the prizes may be conducted, should alone take cognisance of them. But it must be observed that such stipulations can bind only those who make the engagements. The courts of neutral States would not be bound to exercise such jurisdiction, nor could States not parties to the treaty be debarred from claiming the right of trial by their own prize courts, which alone, under the general law of nations, have jurisdiction of prize causes.2 courts in general § 6. There is evidently a wide distinction between the ordi- Prize nary municipal tribunals of the State, proceeding under the municipal laws as their rule of decision, and prize tribunals appointed by its authority, and professing to administer the law of nations to foreigners as well as subjects. The ordinary municipal tribunals,' says Wheaton,3 acquire jurisdiction over the person or property of a foreigner, either expressed by his voluntarily bringing the suit, or implied by the fact of his bringing his person or property within their territory. But when courts of prize exercise their jurisdiction over vessels captured at sea, the property of foreigners is brought by force within the territory of the State by which those tribunals are 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 14. 2 United States Statutes at Large, vol. viii, pp. 316, 439. |