English prize courts constituted. By natural law, the tribunals of the captor's country are no more the rightful exclusive judges of captures in war, made on the high seas from under the neutral flag, than are the tribunals of the neutral country. The equality of nations would, on principle, seem to forbid the exercise of a jurisdiction thus acquired by force and violence, and administered by tribunals which cannot be impartial between the litigating parties, because created by the sovereign of the one to judge the other. Such, however, is the actual constitution of the tribunals in which, by the positive international law, is vested the exclusive jurisdiction of prizes taken in war.' From this evident and wide distinction between ordinary cases of litigation, under municipal law, and the condemnation of maritime captures, under the law of nations, there has resulted the rule that no court can have prize jurisdiction unless it be expressly made a prize tribunal by the authority of the State to which it belongs. But, the organisation of the court, and the manner of exercising this jurisdiction, must depend upon the constitution and local laws of each State, and are different in different countries. § 7. The Admiralty Division of the High Court of Justice, in England, is theoretically divided into two tribunals, one of which is called the instance court, and the other the prize court; the former having generally all the jurisdiction of the Admiralty, except in prize cases, and the latter, acting under a special commission, distinct from the usual commission given to judges of the Admiralty, to enable the judge, in time of war, to assume the jurisdiction of prizes. The manner of proceeding,' says Lord Mansfield, is totally different; the whole system of litigation and jurisprudence in the prize court is peculiar to itself; it is no more like to the court of Admiralty than it is to any other court in Westminster Hall. The courts of Westminster Hall never have attempted to take cognisance of the question, prize or no prize; not from the locality of being done at sea, as I have said, but from their incompetence to embrace the whole of the subject.'' 1 Lindo v. Rodney, Doug. R., 613; ex parte Lynch, 1 Madd. R., 15. The Court of Admiralty has jurisdiction to entertain prize proceedings commenced after the cessation of war. (Cargo ex 'Katharina,' 30 L. J. Adm., 21.) A court of Common Law cannot even incidentally decide a question of prize. (Maissonnaire v. Keating, 2 Gall., 325; Bingham v. Cabbott, 3 Dall., 19.) Questions of prize, or no prize, are exclusively of of the States § 8. The constitution of the United States extends the judi- Prize cial power 'to all cases of Admiralty and maritime jurisdiction.' courts Under the general head of Admiralty jurisdiction are included United all captures and questions of prize, arising jure belli, as well as acts, torts, and enquiries strictly of civil cognisance, independent of belligerent operations and contracts, claims and services, purely maritime, and rights and duties appertaining to commerce and navigation. Prize jurisdiction, therefore, as a branch of Admiralty, belongs to the Federal courts.' 'It is obvious upon the slightest consideration,' says Story, 'that cognisance of all questions of prize, made under the authority of the United States, ought to belong exclusively to the national courts. How, otherwise, can the legality of the captures be satisfactorily ascertained, or deliberately vindicated? It scems not only a natural, but a necessary appendage to the power of war, and negotiation with foreign nations. It would otherwise follow, that the peace of the whole nation might be put at hazard at any time, by the misconduct of one of its members.' The District courts of the United States, as courts of Admiralty, are prize courts as well as instance courts. Their prize jurisdiction, however, was originally much questioned, on the ground that it was not an ordinary inherent branch of Admiralty jurisdiction, but an extraordinary power, requiring, as in England, a special commission, on the breaking out of the war, to call it into action. This question came up directly to the Supreme Court of the United States in 1794, and it was decided by the unanimous opinion of the judges, 'that every District court of the United States possesses all the powers of a court of Admiralty, whether considered as an instance or a prize court.' This decision was re-affirmed in other cases, and the jurisdiction claimed was expressly sanctioned by the Prize Act of June 26, 1812. The District courts of the United States are therefore prize courts of Admiralty, possessing all the powers incident to their character as such under the law of nations.2 Admiralty jurisdiction. (Ibid.) The question of prize, or no prize, or by whom taken, cannot be tried at Common Law. (Mitchell v. Rodney, 2 Bro. P. C., 423.) 1 A prize court is in its very constitution an international tribunal, controlled by the law of nations, not by municipal law (United States v. Bales of Cotton, Rev. Cas., 2), but a municipal seizure is regulated by municipal law. (Hudson v. Guestier, 4 Cranch., 293.) 2 Conkling, Treatise, &c., p. 135; Glass et al. v. the sloop 'Betsey' et al., 3 Dall. R., 6. In prize cases, the court of that district of the The cannot confer prize jurisdiction Court may sit in captor or of ally § 9. It has also been decided by the Supreme Court, that neither the President of the United States, nor any officer acting under his authority, can give prize jurisdiction to courts not deriving their authority from the constitution or laws of the United States. The alcalde of Monterey, a port of Mexico, in the possession and military occupation of the United States, as conquered territory, was appointed by the governor of California as a judge of Admiralty with prize jurisdiction, and the appointment was ratified by the President, on the ground that prize crews could not be spared from the squadron to bring captured vessels into a port of the United States. The Supreme Court held that such a court could not decide upon the rights of the United States, or of individuals, in prize cases, nor administer the laws of nations; that its sentence of condemnation was a mere nullity, and could have no effect upon the rights of any party. § 10. Having shown that the prize court of the captor's country of Country has exclusive jurisdiction of the question of prize or no prize, and that no mere municipal court can exercise such jurisdiction, unless it is especially conferred by the constitution or local laws of the State to which it belongs, we now come to the enquiry, where such court may sit or exercise its auUnited States, into which the property is carried and proceeded against, has jurisdiction. The mere carrying of a vessel, or of her cargo, seized on the high seas as prize of war, into any particular district, without institution there of any proceedings in prize, cannot affect or take away the jurisdiction over the property of the district of another district, in which the proceedings against the property may be instituted after the property has been carried into such other district. (The 'Peterhoff,' Blatchf. Pr. Cas., 493.) Cotton captured as prize, and in the custody of the marshal, under a warrant from the prize court, is not liable to be proceeded against for the internal revenue tax, while in his custody. (The 'Victory,' 2 Sprague, 226.) A vessel was chased at sea while attempting to break blockade, and was driven on shore in the enemy's territory, and then captured with her cargo, and was wrecked after capture. Held, that a part of her cargo, which was brought into a district of the United States, might be condemned as prize of war by the District court. (The 'Pevensey,' Blatchf. Pr. Cas., 628.) The officers and crew of a prize, in case of condemnation, are not entitled to wages from the prize property. Where a prize is condemned, the officers and crew who are sent in as witnesses in pursuance of the law of nations, are not entitled to witness fees or compensation for their necessary detention, from out of the prize property. (The Lilla,' 2 Sprague, 177; the ‘Britannia,' ibid. 225.) Jecker et al. v. Montgomery, 13 Howard R., 498. 2 The proceedings of a prize court of the late Confederate States were of no validity in the United States, and a condemnation and sale by such a court did not convey any title to the purchaser, or confer upon him any right to give a title to others. (The 'Lilla,' 2 Sprague, 177.) thority. We have already seen that the prize court of an ally cannot condemn; but the objections made to the jurisdiction of an ally's court do not apply to a court belonging to the country of the captor sitting in an ally's territory. It has been held by the English courts, that a prize carried into a State in alliance with the captors, and at war with the country to which the captured vessel belongs, or into the country of the captors, may be legally condemned there by a consul belonging to the nation of the captors. It was at one time supposed, that the authority of the 'Flad Oyen' was against the legality of such a condemnation, but Lord Stowell subsequently pointed out and explained the distinction.' § II. But a prize court of the captors cannot sit in a neu- But not in tral territory, nor can its authority be delegated to any tribunal neutral territory sitting in neutral territory. The reason of this rule is obvious. Neutral ports are not intended to be auxiliary to the operations of the belligerents, and it is not only improper but dangerous to make them the theatre of hostile proceedings. A sentence of condemnation by a belligerent prize court in a neutral port is, therefore, considered insufficient to transfer the ownership of vessels or goods captured in war, and carried into such port for adjudication. This question was first decided by the Supreme Court of the United States in 1794, and in 1799 it was re-examined and discussed at much length by Sir William Scott, who decided that an enemy's prize court, in neutral territory, could not lawfully condemn.2 territory § 12. The objections made to the establishment of a prize In concourt in neutral territory would not apply to conquered terri- quered tory in the possession and military occupation of the captors. Such territory is de facto within the jurisdiction of the conqueror, and a condemnation regularly made by a prize court legally established in such conquered territory would not be set aside for that reason alone. The legality of the court may, however, be a question of some difficulty, and must be determined by the constitution and local laws of the captor's country. It will, hereafter, be shown that, in this respect, the laws The 'Flad Oyen,' 1 Rob., 135; the 'Christopher,' 2 Rob., 209; the 'Harmony,' the 'Adelaide,' and the 'Betsey Kruger,' 2 Rob., 210, note; Wheelwright v. Depeyster, 1 Johns. R., 471; Pistoye et Duverdy, Des Prises, tit. 8. Glass et al. v. the sloop 'Betsey' et al., 3 Dall. R., 6; the 'Henrick and Maria,' 4 Rob., 45. VOL. II. D D Extent of jurisdiction of prize courts of different countries are very different; that the laws of Great Britain instantly extend over conquered territory; but that territory in the military occupation of the United States is not a part of the Federal union; that when the conquest is confirmed, the inhabitants of such territory become entitled to the rights, privileges, and immunities guaranteed by the constitution, but that the action of Congress is requisite to extend the general laws of the United States over territory, even after cession or confirmation of conquest. It has already been shown that neither the executive nor military authorities of the United States have power to establish prize courts in conquered territory to administer the law of nations. But it is different with Great Britain; for, as the limits of the Empire are extended, ipso facto, by the conquest, and as the conquered territory becomes instantly a dominion of the crown, the king, who issues prize commissions of his own authority, may erect courts there for the exercise of such jurisdiction. In speaking of the island of Heligoland, which had been taken possession of by British forces, but had not been confirmed to Great Britain by a treaty of peace, Sir William Scott remarked: 'It might have erected a court there, for the exercise of Admiralty jurisdiction; and, if it did not, I presume it refrained from so doing because it was not thought that the public convenience required it. The enemy certainly had no right to say that a court of that kind should not be there erected.' 2 § 13. The ordinary prize jurisdiction of the Admiralty extends to all captures in war made on the high seas; to captures made in foreign ports and harbours; to captures made on land by naval forces; to surrenders made to naval forces alone, or acting conjointly with land forces; to captures made in rivers, creeks, ports, and harbours of the captor's own country in time of war, and to seizures, reprisals, and embargoes, in anticipation of war. It also extends to all ransom bills upon captures; to money received as a ransom, or commutation on a capitulation to naval forces, alone or jointly with land forces: in fine, to all uses of maritime capture arising jure belli, and to all matters incidental thereto. Prize courts also havè ex 1 Courts established in a foreign country, by the command of an invading force, can have no jurisdiction in cases of prize. (Jecker v. Montgomery, 13 How. R., 498.) 2 Jecker et al. v. Montgomery, 13 Howard R., 515; Cross et al. v. Harrison, 16 Howard R., 165; the 'Flotina,' 1 Dod. R., 452. |