clusive jurisdiction and an enlarged discretion, as to allowance of freight, damages, expenses, and costs, and as to all torts, personal injuries, ill-treatments, and abuse of power, connected with maritime captures de jure belli, and they frequently award large and liberal damages in such cases. This rule rests upon the ground that where the prize court has the sole and exclusive jurisdiction of the original matter it ought also to have such jurisdiction of all its consequences, and of everything necessarily incidental thereto. It is, therefore, held in England that the courts of Common Law can have no jurisdiction at all of such incidental questions, and this doctrine has been reaffirmed by the courts of the United States. Indeed, so far as questions have been decided by the Federal courts of the United States, they have claimed and exercised a jurisdiction equally as ample and extensive as the prize courts of Great Britain. All cases of recapture are held to be cases of prize, and are to be proceeded with as such. It is understood in England that the Admiralty, merely by its own inherent powers, never exercises jurisdiction of captures, or seizures as prize, made on shore without the co-operation of naval forces. Such were the views of Lord Mansfield, and his opinion on this point was adopted by Sir William Scott. As before remarked, we know of no decision by the courts of the United States bearing directly upon the question; in the case of the 'Emulous,' although the court gave no opinion as to the right of the Admiralty to take cognisance of mere captures made on the land, exclusively by land forces, yet it was declared to be very clear, that its jurisdiction was not confined to captures at sea. But prize courts do not, in general, take jurisdiction of questions of mere booty. If, however, the jurisdiction of a prize court has once attached, that is, if the capture be such as to bring it within the jurisdiction of the Admiralty, the process of the prize court will follow the goods on shore, and its jurisdiction still continues not only over the capture, but also over all questions incident to it. So, also, if the prize should be unwarrantably carried into a foreign port and there given up by the captors on security. In this respect the prize court holds a firmer jurisdiction than the instance court; for in cases of wreck and derelict, if the goods are once 1 See, as to Great Britain, p. 79, suprà.

DD 2

Location

of prize

on shore or landed, the cognisance of the Common Law attaches.1

§ 14. The next question for consideration is the locality of the captured property. If it be carried into a port of the captor's country, there can be no doubt respecting the jurisdiction of the prize court of the same country. But what particular tribunal of that country shall exercise the prize jurisdiction of a particular case, will depend, of course, upon the local laws under which such tribunals are organised, and their respective jurisdictions are assigned and limited. This is entirely a question of local law. So, also, if the captured property is carried into a port of the captor's co-belligerent, it may be adjudicated by a properly constituted prize tribunal of the captor's country; for, although the government of an ally cannot itself condemn, there is nothing to prevent it from permitting the exercise of that final act of hostility on the part of its co-belligerent, the condemnation of property captured in a common war. 'There is a common interest,' says Wheaton, 'between the two governments, and both may

1 Kent, Com. on Am. Law, vol. i. p. 35, § 358; the 'Emulous,' I Gallis. R., 563; Phillimore, On Int. Law, vol. iii. §§ 126 et seq.; Elphinstone v. Bedreechund, Knapp R., 316.

Enemy's property captured by a public vessel, in an enemy's port, although it was, when seized, stored in a warehouse on land near the water, was held, under the facts, to be lawful prize. ('Twelve hundred and fifty-three Bags of Rice,' Blatchf. Pr. Cas., 211.)

It is no legal ground of objection, to the jurisdiction of a prize court, that the arrest was made out of its territorial authority. The court has jurisdiction under the law of nations and by municipal law when the subject matter of the suit is prize of war, without regard to the locality of the arrest or cause of action, and it is unimportant to the question of prize or no prize whether the capturing land and sea forces act in conjunction or separately. Where a combined action exists between vessels of war and land forces in making a capture, it is usually cast upon the latter to prove that their co-operation was direct and positive to authorise their sharing in the prize, and they are not ordinarily recognised as joint captors unless it is proved on their part that the capture was produced by their active interference. The court has cognisance of all captures in an enemy's country made in creeks, havens, and rivers, when made by a naval force solely or in co-operation with land forces. (The two hundred and eightytwo Bales of Cotton, Blatchf. Pr. Cas., 302.)

Slaves cannot be libelled as prize, under the United States Act of June 26, 1812, nor will the District court consider them as prisoners of war, their disposition being exclusively a question of State policy with which the judiciary cannot interfere. (See Almeida' v. Certain Šlaves, 5 Am. Law, 2 N. S., 459.) Books intended for a public library will not be confiscated in a prize court. (The 'Amelia,' 4 Phil., 417.) For example of the condemnation of an enemy's vessel, in the naval service of the enemy as a gunboat, see the 'Ellis, Blatchf. Pr. Cas., 348.

be presumed to authorise any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. Such an adjudication is, therefore, sufficient in regard to property taken in the course of the operations of a common war.' It was at one time supposed that a prize court, though sitting in the country of its own sovereign, or of his ally, had no jurisdiction over prizes lying in a neutral port. Sir William Scott admitted that, on principle, the exercise of such jurisdiction was irregular, as the court wanted that possession which was deemed essential in a proceeding in rem; but he considered that the English Admiralty had gone too far in its practice, to be recalled to the original principle. Sir William Grant, in delivering the judgment of the Court of Appeals, in the same case, expressed the same opinion, and the English rule is now considered as definitively settled. The Supreme Court of the United States has followed the English rule, and has held valid the condemnation, by a belligerent court, of prizes carried into a neutral port and remaining there, the practice being justifiable on the ground of convenience to belligerents, as well as neutrals; and though the prize was, in fact, within neutral territory, it was still to be deemed under the control, or sub potestate, of the captor, whose possession is considered as that of his sovereign. It may, also, be remarked, that the rule thus established by the highest courts of England and the United States, is sanctioned by the practice of France, Spain, and Holland. But several French publicists deny its legality. For the same reason that a prize court of the captor may condemn captured property while in a neutral port, it may condemn such property situate in any foreign port, which is in the military possession of the captor. As a general rule,' says Chief Justice Taney, delivering the opinion of the Supreme Court, it is the duty of the captor to bring it within the jurisdiction of the prize court of the nation to which it belongs, and to institute proceedings to have it condemned This is required by the Act of Congress, in cases of capture by ships of war of the United States; and this Act merely enforces the performance of a duty, imposed upon the captor by the law of nations, which, in all civilised countries, secures to the captured a trial in a court of competent jurisdiction, before he can be finally deprived of his property. But there

Decision

tent court

are cases where, from existing circumstances, the captor may be excused from the performance of this duty, and may sell, or otherwise dispose of, the property, before condemnation. And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a court of the United States.'1

§ 15. The sentence of a competent prize court of the of compe- captor's country is conclusive upon the question of property conclusive in the captured thing; it forecloses all controversy respecting the validity of the capture, as between the claimants and the captors of those claiming under them, and terminates all ordinary judicial enquiry upon the subject matter. The captors cannot be held responsible in the court of any other country, nor can the question of the ownership of the captured property be made a matter of judicial investigation when once decided by a competent prize court. A contrary rule, allow

1 Wheaton, Hist. Law of Nations, p. 321; Jecker et al. v. Montgomery, 13 Howard R., 516; the 'Peacock,' 4 Rob., 185; Hudson v. Guestier, 4 Cranch. R., 293; Williams et al. v. Amroyd, 7 Cranch R., 523; the Arabella and Madeira,' 2 Gallis. R., 368; the Henric and Maria,' 6 Rob., 138, note; the 'Falcon,' 6 Rob., 198; La Dame Cécile,' 6 Rob., 257. It is fully within the usage of the prize courts to entertain and perfect their jurisdiction over property captured on board a vessel, without having the vessel itself brought within their cognisance. In many cases, this is indispensable, as in the case of enemy's property captured in a neutral vessel, or when the enemy's vessel has been destroyed in capture. (The Edward Barnard,' Blatchf. Pr. Cas., 123.) A prize court may take judicial cognisance of a capture, without at the time having the prize within its territorial jurisdiction, and without its being brought there, during the pendency of the suit. (The 'Zavalla,' Blatchf. Pr. Cas., 173.) The possession of the captors in a neutral port is the possession of their sovereign, and gives jurisdiction to his courts. (Hudson v. Guestier, 4 Cranch., 293.) The jurisdiction of the courts of France as to seizures, is not confined to seizures made within two leagues of the coast. (Ibid.)

Under peculiar circumstances, the English prize court will condemn a prize, which has been taken into and lies in a neutral port, and allow it to be sold there. (The Polka,' Spinks Prize Cases, 57.) The right of adjudicating, on all captures and questions of prize, belongs exclusively to the courts of the captor's country; but it is an exception to the general rule that, where the captured vessel is brought, or voluntarily comes infra præsidia of a neutral power, that power has a right to enquire whether its own neutrality has been violated by the cruiser which made the capture, and if such violation has been committed, it is in duty bound to restore to the original owner property captured by cruisers, illegally equipped in its ports. (The 'Estrella,' 4 Wheat., 298.)

ing the prize courts of one country to review and reverse the decisions of the prize courts of another country, would lead to great irregularities and endless disputes and litigation. The competency of the court and its jurisdiction may, however, as will be shown hereafter, be made the subject of judicial enquiry.1

ble for

condemna

§ 16. Where the responsibility of the captor ceases,' says State Wheaton, 'that of the State begins. It is responsible to responsi other States for the acts of the captors under its commission, unjust the moment these acts are confirmed by the definitive sen- tion tence of the tribunals which it has appointed to determine the validity of captures in war.' The sentence of the judge is conclusive against the subjects of the State, but it cannot have the same controlling efficiency toward the subjects of a foreign State. It prevents any further judicial enquiry into the subject matter, but it does not prevent the foreign State from demanding indemnity for the property of its subjects, which may have been unlawfully condemned by the prize

1 Dalloz, Répertoire,verb. 'Prises Maritimes,' §7; Lothian v. Henderson, 3 B. and P., 545; Castrique v. Imrie, L. R., 4 E. and I., app., 434–5 ; Geyer v. Aguilar, 7 T. R., 681. Although the decision of a foreign prize court must be received in evidence, still it may be examined, to see whether the fact, in proof of which it is adduced, was clearly and certainly found by the court that gave it, and it is for the court of that nation, in which the decision of the foreign court is quoted, to ascertain what facts were so found, without enquiring into the legal validity of the grounds of the judgment. (Hobb v. Fleming, 5 New R. (1865), 406. See also Hughes v. Cornelius, 2 Show., 232; Doe v. Oliver, 2 Sm. L. C., 634; Geyer v. Aguilar, 7 T. R., 681; and Donaldson v. Thompson, 1 Camp., 429.) The sentence of a foreign court of Admiralty is evidence only of what it positively and specifically affirms in the adjudicative part of it, not what may be gathered from it by way of inference. (Fisher v. Ogle, 1 Camp., 418; Christie v. Secretan, 8 T. R., 192.) Therefore, a condemnation of a vessel, for attempting to violate a blockade, is not conclusive, unless it appear on the face of the sentence, free from doubt, whether the ground of condemnation be a just one by the law of nations, or merely by the municipal regulations of the condemning country. (Dalgleish v. Hodgson, 7 Bing., 495.) In Bernardi v. Motteux (2 Dougl. R., 581), an action on a policy of insurance, it was held by Lord Mansfield, that a condemnation by a foreign Court of Admiralty is not conclusive evidence that the ship was not neutral, unless it appear that the condemnation went upon that ground. The supposed inconvenience and controversy about the ground of a foreign sentence, would be obviated, if foreign courts would say in their sentences, 'Condemned as enemy's property.' In Baring v. Clayett (3 B. and P.) it was collected, that the ground of adjudication was the ship being enemy's property, and not the infringement of some positive regulations of the foreign country. The court held such sentence conclusive evidence against a warranty of neutrality. In Lothian v. Henderson (ibid. 499) the House of Lords held, that a foreign sentence adjudging a ship, for whatever cause, to be enemy's property was conclusive against its neutrality.