sentence of

§ 391. Grotius states that a judicial sentence, plainly Unjust against right, (in re minimè dubia,) to the prejudice of a a foreign foreigner, entitles his nation to obtain reparation by re- court, prisals: "For the authority of the judge," says he, reprisals. !

ground of

against neutrals, is to decide between two courses: He must either release the vessel absolutely, with her cargo, papers, passengers, and all entire; or he must complete his capture, make her a prize, and send her in for adjudication. He cannot take a middle course, and, releasing the vessel, exercise any belligerent authority over the cargo, passengers, or papers, or destroy any property, or take from her persons or property. If he should take this course, he will be considered as having declined the exercise of the only belligerent right neutral nations permit to him, — that of capture and sending-in for adjudication; and his act of destroying or removing will be treated as not a lawful belligerent proceeding. Not being a recognized belligerent act, it is either, in law, an act of piracy, or an attempt to exercise a police power over neutral vessels on the high seas. This subject received its fullest discussion in the case of the Trent. That vessel was a British mail passenger-steamer, and was stopped and examined at sea by the United States war-steamer San Jacinto. Commodore Wilkes, commanding the San Jacinto, found on board the Trent two official persons of the rebel government, who were going to Europe in a public capacity. He released the Trent, with her other passengers and papers, but removed these officers to his own vessel, on the ground that they were contraband of war, and brought them as prisoners of war to the United States. The British Government demanded satisfaction. Mr. Seward considered that, by so releasing the Trent, Commodore Wilkes lost the right to exercise belligerent rights over her, or over any thing on board; and that the taking out of these official persons was, for that reason, not justifiable as an exercise of belligerent rights. As the government of the United States had always denied and resisted all claims of belligerents to exercise any acts of authority or force over American vessels or any thing on board them, at sea, except the right to stop, examine, and either to release entire, or to send in for adjudication in the manner recognized by nations, these official persons so taken from her were sent by the United States Government on board a British vessel of war, and by her taken to their original port of destination. (Letter of Mr. Seward to Lord Lyons of Dec. 26, 1861. See, further, The Trent Case, note infrà, on Carrying Hostile Persons and Papers.)

Necessity will excuse the captor from the duty of sending in his prize. If the prize is unseaworthy for a voyage to the proper port, or there is impending danger of immediate recapture from an enemy's vessel in sight, or if an infectious disease is on board, or other cause of a controlling character, the law of nations authorizes a destruction or abandonment of the prize, but requires all possible preservation of evidence, in the way of papers and persons on board. And, even if nothing of pecuniary value is saved, it is the right and duty of the captor to proceed for adjudication in such a case, for his own protection and that of his government, and for the satisfaction of neutrals. In the case of the Trent, the reason assigned by Commodore Wilkes for not sending his prize in for adjudication was the great inconvenience that would result to the numerous passengers on board, and to the commercial world, as there were mails on board for all parts of Europe which would have to be subjected to delay. This motive, though creditable to the commander in that case, is not recognized by the law of nations as an excuse.

VII. REMEDY OF CLAIMANTS. If the captor does not, in a reasonable time, submit his capture to adjudication, any person interested in the prize may require an

"is not of the same force against strangers as against subjects. Here is the difference: subjects are bound up and concluded by the sentence of the judge, though it be unjust, so that they cannot lawfully oppose its execution, nor by force recover their own right, adjudication, by petition to the prize court for a monition upon the captors, or by a suit for a decree of restitution. This proceeding is applicable to a case of destruction or abandonment of a prize, for which it is an approved remedy, as well as to other circumstances. (For remedy of claimants, in the way of damages, in case of restitution, vide this note, suprà.)

VIII. LOCALITY OF THE PRIZE. As it is not necessary to the jurisdiction of a prize court that the prize should be in existence, it would seem to be unnecessary that .it should be within its custody. Yet, for a long time, this was a vexed question of international law. Where a prize is not fit for a voyage to a place of adjudication, and yet may be of value, it is customary to sell her. The statutes of the United States assume, that a captor, or any national authority, may sell in a case of necessity, rather than destroy the vessel; and that the government may itself take a prize into its service, in a case of belligerent necessity, or if it is unseaworthy for a voyage to a port of adjudication. (Act 1864, ch. 174, § 28.) In the one case, it is the duty of the captor to send the proceeds of the prize to the prize court, and, in the other, of the government to deposit the value for adjudication, in lieu of the prize itself. (Ibid.) It is believed that this practice is sanctioned by the law of nations.

As to a prize in a neutral port, writers seem often to have confounded the duty of the captor with the jurisdiction of the court. The duty of the captor is to send his prize to a port of his own country, that the prize tribunal may have it within its custody, not only for a fairer investigation of evidence, often derivable from the vessel and cargo itself, — but also to diminish the risks of concealment or destruction, by the captors, of evidence or property, and 'to insure a fair sale for full value in case of condemnation, or a more speedy and satisfactory restitution. The captor must give some reason of necessity for leaving his prize in a neutral port, or, as before stated, for not bringing it in. But, irrespective of the advantages or disadvantages to claimants or captors, on the bare question of the capacity of the court to take cognizance of a cause where the prize is not bodily in its custody, and yet is in existence, there seems to be now no doubt. (For analogous cases in civil proceedings, see Hudson v. Guestier, Cranch, iv. 293; Ih. vi. 281; and Rose v. Himely, Cranch, iv. 241.) Whether a court will exercise its functions in any given case of an absent prize, is a different question, and one of discretion, upon circumstances.

Whether a prize may or may not be taken into or remain in a neutral port, to await proceedings at home, or for sale by captors, or for any other purpose, is a question for the neutral sovereign to decide. Consular prize courts, in neutral States, are not now recognized by nations. The locality of the court must be in the territory of the belligerent. This was first decided politically by Washington's Cabinet, in the case of the prizes taken by M. Genet's privateers (American State Papers, i. 144); and judicially by the Supreme Court, in The Betsey (Dallas, iii. 6); and, afterwards, by Sir William Scott, in The Flad Oyen (Rob. i. 135). It is within the fortunes of war, whether the captor shall be able to get his prize into a home port. It is obviously for the interest of neutrals to require such a course, and to object to all adjudication on absent prizes, except in cases of necessity.

The modern practice of neutrals prohibits the use of their ports by the prizes of a belligerent, except in cases of necessity; and they may remain in the ports only for the meeting of the exigency. The necessity must be one arising from perils of the seas, or

on account of the controlling efficacy of that authority under which they live. But strangers have coercive power, (that is, of reprisals, of which the author is treating,) though it be not lawful to use it so long as they can obtain their right in the ordinary course of justice." (a)

need of repairs for seaworthiness, or provisions and supplies. Increase of armament is prohibited. The neutral will protect the prize against pursuit from the same port for twenty-four hours, and against capture within his waters; but, beyond that, the general peril of war, arising from the power or vigilance of the other belligerent, does not constitute a necessity which the neutral recognizes as justifying a remaining in his port. This rule, if adhered to, will prevent the arising of a custom of retaining prizes in safety in a neutral port, until they can be condemned in the home port, in their absence. But, apart from any such practice of neutrals, it seems clear, that to allow prizes to fly to a neutral port, and remain there in safety while prize proceedings are going on in a home port, would give occasion to nearly all the objections that exist against prize courts in neutral ports. It seems, therefore, to be the tendency, if not the settled rule, now, that a decree of condemnation will not be passed against prizes remaining abroad, unless in case of necessity, or, if passed, will not be respected by other nations. (The Polka, Spink's Adm. Rep. i. 447.) In the list of necessities, the general dangers of a passage, from the vigilance or superiority of the enemy, it would seem, should not be included, although no decision on that precise point is known.

In the civil war in the United States, a question of interest was presented as to the rights of captors. After the first few months, the rebel cruisers made no attempt to send in their prizes, but destroyed them at sea. The justification alleged was the stringent blockade of their ports by the United States. At the same time, merchantvessels, both rebel and British, were constantly attempting, and often successfully, the breach of blockade at many points. The question was not presented to any court or diplomatically, as the rebel government disappeared. But, in some future war, the question may arise, whether the mere fact of the existence of a blockade of all the ports of a belligerent, making the sending-in a prize a matter of hazard, but such as neutral merchant-vessels run, will justify the continuance of a practice of capturing and destroying. How long may that be kept up by a belligerent whose maritime power is so reduced that he has no port of his own which his cruisers can use? The rebel cruisers continued their work of destruction for three years or more after they had no port that, by their own statement, they could resort to, for any purpose. Upon the point of rescue of a prize by a neutral crew, see note 183, ante. Upon these points of principle and practice of prize tribunals, which are general and mostly undisputed, consult Story's Notes to first and second volumes of Wheaton's Reports. Kent's Comm. i. 100-104. Halleck's Intern. Law, 748-773; also, 522–3, 531-533, 729, 743. Phillimore's Intern. Law, iii. §§ 361-381, and 437-508. Heffter's Europ. Völker. §§ 171-173. Ortolan, vol. ii. ch. 8, pp. 303–315. De Pistoye et Duverdy, ii. pp. 173, 188. Prize Acts of United States, 1864, ch. 174. British Naval Prize Act of 1864. The Polka, Spink's Adm. Rep. i. 447. Jecker v. Montgomery, How. xiii. 515. La Manche, Sprague's Decisions, ii. Law Reporter, xxv. 585. The laws of the United States as to prize proceedings were reviewed and put in a new code, by the statute of 1864, ch. 174, which repealed all prior statutes.]—D.

(a) “Quod fieri intelligitur non tantum si in sontem aut debitorem judicium intra tempus idoneum obtineri nequeat, verum etiam si in re minimè dubiâ (nam in dubiâ re præsumptio est pro his qui ad judicia publicè electi sunt) plane contra jus judica

So, also, Bynkershoek, in treating the same subject, puts an unjust judgment upon the same footing with naked violence, in authorizing reprisals on the part of the State whose subjects have been thus injured by the tribunals of another State. And Vattel, in enumerating the different modes in which justice may be refused, so as to authorize reprisals, mentions "a judgment manifestly unjust and partial;" and though he states what is undeniable, that the judgments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds, yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them. (b)

These principles are sanctioned by the authority of numerous treaties between the different powers of Europe regulating the subject of reprisals, and declaring that they shall not be granted unless in case of the denial of justice. An unjust sentence must certainly be considered a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice.

Distinction between

tribunals

§ 392. Even supposing that unjust judgments of municipal tribunals do not form a ground of reprisals, there municipal is evidently a wide distinction in this respect between and courts the ordinary tribunals of the State, proceeding under the of prize. municipal law 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 acquire jurisdiction over the person or property of a foreigner by his consent, either expressed by his voluntarily bringing the suit, or implied by the fact of his bringing his person or property within the 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 constituted. (By natural law, the tribunals of the captor's country are no more the rightful

tum sit. Nam auctoritas judicantis non idem in exteros quod in subditos valet. Hoc interest, quod subditi exsecutionem etiam injustæ sententiæ vi impedire, aut contra eam jus suum vi exsequi licitè non possunt, ob imperii in ipsos efficaciam : exteri autem jus habent cogendi, sed quo uti non liceat quàmdiu per judicium, suum possint obtinere." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 2, § 5,.No. 1.

(b) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 24. Vattel, Droit des Gens, liv. ii. ch. 18, § 350.

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. But the imperfection of the voluntary law of nations, in its present state, cannot oppose an effectual bar to the claim of a neutral government seeking indemnity for its subjects who have been unjustly deprived of their property, under the erroneous administration of that law. The institution of these tribunals, so far from exempting, or being intended to exempt, the sovereign of the belligerent nation from responsibility for the acts of his commissioned cruisers, is designed to ascertain and fix that responsibility. Those cruisers are responsible only to the sovereign whose commissions they bear. So long as seizures are regularly made upon apparent grounds of just suspicion, and followed by prompt adjudication in the usual mode, and until the acts of the captors are confirmed by the sovereign in the sentences of the tribunals appointed by him to adjudicate in matters of prize, the neutral has no ground of complaint, and what he suffers is the inevitable result of the belligerent right of capture. (But the moment the decision of the tribunal of the last resort has been pronounced, (supposing it not to be warranted by the facts of the case, and by the law of nations applied to those facts,) and justice has been thus finally denied, the capture and the condemnation become the acts of the State, for which the sovereign is responsible to the government of the claimant.) There is nothing more irregular in maintaining that the sovereign is responsible toward foreign States for the acts of his tribunals, than in maintaining that he is responsible for his own acts, which, in the intercourse of nations, are constantly made the ground of complaint, of reprisals, and even of war. (No greater sanctity can be imputed to the proceedings of prize tribunals, even by the most extravagant theory of the conclusiveness of their sentences, than is justly attributed to the acts of the sovereign himself. But those acts, however binding upon his own subjects, if they are not conformable to the public law of the world, cannot be considered