§ 389. This jurisdiction cannot be exercised by a dele- Condemgated authority in the neutral country, such as a con- nation by sular tribunal sitting in the neutral port, and acting in tribunal sitting in pursuance of instructions from the captor's State. Such the neu

tral coun

a judicial authority, in the matter of prize of war, cannot try. be conceded by the neutral State to the agents of a belligerent power within its own territory, where even the neutral government of "further proof" is, proof beyond the vessel, cargo, and papers and persons on board. If the proofs in preparatory are unsatisfactory, the court will order further proofs, of its own motion. If the proofs in preparatory are satisfactory, a very strong case must be made out to induce the court to expand and alter its function from that of a belligerent commission of inquest on prescribed kinds of proof, into that of a judicial tribunal to decide between litigating parties admitted to plead and counterplead, and to introduce evidence generally.

On the hearing upon the proofs in preparatory, the onus is on the claimant of any captured property to prove his title and right of possession, and his right under the laws of war, upon the evidence, to have it restored to him. Any suppression or destruction of proofs, or unreasonable refusal to answer interrogatories, by persons on board, may exclude the person claiming as owner from a right to restitution.

III. LITIGATION IN PRIZE COURTS. When the prize is brought within the custody of the court, notice is given to all the world, that any person having an interest in the prize may appear and claim it. This is, of course, though not in terms, confined to citizens or neutrals. An enemy cannot make claim. If the property is ostensibly not hostile, it is usually claimed by the master or supercargo, or, in their absence, by the consul of the neutral. The claim is simply a statement of the nature and extent of the claimant's property, and a denial of all enemy's interest, supported by an oath, called the test affidavit. The affidavit is required to declare that the claimant has property and right of possession solely for himself, and to disclaim or disclose all fiduciary or other interests behind him. The object of this is not only to disclaim hostile interests, but to enable the court to learn who are the real, ultimate, and equitable, as well as the ostensible and legal owners. There is nothing in the nature of what are technically called pleadings—i.e., allegations and denial or admission of facts-inter partes. The captors or the government, in their libėl, make no allegation of any fact necessary to condemn the property, or even of the cause of capture. The libel is only a petition to the court to hold its inquest, for the purpose of ascertaining the facts, and whether there are any objections to condemnation; and should properly contain only a description of the prize, with dates, &c., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication,-i.e., of facts enough to show that it is a maritime cause of prize jurisdiction, and not a case of municipal penalty or forfeiture. As there are no allegations by the captors in the libel, there are no denials or counter-allegations in the claim, except the general denial that the property is lawful prize, which the court requires under oath, as a test of the claimants. Although a claim may be put in, in the first instance, by the master or supercargo as agent, yet the court will require, as soon as may be, a claim by the asserted owner, and his personal oath. The court also requires security from the claimants, for costs, and as a test of sincerity. If no claim is made after a reasonable time, and the evidence in preparatory is satisfactory, either alone, or coupled with the significant fact of no claim being made, a condemnation follows. If there is no evidence in preparatory (as may sometimes happen), or if it is not by itself, or coupled with the fact

itself has no right to exercise such a jurisdiction, except in cases where its own neutral jurisdiction and sovereignty have been violated by the capture. A sentence of condemnation, pronounced by a belligerent consul in a neutral port, is, therefore, considered as insufficient to transfer the property in vessels or goods captured as prize of war, and carried into such port for adjudication. (a) 187

aforesaid sufficient to justify condemnation, and the ground for condemnation must be, not the opinion of the court, but simply a rule that unclaimed property is to be condemned, that is, the rule of default, -the court is required by the law of nations to wait a year and a day for claimants to appear. But this is only where the condemnation is solely on the ground of default. If the court is satisfied that the owners know of the pending adjudication and do not appear, that fact is sufficient alone, or with other facts, for condemnation without delay.

There being a claimant before the court, and the preparatory proofs having been considered and found satisfactory, the claimant may petition the court to allow him opportunity to obtain further proofs. As such a course not only prolongs the examination and changes the functions of the tribunal, but may be abused by latent enemies or neutrals acting in bad faith, it is closely watched and cautiously granted. The claimant must make a sworn statement of the specific facts he intends to prove; the means of proof he wishes to resort to; identify persons or documents where that is possible; and state the grounds for a belief that such evidence does exist and can be obtained, and probably will be sufficient, if obtained, to reverse the decision of the court. A further reason for strictness in this particular is that, so far, the evidence has come entirely from the claimant; that is, from his vessel, cargo, papers, and crew. On this petition, the captors or the government will be heard as well as the claimant. If the court shall allow the petition, it also, as of course, allows the captors, at the same time, to take like evidence, to meet the further proofs of the claimant. The court is careful to limit the new inquiry to specified facts, and, for that purpose, sometimes will require the parties to file regular pleadings, as in a civil suit in Admiralty; averring and denying the facts to be inquired into, and ending in certain issues between them. This course is termed admitting the parties to "plea and proof.” If that is not done in form, still the order of the court limits the subject of inquiry. It also settles the time for filing the proofs, and orders the mode of taking them. Although affidavits, in the later and strict sense, that is, ex parte statements on oath, — may be received, it is the custom in the United States, when further proof is allowed, to require it to be taken in the form of what are now strictly called depositions, that is, answers to written interrogatories filed by one party, with cross-interrogatories (or the opportunity to file them) by the other party. In like manner, if on the proofs in preparatory there shall not be ground for condemnation, the court will entertain a petition by the captors for further proofs.

On the return of further proofs, the cause is again heard on this new proof, in connection with that in preparatory, and a final decision reached.

IV. RULES OF DECISION. The theory upon which prize courts proceed seems to be this: The capture is an act of the government, or adopted as such by the request of the government for a condemnation. Before condemning it, opportunity is given,

(a) The Flad Oyen, Robinson's Adm. Rep. i. 135.

[187 See the above note, 186, on Prize Jurisdiction.] — D.

captor's

§ 390. The jurisdiction of the court of the capturing Responsi nation is conclusive upon the question of property in the bility of the captured thing. Its sentence forecloses all controversy government respecting the validity of the capture, as between claim- of its comant and captors, and those claiming under them, and cruisers and terminates all ordinary judicial inquiry upon the subject

for the acts

missioned

courts.

to any person who has a title to it, to establish a right of restitution. Primâ facie, the prize is the property of the government. No one is heard to contest or object to the title of the government but a citizen or neutral who has an interest in the property. Any intervenor must, of course, not only prove his title and right of possession, as in the case of lost goods sought to be taken from the hands of a finder,—so that, if restored, it shall be to the right person, but must also show, that, as the general owner and possessor before capture, he has a right under the laws of war, upon the evidence, to a restitution. By this is not meant that the evidence must be produced by the claimant, but that, upon all the evidence, wherever it comes from, and upon all the inferences, the onus is upon him to establish a right to restitution. If the claimant fails either to make out a clear, bonâ fide title to the property and possession, irrespective of the belligerent question; or if, having such title, he fails to establish his right to restitution as against the government, and the case, after the fullest examination and hearing of counsel, is left in doubt, - the claimant before the court fails. If no other claimants appear who can establish a right, the capture stands justified; and the property is condemned to the government, or, in other words, not being restored, remains in the government.

V. INTERNATIONAL RESPONSIBILITY. But the prize court, after all, is not a tribunal to which parties have voluntarily subjected themselves, by putting either their persons or their property within its jurisdiction. On the contrary, the property, being usually on the high seas and under neutral flags, and not within the jurisdiction of the belligerent, is seized by force, under powers of war, and carried by force into the belligerent's jurisdiction, and the neutral owner compelled to appear before the foreign tribunal, the creature of the belligerent, or lose his property. The sovereign is therefore held responsible to the State whose citizen the claimant is, that no injustice is done by the capture. If the sovereign does not submit the capture to adjudication, or if the court is not constituted or does not proceed in the manner recognized by the usage of nations, or, still more, if the sovereign should undertake to confiscate the property against the decision of his own tribunal, a cause of complaint exists between the two States. But, if these rules are observed, and the claimant's sovereign objects only to the correctness of the decision, although it is not conclusive upon the sovereign, still it is the interest and custom of nations to yield to a decision by such a tribunal, professedly grounded on the general law of nations, though with a protest, to save the question in future cases, rather than make it a cause of war or reprisals. If the decision is rendered in obedience to a rule laid down by the sovereign, and not in accordance with the existing law of nations, the reason for acquiescence ceases. The responsibility for the capture and condemnation lying upon the State, as a belligerent act, the State is not bound by a favorable decision of its own tribunal. It may and should, notwithstanding the decree of condemnation, make restitution or compensation, on the demand of the sovereign of the claimant, if justice or policy require it. Any rights of the captors to prize-money, as against their own government, cannot interfere with the exercise of its sovereign political functions with other nations. It must satisfy the claims of its own officers in some other way. In

matter. But where the responsibility of the captors ceases, that of the State begins. It is responsible to other States for the acts of the captors under its commission, the moment these acts are confirmed by the definitive sentence of the tribunals which it has appointed to determine the validity of captures in war.

short, the whole proceeding, from the capture to the condemnation, is a compulsory proceeding in invitum by the State, in its political capacity, in the exercise of warpowers, for which it is responsible, as a body politic, to the State of which the owner of the property is a citizen; and the interposition by the sovereign, of an inquest by a court of his own appointment, subject to his rules on points of international law, if he sees fit to lay down any, is only a contrivance of the civilization of modern times to render less probable illegal captures and unjustifiable confirmations of such captures by the State. The further to insure these results, and to do more full and speedy justice to persons whose property is improperly seized, it is the further duty of the prize court, on restoring captured property, to assess the damages which the claimant has suffered. These are in the form of a decree against the captors; for the prize court cannot make a decree against its own sovereign: but, upon the cardinal principle of sovereign responsibility above alluded to, if the captors do not pay the damages (as usually they are not able to), the government of the captor is called upon by the government of the claimant to make them good. In respect to liability for damages, the rule is this: The duty of the lawful cruiser in time of war, on stopping a vessel, is to make such examination as the circumstances permit at the time, and to release the vessel if there is not probable cause for a fuller examination by the prize tribunal. If the evidence disclosed leaves such well-founded suspicion as would influence a mind of reasonable intelligence and fairness, the duty of the cruiser is to send the vessel into a convenient port of his own country, for such an examination as can only be satisfactorily made in port, and by the means in possession of a prize court. This is considered to be the right of the sovereign as a belligerent; and damages are not awarded because the vessel turns out, on such an investigation, to be exempt from condemnation, as they would be in case of private civil proceedings, but only where the capture and sending-in were without probable cause appearing, upon such examination as could reasonably be required of a cruiser at sea, under the circumstances of the case. The latest, and it is believed most satisfactory, examination of this subject of damages, will be found in the decision of Judge Sprague in the case of the French ship La Manche (Sprague's Decisions, ii.; Law Reporter, xxv. 585).

VI. DUTY OF THE CAPTORS. From the nature and objects of the prize tribunals, it is clear that the captor's duty is to see that his act of capture is submitted to adjudication by the prize court of his country. Of course, he must do this in a reasonable and fair way. He must send in the prize as speedily as possible to a convenient court, in proper hands, and with all the papers, cargo, and other sources of evidence unaltered, and with the master, supercargo (if any), and other chief persons on board, likely to be useful to the owners as witnesses, and to see every thing properly delivered to the court. For a breach of these rules, although the claimant does not suffer, still the captor may lose his prize-money. If there is reason to believe that the misconduct of the captor has been fatal to a fair inquest, the vessel is restored. If damage happens to the vessel or property in the hands of the captors, and the court holds the capture to have been with probable cause, their responsibilities are only those of lawful custodians or bailees; i.e., responsibility for failure to use reasonable care and skill. After such examination as the commander of the cruiser can make, his duty, as

sentence of

a foreign

§ 391. Grotius states that a judicial sentence, plainly Unjust against right, (in re minimè dubiâ,) to the prejudice of a 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