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These valuable notes were prepared by Judge Story, and present a prominent instance among the many which distinguished his professional life, of the unparalleled devotion of that eminent judge to the cause of enlightened jurisprudence, as well as the lavish prodigality with which he placed at the disposal of others the inexhaustible stores of his own learning. It was his design that these notes, as well as others in the same reports, should be regarded as the work of the learned reporter; for (as he modestly writes, in a private memorandum book found

among

his

papers after his decease) “I know full well there is nothing in any of them which he could not have prepared, with a very little exertion of his own diligence and learning.” And the fact of his authorship of certain specified notes is only preserved in this private memorandum, “lest,” as he writes, “ the fact should transpire, and it should be supposed that he (Mr. Wheaton) is under obligation to me for notes which are his own."

Whoever now undertakes to prepare a summary of the practice and proceedings in admiralty, in the exercise of prize jurisdiction, must be largely indebted to these notes of Judge Story. Indeed, it would be almost presumptuous to expect to add any thing to the information contained in them; and the humble

purpose of this chapter will be, so to methodize and arrange that information, as may, perhaps, present it in a form by which it may be more readily appreciated, and at the same time be of easier ref: erence to the student and practitioner.

As preliminary to a review of the practice and Prize jurisdio Its extent, proceedings of prize courts, it is essential to conpeculiarities. sider the character, extent, and peculiarity of the

tion.

prize jurisdiction of courts of admiralty.

The prize jurisdiction of a court of admiralty, is that which authorizes it to take cognizance of captures made on the sea, jure belli; of captures in foreign ports and harbors; of captures made by naval forces on land, of surrenders to naval forces, either solely or by joint operation with land forces, and this without regard to the character of the property captured-whether ships, goods, or mere choses in action; of captures made in rivers, ports, and harbors of the enemy's country; and to moneys or property paid or received as ransom or commutation on a capitulation to naval forces, whether alone or jointly with land forces, for the purpose of determining whether the property captured or surrendered, is or is not lawful prize of war—to the end, that if determined to be not lawful prize, restitution may be decreed, unconditionally or upon terms; and if it be determined that it is lawful prize, condemnation and sale may be decreed, followed by a decree of distribution of its proceeds, pursuant to the law which regulates such distribution.

As necessary incidents to the prize jurisdiction, thus stated in the most general terms, courts of admiralty are vested with exclusive and plenary powers and authority over all subjects connected with captures, being considered in law as the constitutional guardians of the interests of the public in all matters relating to prize.

1 The Two Friends, 1 Rob., 271; Lindo vs. Rodney, Doug., 613, n.; W. B. vs. Lattimer, 4 Dall., April 1; Le Caux vs, Eden, Doug., 608; The ships taken at Genoa, 4 Rob., 338; 2 Wheaton, appendix.

But cognizance of captures made on land, by land forces only, is not taken in admiralty by virtue of any inherent powers. Whenever it exercises such a jurisdiction, it is by virtue of special powers derived aliunde.

Although the prize jurisdiction, after it has once attached to the subject matter, may be lost, by a recapture, escape or voluntary discharge;" yet it is well settled that the jurisdiction cannot be affected by any change in the local situation of the property after capture, but wherever that property may be found, or the proceeds of the property, the court will follow it with its process. Therefore, if the property be carried to a foreign port, and delivered upon bail by the captors, the jurisdiction of the prize court is not thereby ousted, but will be exercised by adjudication and enforcement of the stipulation. So too, where a prize is lost at sea, the court has power to proceed to adjudication, either at the instance of the captors or claimants. The like power exists, although the captured prop

3

' Anthon vs. Fisher, Doug., 649, n.; Maissonniaire vs. Keating, 2 Gall., 325.

· The Two Friends, 1 Rob., 271, 284; The Emulous, 1 Gall., 563.

Hudson vs. Guestier, 4 Cranch, 293.

* Home vs. Camden, 2 H. Bl., 533; 4 T. R. 383; Willis vs. Commissioners of Prize, 5 East., 22; The Noysomhed, 7 Ves., 593; The Brig Louis, 5 Rob., 146; The Two Friends, 1 Rob., 271; The Eliza, 1 Acton, 336; Smart vs. Wolf, 3 T. R., 223; The Pomona, 1 Dod., 25.

5 The Peacock, 4 Rob., 195.

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erty may be lying in a foreign neutral territory, and even though it be sold or has passed into other hands, the court may proceed to adjudication ; but it is always, in such cases, in the discretion of the court to determine if they will exercise their jurisdiction at the instance and in favor of the captors, and this they will not do, if there has been an illegal or unjustifiable conversion—but only where it has resulted from necessity or reasonable and just cause.

Jurisdiction of the subject matter having been once acquired by a prize court, its authority is plenary over all the incidents necessary to its efficient exercise. It will therefore follow prize proceeds into the hands of agents, or others, who by any title hold them for the captors, and will enforce pay. ment, with interest, in proper cases, by decree.

And although such persons have given no stipulation, or an insufficient stipulation, on receiving prize proceeds, it will enforce a decree of payment, for it may always proceed in rem, and is not limited by the stipulation. In such cases the court

Hudson vs. Guestier, 4 Cranch, 293; The Christophe, 2 Rob., 209; The Henrick and Maria, 4 Rob., 43; The Comet, 5 Rob., 285; The Victoria, Edwards, 97.

* The Falcon, 6 Rob., 194; The Pomona, 1 Dod., 25; L'Eole, 6 Rob., 220; Ladame Cecile, 6 Rob., 257; The Arabella and Maderia, 2 Gall., 368; Code des prises, Guchard I., p. 118.

* Smart vs. Wolf, 3 T. R., 313; Home vs. Camden, 2 H. Bl., 533; Jennings vs. Carson, 4 Cranch, 1; The Two Friends, 1 Rob., 273; Willis vs. Commissioners of Prize, 5 East., 22; The Noysomhed, 7 Ves., 593; The Princessa, 2 Rob., 31; The Louis, 6 Rob., 146.

* The Pomona, i Dod., 25; The Herkimer, Stewart, 128, 2 Hall Am. Law Jour., 133.

may proceed, and without the application of parties, cx officio, as guardian of the public interests.

Even after final sentence is pronounced, the pow. · er of the court does not cease to issue process for

the enforcement of all rights, so long as any thing remains to be done touching the subject matter.

Exclusive jurisdiction is also vested in prize courts, to determine all questions between captors and joint-captors, as to their rights to the proceeds of prize, and such determination is conclusive between the parties.

So also as to all questions of freight, damages, expenses, and costs in cases of capture.

Though a mere maritime tort, unconnected with capture, may be cognizable in courts of common law, yet it is well established that all torts connected with captures, jure belli are within the exclusive jurisdiction of prize courts.

In the exercise of this jurisdiction, prize courts will not only decree restitution and damages in cases of illegal capture, but as an incident to the possession of the principal cause will allow damages for personal torts, and that not only against the wrong-doer, but against the owners of the privateer offending, upon the application of the

· Home vs. Camden, 2 H. Bl., 533, and cases ubi supra. Duckworth vs. Tucker, 2 Taunton, 7; and cases ubi supra.

* Le Caux vs. Eden, Doug., 594; Lindo vs. Rodney, Doug., 613; Smart vs. Wolf, 3 T. R., 223; The Copenhagen, 1 Rob., 289; The St. Juan Baptista, 5 Rob., 33; The Die Frie Damer, 5 Rob., 357; The Betsy, 1 Rob., 93 ; Jennings vs. Carson, 4 Cranch, 2; Bingham vs. Cabot, 3 Dall., 19; The United States vs. Peters, 3 Dall., 121; Talbot vs. Johnson, 3 Dall., 133; 2 Brown Civ. and Adm. Law, 209.

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