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

ground 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. 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 exist ence, there seems to be now no doubt. (For analogous cases in civil proceedings, see Hudson v. Guestier, Cranch, iv. 293; Ib. 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, 531-538, 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