in rem upon the substance of the thing acquired and upon the parties, one of whom is not subject to other rights than those of war and is amenable to no jurisdiction, but such as belongs to those who possess the rights of war against him. Upon principle, therefore, it is not to be asserted, that a ship brought into a neutral port is with effect proceeded against in the belligerent country. The res ipsa is not within the possession of the Court, and possession in such cases founds the jurisdiction. Over the captors the authority of the Court is complete, on account of their personal relation to the belligerent country. The neutral government may be called upon in the usual mode of requisition known to the law and practice of nations to enforce upon them the orders and decrees of the state to which they belong. But over the other parties, who are not subjects either of the neutral or belligerent state, the belligerent state has not the means of exercising the rights of war over them directly, and cannot call upon the neutral state so to do. The neutral state has nothing to do with the rights of force possessed by the one belligerent against the other; it has nothing to do with the enforcement or consummation of such rights; it owes to both parties the simple rights of hospitality, and even these are very limited in the practice of most civilized states. By the regulations of France, foreign ships are forbidden to enter with prizes into a port of France, except in case of distress, and then they are permitted to stay no longer than their necessity exists. Valin observes, upon this article, that it cannot be doubted, that such a rule is exactly conformable to the laws of neutrality. At any rate, the neutral state can have no compulsory jurisdiction to exercise upon either party upon questions of war depending between them; nor can any such jurisdiction be conveyed to it by the authority of one of them. Its own duties of neutrality prevent the acceptance of any belligerent rights; it cannot be called upon by requisition to give any facility or convenience to the one party to the prejudice of the other, much less to apply modes of compulsion to the one to serve the hostile purposes of the other. But the practice of our Courts has not confined the jurisdiction of prize to cases of prize brought to the ports of the capturing country, or of an ally in the war, which as to the operation of the common war unam constituunt civitatem with the belligerent. It was, therefore, held, that the British Court of Admiralty is bound against the true principle by the practice, which it had not only admitted but applied. The observation of Bynkershoek, that in the conduct of war, you must hold that to be lawful to your enemy which you practise yourselves, a rule true in all instances is not more true in any instance than in one, in which the rights and interests of other countries, being neutral, are so directly concerned. Consequently the sentence of a Prize Court was held not to be invalidated by the circumstance of its having been passed upon a vessel lying in a neutral port (m). The Lords of Appeal affirmed the decision of the Court of Admiralty, on the ground that neutrals are sufficiently confirmed in their title by the practice, which has prevailed amongst ourselves; for there could be no equity, on which we could deny the validity of that title to neutrals purchasing of the enemy, at the same time, that they were invited to take it from ourselves (n). The same doctrine prevails in France and in the United States of America (o). But the property is not changed without a legal condemnation (p). By the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary; and a neutral purchaser in Europe, during war, looks to the legal sentence of condemnation as one of the title deeds of the ship, if he buys a prize vessel. Hence, condemnations by consular Courts of (m) The Henrick and Maria, 4 Rob. 43; The Comet, 5 Rob. 285; Purissima Conception, 6 Rob. 45. (n) Henrick and Maria, 6 Rob. 138, (n). (0) Kent Comm. i. 98. (p) Nostra Segnora de los Angelos, 3 Rob. 287. the enemy sitting in a neutral country are altogether invalid, except as against the enemy's subjects (q). So where a vessel is condemned by a Court that has no jurisdiction (r). But where a vessel was purchased under an invalid condemnation, and had passed through several hands, and was afterwards condemned, upon the circumstance of the original capture, by a competent tribunal, before the illegal sentence had been impeached; it was held, that the valid sentence operated by relation to rehabilitate the former title, and the title passing from the original purchaser to a neutral claimant was sustained (s). So, where a vessel purchased before condemnation was afterwards condemned by a competent tribunal (†). But the sentence of a Court of original and appellate jurisdiction, which merely affirms the sentence of a consular or other Court, not having any jurisdiction in matters of prize, is as invalid as the sentence which it affirms, and will not sustain the title of a neutral purchaser (u). The sentence of a competent tribunal, however unjustifiable or erroneous, is conclusive of title in all foreign Courts, for the grounds of the sentence cannot be examined by any Court of co-ordinate jurisdiction (v). The title of a neutral vendee to a merchant vessel, sold by the enemy in time of war is valid, where the property is bonâ fide and absolutely transferred, so as to devest the enemy of all future interest in it (w). There have been cases of merchant vessels driven into ports out of which they could not escape and there sold, in which, after much discussion and some hesitation of opinion, the validity of the purchase has (9) Flad Oyen, 1 Rob. 134; The Kierlighett, 3 Rob. 96. (8) The Falcon, 6 Rob. 194. (t) Williams v. Armroyd, 7 Cranch, 423. (u) The Kierlighett, 3 Rob. 96. (v) Williams v. Armroyd, 7 Cranch, 423. (w) The Sechs Geschwistern, 4 Rob. 100. been sustained (x). But a belligerent is justified in enforcing such rules, as reason and common sense suggest, to guard against collusion and to enable it to ascertain as much as possible, that the enemy's title is absolutely and completely devested (y). Such purchases are always obnoxious to much suspicion, even when made under commission from neutrals resident in their own country. The suspicion will be still further increased, where it appears that the pretended neutral purchaser was resident in the enemy's country. Under such circumstances, where the only evidence of the genuineness of the transaction consisted of a formal bill of sale, a receipt for part payment of the purchase-money and a note of the master for the payment of the residue, of which the signatures were genuine, but no other evidence was produced; the evidence was held not sufficient to prove a bonâ fide sale (z). Anything tending to continue the interest of the enemy vitiates the contract altogether; to be valid, the sale must be absolute and unconditional. Where a vessel had been transferred to a neutral claimant under a condition to reconvey at the end of the war, the sale was held to be invalid, and the vessel was condemned (a). Where the contract for the sale of a vessel, recited, that the seller was bound to his government under a penalty not to sell, unless under a condition of restitution at the end of the war, and the neutral purchaser had undertaken to exonerate the vendor: it was held, that the transfer was collusive; that looking to the control, which the enemy's government and the vendor still retained over the property, it was impossible to hold, that all the interest of the enemy was completely devested, and the ship was condemned (b). Where a vessel is purchased from the enemy by agents in the (x) Per Cur. Minerva, 6 Rob. 399. (a) The Noydt Gedart, 2 Rob. 137, (n). enemy's country under commission from a neutral, the letter of procuration must be exhibited. It is not sufficient for a person to go before a magistrate and declare before him the commission under which he acts. It must be shewn by proper documents that the agent was legally authorized to make the purchase (c). Where a vessel asserted to have been transferred is continued under the former agency and in the former habits of trade, these circumstances furnish conclusive evidence against the genuineness of the transfer (d). The purchase of a ship of war of the enemy by a neutral, while she was lying in a port, to which she has fled for refuge, is invalid. Nothing short of the acquiescence of the belligerent, in the measures of precaution taken to prevent such a vessel from finding her way back again into the navy of her own country, can give validity to such a purchase. Where a Dutch ship of war, with eighteen guns and ammunition, of which fourteen guns and the ammunition had been taken out for convenience, lying in the port of Bergen, into which she had been chased by a British frigate, and had there remained sealed for nearly three years, was purchased by a Sovereign Prince, Count Bentinck, Lord of Kniphausen, and was captured on her way to Holland under Kniphausen colours with a Dutch master and crew; she was condemned (e). The national character of a ship is not affected by any liens arising from private contracts, or by any liability of the owner. Where a claim was given on behalf of the former proprietor of a ship, in virtue of a lien, which he was said to have retained on the property for the payment of the purchase money; it was held, that such an interest is not sufficient to sustain a claim of property in a Court of Prize; and the same doctrine prevailed, where a claim was made in respect of a bottomry bond, given fairly in time of peace to relieve a ship (c) The Argo, 1 Rob. 158. (d) The Omnibus, 6 Rob. 71; The Jemmy, 4 Rob. 31. |