Wisely, therefore, did the American Government defeat a similar attempt made on them, at an earlier period of the war; they knew that to permit such an exercise of the rights of war within their cities, would be to make their coasts a station of hostility.

Later practice allowed the validity of condemnation when the court sat in the belligerent state, even though the prize might be in a neutral port. This was, however, regarded as irregular.

Certain other points were raised in the case of the Falcon.

This was a case on the claim of the British proprietor of a vessel, which had been captured by the French June 2, 1803, and condemned in a French consular court at Leghorn and sold under the authority of that sentence to the American consul in France. The vessel, after that conversion, was condemned on a rehearing, in the nature of an appeal in the "Conseil des Prises" at Paris, March 26, 1805.

If the matter had rested there, on the validity of the consular sentences at Leghorn, this court, under its former decisions, which have been affirmed in the superior court would not have held that title to be good. But there has been also a sentence of the Conseil des Prises at Paris.

In our own courts it happens unavoidably as to ships taken in the East Indies that long before the case comes to adjudication the property may have passed to other hands. If the title is impeached before the sentence takes place it may be vitiated, but when a valid sentence comes, it must be considered, as operating retroactively, so as to rehabilitate the former title. (The Falcon, 6 Robinson, Admiralty Reports 194.)

British opinion, court in belligerent, vessel in neutral jurisdiction. In the case of the Henrick and Maria, in November, 1799, the question arose as to whether a purchaser could hold this vessel by the title of condemnation passed upon her while lying in a neutral port, when she had never been conducted into the country of the captor, nor into any port of an ally in time of war. Of this Lord Stowell said:

Without entering into a discussion of the several opinions that have been thrown out on this subject, I think I may state the better opinion and practice to have been that a prize should be brought infra praesidia of the capturing country, where, by being so brought, it may be considered as incorporated into the mass of national stock. The greatest extension that has been allowed has not carried the rule be

yond the ports or places of security belonging to some friend or ally in the war who has a common interest in defending the acquisitions of the belligerent, made from the common enemy of both.

In later times an additional formality has been required, that of a sentence of condemnation, in a competent court, decreeing the capture to have been rightly made, jure belli; it not being thought fit, in civilized society, that property of this sort should be converted without the sentence of a competent court pronouncing it to have been seized as the property of an enemy, and to be now become jure belli the property of the captor. The purposes of justice require that such exercises of war should be placed under public inspection; and therefore the mere deductio infra praesidia has not been deemed sufficient. No man buys under that title; he requires a sentence of condemnation as the foundation of the title of the seller; and when the transfer is accepted he is liable to have that document called for, as the foundation of his own. From the moment that a sentence of condemnation becomes necessary, it imposes an additional obligation for bringing the property, on which it is to pass, into the country of the captor; for a legal sentence must be the result of legal proceedings in a legitimate court, armed with competent authority upon the subject-matter and upon the parties concerned-a court which has the means of pursuing the proper inquiry and enforcing its decisions. These are principles of universal jurisprudence applicable to all courts, and more peculiarly to those which by their constitution, in all countries, must act in rem upon the corpus or 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, the corpus, is not within the possession of the court; and possession, in such cases, founds the jurisdiction. (4 C. Robinson, Admiralty Reports, 43.)

Lord Stowell further continues the maintenance of this principle, but in view of practice of his country in several instances holds that the court

Is bound, against the true principle, by practice which it has not only admitted, but applied.

On the effect of the Sentence of the Prize Tribunals of France, pronounced on vessels carried into neutral ports, the editor takes this opportunity of inserting the recent (1807) decision of the Court of Appeal.

*

This case involves a question as the validity of sentences of condemnation pronounced in a belligerent country on prizes carried into neutral ports. There was some difference of opinion among the members

of the board, before whom the case was originally argued. But it appeared to me that the acknowledged practice of this country must have the effect of making those sentences valid whilst that practice continued. 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 them from ourselves. and Maria, 6 Robinson, Admiralty Reports, 138-Note.)

(The Henrick

In 1854, Doctor Lushington pronounced upon certain Russian merchant vessels which the British war vessels had brought to the neutral port of Memel, in Prussia. The merchant vessels were not seaworthy and had been deserted by their crews.

The Queen's Advocate moved the court to condemn the vessels and decree their sale in the port of Memel, stating that an intimation had been received from the Prussian Government that no objection would be made to such a course, provided they were sold by private contract, without being advertised or put up to auction.

Doctor Lushington said:

The circumstances under which the present application is made are quite peculiar, and form an exception to the general principle upon which this court proceeds. Though there is no direct evidence that the vessels are Russian, yet there is no claim, and the court entertains no doubt upon the subject. I have no hesitation in condemning them; and, looking at the fact deposed to, that they are not in a fit state to be brought to England, and the consent of the Prussian Government to their sale at Memel, the court will allow that course in the present case, but with the proviso that the wishes of the Prussian Government shall be fully observed with respect to the sale.

I wish it, moreover, to be expressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of a prize while lying in a neutral port. The rule is that the prize shall be brought into a port belonging to the captors' country, and the court must guard itself against allowing a precedent to the contrary to be established. (The Polka Spinks, Ecclesiastical and Admiralty Reports, 447.)

British opinion, vessels within belligerent or allied jurisdiction, but not near prize court.-It has been held that it is not necessary that the captured vessel should be brought into port where the prize court is sitting, provided the vessel is within the jurisdiction of the belligerent or of an ally, and little objection has been raised to this position, since it does not involve the use of neutral territory for the ends of war.

No objection was taken to the condemnation in the case of La Dame Cécile.

This was a case on appeal from the Vice-Admiralty Court of Barbadoes, as to a prize ship and cargo of slaves, which had been seized by the Goree garrison, who took the usual examinations and forwarded them, with the ship papers, to the High Court of Admiralty for adjudication, where the ship and cargo were condemned. They were in the meantime sold to a British merchant, who sent them to the island of Barbadoes for sale.

Held, these proceedings were valid and not contra to 26 and 29 Geo. 3, regarding importation into a British island.

The ship and cargo were seized by the garrison of Goree as prize. The captors could not bring them in person to adjudication for they could not move from their station; and it was impossible that such a cargo could find a market anywhere but in the West Indies. (La Dame Cécile, 6 Robinson Admiralty Reports 257.)

A further extension of this principle is seen in the case of the Peacock.

This was an American ship and cargo of wine taken by an English privateer on a voyage from Cadiz to London, May 19, 1800, and carried into Lisbon, where they were detained a long time, though no proceedings were commenced till they were afterwards brought to Jersey.

Supposing that the captors were justified in bringing in, to see if this representation of the false destination was true or not, what ought they to have done? The capture was made in Lat. 42 considerably to the north of Lisbon, the wind being then fair for England. It was their duty to have brought the prize directly to England; for if the public instructions give to captors the power of coming to the most convenient ports, they do not give them a wild and arbitrary discretion, but a discretion to be soundly exercised, on a due consideration of their own convenience, and of the interest of the neutral persons that may be concerned.

Another reason given for this delay is, that they waited for an opportunity of sending the vessel to England under convoy. Whether they sailed under convoy at last or not does not appear, but they did not sail for six weeks. It is the duty of privateers to bring their prizes home to a port of the kingdom as soon as they can. King's ships may reasonably be allowed a greater latitude, as being frequently attached to stations, which they can not leave. It may sometimes be necessary for them to send their prizes to Lisbon; and in some cases, I will not say that it may be absolutely impossible for privateers. But it cannot. be so necessary and unless some very particular reason intervenes, it is their duty to bring their prizes home as speedily as possible, unless they carry them to the port of Gibraltar. (The Peacock, 4 Robinson Admiralty Reports 185.)

American opinion, court and vessel outside belligerent jurisdiction. During the Mexican war the ship Admittance was captured as prize by a United States vessel, carried to Monterey, and condemned by a court established there. This court, however, was not in the legal sense a court of the United States, and hence was not authorized to adjudicate upon the question of prize or no prize. It was decided in the present suit that the captor had forfeited no rights by the above proceedings, and an order was given to proceed in a court of prize within whose jurisdiction were the proceeds of the sale of the property. (Jecker et al. v. Montgomery, 13 Howard, U. S. Supreme Court Reports, 512.)

As a general rule, it is the duty of the captor to bring it (the prize) within the jurisdiction of a Prize Court of the nation to which he belongs, and to institute proceedings to have it condemned. This is required by the act of Congress in cases of capture by ships of war of the United States; and this act merely enforces the performance of a duty imposed upon the captor by the law of nations, which in all civilized countries secures to the captured a trial in a court of competent jurisdiction before he can finally be deprived of his property.

But there are cases where, from existing circumstances, the captor may be excused from the performance of this duty, and may sell or otherwise dispose of the property before condemnation. And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel; or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country; and may afterwards proceed to adjudication in a court of the United States. (13 Howard U. S. Supreme Court Reports, 516.)

American opinion, court in belligerent, vessel in neutral jurisdiction. The United States courts in the war with Great Britain did not hesitate in following British precedent:

The British ships Arabella and Madeira were captured in June, 1814, by the private armed brig Rambler, Edes, commander, and 30 boxes of medicines, 16 bales of piece goods, 5 boxes of opium, and 75 casks of Madeira wine, parcel of their cargoes, were removed on board of the Rambler, carried into the port of Canton, China, and there landed.