Mr. Justice Story said:

The first question which presents itself, is whether the court has jurisdiction to proceed to the adjudication of prize property, lying in a foreign neutral port. This question has been discussed with much ability and learning in the courts of Great Britain, and has there been finally settled in the affirmative, not so much on the supposed correctness of the principle, as the general usage of nations. It was then admitted, that condemnation of prize property, lying in the ports of an ally in the war, was strictly justifiable; but it was thought that a different rule might apply to neutral ports. In the courts of the United States, the question has received a solemn decision, and it has been held that upon principle, a condemnation of a prize lying in a neutral port, is valid, and may be rightfully decreed by the prize jurisdiction. And the correctness of this decision is evidently presupposed in several provisions of the prize act. If therefore, I felt any lurking doubts on the subject, I should feel myself bound by authority. But I am free to declare, that after much reflection, I am entirely satisfied, that the doctrine is found in national law: "It is the duty of captors to bring in the master of the captured ship and the ship's papers. An omission to do this must be fully and satisfactorily explained to the court. The removal of prize goods is an inequality, but is indulged under certain circumstances." In point of practice, however, even in the British courts, when a similar statutable direction exists, a more indulgent rule has been adopted. When property has been captured on a remote station, or under circumstances calling for a removal, sale or other conversion, or even a delivery on bail, on the ground of some great inconvenience, the act has been held valid upon the proper explanations being made, and condemnation has been pronounced in favor of the captors. (The Arabella and the Madeira, 2 Gallison's U. S. Circuit Court Reports, 308.)

In the case of Hudson v. Guestier, the United States Supreme Court says:

The vessel and cargo which constitute the subject of controversy were seized within the territorial jurisdiction of the Government of Santo Domingo, and carried into a Spanish port. While lying in that port proceedings were regularly instituted in the court for the island of Guadaloupe; the cargo was sold by a provisional order of that. court, after which the vessel and cargo were condemned. The single question, therefore, which exists in this case is, did the court of the captor lose its jurisdiction over the captured vessel by its being carried into a Spanish port?

A vessel captured as prize of war is, then, while lying in the port of a neutral, still in the possession of the sovereign of the captor, and that possession cannot be rightfully divested.

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In cases of prize of war, then, the difficulty of executing the sentence does not seem to afford any conclusive argument against the jurisdiction of the court of the captor over a vessel in possession of the captor, but lying in a neutral or friendly port.

Do the same principles apply to a seizure made within the territory of a State for the violation of its municipal laws?

Possession of the res by the sovereign has been considered as giving the jurisdiction to his court; the particular mode of introducing the subject into the court, or, in other words, of instituting the particular process which is preliminary to the sentence, is properly of municipal regulation, uncontrolled by the law of nations, and, therefore, is not examinable by a foreign tribunal. It would seem, then, that the principles which have been stated as applicable in this respect to a prize of war, may be applied to a vessel rightfully seized for violating the municipal laws of a nation, if the sovereign of the captor possesses the same right to maintain his possession against the claim of the original owner in the latter as in the former case.

Had this been a prize of war, we have precedents and principles which would guide us. The cases cited from Robinson's Reports, and the regulations made by Louis XVI, in November, 1779, show that the practice of condemning prizes of war while lying in neutral ports has prevailed in England, and has been adopted in France. The objections to this practice may perhaps be sufficient to induce nations to change it by common consent, but until they change it the practice must be submitted to, and the sentence of condemnation passed under such circumstances will bind the property, unless the legislature of the country in which the captured vessel may be claimed, or the law of nations shall otherwise direct. (Hudson v. Guestier, 4 Cranch U. S. Supreme Court Reports, 293.)

American opinion, legality of capture. It was held that in case a prize was brought within neutral jurisdiction, the neutral had a right to assure itself of the legality of the capture:

The right of adjudicating on all captures and questions of prize, exclusively belongs to the courts of the captors' country; but, it is an exception to the general rule, that where the captured vessel is brought, or voluntarily comes, infra praesidia of a neutral power, that power has a right to inquire whether its own neutrality has been violated by the cruiser which made the capture; and, if such violation has been committed, is in duty bound to restore, to the original owner, property captured by cruisers illegally equipped in its ports. (The Estrella, 4 Wheaton U. S. Supreme Court Reports, 298.)

Condemnation of prize not brought in.-It is sometimes necessary that the court should pass upon captures which have been made and which for urgent reason have been

destroyed, or have been lost at sea or for other reason can not be brought into the port where the prize court is sitting:

It is fully within the usage of prize courts to entertain and perfect their jurisdiction over property captured on board a vessel, without having the vessel itself brought within this cognizance. (Proceeds of Prizes of War, Abbott's Adm. R., 495; 10 Am. Encyc. 357, art. "Prize by Story, J.;" Jecker v. Montgomery, 18 How., 110, and 13 How., 498.)

In many instances this mode of procedure is indispensable, as in the case of the capture of enemy property in neutral vessels, and when the vessel is destroyed in capture. (The Edward Barnard, Blatchford's Prize Cases, 122.)

The vessel was destroyed by the captors because unfit to be sent in for adjudication. The cargo was sent in. Held that the court had judicial cognizance of the capture of the vessel without having been within its territorial jurisdiction. (The Schooner Zavalla and Cargo, Blatchford's Prize Cases, 173.)

This case also decided that although ordinarily it was necessary to send in the ship's papers and other first hand. evidence, yet there might be extraordinary circumstances which would excuse a failure to do so.

The sentence of a competent court proceeding in rem, is conclusive with respect to the thing itself, and works an absolute change of the property.

A sale, before condemnation, by one acting under the possession of the captor, does not divest the court of jurisdiction, and the condemnation relates back to the capture, affirms its legality, and establishes the title of the purchaser. (Williams et al. v. Amroyd, 7 Cranch U. S. Supreme Court Reports, 423.)

Opinions of text writers.-The opinions of American and British authorities are fairly uniform. Wheaton in his "History of the Law of Nations," summarizes the views upon the competency of prize tribunals under differing conditions:

This brings Lampredi to consider the question as to the competent tribunal to determine the validity of captures, brought, not within the territorial jurisdiction of the sovereign, under whose authority the captures are made, but within that of a neutral sovereign, whose subjects are no parties to the controversy. And he does not hesitate to decide that the possession of the captor, jure belli, of the captured

property, brought into a neutral port, gives to the belligerent sovereign the exclusive right of determining the validity of the seizure, thus made and continued under his authority; that the neutral sovereign is bound to respect the possession of the captor as that of his sovereign; and cannot himself undertake to determine the validity of the capture, nor to interfere with the execution of the sentence, either of condemnation or restitution, which may be pronounced by the competent belligerent tribunal, provided such sentence be pronounced without the limits of the neutral territory, within which no foreign power can usurp the rights of sovereignty. Thus the captures made by British cruisers in the Mediterranean, and brought into the neutral port of Leghorn, had ever been adjudicated, either by the British court of vice-admiralty sitting at Minorca whilst that island belonged to Great Britain, or by the High Court of Admiralty in England. It is true that the prize commissioners delegated by these courts were permitted to examine the captured persons and papers of the vessels brought into that port, in order to determine the preliminary question whether there was such probable cause of capture as to warrant further judicial proceedings, in which case the cause was immediately evoked to the competent tribunal sitting in the belligerent country. The only two cases, according to Lampredi, in which the neutral sovereign can interfere through his tribunals to take incidental cognizance of the validity of belligerent captures brought within his territorial jurisdiction are:

1. Where the capture has been made within the neutral territory itself, or by an armament fitted out in the ports of the neutral state in violation of its laws and treaties.

2. Where the captured party complains to the neutral sovereign that his property has been piratically seized by captors, under color of a belligerent commission, to which they are not lawfully entitled. In this case the neutral tribunal may so far interfere as to inquire into the validity of the commission under which the capture was made. (Wheaton, History of the Law of Nations, p. 321.)

Phillimore says:

An attentive review of all the cases decided in the courts of England and the North American United States leads to the conclusion that the condemnation of a capture, by a regular Prize Court, sitting in the country of the belligerent, of a prize lying at the time of the sentence in a neutral port, is irregular, but clearly valid. It appeared to be the inclination of the English Prize Court, during the last war with Russia, to limit to cases of necessity the condemnation of vessels lying in a neutral port. It is scarcely necessary to add, after what has been said as to the former French law on condemnations by judges of the belligerent in neutral ports, that such condemnations of vessels lying in neutral ports are holden valid by the French Prize Courts. (3 Int. Law CCCLXXIX, p. 594.)

Hall offers a very positive opinion in regard to the treatment of prize brought into a neutral port:

The right of the captor to that which unquestionably belongs to his enemy is no doubt complete as between him and his enemy so soon as seizure has been effected; but as between him and a neutral state, as has been already seen, further evidence of definitive appropriation is required, and his right to the property of a neutral trader seized, for example, as being contraband goods or for breach of blockade, is only complete after judgment is given by a prize court. If therefore the belligerent carries his prize into neutral waters, without deposit in a safe place or possession during twenty-four hours in the case of hostile property, or without protection from the judgment of a prize court in the case of neutral property, he brings there property which does not yet belong to him; in other words, he continues the act of war through which it has come into his power. Indirectly also he is militarily strengthened by his use of the neutral territory; he deposits an encumbrance, and by recovering the prize crew becomes free to act with his whole force. Nevertheless, although the neutral may permit or forbid the entry of prizes as he thinks best, the belligerent is held, until express prohibition, to have the privilege not only of placing his prizes within the security of a neutral harbor, but of keeping them there while the suit for their condemnation is being prosecuted in the appropriate court. Most writers think that he is also justified by usage in selling them at the neutral port after condemnation; and, as they then undoubtedly belong to him, it is hard to see on what ground he can be prohibited from dealing with his own. But it is now usual for the neutral state to restrain belligerents from bringing their prizes into its harbors, except in cases of danger or of want of provisions, and then for as short a time as the circumstances of the case will allow; and it is impossible not to feel an ardent wish that a practice at once wholesome and consistent with principle may speedily be transformed into a duty. (Int. Law, 5th ed., p. 618.)

In Atlay's recent edition of Wheaton the subject is also reviewed:

During the American civil war a captor, who brought his prizes into British waters, was to be requested to depart and remove such prizes immediately. A vessel bona fide converted into a ship of war was, however, not to be deemed a prize. In case of stress of weather, or other extreme and unavoidable necessity, the necessary time for removing the prize was to be allowed. If the prize was not removed by the prescribed time, or if the capture was made in violation of British jurisdiction, the prize was to be detained until Her Majesty's pleasure should be made known. Cargoes were to be subject to the same rules as prizes. A subsequent order provided that no ship of war of either belligerent should be allowed to remain in a British port for the purpose of being dismantled or sold.

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