During the Franco-German war of 1870-1, armed ships of either party were interdicted from carrying prizes made by them into the ports, harbors, roadsteads, or waters of the United Kingdom, or any of Her Majesty's colonies or possessions abroad. A similar rule was made in

1898 and 1904.

While the American civil war was prevailing, France prohibited all ships of war or privateers of either party from remaining in her ports with prizes for more than twenty-four hours, except in case of imminent perils of the sea. No prize goods were permitted to be sold in French territory. Prussia remained content with ordering her subjects not to engage in the equipment of privateers, and to obey the general rules of international law. The Belgian rule commanded all privateers to depart immediately, unless prevented by absolute necessity. (Wheaton's Int. Law, Atlay, 4th ed., secs. 434d, 434e.)

There are, however, many differences of opinion as to the merits of the prohibition of the entrance and sojourn of prize in a neutral port:

Under the general rule a prize may not only be brought into a neutral port, but may also be kept there until duly condemned by a Prize Court sitting in the belligerent's own territory. This clearly amounts to a permission to make military use of neutral territory, and is only justified in that it is granted impartially to both belligerents.

On the whole it seems likely that the practice of excluding the prizes of both sides, except in cases of necessity, will be adhered to in future. Such a course is, in fact, almost a necessary corollary of the strict rules which either already regulate, or are likely to regulate, the admission of belligerent public vessels other than prizes into neutral waters and ports in time of war. These rules as to recruitment, coaling, and such matters are discussed in detail in Chapter III.

Speaking generally, it may be said that just as a neutral State's right of "inviolability of territory" is overshadowed by its duty of impartiality, which compels it to protect and enforce that right, so is its right of hospitality overshadowed by the duty of preventing its territory or ports from being made a theatre of warlike operations by either of the belligerents. (Risley, Law of War, 176.)

Pradier-Fodéré states the present practice in regard to jurisdiction over prizes as follows:

C'est généralement au commencement des guerres que se sont constitués les tribunaux de prises. Ces tribunaux ne peuvent siéger que dans les pays belligérants; leur création est, en effet, un acte motivé par la guerre. Les États neutres ne sont conséquemment pas appelés à en instituer, et peuvent ne pas tolérer que les belligérants exercent sur leur territoire la jurisdiction des prises. Les agents consulaires des belligérants à l'étranger n'ont plus aujourd'hui le droit de juger les prises qui seraient conduites en relâche forcée dans les ports neutres de

leur consulat, ils ne peuvent que procéder à l'instruction. Si un État belligérant avait la prétention de conférer à ses envoyés diplomatiques ou à ses consuls près les États neutres, le droit d'exercer une juridiction sur les prises, ces États auraient donc le droit incontestable de s'y opposer et de ne tolérer sur leur territoire l'exécution d'aucune mesure ordonnée par le belligérant.. (8 Droit Int. Public, sec. 3201, p. 764.)

Dana's note to Wheaton's International Law presents very clearly the practice in 1866 in regard to the place of prize at time of condemnation:

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, p. 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 existence, 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 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.

This résumé of the opinion in 1866 fairly represented American and British opinion at the beginning of the twentieth century.

Instructions in regard to the bringing in of prize.-The instructions issued to the commanders of British war vessels on April 15, 1854, were as follows:

The commanders of Her Majesty's ships and vessels of war shall send all ships, vessels, and goods which they shall seize and take into such port within Her Majesty's dominions, as shall be most convenient for them, in order to have the same legally adjudged at the High Court of Admiralty of England or in some other admiralty court lawfully authorized to take cognizance of matters of prize.

The Instructions Complémentaires issued by France in 1870 contains the following clause:

14. Envoi de prises dans les ports français-Les prises sont exclusivement dirigées sur les ports de France ou des possessions françaises. En cas de force majeure seulement, elles peuvent entrer dans les ports

neutres pour réparation d'avaries ou ravitaillement. Elles n'y séjournent que le temps nécessaire à ces opérations.

17. Prise conduite dans un port étranger-Lorsqu'une prise est conduite dans un port étranger où elle peut être admise, le conducteur de la prise représente les capteurs dans l'instruction consulaire.

18. Refus d'admission-Presque toutes les puissances assimilent les prises aux bâtiments de guerre des belligérants et ne les admettent pas dans leurs ports, si ce n'est en cas de relâche forcée, et pour une période de temps très courte.

Le conducteur d'une prise doit toujours, en pareil cas, déférer aux invitations qui lui sont adressées par le gouvernement du pays où il se trouve. Il agit alors au mieux des intérêts dont il est chargé et rend compte, sans délai, au ministre de la marine du refus d'admission qu'il a essuyé.

The British regulations issued in 1888 provide:

298. If the surveying officers report that the vesesl is not in a condition to be sent into a proper port of adjudication, the commander should, if practicable, take her into the nearest neutral port that may be willing to admit her.

299. The commander, however, must bear in mind that he can not take the vessel into a neutral port against the will of the local authorities; and that under no circumstances can proceedings for adjudication be instituted in a neutral country.

300. Both the cruiser and, if admitted, her prize are by the comity of nations exempt from the local jurisdiction.

301. If the vessel is admitted into a neutral port, then, in order that proceedings for adjudication may be duly instituted, the commander should forward the witnesses, together with the vessel's papers and necessary affidavits, in charge of one of the officers of his ship to the nearest British prize court. (Manual of Naval Prize Law, p. 85.)

The following instructions were issued as General Order 492, by the Navy Department of the United States during the Spanish-American war in 1898:

Sending in of prizes. 20. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting.

21. The prize should be delivered to the court as nearly as possible in the condition in which she was at the time of seizure; and to this end her papers should be sealed at the time of seizure and kept in the custody of the prize master. Attention is called to articles numbers 16 and 17 for the government of the United States Navy (Exhibit A).

22. All witnesses whose testimony is necessary to the adjudication of the prize should be detained and sent in with her, and if circumstances permit it is preferable that the officer making the search should act as prize master.

23. As to the delivery of the prize to the judicial authority, consult sections 4615, 4616, and 4617, Revised Statutes of 1878 (Exhibit B). The papers, including the log book of the prize, are delivered to the prize commissioners; the witnesses, to the custody of the United States marshal; and the prize itself remains in the custody of the prize master until the court issues process directing one of its own officers to take charge.

24. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court.

Provisions in recent neutrality proclamations.-The attitude of the leading States of the world in regard to the bringing of prize and its sojourn in a neutral port is shown in the neutrality proclamations issued during the Spanish-American war of 1898 and Russo-Japanese of 1904. In most cases the terms of the proclamations are identical in both wars.

Brazil, 1898:

VI. No war ship or privateer shall be permitted to enter and remain, with prizes, in our ports or bays during more than twenty-four hours, except in case of a forced putting into port, and in no manner shall it be permitted to it to dispose of its prizes or of articles coming out of them.

By the words "except in case of a forced putting into port," should also be understood that a ship shall not be required to leave port within the said time: First. If it shall not have been able to make the preparations indispensable to enable it to go to sea without risk of being lost. Second. If there should be the same risk on account of bad weather. Third. And, finally, if it should be menaced by an enemy.

In these cases, it shall be for the Government, at its discretion, to determine, in view of the circumstances, the time within which the ship should leave.

VII. Privateers, although they do not conduct prizes, shall not be admitted to the ports of the Republic for more than twenty-four hours, except in the cases indicated in the preceding section.

Denmark, 1898

Third. The ports and territorial waters of the islands shall be closed to the prizes of either belligerent, except when they are found in cases of distress.

Dutch West Indies, 1898:

ART. 3. The vessels of war or privateers of the belligerents are not permitted to enter the ports or roadsteads of the colony with prizes,