Condemnation of prop

erty lying

in the ports

§ 386. Respecting the first case, there can be no doubt. In the second case, where the property is carried into the of an ally. port of an ally, there is nothing to prevent the government of the country, although it cannot itself condemn, from permitting the exercise of that final act of hostility, the condemnation of the property of one belligerent to the other; there is a common interest between the two governments, and both may be presumed to authorize any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. Such an adjudication is therefore sufficient, in regard to property taken in the course of the operations of a common war. 185

Property carried into a neutral port.

§ 387. But where the property is carried into a neutral port, it may appear, on principle, more doubtful whether the validity of a capture can be determined even by a court of prize established in the captor's country; and the reasoning of Sir W. Scott, in the case of The Henrick and Maria, is certainly very cogent, as tending to show the irregularity of the practice; but he considered that the English Court of Admiralty had gone too far in its own practice of condemning captured vessels lying in neutral ports, to recall it to the proper purity of the original principle. In delivering the judgment of the Court of Appeals in the same case, Sir William Grant also held that Great Britain was concluded, by her own inveterate practice, and that neutral merchants were sufficiently warranted in purchasing under such a sentence of condemnation, by the constant adjudications of the British tribunals. The same rule has been adopted by the Supreme Court of the United States, as being justifiable on principles of convenience to belligerents as well as neutrals; and though the prize was in fact within a neutral jurisdiction, it was still to be considered as under the control of the captor, whose possession is considered as that of his sovereign. (a)

[185 In the Crimean war, 1854, by a convention between the allies, the adjudication, in case of joint capture, lay with the country of the superior officer; but this was only as between the allies. Neutrals could not object to a condemnation made otherwise, if sanctioned by the law of nations; nor, on the other hand, would a neutral be bound by it, if it were not so sanctioned.] — D.

(a) Henrick and Maria, Robinson's Adm. Rep. iv. 43; vi. 138, note a. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. Duponceau's Transl., note, p. 38. Kent's Commentaries, i. 103. Wheaton's Hist. Law of Nations, 321.

Jurisdic

tion of the

how far ex

§ 388. This jurisdiction of the national courts of the captor, to determine the validity of captures made in war courts of under the authority of his government, is exclusive of the captor, the judicial authority of every other country, with two clusive. exceptions only:-1. Where the capture is made within the territorial limits of a neutral State. 2. Where it is made by armed vessels fitted out within the neutral territory. (a)

In either of these cases, the judicial tribunals of the neutral State have jurisdiction to determine the validity of the captures thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other States in amity with it, to the original owners. These exceptions to the exclusive jurisdiction of the national courts of the captor, have been extended by the municipal regulations of some countries to the restitution of the property of their own subjects, in all cases where the same has been unlawfully captured, and afterwards brought into their ports; thus assuming to the neutral tribunal the jurisdiction of the question of prize or no prize, wherever the captured property is brought within the neutral territory. Such a regulation is contained in the Marine Ordinance of Louis XIV., of 1681, and its justice is vindicated by Valin, upon the ground that this is done by way of compensation for the privilege of asylum granted to the captor and his prizes in the neutral port. There can be no doubt that such a condition may be expressly annexed by the neutral State to the privilege of bringing belligerent prizes into its ports, which it may grant or refuse at its pleasure, provided it be done impartially to all the belligerent powers; but such a condition is not implied in a mere general permission to enter the neutral ports. The captor, who avails himself of such a permission, does not thereby lose the military possession of the captured property, which gives to the prize courts of his own country exclusive jurisdiction to determine the lawfulness of the capture. This jurisdiction may be exercised either whilst the captured property is lying in the neutral port, or the prize may be carried thence infra præsidia of the captor's country where the tribunal is sitting. In either case, the claim of any neutral proprietor, even a subject of the State into whose ports the captured vessel or goods may have been carried, must, in general, be asserted in the prize court of the belligerent coun

(a) The Estrella, Wheaton's Rep. iv. 298; The Santissima Trinidad, Ib. vii. 283.

try, which alone has jurisdiction of the question of prize or no prize. (b)186

(b) Valin, Comment. sur l'Ordon. de la Marine, liv. iii. tit. 9. Des Prises, art. 15, tom. ii. p. 274. Lampredi, Trattato del Commercio de' Popoli neutrali in Tempo di Guerra, p. 228.

[186 Prize Jurisdiction and Practice.· The author's object being to treat upon rights and obligations, rather than upon remedies, he has not extended his notice of prize procedures. A fuller consideration of them may be desirable.

I. PRIZE TRIBUNALS. A trial by a prize tribunal is not a right enemies can claim, nor a duty to them. They have no standing in court. If it be assumed that all captures are enemy's property, there need be no prize courts. But the fact that so large a proportion of them are of neutral property charged as involved in violation of rights of war, or of property whose nationality as neutral or hostile is doubtful, has led to the establishing of these tribunals. Their origin is in the responsibility of the belligerent government to neutral governments, for the acts of its cruisers. The true nature of a prize tribunal may be described by a phrase for which, indeed, I find no precedent, but which is, nevertheless, appropriate,—an inquest by the State. As the belligerent sovereign is responsible to neutral governments for aggressions on the persons or property of their subjects, he desires and is required to inform himself, by recognized modes, of the lawfulness of the capture. For this purpose, he commissions learned and impartial persons, by a temporary commission, or by permanent legislation, to hold an inquest on all captures.

II. SUMMARY HEARING AND DECISION.

Certain modes of conducting this inquest have been long in use, and are now recognized by nations as satisfactory. The inquest, in the beginning, is summary, and by no means in the nature of litigation inter partes. Neither is it ex parte. It is, in fact, an inquiry by the government, through its commission, into the facts, there being no parties litigant. The prize court examines the vessel and cargo, and all the papers found on board, and then examines for itself, by its own interrogatories, the persons found on board the prize, the captors taking no part, any more than the captured. This examination is conducted by the court or its officers, in the absence of all parties. The captors are not examined, nor any other witnesses, whatever may be their knowledge. The persons on board are examined privately, and without opportunity to confer with the parties interested in the prize, or with counsel; and, for that purpose, the law of nations allows the court to use the necessary restraint. The evidence so obtained, as well as the papers found on board, is sealed and kept secret until it is completed. It is then opened, and may then be inspected by parties interested, for the purpose of being heard by counsel before the court. With this official inquest upon the vessel, cargo, papers, and persons found on board, ends the regular and ordinary function of the court, so far as evidence is concerned. Arguments by counsel for parties interested are allowed. If this examination presents a clear case for condemnation, the court makes a decree accordingly. The evidence taken in this summary hearing is called the evidence in preparatory, which means, not preparatory to a fuller examination, but preparatory to the decision by the court. The decision of the court upon this evidence is to be considered as, in ordinary cases, all that can be expected of the court. It is its complete and regular function.

But, as it will sometimes happen that this evidence leaves the case in doubt, or suggests the existence of evidence aliunde, which may be necessary to justice, the court will, in its discretion, direct what is called "further proof;" but this is never done until the evidence in preparatory is completed and passed upon. In fact, the meaning

nation by

sitting in

tral coun

§ 389. This jurisdiction cannot be exercised by a dele- Condemgated authority in the neutral country, such as a con- consular sular tribunal sitting in the neutral port, and acting in tribunal pursuance of instructions from the captor's State. Such the neua judicial authority, in the matter of prize of war, cannot try. be conceded by the neutral State to the agents of a belligerent power within its own territory, where even the neutral government of "further proof" is, proof beyond the vessel, cargo, and papers and persons on board. If the proofs in preparatory are unsatisfactory, the court will order further proofs, of its own motion. If the proofs in preparatory are satisfactory, a very strong case must be made out to induce the court to expand and alter its function from that of a belligerent commission of inquest on prescribed kinds of proof, into that of a judicial tribunal to decide between litigating parties admitted to plead and counterplead, and to introduce evidence generally.

On the hearing upon the proofs in preparatory, the onus is on the claimant of any ,captured property to prove his title and right of possession, and his right under the laws of war, upon the evidence, to have it restored to him. Any suppression or destruction of proofs, or unreasonable refusal to answer interrogatories, by persons on board, may exclude the person claiming as owner from a right to restitution.

III. LITIGATION IN PRIZE COURTS. When the prize is brought within the custody of the court, notice is given to all the world, that any person having an interest in the prize may appear and claim it. This is, of course, though not in terms, confined to citizens or neutrals. An enemy cannot make claim. If the property is ostensibly not hostile, it is usually claimed by the master or supercargo, or, in their absence, by the consul of the neutral. The claim is simply a statement of the nature and extent of the claimant's property, and a denial of all enemy's interest, supported by an oath, called the test affidavit. The affidavit is required to declare that the claimant has property and right of possession solely for himself, and to disclaim or disclose all fiduciary or other interests behind him. The object of this is not only to disclaim hostile interests, but to enable the court to learn who are the real, ultimate, and equitable, as well as the ostensible and legal owners. There is nothing in the nature of what are technically called pleadings—i.e., allegations and denial or admission of facts-inter partes. The captors or the government, in their libel, make no allegation of any fact necessary to condemn the property, or even of the cause of capture. The libel is only a petition to the court to hold its inquest, for the purpose of ascertaining the facts, and whether there are any objections to condemnation; and should properly contain only a description of the prize, with dates, &c., for identification, and the fact that it was taken as prize of war by the cruiser, and brought to the court for adjudication,—i.e., of facts enough to show that it is a maritime cause of prize jurisdiction, and not a case of municipal penalty or forfeiture. As there are no allegations by the captors in the libel, there are no denials or counter-allegations in the claim, except the general denial that the property is lawful prize, which the court requires under oath, as a test of the claimants. Although a claim may be put in, in the first instance, by the master or su percargo as agent, yet the court will require, as soon as may be, a claim by the asserted owner, and his personal oath. The court also requires security from the claimants, for costs, and as a test of sincerity. If no claim is made after a reasonable time, and the evidence in preparatory is satisfactory, either alone, or coupled with the significant fact of no claim being made, a condemnation follows. If there is no evidence in preparatory (as may sometimes happen), or if it is not by itself, or coupled with the fact

itself has no right to exercise such a jurisdiction, except in eases where its own neutral jurisdiction and sovereignty have been violated by the capture. A sentence of condemnation, pronounced by a belligerent consul in a neutral port, is, therefore, considered as insufficient to transfer the property in vessels or goods captured as prize of war, and carried into such port for adjudication. (a) 187

aforesaid sufficient to justify condemnation, and the ground for condemnation must be, not the opinion of the court, but simply a rule that unclaimed property is to be condemned, that is, the rule of default,—the court is required by the law of nations to wait a year and a day for claimants to appear. But this is only where the condemnation is solely on the ground of default. If the court is satisfied that the owners know of the pending adjudication and do not appear, that fact is sufficient alone, or with other facts, for condemnation without delay.

There being a claimant before the court, and the preparatory proofs having been considered and found satisfactory, the claimant may petition the court to allow him opportunity to obtain further proofs. As such a course not only prolongs the examination and changes the functions of the tribunal, but may be abused by latent enemies or neutrals acting in bad faith, it is closely watched and cautiously granted. The claimant must make a sworn statement of the specific facts he intends to prove; the means of proof he wishes to resort to; identify persons or documents where that is possible; and state the grounds for a belief that such evidence does exist and can be obtained, and probably will be sufficient, if obtained, to reverse the decision of the court. A further reason for strictness in this particular is that, so far, the evidence has come entirely from the claimant; that is, from his vessel, cargo, papers, and crew. On this petition, the captors or the government will be heard as well as the claimant. If the court shall allow the petition, it also, as of course, allows the captors, at the same time, to take like evidence, to meet the further proofs of the claimant. The court is careful to limit the new inquiry to specified facts, and, for that purpose, sometimes will require the parties to file regular pleadings, as in a civil suit in Admiralty; averring and denying the facts to be inquired into, and ending in certain issues between them. This course is termed admitting the parties to “plea and proof.” If that is not done in form, still the order of the court limits the subject of inquiry. It also settles the time for filing the proofs, and orders the mode of taking them. Although affidavits, in the later and strict sense, that is, ex parte statements on oath, may be received, it is the custom in the United States, when further proof is allowed, to require it to be taken in the form of what are now strictly called depositions, that is, answers to written interrogatories filed by one party, with cross-interrogatories (or the opportunity to file them) by the other party. In like manner, if on the proofs in preparatory there shall not be ground for condemnation, the court will entertain a petition by the captors for further proofs.

On the return of further proofs, the cause is again heard on this new proof, in connection with that in preparatory, and a final decision reached.

IV. RULES OF DECISION. The theory upon which prize courts proceed seems to be this: The capture is an act of the government, or adopted as such by the request of the government for a condemnation. Before condemning it, opportunity is given,

(a) The Flad Oyen, Robinson's Adm. Rep. i. 135.

[187 See the above note, 186, on Prize Jurisdiction.] - D.