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this principle in the case of Chisholm v. Georgia, which involved the question whether the State of Georgia possessed a sovereignty distinct from that of the Federal Union, and whether the courts had jurisdiction over the State.67 It was, in consequence, necessary to add the Eleventh Amendment to the United States Constitution, taking from the Federal court jurisdiction of suits against one of the United States brought by citizens of another state or by citizens or subjects of any foreign state.

According to American law, there is a still further exception to this immunity of sovereign states. Foreign prizes taken in violation of the neutrality of the United States are subject to the jurisdiction of its courts. Section 7 of the Neutrality Act of 1818 declares that "the District Courts shall take cognizance of complaints by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts or the shores thereof." 69 Moreover, the ordinary Federal courts are the regular prize courts in the United States, in contrast to European regulations which intrust this duty to extraordinary boards appointed by the governments. In the first instance, the District Court has jurisdiction from which appeals run to the Circuit Court in cases involving more than $300, and to the Supreme Court if the case involves in excess of $2000. The limitations on the subject matter have now been increased.

The jurisdiction conferred by Section 7 of the Act of 1818 has been stretched, according to the prevailing American view, to prizes made in violation of American neutrality. Moore says in this connection:

The cases of the Cassius, 3 Dallas, 121, and the Invincible, 1 Wheaton, 238, decide that neither a public vessel of another nation, nor its officers, are liable to answer in our courts for a capture on the high seas, but do not touch the question of jurisdiction over her prizes lying in our ports, which extends to libels in rem for restitution of such prizes made in violation of our neutrality.71

67 Willoughby, The American Constitutional System, New York, 1904 (Amer. State Series), p. 37; Chisholm v. Georgia, 2 Dallas 419. 68 Willoughby, pp. 172, 288.

69 Westlake, Part 2, p. 201. 70 Wheaton, Elements, Appendix 4, p. 960, et seq. especially pp. 968, 969.

71 Vol. 2, sec. 254, p. 581, also Vol. 2, sec. 258, p. 593; The Santissima Trinidad, 7 Wheaton, 283; The Gran Para, 7 Wheaton, 471; also Moore, Int. Arbit., Vol. 1, pp. 576-578.

It was not the intention of the statute to deprive the foreign state of jurisdiction, even if it was concerned only in looking into the legality of the capture. The object was simply to obviate the results of a violation of sovereignty by an illegal act, and to return the prize, under such circumstances, to the former owner. For this purpose the courts as the duly constituted authority for the maintenance of the rights of sovereignty of the neutral nation need only to decide the question of the violation of sovereignty. They are confined solely to this question and are excluded from any further adjudication of the subject at hand, such as the assessment of damages, or the like.72

What is a violation of neutrality must be determined from the neutrality proclamations of the Presidents promulgated at the outbreak of wars between foreign states. The neutrality proclamations of Presidents Grant, Roosevelt, and Wilson, the last issued for the present war, are of similar import. There is nothing in any of the proclamations of the present Executive which might be of application to the case of the Appam. It is a settled rule, however, that claims arising out of the violation of the principle of neutrality can only be prosecuted by the government of the country of the former owner, and not by the owner himself,73 as is also the corresponding principle that the government of the country whose neutrality has been violated, and not the injured private person, must appear in the prize courts of the belligerent state and ask for the release of the prize.74

Judge Story says in this connection (1882):

If the case were entirely new, it would deserve very great consideration whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than by a direct interposition of the government itself. But the practice from the beginning of this class of cases, a period of nearly thirty years, has been uniformly the other way and it is now too late to disturb it.75

However, in cases involving the more remote breach of neutrality, namely, when the prize is not made within the territorial waters of the neutral state or by a warship making the United States a basis for its operations, but is captured by a ship fitted out within the ports of

72 Perels, Int. Oeffentl. Seerecht, pp. 302, 304.
74 Wheaton, p. 722; Westlake, Part 2, p. 199.

73 Hall, p. 645, note 2.
75 Hall, page 645, note 2.

this country in violation of neutrality, a suit by the private owner is permissible in the United States courts.76

Therefore, the suit in the District Court at Norfolk could be brought only by the British Government. The private party could appear as party plaintiff only in case of the before-mentioned remote breach of neutrality. Even the British Government could bring suit only when the plea was based on a breach of neutrality inherent in the capture. This procedure was not followed in the case of the Appam.

Finally, it is apparent that the suit was not admissible because of its object, which was, as cannot be denied, the return to the former English owners of a prize of the German Empire; in passing upon the English demands the American courts would have to pass upon the legality of the capture and that simply because the ship was lying in an American harbor.

Such a claim, according to general, and particularly according to English and American legal rulings, is not one which can be passed upon by an American or other neutral court. The courts of the state of the captor alone have exclusive jurisdiction in regard to the legality of the prize.77 The only exceptions to this rule have been discussed. England · herself has maintained these principles with the greatest determination. It will suffice, at this point, to mention the familiar controversy with Frederick the Great, who, in order to do justice to his subjects and to remedy what he thought was a wrong done them by English prize courts, levied upon money which was to be sent to England and at the same time instituted a court in Prussia to review the English prize court proceedings. In one of the writings which this celebrated controversy brought forth in behalf of the English, it was said:

The procedure of the King of Prussia was an innovation, which was never attempted in any country of the world before. Prize or no prize must be determined by courts of admiralty belonging to the Power whose subjects made the capture. . . . No crown had the right to pass upon the legality of a prize made by the subjects of another crown or to attempt to override the judgments of a court of another country. That was uncontroverted international law.78

76 Hall, op. cit.

77 Perels, Seerecht, p. 304; Calvo, Le Droit International Theoretique et Pratique, secs. 3041, 3042; Bluntschli, Das Moderne Völkerrecht der Civilisirten Staaten, secs. 842, 845; Wehberg, p. 319; Wheaton, p. 669, note 200; pp. 678, 975; Moore, Vol. 2, sec. 254, p. 580; Vol. 7, sec. 1223, p. 588.

The Supreme Court of the United States, with equal firmness, declared itself in favor of this principle in the case of The Alerta v. Moran, in which it was said:

The general rule is undeniable that the trial of captures made on the high seas jure belli by a duly commissioned vessel of war whether from an enemy or a neutral, belongs exclusively to the courts of that nation to whom the captor belongs.79


The exclusive cognizance of prize questions belongs in general to the capturing Power, and the courts of other countries will not undertake to redress alleged marine torts committed by public armed vessels in assertion of belligerent rights.80

This exclusive right is derived from the military right of possession which the captor Power has over the prize.81 It extends also, and according to Anglo-American jurisprudence, to the prizes in the ports of a neutral Power. This is clearly shown in the following quotation from Halleck:

The Supreme Court of the United States has followed the English rule, and has held valid the condemnation, by a belligerent court, of prizes carried into a neutral port and remaining there, the practice being justifiable on the ground of convenience to belligerents, as well as neutrals; and though the prize was, in fact, within neutral territory, it was still to be deemed under the control or sub potestate of the captor, whose possession is considered as that of his sovereign. It may also be remarked, that the rule thus established by the highest courts of England and the United States, is sanctioned by the practice of France, Spain and Holland.82

78 Wheaton, pp. 678-679; Trendelenburg, Friedrichs des Grossen Verdienst um das Völkerrecht im Seekrieg, Berlin, 1866, p. 12.

79 Moore, Vol. 2, sec. 254, p. 580; The Alerta v. Moran (Mar. 10, 1815), 9 Cranch, 359, 364.

89 Moore, Vol. 7, sec. 23, p. 588; The Invincible, 1 Wheat. 238. 81 Wheaton, p. 669, note 201, p. 962.

82 Halleck, Int. Law, Vol. 2, 3d ed. by Baker, p. 405, cited in Moore, Vol. 7, sec. 1224, p. 591.

Phillimore remarks to like effect:

An attentive review of all the cases decided in the courts of England and the North American United States during the last war, 1793–1815, leads to the conclusion that the condemnation of a capture by a regular prize court, sitting in the country of a belligerent, of a prize lying at the time of the sentence in a neutral port, is irregular, but clearly


The valid judgment of a competent national prize court is final as to the question of ownership, and no revision by another court or any other authority is permissible. The case is closed for all time. It is the English and American practice to designate such a proceeding as conclusive.85

However, after such a decision, a settlement through diplomatic channels still remains open, so that if the third state is not satisfied with the judgment rendered, it may resort to diplomacy to solve the difficulty. This is the case, however, only in time of peace, because according to the law of nations, in time of war every duty of granting indemnity between belligerents is suspended. These principles of international law are undisputed, and every government is permitted, when peace is concluded between the parties, to press claims of indemnity against a former opponent.

To return to the question at hand. If the decision of the courts and authorities of a state are regarded as binding outside its territorial jurisdiction, the state rendering such a decision is still answerable for it to other sovereign states in so far as the foreign state considers the decision unfair and seeks redress by methods known to international law, such as payment of an indemnity or some other means of reimbursement. The decision of the court is never disturbed, but the state is answerable for all results which follow from such a decision if it is inconsistent with international law.86

Therefore, to return to the controversy of Frederick the Great with England, it may be said that the King persuaded the English

83 Westlake, Part 2, p. 215, who is opposed to this. 84 Wheaton, pp. 673, 972.

86 Wheaton, p. 972 (the conclusiveness of sentences of condemnation upon the property is cited from the decisions of Judge Story).

86 Ibid., pp. 673-675, 681-682.

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