We think an analysis of this article makes manifest that the permission granted is to vessels of war and their prizes, which are not to be arrested, searched, or put under legal process, when they come into the ports of the high contracting parties, to the end that they may be freely carried out by their captors to the places expressed in their commissions, which the commanding officer is obliged to show. When the Appam came into the American harbor she was not in charge of a vessel of war of the German Empire. She was a merchant vessel, captured on the high seas and sent into the American port with the intention of being kept there indefinitely, and without any means of leaving that port for another, as contemplated in the treaty and required to be shown in the commission of the vessel bringing in the prize. Certainly such use of a neutral port is very far from that contemplated by a treaty which made provision only for temporary asylum for certain purposes, and cannot be held to imply an intention to make of an American port a harbor of refuge for captured prizes of a belligerent government. We cannot avoid the conclusion that in thus making use of an American port there was a clear breach of the neutral rights of this government, as recognized under principles of international law governing the obligations of neutrals, and that such use of one of our ports was in no wise sanctioned by the Treaty of 1799.

It remains to inquire whether there was jurisdiction and authority in an admiralty court of the United States, under these circumstances, to order restoration to an individual owner of the vessel and cargo.

The earliest authority upon this subject in the decisions of this court is found in the case of Glass v. The Sloop Betsy, 3 Dallas, 6, decided in 1794, wherein it appeared that the commander of the French privateer, The Citizen Genet, captured as a prize on the high seas the sloop Betsy and sent the vessel into Baltimore, where the owners of the sloop and cargo filed a libel in the District Court of Maryland, claiming restitution because the vessel belonged to subjects of the King of Sweden, a neutral power, and the cargo was owned jointly by Swedes and Americans. The District Court denied jurisdiction, the Circuit Court affirmed the decree, and an appeal was prosecuted to this court. The unanimous opinion was announced by Mr. Chief Justice Jay, holding that the District Courts of the United States possessed the powers of courts of admiralty, whether sitting as an instance or as a prize court, and sustained the jurisdiction of the District Court of Maryland, and held that that court was competent to inquire into and decide whether

restitution should be made to the complainants conformably to the laws of nations and the treaties and laws of the United States.

The question came again before this court in the case of The Santissima Trinidad, decided in 1822, reported in 7 Wheaton, 283. In that case it was held that an illegal capture would be invested with the character of a tort, and that the original owners were entitled to restitution when the property was brought within our jurisdiction. The opinion was delivered by Mr. Justice Story, and, after a full discussion of the matter, the court held that such an illegal capture, if brought into the jurisdiction of the courts of the United States, was subject to condemnation and restitution to the owners, and the learned justice said:

If indeed, the question were entirely new, it would deserve very grave consideration, whether a claim founded on a violation of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled, that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own courts or the courts of the Power having cognizance of the capture itself for the purposes of prize. And by analogy to this course of proceeding, the interposition of our own government might seem fit to have been required before cognizance of the wrong could be taken by our Courts. But the practice from the beginning in this class of causes, a period of nearly 30 years, has been uniformly the other way; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is competent for Congress to apply at its pleasure the proper remedy. (Page 349.)

... Whatever may be the exemption of the public ship herself, and of her armament and munitions of war, the prize property which she brings into our ports is liable to the jurisdiction of our courts, for the purpose of examination and inquiry, and if a proper case be made out, for restitution to those whose possession has been devested by a violation of our neutrality; and if the goods are landed from the public ship in out ports, by the express permission of our own government, that does not vary the case, since it involves no pledge that if illegally captured they shall be exempted from the ordinary operation of our laws. (Page 354.)

In the subsequent cases in this court this doctrine has not been departed from. L'Invincible, 1 Wheaton, 238, 258; The Estrella, 4 Wheaton, 298, 308, 9, 10, 11; La Amistad de Rues, 5 Wheaton, 385, 390. It is insisted that these cases involve illegal captures at sea, or violations of neutral obligation, not arising because of the use of a port by sending in a captured vessel and keeping her there in violation of our rights as a neutral. But we are at a loss to see any difference in principle between such cases and breaches of neutrality of the char

acter here involved in undertaking to make of an American port a depository of captured vessels with a view to keeping them there indefinitely. Nor can we consent to the insistence of counsel for appellant that the prize court of the German Empire has exclusive jurisdiction to determine the fate of the Appam as lawful prize. The vessel was in an American port and under our practice within the jurisdiction and possession of the District Court which had assumed to determine the alleged violation of neutral rights, with power to dispose of the vessel accordingly. The foreign tribunal under such circumstances could not oust the jurisdiction of the local court and thereby defeat its judgment. The Santissima Trinidad, supra, p. 355.

Were the rule otherwise than this court has frequently declared it to be, our ports might be filled in case of a general war such as is now in progress between the European countries, with captured prizes of one or the other of the belligerents, in utter violation of the principles of neutral obligation which have controlled this country from the beginning.

The violation of American neutrality is the basis of jurisdiction, and the admiralty courts may order restitution for a violation of such neutrality. In each case the jurisdiction and order rests upon the authority of the courts of the United States to make restitution to private owners for violations of neutrality where offending vessels are within our jurisdiction, thus vindicating our rights and obligations as a neutral people.

It follows that the decree in each case must be

Affirmed

BOOK REVIEWS

Lord Stowell: His Life and the Development of English Prize Law. By E. S. Roscoe. Houghton Mifflin Co., Boston and New York. 1916. pp. x, 116.

Lord Stowell belongs to that rare company of jurists to whom came the opportunity of determining the form and substance of an important branch of law for an indefinite period in the future. Such an opportunity came to John Marshall to formulate the constitutional law of the United States, and how admirably he met it is known of all men. Not less unique was the work of Lord Stowell in the development of British prize law. To be sure, decisions in prize were in existence which went as far back as the eighteenth century, but most of them were bare statements of results, with no reasoning as to the principle concerned. In this state of the law England became involved in the Napoleonic Wars in which almost every conceivable maritime situation arose and necessitated an examination of the fundamental principles upon which prize law rests. This gave Stowell his opportunity. Appointed Judge of the High Court of Admiralty in 1798, he continued until the downfall of Napoleon to give out from his seat in London a series of reasoned. judgments in which he practically created the Anglo-American prize law of the present day, and gave it a coherency and a logical basis which it has ever since retained. In the face of this prodigious achievement, it is one of the anomalies of history that, while forgotten worthies have been forced upon public attention by industrious writers, the great Lord Stowell has thus far escaped an adequate biography.

Mr. Roscoe's book is divided into eight chapters. The first two are biographical and relate the story of Stowell's career as a teacher at Oxford, his friendship with Dr. Johnson, his rapid rise at the bar, and his elevation to the bench. The third chapter is a clear account of the Court of the Admiral and the development of his prize jurisdiction and the rules governing its exercise. The description of the condition of English prize law in 1798, when Stowell became the head of the Admiralty Court, supplies a good background against which to exhibit the

extent of his services in reducing existing rules to systematic form and in adapting principles to new situations. The fourth and fifth chapters deal specifically with some of Stowell's most important judgments, while the sixth is a consideration of the relation between Stowell's decisions and the rules of the Declaration of London. The seventh chapter describes the use made of Stowell's decisions by the British prize courts in the present war, while the last chapter is devoted to Stowell's work in the Admiralty Court on the civil side.

In derogation of an excellent piece of work, it must be said that as a biography the book is entitled to scant consideration, but as an essay on Stowell's work as a prize judge it is worthy of its author's position and high repute. Nowhere will the beginner in prize law find a better introduction to the intricacies of the organization of the British Court of Admiralty than is furnished by Mr. Roscoe's third chapter. The condition of British prize law when Stowell came to the bench and the contrast between its present certainty and systematic form and the amas de textes si variés, which even now make up French prize law, are well described. In the consideration of some of the most important of Stowell's decisions a clear conception is given of the quality of Stowell's mind and of the processes by which he reached his conclusions. In short, Mr. Roscoe's book amply explains the authoritative position which Lord Stowell occupies in all British and American prize courts. LAWRENCE B. EVANS.

International Realities. By Philip Marshall Brown. Charles Scribner's Sons: New York. 1917. pp. xvi, 233.

This is a collection of articles written by Professor Brown since the outbreak of the war, dealing in a constructive way with the general principles of international organization and law. The style is simple and forceful. The subjects considered are of the most vital and profound significance. They are treated in a way to interest equally the student and the average reader.

The first article has the title of the book. He holds that the old conception, still fostered by many publicists, "that international law [is] mainly, if not primarily, concerned with the regulation of war," is an unreality at present, and that "the idea that international law shall regulate war is essentially paradoxical and unsound." He asserts that "the true function of international law is not to govern war, it is to avert