captured property of an ally in cases where the law of his own country would restore, upon the same terms of salvage, and condemning where it condemns. A neutral purchaser. is, in all cases, required to produce a regular sentence of condemnation as evidence of his title against the claim of the original proprietor.1o § 12. The validity of maritime captures must be determined in a court of the captor's government, sitting either in his own maritime Validity of country or in that of its ally. This rule of jurisdiction ap- captures, plies, whether the captured property be carried into a port mined in of the captor's country, into that of an ally, or into a neutral the courts port. deter of the captor's Condemnation of Respecting the first case, there can be no doubt. In the country. second case, where the property is carried into the port of an ally, there is nothing to prevent the government of the coun- property try, although it cannot itself condemn, from permitting the lying in the ports exercise of that final act of hostility, the condemnation of the of an ally. 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. But where the property is carried into a neu- Property tral port, it may appear, on principle, more doubtful whether into a neuthe validity of a capture can be determined even by a court tral port. 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 judg 10 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 3; cap. 9, § 14. Kluber, Droit des Gens Moderne de l'Europe, § 254. Robinson's Adm. Rep. vol. i. p. 50. The Santa Cruz. P. 139. The Flad Oyen. Wheaton's Rep. vol. ii. Appendix, Note I. pp. 40—49; vol. iii. p. 73. The Star. P. 93, Note (a.) carried § 13. Jurisdic tion of the ment 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." This jurisdiction of the national courts of the captor, to determine the validity of captures made in war under the courts of authority of his government, is exclusive of the judicial authe captor, thority of every other country, with two exceptions only:exclusive. 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.12 how far 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 jus 11 Robinson's Adm. Rep. vol. iv. p. 43; vol. vi. p. 138, Note (a.) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. Duponceau's Transl. Note, p. 38. Kent's Commentaries on American Law, vol. i. p. 103. 12 Wheaton's Rep. vol. iv. p. 298. The Estrella. Vol. vii. p. 283. The Santissima Trinidad, tice 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 country, which alone has jurisdiction of the question of prize or no prize.13 § 14. Condem tribunal This jurisdiction cannot be exercised by a delegated authority in the neutral country, such as a consular tribunal nation by sitting in the neutral port, and acting in pursuance of instruc- consular tions from the captor's state. Such a judicial authority in sitting in the matter of prize of war cannot be conceded by the neutral state to the agents of a belligerent power within its own territory, where even the neutral government itself has no right to exercise such a jurisdiction except in cases 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 13 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. the neutral country. vernment missioned or goods captured as prize of war and carried into such port for adjudication.14 § 15. The jurisdiction of the court of the capturing nation is conResponsiclusive the question of property in the captured thing. bility of the upon captor's go- Its sentence forecloses all controversy respecting the validity for the acts of the capture as between claimant and captors, and those of its com- claiming under them, and terminates all ordinary judicial inquiry upon the subject matter. Where the responsibility and courts. of the captors ceases, that of the state begins. It is responsible to other states for the acts of the captors under its commission, the moment these acts are confirmed by the definitive sentence of the tribunals which it has appointed to determine the validity of captures in war. cruisers Unjust sentence Grotius states that a judicial sentence, plainly against of a foreign right, (in re munime dubia) to the prejudice of a foreigner, court, entitles his nation to obtain reparation by reprisals: "for the ground of reprisals. authority of the judge” (says he) "is not of the same force against strangers as against subjects. Here is the difference: subjects are bound up and concluded by the sentence of the judge, though it be unjust, so that they cannot lawfully oppose its execution, nor by force recover their own right, on account of the controlling efficacy of that authority under which they live. But strangers have coercive power," (i. e. of reprisals, of which the author is treating,) "though it be not lawful to use it so long as they can obtain their right in the ordinary course of justice.”15 So also Bynkershoek, in treating the same subject, puts an unjust judgment upon the same footing with naked violence in authorizing reprisals on the part of the state whose subjects have been thus injured by the tribunals of another state. And Vattel, in enumerating the different modes in which justice may be refused so as to authorize reprisals, mentions "a judgment manifestly unjust and partial:" and though he states, what is undeniable, that the judgments of the ordinary 14 Robinson's Adm. Rep. vol. i. p. 135. The Flad Oyen. tribunals ought not to be called in question upon frivolous or doubtful grounds, yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them.16 These principles are sanctioned by the authority of numerous treaties between the different powers of Europe regulating the subject of reprisals, and declaring that they shall not be granted unless in case of the denial of justice. An unjust sentence must certainly be considered a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice. between and courts Even supposing that unjust judgments of municipal tribu- Distinction nals do not form a ground of reprisals, there is evidently a municipal wide distinction in this respect between the ordinary tribu- tribunals nals of the state proceeding under the municipal law as their of prize. rule of decision, and prize tribunals appointed by its authority, and professing to administer the law of nations to foreigners as well as subjects. The ordinary municipal tribunals acquire jurisdiction over the person or property of a foreigner by his consent, either expressed by his voluntarily bringing the suit, or implied by the fact of his bringing his person or property within the territory. But when courts of prize exercise their jurisdiction over vessels captured at sea, the property of foreigners is brought by force within the territory of the state by which those tribunals are constituted. By natural law, the tribunals of the captor's country are no more the rightful exclusive judges of captures in war made on the high seas from under the neutral flag, than are the tribunals of the neutral country. The equality of nations would, on principle, seem to forbid the exercise of a jurisdiction thus acquired by force and violence, and administered by tribunals which cannot be impartial between the litigating parties, because created by the sovereign of the one to judge the other. Such, however, is the actual constitution of the tribunals in which by the positive international law is vested the exclusive jurisdiction of prizes taken in war. But the imperfection of the 16 Bynkershoek, Quæst. Jur. Pub. Vattel, Droit des Gens. |