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acts of belligerent warships, (3) violations of land territory. The mere fact that these duties are contained in the Hague conventions, which are treaties and “the law of the land” would furnish ground for the assertion of jurisdiction by judicial and executive officers, but in some cases jurisdiction has been specifically conferred by statute, and in others it is necessary to consider the view which the courts and executive authorities have taken as cases have arisen. We will therefore consider the supplementary laws enacted for carrying out these obligations, and the rules laid down by the executive and judicial officers themselves in carrying them out.


The neutrality laws give the United States district courts a jurisdiction over captures made in the territorial waters of the country, 10 and imply that a jurisdiction exists over prizes taken by privateers outfitted in the United States.11 This provision contained in the original neutrality act of 179412 was enacted as a result of Washington's address to congress of Dec. 31, 1793,13 in which he urged upon congress the enactment of neutrality acts, and also provisions ensuring a sufficient jurisdiction in the courts to carry out the duties of restoring illegal prizes. It seems probable that United States courts can assume jurisdiction over illegal prizes under their general admiralty and prize jurisdiction even in the absence of statute, as was in fact done in the cases of Glass vs. The Betsey14 and Talbot vs. Jansen,15 both of which came before the court before the passage of the first neutrality act. The view was emphatically stated in the case of the Estrella16 that the jurisdiction existed independently of statute. Furthermore, so far as the writer has been able to discover, there has never been a case before the court in which the capture was made in the territorial waters of the United States, and in which

10 Rev. Stat. Sec. 5287, Penal Code of 1910, sec. 14.

11 Rev. Stat. Sec. 5287, Penal Code of 1910, sec. 14, gives the President power to utilize the military forces of the country to “detain such ship or vessel (violating the neutrality of the United States) with her prize or prizes—in order to restore the prize or prizes in the cases to which restoration shall be adjudged."

12 Act. June 5, 1794, I stat. 381.
13See Am. St. Pap., For. Rel., 1;31.
14Glass vs. The Sloop Betsey, 3 Dall. 6, (1794).
15Talbot vs. Jansen, 3 Dall. 133.
16 The Estrella, 4 Wheat. 298, (1819).


therefore the jurisdiction explicitly conferred by statute would strictly apply. In all the cases the illegality of the prize has been based on an outfitting of the privateer, or augmenting of its forces, in the United States, prior to the capture. We may therefore safely assert that the jurisdiction exercised by United States courts while the country is neutral, over belligerent prizes, is not dependent on statute.

The nature of the prize jurisdiction while the country is neutral has been discussed at length in a number of cases and with a remarkable concurrence of opinion. The court has always insisted that its jurisdiction does not extend over the question of prize or not prize.17 This is a matter solely within the authority of the prize courts of the belligerent country, and their determination is conclusive. The neutral's jurisdiction over prizes of war can only arise where (1) its own duty of vindicating its neutrality is involved, (2) where the capture was entirely without evidence of belligerent authorization or for other reason not within the belligerent's prize jurisdiction,18 or (3) where sal

17 L'Invincible, i Wheat. 238, 261; McDonough vs. Dannery and the Ship Mary Ford, 3 Dall. 188; The Alerta, 9 Cranch, 359, (1815); The Estrella, 4 Wheat. 298.

18 This situation occurs where the capture was so clearly unwarranted that the belligerent prize court can not legitimately assert a jurisdiction. There is of course room for difference of opinion in any case as to whether it could or could not, and the question virtually resolves itself into this: Is the belligerent prize court's assertion of its own jurisdiction to be considered conclusive? In Glass vs. The Sloop Betsey, (3 Dall. 6, 1794) the supreme court upheld jurisdiction over a capture by a French privateer, apparently on the sole ground that being neutrally owned the vessel was not liable to condemnation in a French Prize court. It is doubtful whether such a jurisdiction would now be maintained. In Rose vs. Himely, (4 Cranch 241, 1808) the prize, owned by an American, Rose, was seized on the high seas near Cuba for breach of municipal regulations and after sale to Himely brought to Charleston. Here it was libeled by the original owner, Rose, and while in the custody of the United States District court, a French Prize court in Santa Domingo issued a decree of condemnation upon which Himely based his title. The majority of the court though disagreeing in reasons agreed that the Santa Domingo court lacked jurisdiction and consequently Himely had no title. Three justices denied its jurisdiction on the ground that actual custody of the prize was necessary. Two justices, including Chief Justice Marshall, held that captures on the high seas for breach of municipal regulations were contrary to international law and so conferred no jurisdiction upon the prize court of the capturing country. Justice Johnson dissented from the decision,

vage or other maritime claims of neutral subjects are involved.19 In all of these cases the prize must have been brought within the neutral's jurisdiction voluntarily. A neutral state has no right to make seizures outside of its own territory20 or to assume jurisholding that the prize court's jurisdiction depended upon municipal and not international law and that its own assertion of jurisdiction must be regarded as conclusive by foreign courts; hence the Santa Domingo court had jurisdiction and Himely's title was good. The case does not refer to prize jurisdiction in pursuance of belligerent rights, but the principle that there are limits, beyond which a foreign prize court's assertion of its own jurisdiction will not be regarded as conclusive, although denied by Justice Johnson, seems to have been settled. Consequently there are cases in which the courts of a neutral state may exercise jurisdiction over a prize which the belligerent claims the right to adjudicate, and thereby itself determine upon the belligerent's rights.

19This situation occurs when the determination of belligerent prize rights arises incidentally to some ordinary maritime claim of a neutral subject. In McDonough vs. Dannery and the Ship Mary Ford, (3 Dall. 188,1795) a French squadron had captured the Mary Ford, a British vessel, and after attempting to sink her, left her derelict. She was rescued by a United States vessel which brought her to Boston and libeled her for salvage. Both French and British claimants put in an appearance, the French claiming the balance after deduction of salvage, as legal prize of war, and the British claiming this balance as original owners of the vessel. The supreme court decreed one-third salvage to the United States rescuers, and the balance to the French captors, holding that title to an enemy vessel changed hands immediately on capture. Here the court really decided a question of prize as between the two belligerents, but it was only done incidentally to the adjudication of the neutral parties' claims to salvage, and could be regarded, as was said in discussing the case by Justice Johnson in L'Invincible, (1 Wheat. 238, 261) to have been a recognition of the title of the last possessor rather than a determination of belligerent rights. In the Invincible the court again assumed jurisdiction, where neutral salvage rights were involved, and in DelCol vs. Arnold, (3 Dall. 333), jurisdiction over a prize sequestrated in Charleston was based on a maritime tort committed against a neutral owned vessel by the belligerent claimant of this prize. The case was questioned in L'Invincible, but justified on the ground that consent had been given by the belligerent claimant to submit the proceeds of his prize to the neutral jurisdiction.

20This statement was denied by Chief Justice Marshall in Church vs. Hubbart, 2 Cranch 187, (1804), Scott, 343; He upheld a seizure by Brazil outside of territorial waters in pursuance of a local law. The view stated was however maintained by Marshall in Rose vs. Himely, 4 Cranch 281, (1808); See also Hudson vs. Guestier, 6 Cranch 281, (1810); The Appollon, 9 Wheat. 362. In the case of the Itata submitted to arbitration, the

diction over vessels which are not within the actual custody of its court.21

The first situation mentioned is the one of immediate importance to the present subject. In the case of the Brig Alerta, 22 Justice Washington clearly defined the nature of this jurisdiction. “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 which the captor belongs. To this rule there are exceptions which are as firmly established as the rule itself. If the capture be made within the territorial limits of a neutral country into which the prize is brought or by a privateer which had been illegally equipped in such country, the prize courts of such neutral country not only possess the power, but it is their duty to restore the property so illegally captured to the owner. This is necessary to the vindication of their own neutrality."

The two cases are distinguished by Justice Washington, (1) where the capture is made in the territorial waters of the United States, and (2) where the capture is made by a vessel which was armed or had its forces augmented in the United States in violation of neutrality.

(1) In the first case jurisdiction is specifically granted by statute23 but has never been exercised. In the case of the Grange, 24 Attorney General Randolph gave an official opinion that a vessel captured by a belligerent in Delaware bay, which he regarded as territorial water, should be restored to the United States, but as the vessel was no longer infra praesidia, no question of a federal court's prize jurisdiction arose. In several cases where the United States has been belligerent, the neutral state's right to prizes captured in its territorial waters has been upheld25 but apparently the courts have never had a direct United States was held liable in damages for the seizure of a vessel in Chilean territorial waters. See Moore, Digest of International Arbitrations, 3;3067-3071.

21 Rose vs. Himely, 4 Cranch 241, (1808).
22The Alerta, 9 Cranch, 359, 364, (1815).
23 Revised Statutes, Sec. 5287. Penal Code of 1910, sec. 14.

24 The Grange, I op. 33, (1793). On request this vessel was returned by the capturing belligerent power. Moore's Digest, 7;1086.

25The Anne, 3 Wheat. 435, (1818); The Florida, 101 U. S. 37, (1879); The Sir Wm. Peel, 5 Wall. 517; The Adela, 6 Wall. 266. In Stewart vs. United States, i Ct. C1. 113, (1864), the court asserted that the United


opportunity to assert jurisdiction over such a prize while the country was neutral.

(2) In the case of prizes captured by vessels which previously had violated the United States neutrality laws, the exercise of jurisdiction by courts is implied in the neutrality statutes, 26 and has been frequently exercised. During the wars immediately following the French revolution, American adventurers, moved by republican sympathy for revolutionary France and possibly fully as much by hopes of gain, frequently fitted out privateers in American ports, obtained French Letters of Marque and forthwith cruised against England, with whom France was at war. It often happened that prizes made by these vessels would be brought into American ports in accordance with the right claimed by France under the treaty of 1778;27 in which case a representative of the original neutral or English owner, generally the English consul, would file a libel for restitution. The court from the first assumed prize jurisdiction in such cases, 28 and in several cases restored the vessel.29 A similar situation arose during the revolutionary struggles of the South American republics against Spain and Portugal. Again thoughts of pecuniary gain and republican sympathy combined States had a just claim against Portugal for permitting a prize to be recaptured by Great Britain in her territorial waters during the war of 1812, and that Portugal had a just claim against Great Britain for performing this act. Indemnity had been obtained from Portugal for some of these seizures by the treaty of 1851. See Malloy treaties, p. 1458, and also General Armstrong Arbitration, Moore, Int. Arb., 2;1071. Commodore Stewart's claims having been ignored in this settlement, it was held he had no claim against the United States. Supra, p. 107.

26 Revised Statutes, sec. 5287, Penal Code of 1910, sec. 14. Supra. p. 131, note II.

27Treaty with France, 1778-1798, art. 17,22, Malloy treaties, p. 474.

28 Talbot vs. Jansen, 3 Dall. 133, (1796); Moodie vs. The Alfred, 3 Dall. 307, (1796); Moodie vs. The Phoebe Ann, 3 Dall. 319, (1796); Geyer vs. Michel and the Ship Den Onzekeron, 3 Dall. 285; Moodie vs. The Betty Carthcart, Fed. Cas. 9, 742,3 Dall. 288, note; Wilkinson vs. The Betsey, Fed. Cas. 17,750, (1799); Moodie vs. The Brothers, Fed. Cas. 9,743, (1799); British Consul vs. The Nancy, Fed. Cas. 1898, (1799); Moodie vs. The Amity, Fed. Cas. 9741.

2°Restoration was decreed to a neutral Dutch claimant in Talbot vs. Jansen, 3 Dall. 133, (1796), and to an English claimant in Moodie vs. The Betty Carthcart, Fed. Cas. 9,742, 3 Dall. 288, note, and British Consul vs. The Nancy, Fed. Cas. 1898, (1799).

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