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.

20 This 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, 1 op. 33, (1793). On request this vessel was returned by the capturing belligerent power. Moore's Digest, 7;1086.

25 The 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, 1 Ct. Cl. 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, 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.

27 Treaty 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.

29 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).

to lure American privateers into the fray, and frequent cases appear in the reports with the Spanish or Portuguese consul as libellant. Again the United States courts asserted jurisdiction and as before they generally decreed restitution to the original owner.30 The effrontery with which these privateers sometimes put forth their claims was astonishing. On several occasions the expeditions appear to have been nothing short of piracy, as captures were made before any commission was obtained from the South American insurgents. Under such circumstances the owner of the privateer would put forth a claim of expatriations or of a sale of the privateer to a fictitious South American party,32 claims which were for the most part ignored by the court.33

30 Restitution was denied in La Amistad de Rues, 5 Wheat. 385, (1820); the case was remanded for further evidence in The Divina Pastora, 4 Wheat. 52, (1814) and in the following cases restitution was decreed: The Brig Alerta vs. Moran, 9 Cranch, 359, (1815) The Estrella, 4 Wheat. 298, (1819); La Conception, 6 Wheat. 235, (1821) The Bello Corrunes, 6 Wheat. 152, (1821); The Santissima Trinidad, 7 Wheat. 285, (1827); The Gran Para, 7 Wheat. 471, (1822); The Arrogante Barcelones, 7 Wheat. 496, (1822); The Santa Maria, 7 Wheat. 490; The Monte Allegre, 7 Wheat. 520, (1822); The Nereyda, 8 Wheat. 108, (1823); The Fanny, 9 Wheat. 659, (1824).

31 The Gran Para, 7 Wheat. 471, (1822).

32LaNereyda, 8 Wheat. 108, (1823); The Monte Allegre, 7 Wheat. 520,

(1822).

33 In some dicta in cases of this character the court expressed the opinion that a bone fide transfer of the prize to an innocent third party destroyed the taint of illegality, (The Arrogante Barcelona, 7 Wheat. 496, 1822) but where such a case arose restitution of the prize was decreed (The Fanny, 9 Wheat. 658, 1824). A bona fide sale of the privateer after the illegal outfit in the United States was held to remove the taint of illegality from subsequent captures but such sale must be clearly proved (The Monte Allegre, 7 Wheat. 520, 1822; Moodie vs. The Alfred, 3 Dall. 307, 1796). It was held that making of repairs with augmentation of force did not amount to a breach of neutrality and consequently did not make prizes illegal (Moodie vs. The Phoebe Ann, 3 Dall. 319, 1795; Geyer vs. Michel and the Ship Den Onzekeran, 3 Dall. 285). A sale in the United States of prizes captured under a French commission, being impliedly permitted by the French treaty of 1778, (art. 17, 22, Malloy, p. 474) was held to be no breach of neutrality and hence did not make the prize illegal, (Moodie vs. The Amity, Fed. Cas., 9741). The United States never admitted that France had an absolute right of sequestrating and selling prizes in the United States under this treaty (Moore's Digest, 7:936). Such sales are now forbidden by international law (Hague Conventions, 1907, XIII, art.

It appears that the law of the United States permits of courts exercising jurisdiction over illegal prizes and disposing of them in a manner to fulfill the state's neutral obligation of vindication. It must be noted that the exercise of this jurisdiction implies custody of the prize. If the prize is in a foreign port the United States courts have no jurisdiction, although the case may be such that the government of the United States is under an obligation to demand its return.34

ILLEGAL ACTS BY BELLIGERENT WARSHIPS.

The duty of vindication following an illegal act by a belligerent warship may involve the exercise of jurisdiction, (1) over the officers and crew of the vessel or (2) over the vessel itself. Formerly a distinction was drawn between cases involving public warships and those involving privateers. As privateering is now technically abolished this distinction is no longer important, and even before its abolition the courts declared that for most legal purposes privateers, bearing a commission of the sovereign, were in the same status as public warships.35

(1) It was held in an opinion of Attorney General Nelson in 184436 that, although belligerent public vessels themselves are not subject to the jurisdiction of United States courts, their commander and officers are and can be criminally prosecuted for breaches of the neutrality statutes. He said, "the very purpose of the act would be defeated were it otherwise; and there is no principle of which I am aware which exempts from responsibility for criminal acts within our jurisdiction the commander or officers of ships of war of other nations with whom we are at peace.' While there seem to be no cases in which prosecution of the officers of men of war has been under21, Malloy, p. 2361; Moore's Digest, 7;935-938). In any case a bone fide condemnation in a recognized court was held to transfer title conclusively, in the prize, but the condemnation must be satisfactorily evidenced (La Nereyda, 8 Wheat. 108, 1823). Where none of these circumstances intervened, restitution to the original owner was decreed, but claims for further damages by the injured owner of the prize were denied (LaAmistad de Rues, 5 Wheat. 385). Supra p. 108, note 7.

34See Hague Conventions, 1907, xiii, art. 3, Malloy, p. 2359 and United States understanding of it, Senate Resolution of Apr. 17, 1908, Malloy, p. 2366.

35L'Invincible, 1 Wheat. 238, (1816).

36 Nelson, Att. Gen., 4 op. 336, (1844).