86

and to furnish a written statement of the reason for condemnation, on request. Statutes,84 instructions to naval forces85 and numerous decisions of prize courts have also insisted on the necessity of a legal adjudication of prizes before passage of title or complete ousting of the right of the original neutral owner. The United States has also recognized the duty of observing certain limitations in the establishment of its prize courts. Although France established prize courts in territory of the United States in the wars following the French revolution, the United States never acknowledged its right to do so, and in the Hague conventions of 190788 it was provided that prize courts should not be set up on neutral territory or on a vessel in neutral waters. The courts have held that prize courts may be established in the country's jurisdiction or in occupied enemy territory.89

(2) The power to establish a prize court of appeal was given to congress in the Articles of Confederation and also the power to "establish rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated." The court, consisting of a committee of congress established under this authority by the continental congress, had simply appellate jurisdiction over state courts

84 Rev. Stat. sec. 4615-4617.

85 Instructions, June 20, 1898, art. 20-23, For. Rel. 1898, p. 781; Moore's Digest, 7;514; Stockton's Naval War Code, 1900-1904, art. 46-50.

86 The Dos Hermanos, 2 Wheat. 76; The Pizarro, 2 Wheat. 227; The Adventure, 8 Cranch 221, (1814); Grundy Att. Gen., 3 op. 377, (1838), The Nassau, 4 Wall, 634; Moore's Digest, 7;623-631.

87 See Fenwick, The Neutrality Laws of the United States, p. 18. At the time of the Revolutionary war it was common to take prizes into neutral ports where they were adjudicated by the local courts of admiralty, although it was even then regarded as an act approaching a breach of neutral duty. The United States on several occasions took prizes into French and Spanish ports. See G. W. Allen, A Naval History of the American Revolution, N. Y., 1913, 1;255,274: 2;537,538.

88 Hague Conventions, 1907, xiii, art. 4, Malloy, p. 2359.

89 The Grapeshot, 9 Wall. 129. The authority of the president as commander in chief to establish prize courts in conquered territory was upheld in the Grapeshot but denied in Jecker vs. Montgomery, 13 How. 498, which held that Congress alone could create courts with a prize jurisdiction. See Moore's Digest, 7:585.

90 Articles of Confederation, art.. 9; Resolution of Nov. 25, 1775, sec. 6, Jour. Cong. 1:242, Ford. ed. 3:373. See note on these courts with references, Scott 10..

of admiralty, the establishment of which with a prize jurisdiction was recommended to the colonial legislatures by a resolution of congress.91

92

By the constitution the judicial power of the United States is declared to extend over "all cases of admiralty and maritime jurisdiction." By the judiciary act of 1789 the jurisdiction of the federal courts over prizes has been made exclusive, thereby barring any possible jurisdiction in state courts, and original jurisdiction in prize causes has been given exclusively to federal district courts,93 thus limiting higher federal courts including the supreme court to appellate jurisdiction in such cases. The prize jurisdiction of district courts is complete, including all matters relating to the disposition of vessels seized jure belli, or by authority of statutes such as embargo, non-intercourse and revenue acts. The admiralty jurisdiction, both instance and prize, exists constantly, and no specific commission on the outbreak of war is necessary for the exercise of prize jurisdiction;94 thus when the

91 Resolution of Nov. 25, 1775, sec. 4-6, Jour. Cong. 1;242, Ford. ed. 3:373. See Moore's Digest, 7;585. Before the passage of this resolution, on Nov. 1, 1775, the general court of Massachusetts had established prize courts, the first ever erected by an independent state in the western hemisphere. See Acts and Resolutions of Province of Massachusetts Bay, 1886, 5;436.

92 Act. Sept. 24, 1789, I stat. 76,, sec. 9; rev. stat., sec. 711, cl. 3, 4; Judicial code, 1911, act March 3, 1911, 36 stat. 1087, sec. 256, cl. 4. The admiralty jurisdiction of which prize jurisdiction is a part was held to be exclusive in federal courts in The Hine vs. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 625.

93 Act Sept. 24, 1789, I stat. 76, sec. 9; rev. stat., sec. 563, cl. 8; Judicial code of 1911, 36 stat. 1087, sec. 24, cl. 3. See Ketland vs. The Cassius, 2 Dall. 365, (1796).

94 Prize jurisdiction may have been originally inherent in courts of admiralty in England, but it was quite early recognized as distinct from the instance jurisdiction and as exercisable only under special commission, see Lindo vs. Rodney, 2 Doug. 614, (1781) W. S. Holdsworth, A History of English Law, 3 Vol., London, 1907, 1;330. By the naval prize act of 1864, (27-28 Vict. c 25, sec. 4) a permanent prize jurisdiction was given to the High Court of admiralty, which was vested in the High Court by the Judicature act of 1873, (36-37 Vict. c. 66, sec. 4-18). By the Prize courts act of 1894, (57-58 Vict. c. 39), commissions giving a prize jurisdiction to vice-admiralty courts might be issued in time of peace to become effective by the outbreak of war. See, The Earl of Halsbury, ed., The Laws of England, 27 vol., London, 1912, 23;285, Pitt Cobbett, Cases and Opinions on International Law, 3rd. ed., 2 vols., London, 1909, 2;190.

country is neutral the jurisdiction may be exercised over vessels violating neutrality, and in times of peace over vessels of pirates and unrecognized insurgents committing depradations against commerce.95

(3) By the international prize court convention of the second Hague conference, ratification of which with an amending protocol was recommended by the senate on February 15, 1911,9* the United States has consented to submit to the decision of the international prize court in certain prize cases arising in wars in which all of the belligerents are parties to the convention. By the protocol proposed by the United States in 1910 on account of the constitutional impossibility of an appellate authority above the supreme court, it is provided that an original action. for damages against the captors may be brought in the international prize court. Technically therefore in the case of the United States the international prize court would not have jurisdiction to determine the validity of the title to prizes, but the effect of the decision would be the same. The international prize court has not been established up to date.

The convention provides that in deciding cases the court is to be governed by treaties if any bear on the controversy, by international law if settled or in the absence of either by "general principles of justice and equity." On account of this somewhat vague description of the law to be applied the London Naval Conference of 1909 was called to draw up a code of prize law. Owing to the failure of the Declaration of London, proposed by this conference to secure general ratification, no immediate prospect of the establishment of the court is in view.98 The firm establishment of such an international court would undoubtedly be a most potent agency for preventing injury to neutral persons by belligerent naval forces.

99

(4) Prize jurisdiction is ordinarily exclusive in the courts of the country of the capturing belligerent power. It is essen95 Glass vs. The Betsey, 3 Dall. 6, (1794). Supra p. 33 et seq., 131 et seq.

96 Hague Conventions, 1907, xii, Charles, Treaties, 1913, p. 248. 97 Charles, Treaties, 1913, p. 262.

98On the status of the Declaration of London in 1914 see Editorial comment, Am. Jour. Int. Law, 9;199, Jan. 1915.

99L'Invincible, 1 Wheat. 238, 261; The Estrella, 4 Wheat. 298; U. S. vs. Peters, 3 Dall. 121, (1795). In a number of treaties to which the United States is a party, it is provided that prizes of either party when belligerent shall be exempt from the jurisdiction of the other when tem

tially a jurisdiction in rem, extending over seizures jure belli from neutrals or enemies upon the high seas or in territorial waters within the admiralty jurisdiction.100 Actual possession of the vessel in question, however, is not necessary. The jurisdiction may be exercised over a vessel sequestrated in a neutral port,101 sold,102 ransomed,103 or sunk,104 and according to law a decision must be given in all of these cases before the seizure and disposition of the prize can be regarded as legitimate. The ordinary case is where the vessel has been brought into port and has been put according to a provision of statute into the custody of an officer of the court.

Seizures of foreign vessels made in pursuance of local regulations such as the embargo and non-intercourse acts are legitimate only when made in the territorial jurisdiction of the United States, but subject to this limitation are treated in the same manner as prizes jure belli.105 The same is true of vessels violating the neutrality of the United States. They also may only be seized in territorial waters.1 106 The seizure of pirate vessels,107 vessels of unrecognized insurgents committing depredations on commerce 108 and vessels engaged in acts internationally condemned, as the slave trade,109 is permitted on the high seas porarily taken into its ports. Supra, p. 186, note 74. For exceptions to the exclusive jurisdiction of the captor power's courts over prizes see Moore's Digest, 7;592. Supra, p. 134 et seq.

100 Schooner Adeline, 9 Cranch 244, Speed, Att. Gen., II op. 445, (1866); Note on prize law, I Wheat. App. II; 2 Wheat. App. I; 5 Wheat. App. p. 52.

101 Jecker vs. Montgomery, 13 How. 498; The Advocate, Blatch. 142; The Arrabella and the Madiera, 2 Gall. 368.

102 Williams vs. Amroyd, 7 Cranch 423, (1819).

103 Maissonaire vs. Keating, 2 Gall. 324, 337, (1815); Miller vs. The Resolution, 2 Dall. 1, 15, (1781). See Moore's Digest, 7;533.

104 The Edward Barnard, Blatch, 122; The Schooner Zavalla, Blatch, 173. See also Moore's Digest, 7;590.

105 Rose vs. Himeley, 4 Cranch, 241, (1808); Gelston vs. Hoyt, 3 Wheat. 246.

106 The Estrella, 4 Wheat. 298, (1819); The Alerta, 9 Cranch 359, (1815).

107 The Ambrose Light, 25 Fed. Rep. 408, (1885).

108 The Three Friends, 166 U. S. 1, (1897); The Ambrose Light, 25 Fed. Rep. 408. (1885).

109 General act for the Repression of the African Slave Trade, 1890, Malloy, p. 1964. In the Antelope, 10 Wheat. 66, 122, (1825) Chief Justice Marshall denied the legitimacy of seizures for slave trading beyond territorial jurisdiction in the absence of treaty.

by countries at peace and in such cases the United States courts exercise a prize jurisdiction. It should be noted that statutes may confer a jurisdiction over seizures on the high seas not recognized or permitted by international law, and the prize courts are bound to exercise it.110

In order to confer a prize jurisdiction the seizure must be on the high seas or in territorial waters within the admiralty jurisdiction. Seizures on land confer no prize jurisdiction in the United States.111

Although prize jurisdiction is essentially a jurisdiction in rem, the duty of the court being to settle the title to the vessel itself and its cargo, yet it is not entirely so. Incidental to the disposition of the prize, claims for damages may arise, and it may be necessary to determine the rights of claimants for freight, liens, insurance, etc. All of these matters come within the jurisdiction of prize courts of the United States.112

(5) The functions of prize courts are (a) to determine upon the legality of seizures, (b) to determine the title to prizes and (c) to dispose of the proceeds in case of condemnation.

By their authority to decide whether the seizure was justifiable, and in case it was without probable cause to decree damages against the naval officers making it, prize courts may aid in the prevention of injury to neutral persons by such officers.

In determining the title to the prize, the court adjudicates the respective claims of the belligerent government to condemnation and the neutral owner to restitution. It thus enforces the duty of the government to abstain from illegal confiscation of neutral property. In disposing of the proceeds of condemned prizes the court may further prevent infractions of neutral rights by naval forces.

The law applied by prize courts of the United States in

110 The Amy Warwick, 2 Sprague 123; Murray vs. The Charming Betsey, 2 Cranch 64; Talbot vs. Seaman, I Cranch 1; Moore's Digest, 2;914. In the absence of statute the jurisdiction of prize courts is determined by international law. The Schooner Adeline, 9 Cranch 244, Moore's Digest, 7:599. In reference to British claims to prize jurisdiction over extraterritorial seizures of foreign vessels in suppressing the slave trade see supra p. 35.

111 Brown. vs. U. S., 8 Cranch 110, (1814). In England prize courts were given jurisdiction over booty seized by land forces by statute in 1840, 3-4 Vict. c. 55, sec. 22; Banda and Kirwee Booty, L. R. 1 Adm. and Ecc., 109, (1866).

112 Moore's Digest, 7;593-603, Infra p. 193, note 13.