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and it is now every where recognised as the law and practice of nations."
The condemnation must be pronounced by a prize court of the government of the captor, sitting either in the country of the captor or of his ally. The prize court of an ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason of this rule is said to be, that the sovereign of the captors has a right to inspect their behaviour, for he is answerable to other states for the acts of the captor. The prize court of the captor may sit in the territory of the ally, but it is not lawful for such a court to act in a neutral territory. Neutral ports are not intended to be auxiliary to the operations of the power at war, and the law of nations has clearly ordained, that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. This prohibition rests not merely on the unfitness and danger of making neutral ports the theatre of hostile proceedings, but it stands on the ground of the usage of nations.
It was for some time supposed that a prize court, though sitting in the country of its own sovereign, or of his ally, had no jurisdiction over prizes lying in a neutral port, because the court wanted that possession which was deemed essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted to be correct by Sir William Scott, in the case of the Henrick & Maria,d and he acted
a Flad Owen, 1 Rob. 117. Henrick and Maria, 4 Rob. 45. Vattel, b. 3. c. 14. sec. 216. Heineccii, Opera, edit. Geneva, 1744, tom. 2. 310. 360. 5 Rob. 294. Doug. 591. 8 Cranch, 226. 4 Wheaton, 298. 6 Taunton, 25. 2 Dallas, 1, 2. 4.
b Rutherforth's Institutes, b. 2. c. 9.
c Glass v. The Sloop Betsey, 3 Dallas, 6. Flad Owen, 1 Rob. 114. Havelock v. Rockwood, 8 Term, 268. Oddy v. Bovill, 2 East, 475. Answer to the Prussian Memorial, 1753. L'Invincible, 1 Wheat. 228. The Estrella, 4 Wheat. 298.
d 4 Rob. 43
upon it in a prior case." But he considered that the English admiralty had gone too far, in supporting condemnations, in England, of prizes abroad in a neutral port, to permit him to recall the vicious practice of the court to the acknowledged principle; and the English rule is now definitively settled, agreeably to the old usage, and the practice of other nations. The Supreme Court of the United States has followed the English rule, and it has held valid the condemnations, by a belligerent court, of prizes carried into a neutral port, and remaining there. This was deemed the most convenient practice for neutrals, as well as for the parties at war, and though the prize was in fact within a neutral jurisdiction, it was still to be deemed under the control, or sub potestate, of the captor.
Sometimes circumstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to ransom it. It was formerly the general custom to redeem property from the hands of the enemy by ransom, and the contract is undoubtedly valid, when municipal regulations do not intervene. It is now but little known in the commercial law of England, for several statutes in the reign of Geo. III. absolutely prohibited to British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity, to be judged of by the court of admiralty. A ransom bill, when not locally prohibited, is a war contract, protected by good faith and the law of nations; and notwithstanding that the contract is considered in England as tending to relax the energy of war, and
a Note to the case of the Herstelder, 1 Rob. Adm. Rep. 100. Edit. Phil. 1810.
b 6 Rob. Rep. 138. Note to the case of the schooner Sophie. Smart v. Wolf, 3 Term Rep. 823. Bynk. by Duponceau, p. 38. note. Hudson v. Guestier, 4 Cranch, 293. Williams v. Armroyd, 7 Cranch, 423.
c 1 Chitty on Comm. Law, 428..
deprive cruisers of the chance of recapture, it is, in many views, highly reasonable and humane. Other maritime nations regard ransoms as binding, and to be classed among the few legitimate commercia belli. They have never been prohibited in this country; and the act of Congress of August 2d, 1813, interdicting the use of British licenses or passes, did not apply to the contract of ransom.
The effect of a ransom is equivalent to a safe conduct granted by the authority of the state to which the captor belongs, and it binds the commanders of other cruisers to respect the safe conduct thus given, and under the implied obligation of the treaty of alliance, it binds equally the cruisers of the allies of the captor's country. From the very nature of the connexion between allies, their compacts with the common enemy must bind each other, when they tend to accomplish the objects of the alliance. If they did not, the ally would reap all the fruits of the compact, without being subject to the terms and conditions of it; and the enemy with whom the agreement was made, would be exposed, in regard to the ally, to all the disadvantages of it, without participating in the stipulated benefits. Such an inequality of obligation is contrary to every principle of reason and justice.
The safe conduct implied in a ransom bill, requires that the vessel should be found within the course prescribed, and within the time limited by the contract, unless forced out of her course by stress of weather, or unavoidable necessity. If the vessel ransomed perishes by a peril of the sea, before arrival in port, the ransom is, nevertheless, due, for the captor has not insured the prize against the perils
a 2 Azuni on Maritime Law, ch. 4. art. 6. 1 Emerigon, ch. 12. sec. 21. 2 Valin, art. 66. p. 149. Le Guidon, ch. 6. art. 2. Grotius, b. 3. c. 19. 15 Johnson, 6. Goodrich v. Gordon.
b 2 Dallas, 15. Miller v. The Resolution.
c Miller v. Miller. 2 Dallas, 15. Pothier, Traité du Droit de Propriété, No. 134.
of the sea, but only against recapture by cruisers of his own nation, or of the allies of his country. If there should be a stipulation in the ransom contract, that the ransom should not be due if the vessel was lost by sea perils, the provision ought to be limited to total losses by shipwreck, and not to mere stranding, which might lead to frauds, in order to save the cargo at the expense of the ship."
If the vessel should be recaptured out of the route prescribed by the contract for her return, or after the time allowed for her return, and be adjudged lawful prize, it has been made a question whether the debtors of the ransom are discharged from their contract. Valin' says, that, according to the constant practice, the debtors are discharged in such case, and the price of the ransom is deducted from the proceeds of the prize, and given to the first captor, and the residue goes to the second taker. So, if the captor himself should afterwards be taken by an enemy's cruiser, together with his ransom bill, the ransom becomes part of the lawful conquest of the enemy, and the debtors of the ransom are, consequently, discharged.
In the case of Ricard v. Bettenham, an English vessel was captured by a French privateer in the war of 1756, and ransomed, and a hostage given as a security for the payment of the ransom bill. The hostage died while in possession of the French, and it was made a question in the K. B. in a suit brought upon the ransom bill after the peace, whether the death of the hostage discharged the contract, and whether the alien could sue on the ransom bill in the English courts. It was shown, that such a contract was valid among the other nations of Europe, and that the owner of the bill was entitled to sue upon it, and that it was not discharged by the death of the hostage, who was taken as a mere col
a Pothier, Traité du Droit de Propriété, No. 138.
b Ord. des Prises, art. 19.
c Pothier, Traité de Propriété, No. 139, 140.
d 3 Burr. 1731.
lateral security, and the plaintiff was, accordingly, allowed to recover. But it has been since decided, and it is now understood to be the law, that, during war, and while the character of alien enemy continues, no suit will lie in the British courts, by the enemy, in proper person, on a ransom bill, notwithstanding it is a contract arising jure belli. The remedy to enforce payment of the ransom bill for the benefit of the enemy captor, is by an action by the imprisoned hostage, in the courts of his own country, for the recovery of his freedom. This severe technical objection would seem to be peculiar to the British courts, for it was shown, in the case of Ricard v. Bettenham, to be the practice in France and Holland, to sustain such actions by the owner of the ransom contract. Lord Mansfield considered the contract as worthy to be sustained by sound morality and good policy, and as governed by the law of nations, and the eternal rules of justice. The practice in France, when a French vessel has been ransomed, and a hostage given to the enemy, is for the officers of the admiralty to seize the vessel and her cargo, on her return to port, in order to compel the owners to pay the ransom debt, and relieve the hostage; and this is a course dictated by a prompt and liberal sense of justice.
The recapture of the ransom bill, according to Valin,a puts an end to the claim of the captor. He may be deprived of the entire benefit of his prize, as well as of the ransom bill, either by recapture or rescue, and the questions arising on them lead to the consideration of postliminy and salvage. Upon recapture from pirates, the property is to be restored to the owner, on the allowance of a reasonable compensation to the retaker, in the nature of salvage; for it
a Anthon v. Fisher, Doug. 649. note. 1 Rob. 169. The Hoop. b Cornu v. Blackburne, Doug. 641. c Pothier de Propriété, No. 144.
d Tom. 2. liv. 3. tit. 3. art. 19.