country, although it cannot itself condemn, from permitting the exercise of that final act of hostility,' etc. For the same reason, the condemnation of a capture cannot be pronounced in the prize-court of a neutral; for, as the government of the captor is answerable to other States for such condemnation, it is proper that it should be made by its own courts. Moreover, if the courts of neutral countries were allowed to determine such questions, their decisions would inevitably involve their respective governments in hostilities with one or the other of the belligerent parties, or with other neutral States, the property of whose citizens might be condemned for some violation of neutral duties. Their exclusion rests not only on the fact that the exercise of this authority would be inconsistent with the neutral character, but, also, on the well-established practice and usage of nations.' § 3. There are two apparent exceptions to this exclusive jurisdiction of the prize-courts of the captor's country over questions of prize: first, where the capture is made within the territory of a neutral State, and, second, where it is made by a vessel fitted out within the territory of the neutral State. In either of these cases, the judicial tribunals of such neutral State have jurisdiction to determine the validity of captures so made, and to vindicate its own neutrality by restoring the property of its own subjects, or of other States in amity with it. 'A neutral nation,' says the Supreme Court of the United States, which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law which may arise in the progress of such discussion. But it is no departure from this obligation, if, in a case in which a captured vessel be brought, or voluntarily comes infra 1 Kent, Com. on Am. Law, vol. i. p. 103; Wheaton, Elem. Int. Law, pt. iv. ch. ii. §§ 13, 16; Phillimore, On Int. Law, vol. iii. §§ 365, et seq. ; Hubner, De la Saisie des Bâtiments, etc., liv. i. ch. xi., § 8; Martens, Précis du Droit des Gens, liv. viii. ch. vii. § 312; the 'Flad Oyen,' 1 Rob., 135; the 'Perseverance,' 2 Rob., 240; the Kierlighett,' 3 Rob., 95; Havelock v. Rockwood, 8 Durn. & East, 268; Donaldson v. Thompson, 1 Cowp., 429; the Invincible,' 2 Gallis. R., 28; 1 Wheat. R., 238; Maissonnaire . Keating, 2 Gallis. R., 224; the Finlay and William,' 1 Peters R., 12; Wheelright v. Depeyster, 1 Johns. R., 471; Page v. Lenox, 15 Johns. R., 172. præsidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on its own neutrality by the vessel which has made the capture. So long as a nation does not interfere in the war, but professes an exact impartiality toward both parties, it is its duty, as well as right, and its safety, good faith and honour demand of it, to be vigilant, in preventing its neutrality from being abused, for the purpose of hostility against either of them. . . . In the performance of this duty, all the belligerents must be supposed to have an equal interest; and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored.' These are not, properly considered, exceptions to the general rule of prize jurisdiction, but are cases where the courts of a neutral State are called upon to interfere for the purpose of maintaining and vindicating its neutrality.' § 4. Attempts have been made by some States to give to their own tribunals prize jurisdiction of all captured property brought within their territorial limits. Such a municipal regulation was made by France, in 1681, and its justice was defended on the ground of compensation for the privilege of asylum granted to the captor and his prizes in a neutral port. 'There can be no doubt,' says Mr. Wheaton, 'that such a condition may be 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. 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 1 The 'Estrella,' 4 Wheat. R., 298; the 'Santissima Trinidad,' 7 Wheat. R., 284; 'La Amistad de Rues,' 5 Wheat. R., 385; Brig Alert and Cargo v. Blas Moran, 9 Cranch. R., 359; 'La Concepcion,' 6 Wheat. R., 235; Talbot v. Jansen, 3 Dallas R., 133. belligerent country, which alone has jurisdiction of the question of prize or no prize.' ' § 5. The rule has sometimes been varied by treaty stipulations. Thus, in the treaty between the United States and the Republic of Columbia in 1825, art. 21, and between the United States and Chile in 1832, art. 21, it was agreed that the established courts for prize cases in the country to which the prizes may be conducted, should alone take cognizance of them. But it must be observed that such stipulations can bind only those who make the engagements. The courts of neutral States would not be bound to exercise such jurisdiction, nor could States not parties to the treaty be debarred from claiming the right of trial by their own prize-courts, which alone, under the general law of nations, have jurisdiction of prize causes.2 § 6. There is evidently a wide distinction between the ordinary municipal tribunals of the State, proceeding under the municipal laws as their 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,' says Wheaton,3' acquire jurisdiction over the person or property of a foreigner, either expressed by his voluntarily bringing the suit, or implied by the fact of his bringing his person or property within their 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.' From 1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 14. 2 United States Statutes at Large, vol. viii. pp. 316, 439. this evident and wide distinction between ordinary cases of litigation, under municipal law, and the condemnation of maritime captures, under the law of nations, there has resulted the rule that no court can have prize jurisdiction unless it be expressly made a prize tribunal by the authority of the State to which it belongs. But, the organization of the court, and the manner of exercising this jurisdiction, must depend upon the constitution and local laws of each State, and are different in different countries.1 7. The English Court of Admiralty is divided into two distinct tribunals, one of which is called the instance court, and the other the prize-court; the former having generally all the jurisdiction of the Admiralty, except in prize cases, and the latter, acting under a special commission, distinct from the usual commission given to judges of the Admiralty, to enable the judge, in time of war, to assume the jurisdiction of prizes. 'The manner of proceeding,' says Lord Mansfield, 'is totally different. The whole system of litigation and jurisprudence in the prize-court is peculiar to itself; it is no more like the court of Admiralty than it is to any other court in Westminster Hall.' The courts of Westminster Hall never have attempted to take cognizance of the question, prize or no prize; not from the locality of being done at sea, as I have said, but from their incompetence to embrace the whole of the subject.'? 1 A prize-court is in its very constitution an international tribunal, controlled by the law of nations, not by municipal law (United States v. Bales of Cotton, Rev. Cas., 2), but a municipal seizure is regulated by municipal law.-Hudson v. Guestier, 4 Cranch., 293. Courts established in a foreign country, by the command of an invading force, can have no jurisdiction in cases of prize.-Jecker v. Montgomery, 13 How., 498. The Court of Admiralty has jurisdiction to entertain prize proceedings commenced after the cessation of war.-Cargo ex Katharina, 30 L. 7. Adm., 21. A court of Common Law cannot even incidentally decide a question of prize. Maissonnaire v. Keating, 2 Gall., 325; Bingham v. Cabbott, 3 Dall. 19. Questions of prize, or no prize, are exclusively of Admiralty jurisdiction. -Ibid. The question of prize or no prize, or by whom taken, cannot be tried at Common Law.-Mitchell v. Rodney, 2 Bro. P. C., 423. 2 Lindo v. Rodney, Doug. R., 613; Ex parte Lynch, 1 Madd. R. 15. The following opinion, on the general principles of proceeding in prize courts, was drawn up in the form of a letter to Mr. Jay, on the behalf and at the request of the Government of the United States, by Sir W. Scott and Sir J. Nichol, in 1794, as follows: We have the honour of transmitting, agreeably to your Excellency's § 8. The constitution of the United States extends the judicial power' to all cases of Admiralty and maritime jurisdiction.' request, a statement of the general principles of proceeding in prize causes, in British courts of Admiralty, and of the measures proper to be taken when a ship and cargo are brought in as prize within their jurisdiction. 'The general principles of proceeding cannot, in our judgment, be stated more correctly than we find them laid down in the following extract from a report made to his late Majesty in the year 1753, by Sir G. Lee, then judge of the Prerogative Court, Dr. Paul, his Majesty's Advocate-General, Sir D. Rider, his Majesty's Attorney-General, and Mr. Murray (afterwards Lord Mansfield), his Majesty's Solicitor General : "When two powers are at war, they have a right to make prizes of the ships, goods, and effects of each other, upon the high seas; whatever is the property of the enemy, may be acquired by capture at sea; but the property of a friend cannot be taken, provided he observes his neutrality. "Hence the law of nations has established, ""That the goods of an enemy, on board the ship of a friend, may be taken. "That the lawful goods of a friend, on board the ship of an enemy, ought to be restored. "That contraband goods, going to the enemy, though the property of a friend, may be taken as prizes; because supplying the enemy with what enables him better to carry on the war, is a departure from neutrality. "By the maritime law of nations, universally and immemorially received, there is an established method of determination, whether the capture be, or be not, lawful prize. ""Before the ship, or goods, can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize, in a court of Admiralty, judging by the law of nations and treaties. ""The proper and regular court for these condemnations is the court of that State to whom the captor belongs. ""The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken-viz., the papers on board, and the examination on oath of the master, and other principal officers; for which purpose there are officers of Admiralty in all the considerable sea-ports of every maritime power at war, to examine the captains, and other principal officers of every ship, brought in as a prize, upon general and impartial interrogatories: if there does not appear from thence ground to condemn, as enemy's property, or contraband goods going to the enemy, there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful, that it is reasonable to go into further proof thereof. ""A claim of ship, or goods, must be supported by the oath of somebody, at least as to belief. "The law of nations requires good faith: therefore every ship must be provided with complete and genuine papers; and the master, at least, should be privy to the truth of the transaction. ""To enforce these rules, if there be false or colourable papers; if any papers be thrown overboard; if the master and officers examined in preparation grossly prevaricate; if proper ship's papers are not on board; or if the master and crew cannot say, whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehaviour, or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant, in case of acquittal and restitution: on the other hand, if a seizure is made without probable cause, the captor is adjudged |