tral territory, nor can its authority be delegated to any tribunal sitting in neutral territory. The reason of this rule is obvious. Neutral ports are not intended to be auxiliary to the operations of the belligerents, and it is not only improper but dangerous to make them the theatre of hostile proceedings. A sentence of condemnation by a belligerent prize-court in a neutral port is, therefore, considered insufficient to transfer the ownership of vessels or goods captured in war, and carried into such port for adjudication. This question was first decided by the Supreme Court of the United States in 1794, and in 1799 it was re-examined and discussed at much length by Sir William Scott, who decided that an enemy's prize-court, in neutral territory, could not lawfully condemn.1

12. The objections made to the establishment of a prizecourt in neutral territory would not apply to conquered territory in the possession and military occupation of the captors. Such territory is de facto within the jurisdiction of the conqueror, and a condemnation regularly made by a prize-court legally established in such conquered territory would not be set aside for that reason alone. The legality of the court may, however, be a question of some difficulty, and must be determined by the constitution and local laws of the captor's country. It will, hereafter, be shown that, in this respect, the laws of different countries are very different; that the laws of Great Britain instantly extend over conquered territory; but, that territory in the military occupation of the United States is not a part of the Federal union; that when the conquest is confirmed, the inhabitants of such territory become entitled to

1 Glass et al. v. the sloop' Betsey' et al., 3 Dall. R., 6; the 'Henrick and Maria,' 4 Rob., 45.

The prize-court of a belligerent cannot exercise jurisdiction, in a neutral country. The Flad Oyen,' 1 Rob., 135.

But it can, in the country of a belligerent ally.—Oddy v. Bovill, 2 East., 473.

Courts of neutral governments have no right to try the prizes taken by the ships, public or private, of another. Similarly, the liberty of a belligerent to sell prizes in a neutral territory is not a perfect right, but subject to the regulation of the neutral government.-Findlay v. the William,' 1 Pet. Adm., 12.

the British courts.

The sentence of a court of Admiralty, sitting under a commission from a belligerent power, in a neutral country, will not be recognised in For this purpose a neutral country will be one in which, although the forms of an independent neutral government are preserved, the belligerent possesses the real sovereignty.-Donaldson v. Thompson, I Camp., 429; Smith v. Surridge, 4 Esp., 25.

the rights, privileges, and immunities guaranteed by the constitution, but that the action of Congress is requisite to extend the general laws of the United States over territory, even after cession or confirmation of conquest. It has already been shown that neither the executive nor military authorities of the United States have power to establish prize-courts in conquered territory to administer the law of nations. But it is different with Great Britain; for, as the limits of the empire are extended, ipso facto, by the conquest, and as the conquered territory becomes instantly a dominion of the crown, the king, who issues prize commissions of his own authority, may erect courts there for the exercise of such jurisdiction. In speaking of the island of Heligoland, which had been taken possession of by British forces, but had not been confirmed to Great Britain by a treaty of peace, Sir William Scott remarked: 'It might have erected a court there, for the exercise of Admiralty jurisdiction; and, if it did not, I presume it refrained from so doing because it was not thought that the public convenience required it. The enemy certainly had no right to say that a court of that kind should not be there erected.'1

§ 13. The ordinary prize jurisdiction of the Admiralty extends to all captures in war made on the high seas; to captures made in foreign ports and harbours; to captures made on land by naval forces; to surrenders made to naval forces alone, or acting conjointly with land forces; to captures made in rivers, creeks, ports, and harbours of the captor's own country in time of war, and to seizures, reprisals, and embargoes, in anticipation of war. It also extends to all ransom bills upon captures; to money received as a ransom, or commutation on a capitulation to naval forces, alone or jointly with land forces; in fine, to all uses of maritime capture arising jure belli, and to all matters incidental thereto. Prize-courts also have exclusive jurisdiction and an enlarged discretion, as to allowance of freight, damages, expenses, and costs, and as to all torts, personal injuries, ill-treatments, and abuse of power, connected with maritime captures de jure belli, and they frequently award large and liberal damages in such cases. This rule rests upon the ground that where the prize-court has the sole and exclusive jurisdiction of the original matter, it ought also to have

1

Jecker et al. v. Montgomery, 13 Howard R., 515; Cross et al. v. Harrison, 16 Howard R., 165; the 'Flotina,' 1 Dod. R., 452.

such jurisdiction of all its consequences, and of everything necessarily incidental thereto. It is, therefore, held in England that the courts of Common Law can have no jurisdiction at all of such incidental questions, and this doctrine has been reaffirmed by the courts of the United States. Indeed, so far as questions have been decided by the Federal courts of the United States, they have claimed and exercised a jurisdiction equally as ample and extensive as the prize-courts of Great Britain. All cases of recapture are held to be cases of prize, and are to be proceeded with as such. It is understood in England that the Admiralty, merely by its own inherent powers, never exercises jurisdiction of captures, or seizures as prize, made on shore without the co-operation of naval forces. Such were the views of Lord Mansfield, and his opinion on this point was adopted by Sir William Scott. As before remarked, we know of no decision by the courts of the United States bearing directly upon the question; in the case of the Emulous,' although the court gave no opinion as to the right of the Admiralty to take cognisance of mere captures made on the land, exclusively by land forces, yet it was declared to be very clear, that its jurisdiction was not confined to captures at sea. But prize-courts do not, in general, take jurisdiction of questions of mere booty. If, however, the jurisdiction of a prizecourt has once attached, that is, if the capture be such as to bring it within the jurisdiction of the Admiralty, the process of the prize-court will follow the goods on shore, and its jurisdiction still continues not only over the capture, but also over all questions incident to it. So, also, if the prize should be unwarrantably carried into a foreign port and there given up by the captors on security. In this respect the prize-court holds a firmer jurisdiction than the instance court; for in cases of wreck and derelict, if the goods are once on shore or landed, the cognisance of the common law attaches.1

1

Kent, Com. on Am. Law, vol. i. p. 35, § 358; the 'Emulous,' I Gallis. R., 563; Phillimore, On Int. Law, vol. iii. §§ 126, et seq.; Elphinstone v. Bedreechund, Knapp R., 316.

Enemy's property captured by a public vessel, in an enemy's port, although it was, when seized, stored in a warehouse on land near the water, was held, under the facts, to be lawful prize. Twelve hundred and fifty-three Lags of Rice,' Blatchf. Pr. Cas., 211.

It is no legal ground of objection, to the jurisdiction of a prize-court, that the arrest was made out of its territorial authority. Under the law of nations, and by the municipal law of the United States, the court has jurisdiction, when the subject matter of suit is prize of war, without regard

§ 14. The next question for consideration, is the locality of the captured property. If it be carried into a port of the captor's country, there can be no doubt respecting the jurisdiction of the prize-court of the same country. But what particular tribunal of that country shall exercise the prize jurisdiction of a particular case, will depend, of course, upon the local laws under which such tribunals are organised, and their respective jurisdictions are assigned and limited. This is entirely a question of local law. So, also, if the captured property is carried into a port of the captor's co-belligerent, it may be adjudicated by a properly constituted prize tribunal of the captor's country; for, although the government of an ally cannot itself condemn, there is nothing to prevent it from permitting the exercise of that final act of hostility on the part of its co-belligerent, the condemnation of property captured in a common war. 'There is a common interest,' says Wheaton, 'between the two governments, and both may be presumed to authorise any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. Such an adjudication is, therefore, sufficient in regard to property taken in the course of the operations of a common war." It was at one 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. Sir William Scott admitted that, on principle, the exercise of such jurisdiction was irregular, as the court wanted that possession which was deemed essential in a proceeding in rem; but he considered that the English Admiralty had gone too far in its practice, to be recalled to the original principle. Sir William Grant, in delivering the judgment of the Court of Appeals, in the same case, expressed

to the locality of the arrest or cause of action, and it is unimportant to the question of prize or no prize, whether the capturing land and sea forces act in conjunction, or separately.-12 Stat. at L., 759; 12 Ibid., 319; 'Two hundred and eighty-two Bales of Cotton,' Blatchf. Pr. Cas., 302.

Slaves cannot be libelled as prize, under the United States Act of June 26, 1812, nor will the District court consider them as prisoners of war, their dispostion being exclusively a question of State policy with which the judiciary cannot interfere.-See Almeida' v. Certain Slaves, 5 Am. Law, 2 N. S., 459.

Books intended for a public library will not be confiscated in a prizecourt. The 'Amelia,' 4 Phil., 417.

For example of the condemnation of an enemy's vessel, in the naval service of the enemy as a gunboat, see the Ellis, Blatchf. Pr. Cas., 348.

the same opinion, and the English rule is now considered as definitively settled. The Supreme Court of the United States has followed the English rule, and has held valid the condemnation, by a belligerent court, of prizes carried into a neutral port and remaining there, the practice being justifiable on the ground of convenience to belligerents, as well as neutrals; and though the prize was, in fact, within neutral territory, it was still to be deemed under the control, or sub potestate, of the captor, whose possession is considered as that of his sovereign. It may, also, be remarked, that the rule thus established by the highest courts of England and the United States, is sanctioned by the practice of France, Spain, and Holland. But several French publicists deny its legality. For the same reason that a prize-court of the captor may condemn captured property while in a neutral port, it may condemn such property situate in any foreign port, which is in the military possession of the captor. As a general rule,' says Chief Justice Taney, delivering the opinion of the Supreme Court, 'it is the duty of the captor to bring it within the jurisdiction of the prize-court of the nation to which it belongs, and to institute proceedings to have it condemned. This is required by the Act of Congress, in cases of capture by ships of war of the United States; and this Act merely enforces the performance of a duty imposed upon the captor by the law of nations, which, in all civilised countries, secures to the captured a trial in a court of competent jurisdiction, before he can be finally deprived of his property. But there are cases where, from existing circumstances, the captor may be excused from the performance of this duty, and may sell, or otherwise dispose of, the property, before condemnation. And where the commander of a national ship cannot, without weakening inconveniently the force under his command, spare a sufficient prize crew to man the captured vessel, or where the orders of his government prohibit him from doing so, he may lawfully sell or otherwise dispose of the captured property in a foreign country, and may afterwards proceed to adjudication in a court of the United States.' 1

1 Wheaton, Hist. Law of Nations, p. 321; Jecker et al. v. Montgomery, 13 Howard R., 516; the Peacock,' 4 Rob., 185; Hudson v. Guestier, 4 Cranch. R., 293; Williams et al. v. Armoyd, 7 Cranch. R., 523; the Arabella and Madeira,' 2 Gallis. R., 368; the 'Henric and