"ransom for restoring the property of a Neutral after 66 capture. It is argued by the defendant, that every ransom supposes a vested right in the captors; that this "does not exist in respect to Neutrals, for the captors have

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only a right to bring in for adjudication; that neutral "property is liable to condemnation, only in case of delin"quency; and that captors have no right to remit, in behalf "of their Sovereign, a forfeiture for violation of neutral "duties.

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"It is not true, however, that the right to take a Ransom " is founded in a vested title in the captors to the captured "property. For, whether the property vest after twenty"four hours' possession, or after bringing infra præsidia, as "seems the doctrine of civilians; or after condemnation, as is "the doctrine of Great Britain; it is clear that the right to "take a Ransom exists from the moment of capture. And, "by the general practice of the maritime world, a decree of "condemnation is deemed necessary to ascertain and confirm "the inchoate title of the captors, at least in respect to the "Sovereign and subjects of their own country. Nor is a "Ransom, strictly speaking, a repurchase of the captured property. It is rather a repurchase of the actual right of "the captors at the time, be it what it may; or, more properly, it is a relinquishment of all the interest and benefit, "which the captors might acquire or consummate in the property by the regular adjudications of a Prize Tribunal, "whether it be an interest in rem, a lien, or a mere title to 66 expenses. In this respect, there seems to be no legal "difference between the case of a Ransom of the property of an enemy, and of a Neutral. For if the property be "neutral, and yet there be probable cause of capture, or if "the delinquency be such, that the penalty of confiscation might be justly applied; there can be no intrinsic difficulty "in supporting a contract, by which the captors agree to "waive their rights to a consideration of a sum of money voluntarily paid, or agreed to be paid, by the captured.

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"Indeed, the case stands upon a stronger ground than that "of a Ransom between enemies; for the latter have not, in "general, a capacity to enter into contracts. The very law "of war prohibits all commercial intercourse, and suspends "all existing contracts between enemies; and the case of "Ransoms is almost the only exception, which has been ad"mitted, from the general rule. If then, neither the subject "matter, nor the nature of the title or consideration, nor the "capacity of the parties, presents any serious objection to the "contract, as between a friendly Belligerent and a Neutral, "it remains to consider, if there be anything in the objec "tion, that it is a remitter of the right of forfeiture, which belongs exclusively to the Sovereign.

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"The commission of the Sovereign in general authorises only captures of enemies' property. But, without any express clause, this commission clearly extends to the "capture of all neutral property seized in violating neutral

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duties; for in such case the property is deemed quasi "enemies' property. And, for the same reason, it authorises "the bringing in of property, under neutral passports and papers, for adjudication, where there is probable cause to "suspect its real character; for, until adjudication, it cannot "be ascertained whether it be entitled to the protection of "the neutral character. If, therefore, the commission gives "hostile property to the captors, and enables them to deliver "it up on ransom, it also enables them to do the same in respect to neutral property, which has acquired a hostile "taint; and the ransom is not, in the one case, any more the "exercise of the Sovereign's prerogative to remit a forfeiture, "than it is in the other. In both instances, it is considered, "by the Law of Nations, as a mere remitter of the rights of "the captors acquired jure belli; and every prohibition of its "exercise must expressly depend upon the municipal regula"tions of the particular country. Upon principle, therefore, "the distinction of the counsel for the defendant, as to the "incompetency of a Belligerent to deliver neutral property

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on Ransom, is unsupported; and there is not a scintillation "of authority in its favour" (q).

(4) See also-Miller v. The Resolution, 2 Dallas's (Amer.) Rep. P. 15.

Azuni, c. iv. art. 6.

1 Emerigon, c. xii. s. 21. 2 Valin, art. 66, p. 149.

Le Guidon, c. vi. art. 2.

Pothier, Traité du Droit de Propriété, No. 134, 135, 138, 139, 140,

144.

Valin, Ord. des Prises, art. 19.

Ib. ii. 1. iii. t. ix. art. 19.

Ib. Comm. t. ix. p. 261.

PART THE ELEVENTH.

CHAPTER I.

THE GENERAL CHARACTER AND DUTY OF TRIBUNALS OF PRIZE.

CCCCXXXIII. IT has been observed that the tribunal of maritime International Law, having cognisance of Prize, has, from circumstances sufficiently apparent upon a very slight reflection, assumed a form, consistency, and regularity of procedure which no tribunal of International Law, respecting military operations by land, and having cognisance of Booty, has yet attained; and that so far as English legislation and jurisprudence is concerned, there has been a growing tendency to submit both subjects to the same tribunal (a).

It seems to the writer of these pages that, within the whole range of International Jurisprudence, there is no subject of more paramount importance than the character, constitution, and mode of procedure of the Prize Court, and of the Appellate Tribunal (b).

It ought to command the respect of nations-it ought to be above, not slander indeed, for then it would not be a human institution, but just and reasonable suspicion. It ought to administer International, not Municipal Law,

(a) Vide antè, p. 221; Banda and Kirwee Booty, 1 L. R. Adm. & Eccl. p. 109.

(b) Vide antè, vol. ii. pp. 367–8, as to International Law administered by the Pope.

except in so far as it might happen that the latter was identical with or declaratory of the former. Its procedure ought to be open and exposed to all criticism. It ought to allow every liberty of speech to the Claimant, or his representative, as well as to the Belligerent, or his representative. It should administer a consistent law upon certain and known principles, impartially applied to all States and to their subjects. The high standard of the great philosopher and jurist of antiquity should be perpetually before its eyes. It should always remember that the law which it has to administer is not of one character at Rome and of another at Athens (c), but one and the same everywhere, founded and applied, so far as human infirmity will permit, upon the principles of immutable right and eternal justice.

CCCCXXXIV. The Prize Courts to whose proceedings the greatest publicity (d) has been given, are, it will not be denied by any candid and intelligent person, those of Great Britain and of the United States of North America.

Nor will it be denied by the United States that they have taken, with few and inconsiderable exceptions, the rules, procedure and practice of the English Courts as their approved and recognised model.

In the case of the Ostsee, decided by the highest English tribunal, the Judicial Committee of the Privy Council, during the late war with Russia, it was well observed that

“The law which we are to lay down cannot be confined "to the British Navy; the rule must be applied to captors "of all nations. No country can be permitted to establish an exceptional rule in its own favour, or in favour of particular classes of its own subjects. On the Law of

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(c) "Neque erit alia lex Romæ, alia Athenis: alia nunc, alia posthâc," &c.-Cic. de Republ. 1. iii. c. 22.

(d) The reports are duly published, and in England, during the late war with Russia, under the authority of the High Court of Admiralty. These are independent of the daily reports in a great number of newspapers of various political creeds.