Prizes in a neutral port may be adjudicated in the belligerent country. Sentence of a prize court necessary to transfer property in a prize. judgment in the courts of the captor's government, or in that of an ally or co-belligerent. (1) Although our courts do not admit the validity of decisions delivered in neutral countries, yet they permit adjudications to take place of prizes made by British captors, when such prizes are not in the ports of our own country, but are in the ports of some neutral state.* Sir William Scott considered that this was not correct in principle, but that we were concluded by our own inveterate practice; and that we must extend to other countries the latitude of construction which we admitted in our own case. It is to be remarked, that the case in which this decision was given, was one in which this principle was admitted in the prize courts, not of Holland it is true, but of the Batavian Republic. (2) Sentence of condemnation by a prize court is, at the present day, considered necessary to complete the transfer of maritime prizes from the original owner to the captor. Formerly, to have taken captured property infra præsidia, to have conveyed it into the captor's ports, or into the midst of his fleet, or to have had it in undisputed possession for twenty-four hours, was deemed sufficient to constitute prizes the property of the captors. (3) The doctrine that condemnation is now required, is confirmed by De Martens and by Lampredi, (4) and is laid down by Sir William Scott, "it not being thought fit, in civi (1) See the notes, Rob. Rep. I. 141, 142. See also Klüber, Droit des Gens, part II. tit. II. § 295, 296. (2) The Henrick and Maria, Rob. Rep. IV. 43–63. (3) See Grotius de Jure, lib. III. cap. VI. § 3. Vattel, liv. III. ch. XIII. § 196. (4) Précis du Droit des Gens, liv. III. ch. VII. § 322. Commerce des Neutres, § XIII. [* See next chapter.] lized society, that property of this sort should be converted without the sentence of a competent court." (1) The same rule has been adopted by the Supreme Court of the United States. (2) the question opened by the party. But, though condemnation by a lawful prize court is In case of unfinal as affecting the transfer of captured property from just decisions one individual to another, yet, in cases of unjust decision, may be rethe question may be re-opened between the governments government of of the parties concerned, and reparation demanded when the injured injustice has been sustained. In the case of Prussia, in 1752, the British government paid an indemnity to the Prussian government, for cases in which injustice had been sustained by the decisions of our tribunals. In the treaty of 1795, between Great Britain and the United States, a mixed commission was appointed by art. VII. (3) to decide American claims arising from captures by British cruisers; and to indemnify the individuals who might have sustained loss "by reason of irregular or illegal captures or condemnations of their vessels, or other property;" and also to compensate such loss of British property as had arisen from captures made in waters under the jurisdiction of the United States. The British commissioners, at first, objected to reconsider cases that had been decided by our Admiralty, but this was overruled, and indemnity was given in cases in which there had been a final sentence of condemnation. A similar indemnity has been allowed by the Danish government to the United States on the same principle. (4)* And the recent (1) Rob. Rep. IV. 55. (4) Wheaton's Elements, II. 95 -111. [* Mr. Halleck (p. 765) quotes the language used by the American government on this occasion, which puts in a strong light the sole ground and meaning of re-opening questions decided by a prize tribu dispute between the United States and France, regarded money which was partly an indemnity for unjust condemnations of American property. The rule of reopening the decisions of prize courts is thus fully established; and it is a beneficial principle, as conveying an additional guarantee that neutral subjects, 66 nal. "The demand which the United States made upon the Danish government was not made for a judicial reversal of the sentences "pronounced by its tribunals, but for the indemnity to which the “American citizens were entitled, in consequence of the denial of "justice by the tribunal in the last resort, and of the responsibility "thus incurred by the Danish government for the acts of its cruisers "and tribunal. The Danish government was, of course, free to adopt any measures it might think proper to satisfy itself of the injustice "of those sentences, one of the most natural of which would be a "re-examination and discussion of the cases complained of, conducted by an impartial tribunal, under the sanction of the two governments, "not for the purpose of disturbing the question of title to the specific property which had been irrevocably condemned, or of reviving the controversy between the individual captors and claimants which had "been for ever terminated, but for the purpose of determining between "government and government whether injustice had been done by the "tribunals of one power against the citizens of the other, and of 66 66 determining what indemnity ought to be granted to the latter." Mr. Halleck adds that "there are many other instances where arrange"ments of this kind have been made between States for determining "and settling claims which arise from the unjust condemnation of "prize tribunals." - ED.] [* This dispute originated in an alleged reluctance on the part of France, in 1836, to pay the indemnity covenanted to be paid by a convention entered into between the United States and France, on the 4th of July, 1831. The first article of this convention declared the object of the French government in agreeing to pay the indemnity therein stipulated to be "to liberate itself completely from all the "reclamations preferred against it by citizens of the United States for "unlawful seizures, captures, sequestrations, confiscations, or destruction "of their vessels, cargoes or other property." The result of the dispute of 1836 was that England offered her mediation, which was accepted, but became unnecessary, as France complied with the demands of the United States. See Lawrence's Wheaton (sixth edition), p. 617; Dana's Wheaton (eighth edition), p. 120, and Russell's Modern Europe, Vol. IV. p. 736.-ED.] while innocent, shall not suffer from the conduct of belligerents. [* For the history and true limits of the jurisdiction of the English High Court of Admiralty in prize cases, see Lord Mansfield's judgment in Lindo v. Rodney and another, cited in a note to Le Caux v. Eden, Douglas' Reports, vol. ii. p. 594. His lordship distinguishes the functions of the judge of the court under his general commission and those under a special commission issued only in time of war. This distinction gives rise to the two aspects of the Court of Admiralty, that of an "instance" court and that of a "prize" court. "The 66 66 66 manner of proceeding," says Lord Mansfield, "is totally different. The whole system of litigation and jurisdiction in the prize court is peculiar to itself; it is "no more like the Court of Admiralty than it is to any "court in Westminster Hall." By the "Naval Prize Act of 1864," which recited that it was expedient to "enact permanently, with amendments, such provisions "concerning naval prize and matters connected there"with as have heretofore been usually passed at the beginning of a war," the High Court of Admiralty has jurisdiction given it throughout her Majesty's dominions as a prize court, and an appeal is given to the Judicial Committee of the Privy Council. 66 The true functions of a prize court are curtly expressed by Lord Mansfield in the course of the judgment above referred to. "The end of a prize court is, to "suspend the property till condemnation; to punish 66 every sort of misbehaviour in the captives; to restore "instantly, velis levatis (as the books express it, and as "I have often heard Dr. Paul quote), if, upon the most summary examination, there don't appear sufficient ground; to condemn finally, if the goods really are prize, against everybody, giving everybody a fair 66 66 66 [" opportunity of being heard. A captor may and must "force every person interested to defend, and every person interested may force him to proceed to con"demn without delay." 66 The dignity and international character of a prize court are expressed in the following extracts from judgments of Lord Stowell's : "It is to be recollected that this is a court of the Law "of Nations, though sitting here under the authority "of the king of Great Britain. It belongs to other "nations as well as to our own; and what foreigners "have a right to demand from it is the administration "of the Law of Nations, simply and exclusively of the "introduction of principles borrowed from our own 66 66 municipal jurisprudence, to which it is well known they have at all times expressed no inconsiderable "reluctance." (The Recovery, 6 Rob. Adm. Rep. 348.) "In forming my judgment, I trust that it has not "for a moment escaped my anxious recollection what "it is that the duty of my station calls from me, namely, "not to deliver occasional and shifting opinions to "serve present purposes of particular national interests, "but to administer with indifference that justice which "the Law of Nations holds out without distinction to "independent States, some happening to be neutral "and some belligerent; the seat of judicial authority "is indeed locally here, in the belligerent country, "according to the known law and practice of nations ; "but the law itself has no locality." (The Maria Paulsen, 1 Rob. Adm. Rep. 348; Tudor's Leading Cases, 757.) Sir R. Phillimore (Vol. III. Part XI. ch. III.) gives at length an interesting and important letter addressed in 1794 by Sir W. Scott and Sir J. Nicholl to Mr. Jay, the American ambassador, for the purpose of explaining the principles and practice of British courts of prize. |