and futile; if the cause labors under heavy suspicions, or there be a vehement presumption of bad faith or gross prevarication, it is good cause for the denial of further proof; and the condemnation ensues from defects in the evidence, which the party is not permitted to supply. The observation of Lord Mansfield, in Bernardi v. Motteux, was to the same effect. By the maritime law of all countries, he said, throwing papers overboard was considered a strong presumption of enemy's property; but in all his experience he had never known a condemnation on that circumstance only."*

tral master.

"The refusal by the master of a neutral merchant vessel to Duty of the neupermit the papers of his vessel to be taken on board of a belligerent cruiser when demanded, to be there examined by the commander of the cruiser, especially after those papers have been already so far examined on board of the merchant vessel by a subordinate officer from the cruiser as to excite suspicion concerning their regularity, is, on the part of the neutral master, a resistance to the right of visitation and search, even though he offers his papers for examination on board of his own vessel, and his vessel for search."+

Under some circumstances the flag carried by a vessel, and even her papers showing a presumed nationality, will not protect her from capture at sea by the vessels of war of another country. The case of the steamer Virginius illustrates several rules of international law applicable to the jurisdiction which may be exercised over merchant ships at sea. The Virginius, carrying the American flag and provided with an American register, was captured by a Spanish vessel of war in the Caribbean sea, October 31st, 1873, while endeavoring to reach the waters of Jamaica, having previously failed in an attempt to land a party of insurgents on the coast of Cuba. It was at first supposed that she was a bona fide American vessel, and the United States made a demand upon Spain for restoration of the vessel and a salute to the flag. The demand was acceded to by Spain, and the vessel was handed over to the United States, but with a stipulation that if it could be proved by a given date that the Virginius was not entitled to carry the American flag, the salute

* Kent, Vol. I, p. 167.

+ Blatchford, Prize Cases, p. 535. The Peterhoff.

Sec. 7.

Actual

ownership of a vessel gives jurisdiction over her.

should be dispensed with and only a declaimer made of any intent of indignity to the flag. The United States, on the same condition, agreed to take legal proceedings against the vessel and the persons guilty of violations of her laws. It was proved that the owners of the Virginius were Spanish subjects, that her American registration was fraudulent, and consequently she had no right to carry the American flag and claim its protection.

The discussion of this case brought out the following principles of international law :

A vessel on the high seas is under the jurisdiction of the State of which her actual owners are citizens or subjects. The registration granted to a vessel by a nation is not recognized by international law as a national guaranty of national character for all the world. It may have been obtained by fraud, as in the case of the Virginius, and nations have a right to go behind such a document to establish the fact of ownership and consequent jurisdiction. Even a genuine register is not conclusive between nations on the question of the right to arrest a vessel guilty of offences against international law. A nation has the right, for purposes of jurisdiction over the vessels of its subjects at sea, to decide by its vessels of war whether its merchant ships are not carrying a foreign flag.

"The right of self-defence authorizes a nation to visit and capture a vessel as well on the high seas as in its own waters, when there is reasonable ground to believe it to be engaged in a hostile expedition against the territory of such nation.

"A nation's right of jurisdiction on the high seas over vessels owned by its citizens or subjects authorizes the detention and capture of a vessel found on the high seas which, upon reasonable ground, is believed to be owned by its citizens or subjects, and to be engaged in violating its laws. The flag or register of another nation, if not properly belonging to a vessel, does not render its detention unlawful by the cruiser of a nation to which its owners belong. As, however, the register affords primâ facie evidence of nationality, the nation which gave the register by mistake must be treated with great care, detention on grounds proved to be erroneous must be atoned for, and the question of ownership would naturally be committed, where the evidence is not patent, to a third party.'

Woolsey, App. III, p. 468a, n. 29.

PART VIII.

PRIZE, CAPTURE AND SALVAGE.

lawful prize.

Any vessel belonging to the enemy, encountered by a bel- Sec. 1. What is ligerent cruiser at sea, or within the territorial jurisdiction of either belligerent, becomes a lawful prize on capture. A neutral vessel becomes a lawful prize if captured by a belligerent cruiser in violating a legally established blockade, in carrying enemy's troops or despatches, or for resisting visitation and search. Any neutral vessel found carrying contraband of war to an enemy's port, or for his military use, may be captured and sent into a port of the captor for adjudication and condemnation of the contraband cargo. A vessel guilty of piracy under the law of nations may be captured by the public vessels of any nation. Merchant vessels also may capture piratical craft, and they are entitled to the proceeds of the prize.

It has been held by the courts of the United States that a neutral vessel, guilty of offences against the law of nations, may be captured by a vessel in the service of the government but not commissioned as a cruiser. "The filing by the United States of a libel against the vessel and cargo as prize is an affirmance by the United States of the capture, and such ratification is equivalent to an original seizure by authority of the government."*

to make prizes.

"As the right of capture, of making a prize, is a direct Sec. 2. The right emanation from the right of war, it follows that there is no possibility of exercising this right of prize against the vessels of a nation, unless the government of the captor has declared war against the State to which the captured vessel belongs, and issued orders to cruise against the vessels of that nation."† Prizes cannot be made within the territory of a neutral Sec. 3. Where government.

* Blatchford, Prize Cases, p. 561. The Emma.

† Lawrence's Wheaton, p. 878, n.

prizes can be taken.

Sec. 4. How the

validity of cap

ture mined.

"This right of capture is confessedly such a right as may be exercised within the territory of the belligerent State, within the enemy's territory, or in a place belonging to no one; in short, in any place except the territory of a neutral State."*

"The validity of maritime captures must be determined in a is deter- court of the captor's government, sitting either in his own country or in that of its ally. This rule of jurisdiction applies whether the captured property is carried into a port of the captor's country, into that of an ally, or into a neutral port. Respecting the first case there can be no doubt. In the second case, where the property is carried into the port of an ally, there is nothing to prevent the government of the country, although it cannot itself condemn, from permitting the exercise of that final act of hostility, the condemnation of the property of one belligerent to the other; there is a common interest between the two governments, and both may be presumed to authorize any measure 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."†

In regard to the second case stated above, it should be noted that the Supreme Court of the United States has decided that, under existing statutes, the United States District Courts have exclusive original jurisdiction in all prize proceedings. Condemnations of vessels and their cargoes by temporary prize courts, established during war with the sanction of the Executive, could not be sustained by the law of nations, or the Constitution of the United States.

As to prizes carried into a neutral port, international usage no longer permits this to be done, except in cases of necessity, and the condemnation or sale of a prize would not be permitted in the port of a neutral under any circumstances. Wheaton says of the jurisdiction of prize courts: "This jurisdiction. cannot be exercised by a delegated authority in the neutral country, such as a consular tribunal sitting in the neutral port, and acting in pursuance of instructions from the captor's State. Such a judicial authority, in the matter of prize of war, cannot be conceded by the neutral State to the agents of a belligerent power within its own territory, where even the neutral govern↑ Ibid. p. 669. Ibid. n.

*Lawrence's Wheaton, p. 735.

ment itself has no right to exercise such a jurisdiction, except in cases where its own neutral jurisdiction and sovereignty have been violated by the capture. A sentence of condemnation, pronounced by a belligerent consul in a neutral port, is therefore considered as insufficient to transfer the property in vessels or goods captured as prize of war, and carried into such port for adjudication."*

"This jurisdiction of the national courts of the captor, to determine the validity of captures made in war under the authority of his government, is exclusive of the judicial authority of every other country, with two exceptions only: 1. Where the capture is made within the territorial limits of a neutral State. 2. Where it is made by armed vessels fitted out within the neutral territory.

"In either of these cases the judicial tribunals of the neutral State have jurisdiction to determine the validity of captures thus made, and to vindicate its neutrality by restoring the property of its own subjects, or of other States in amity with it, to the original owners."†

to a prize, how

"Lord John Russell said in the House of Commons in May, Sec. 5. The title 1861, referring to the capture of British vessels during the War transferred. of Secession in the United States: "When the British government acknowledged the rights of either belligerent to visit and detain British merchant vessels having enemy's property on board, and to confiscate such property, it necessarily implied, as a condition of such acknowledgment, that the detention was for the purpose of bringing the vessel detained before an established court of prize, and that confiscation did not take place until after condemnation by such competent tribunal."

"By modern usage a complete title to a prize taken at sea is given to the captor only by the sentence of a competent court. By a competent court is intended one which, by the law of the State, has jurisdiction in matters pertaining to prize, no matter what other jurisdiction it may have or not have. Such courts in the United States are the District and Circuit Courts of the confederation, with appeal up through the Circuit to the Supreme Court of the Union. In general, the court must be one acting under the authority of the captor's sovereign, and holding its sessions at home or within the territory of an ally."‡

Lawrence's Wheaton, p. 672. † Ibid. p. 671. Woolsey, Sec. 141.