there to try the controversy. But only courts of admiralty have jurisdiction in maritime cases, and these courts have formulas to try only claims to contraband chattels, but none to try claims concerning contraband persons. The courts can entertain no proceedings and render no judgment in favor of or against the alleged contraband men. “It was replied, all this was true; but you can reach in those courts a decision which will have the moral weight of a judicial one, by a circuitous proceeding. Convey the suspected men together with the suspected vessel into port, and try there the question whether the vessel is contraband. You can prove it to be so by proving the suspected men to be contraband, and the court must then determine the vessel to be contraband. If the men are not contraband the vessel will escape condemnation. Still there is no judgment for or against the captured persons. But it was assumed that there would result from the determination of the court concerning the vessel a legal certainty concerning the character of the men. "This course of proceeding seemed open to many objections. It elevates the incidental, inferior, private interest into the proper place of the main, paramount, public one, and possibly it may make the fortunes, the safety, or the existence of a nation, depend upon the accidents of a merely personal and pecuniary litigation. Moreover, when the judgment of the prize court upon the lawfulness of the capture of the vessel is rendered, it really concludes nothing, and binds neither the belligenent state nor the neutral, upon the great questions of the disposition to be made of the captured contraband persons. That question is still to be really determined, if at all, by diplomatic arrangement or by war. "One may reasonably express his surprise when told that the law of nations has furnished no more reasonable, practical, and perfect mode than this of determining questions of such grave import between sovereign powers. The regret we may feel on the occasion is, nevertheless, modified by the reflection that the difficulty is not altogether anomalous. Similar and equal deficiencies are found in every system of municipal law, especially in the system which exists in the greater portion of Great Britain and the United States. The title to personal property can hardly ever be resolved by a court without resorting to the fiction that the claimant has lost, and the possessor has found it, and the title to real estate is disputed by real litigants under the names of imaginary persons. It must be confessed, however, that while all aggrieved nations demand, and all impartial ones concede, the need of some form of judicial process in determining the character of contraband persons, no other form than the illogical and circuitous one thus described exists, nor has any other yet been suggested. Practically, therefore, the choice is between that judicial remedy or no judicial remedy whatever. "If there be no judicial remedy, the result is that the question must be determined by the captor himself on the deck of the prize vessel. Very grave objections arise against such a course. The captor is armed, the neutral is unarmed. The captor is interested, prejudiced, and perhaps violent; the neutral, if truly neutral, is disinterested, subdued, and helpless. The tribunal is irresponsible, while its judgment is carried into instant execution. The captured party is compelled to submit, though bound by no legal, moral, or treaty obligation to acquiesce. Reparation is distant and problematical, and depends at last on the justice, magnanimity, or weakness of the state in whose behalf and by whose authority the capture was made. Out of these disputes reprisals and wars necessarily arise, and these are so frequent and destructive that it may well be doubted whether this form of remedy is not a greater social evil than all that could follow, if the belligerent right of search were universally renounced and abolished forever. But carry the case one step further. What if the state that has made the capture unreasonably refuse to hear the complaint of the neutral or to redress it? In that case the very act of capture would be an act of war-of war begun without notice, and, possibly, without provocation. “I think all unprejudiced minds will agree that imperfect as the existing judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor and relying upon diplomatic debates to review his decision. Practically, it is a question of choice between law, with its imperfections and delays, and war, with its evils and desolations. Nor is it ever to be forgotten that neutrality, honestly and justly preserved, is always the harbinger of peace, and, therefore, is the common interest of nations, which is only saying that it is the interest of humanity itself. "At the same time it is not to be denied that it may sometimes happen that the judicial remedy will become impossible, as by the shipwreck of the prize vessel, or other circumstances which excuse the captor from sending or taking her into port for confiscation. In such a case the right of the captor to the custody of the captured persons, and to dispose of them, if they are really contraband, so as to defeat their unlawful purposes, can not reasonably be denied. What rule shall be applied in such a case? Clearly the captor ought to be required to show that the failure of the judicial remedy results from circumstances beyond his control and without his fault. Otherwise he would be allowed to derive advantages from a wrongful act of his own. "I have not been unaware that in examining this question I have fallen into an argument for what seems to be the British side of it against my own country, but I am relieved from all embarrassment on that subject. I had hardly fallen into that line of argument when I discovered that I was really defending and maintaining, not an exclusively British interest, but an old, honored, and cherished American cause, not upon British authorities, but upon principles that constitute a large portion of the distinctive policy by which the United States have developed the resources of a continent, and thus becoming a considerable maritime power, have won the respect and confidence of many nations. These principles were laid down for us in 1804 by James Madison, when Secretary of State in the administration of Thomas Jefferson, in instructions given to James Monroe, our minister to England. Although the case before him concerned a description. of persons different from those who are incidentally the subjects of the present discussion, the ground he assumed then was the same I now occupy, and the arguments by which he sustained himself upon it have been an inspiration to me in preparing this reply. “Whenever,' he says, 'property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted, and thus responsible in a case of mere property, of trivial amount, should be permitted without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiance, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest danger. Reason, justice, and humanity unite in protesting against so extravagant a proceeding.'. 66 'If I decide this case in favor of my own Government, I must disallow its most cherished principles, and reverse and forever abandon its essential policy. The country can not afford the sacrifice. If I maintain those principles, and adhere to that policy, I must surrender the case itself. It will be seen, therefore, that this Government could not deny the justice of the claim presented to us in this respect upon its merits. We are asked to do to the British nation just what we have always insisted all nations ought to do to us." Mr. Seward, Sec. of State, to Lord Lyons, Dec. 26, 1861, 55 Br. & For. State When a vessel is captured, the rule is to bring her into some convenient port of the government of the captor for adjudication. The mere fact of capture does not work a transfer of title, and until there is a sentence of condemnation or restitution, the captured vessel is held by the government in trust for those who, by the decree of the court, may have the ultimate right to it. Demands against property captured as prize of war must be adjusted in a prize court. The property arrested as prize is not attachable at the suit of private parties; and if such parties have claims which in their opinion override the rights of the captors, they must present them to the prize court for settlement. The jurisdiction of a prize court over a captured vessel is determined by the capture and not by the filing of a libel. The Nassau, 4 Wall. 634. "The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum . Mayberry, 2 Wheat. 1; The Apollon, 9 Wheat. 362; The Lively, 1 Gall. 314; The Corier Maritimo, 1 Rob. 287." The Nuestra Señora de Regla (1882), 108 U. S. 92, 103. A Chilean cruiser having seized on the high seas certain paper currency destined for the Peruvian Government, and the Chilean forces in Peru having afterwards, without judicial condemnation of the property, which was claimed to belong to citizens of the United States, put such currency into enforced circulation in Peru in payment for supplies taken by the Chilean army, the Government of the United States said: "The capture of the property having been made on the high seas and no prize court having inquired into the authority of the captor or the liability of the property under the public law to be seized, that act might in strictness be regarded as piratical in its character. 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 had thereon as prize in a court of admiralty, judging by the law of nations and treaties. Wildman's International Law, vol. 2, p. 352." Mr. Bayard, Sec. of State, to Mr. Godoy, Chilean min., April 11, 1885, "By the law of nations, as recognized and administered in this country, when movable property in the hands of the enemy, used, or intended to be used, for hostile purposes, is captured by land forces, the title passes to the captors as soon as they have reduced the property to firm possession; but when such property is captured by naval forces, a judicial decree of condemnation is usually necessary to complete the title of the captors. 1 Kent. Com. 102, 110; Halleck's International Law, c. 19, § 7; c. 30, § 4; Kirk v. Lynd, 106 U. S. 315, 317." Oakes v. United States (1899), 174 U. S. 778, 786. The title of a vessel which was fitted out by the Confederate government as a gunboat, immediately on capture in inland waters by the Federal armies passes without the necessity of condemnation proceedings. Oakes v. United States, 30 Ct. Cl. 378. Act March 3, 1800 (2 Stat. 17, sec. 1), providing that when any vessel other than a vessel of war shall hereafter be captured by any vessel acting under authority of the Government of the United States, not having been condemned by competent authority before the recapture, shall be restored to the former owner, does not apply to a vessel which, when recaptured, was in process of reconstruction for a gun-. boat, the capture being on inland waters, by a force attached to the army, and acting under the orders of the military authorities. (Ibid.) Spanish vessels wrecked in battle by the naval vessels of the United States during the war with Spain, and afterwards lying along the coast of Cuba, were the property of the United States. Griggs, At. Gen., March 29, 1900, 23 Op. 76. 2. EFFECT OF FRAUDULENT CONDUCT. § 1240. There is certainly nothing illegal in resorting to devices to elude hostile capture; and where it can be clearly shewn that property is really neutral or friendly, its being covered under hostile habiliments for the purpose of evasion, will not necessarily subject it to condemnation." But the evidence must not be equivocal. The Frances (1815), 9 Cranch. 183, 189. The owner of captured property should be careful to avoid the use of language calculated to mislead the court, and to extricate property to which the captors are entitled, even though he may think otherwise. He should never swear to inferences without stating the train of reasoning by which his mind has been conducted to them. Yet H. Doc. 551-vol 741 |