case of reprisals, Mar. 3, 1800, 2 Stat. 16. (2) Supplementary act of Jan. 27, 1813, id. 792. (3) Act simplifying process of seizure, Mar. 25, 1862, 12 Stat. 374. (4) Sections 2, 6, and 12 of the act of July 17, 1862, in reference to the U. S. Navy, id. 600. (5) Act regulating prize procedure, Mar. 3, 1863, id. 759. (6) Act regulating prize procedure and distribution, June 30, 1864, 13 Stat. 306, 314; act for the reorganization of the Navy and Marine Corps, Mar. 3, 1899, 30 Stat. 1004.

"The prize court of an ally can not condemn. Prize or no prize, is a question belonging exclusively to the courts of the country of the captor."

1 Kent, Comm. 103; Glass v. Sloop Betsey, 3 Dall. 6.

The United States have the right to order an uncondemned ship, captured by the subjects of a foreign power, out of their territory. Lee, At. Gen., 1797, 1 Op. 78. See 8 Hamilton's Works, by Lodge, 304.

The owner, master, supercargo, and crew of a Haytien schooner filed a libel for a marine trespass in the United States district court for the southern district of New York against the owners of an American privateer. The evidence showed that the privateer seized, robbed, and plundered the schooner, and maltreated some of her crew, and then permitted her to proceed on her course. The name of the privateer was the Scourge, commanded by Samuel Eames. Objection was made to the jurisdiction of the court. Held, that the court had, independently of the provisions of the prize act of June 26, 1812, chapter 107, and by virtue of its general maritime jurisdiction, authority to entertain the suit. The court said that this point had been so repeatedly decided that it could not be permitted again to be judicially brought into doubt.

The Amiable Nancy (1818), 3 Wheat. 546.

Wheaton refers, in a footnote, to the appendix to volume 2 of his reports,
Note 1, p. 5.

See, also, Jecker v. Montgomery, 13 How. 498.

When the courts have acquired jurisdiction of cases of maritime capture, the political department of the Government should postpone the consideration of questions concerning reclamations and indemnities until the judiciary has finally performed its functions in these

cases.

Bates, At. Gen. 1864, 11 Op. 117.

"Your letter of the 2d instant has been received. You state your purpose to visit Europe this summer, and make enquiries respecting the treatment you would receive should war break out between England and Russia, and the British steamer on which you take passage be captured by a Russian cruiser.

"Neutral passengers in such a case, like neutral goods not contraband of war, found on board a belligerent vessel, are exempt from the jurisdiction of any prize court before which the vessel when captured might be taken. The captor would be under no obligation to transport either passengers or goods, being neutral, to any other port of debarkation than that where a competent prize court may sit.

"The Department usually abstains from answering hypothetical questions on points of international law which are usually treated of in the standard text-books, but the answer herein conveyed seems due to your courteous enquiry."

Mr. Bayard, Sec. of State, to Mr. Boya, May 5, 1885, 155 MS. Dom. Let. 286.

2. POSSESSION OF THE CAPTURED PROPERTY.

§ 1224.

See supra, § 1212.

A captor may, under imperative circumstances, sell the captured property and subject the proceeds to the adjudication.

Although it is the duty of the captor promptly to take the captured property before a prize court, yet he may, under imperative circumstances, sell it and subject the proceeds to adjudication.

Jecker v.

Montgomery, 13 How. 498; Fay v. Montgomery, 1 Curtis, 266. See Lee, At. Gen. 1797, 1 Op. 78.

The American schooner, Fortitude, having been captured by a French privateer under the Milan decree, was taken into the Dutch island of St. Martins and left there, while the prize master proceeded to the French island of Guadaloupe, with a copy of the schooner's papers, for the purpose of instituting proceedings for condemnation. Sentence of condemnation was pronounced, but in the meantime the Dutch governor of St. Martins, acting under the laws and constitution of the island and without authority from the tribunal at Guadaloupe, had sold the schooner and cargo; and a part of the cargo was brought to the United States, where a libel was filed for its recovery. In support of this claim it was urged that the jurisdiction of the prize court depended on the possession of the thing; that the sentence was a formal decision by which a forcible possession was converted into a civil right; and that, the possession being gone, there was nothing on which the sentence could operate. Held that, however just this reasoning might be where the possession of the captor had been divested by an adversary force, as in cases of recapture, rescue, or escape, it did not apply to the present case, in which the possession was not an adversary possession, but the possession of a person claim

ing under the captor. "The sale," said the court, " was made on the application of the captor, and the possession of the vendee is a continuance of his possession. The capture is made by and for the government; and the condemnation relates back to the capture, and affirms its legality."

Williams v. Armroyd (1813), 7 Cranch, 423.

A prize court may take jurisdiction of property captured on a vessel, although the vessel was not brought under its cognizance.

The Advocate, Blatchf. Pr. Cas. 142.

Permission to a foreign public ship to land goods in our ports does not involve a pledge that, if illegally captured, they shall be exempted from the ordinary operation of our laws. Though property may be condemned in the courts of the captor while lying in a neutral port, it must be in the possession of the captor there at the time of the condemnation, for if the captor's possession has previously been divested the condemnation is invalid.

The Santissima Trinidad, 7 What. 283, affirming S. C., 1 Brock. 478.

"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 neutra! 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 can not, 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.' Wheaton, Hist. Law of Nations, 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. 368; The Henric and Maria, 6 Rob. 138, note; the Falcon, 6 Rob. 198; La Dame Cécile, 6 Rob. 257."

2 Halleck's Int. Law (3d ed., by Baker), 405.

3. CASES OF VIOLATED NEUTRALITY.

§ 1225.

Property captured in violation of the neutrality of the United States (i. e., within territorial waters) or captured on the high seas by a cruiser fitted out or armed in violation of the neutrality of the United States, will, if retained or brought within the jurisdiction of the United States be judicially restored.

The Estrella, 4 Wheat. 298; the Santissima Trinidad, 7 Wheat. 283; the
Gran Para, 7 Wheat. 471.

See, also, L'Invincible, 1 Wheat. 238, 244, note.

"There are two apparent exceptions to this exclusive jurisdiction of the prize courts of the captor's country over questions of prize: 1st, where the capture is made within the territory of a neutral state, and, 2nd, where it is made by a vessel fitted out within the territory of the neutral state. In either of these cases the judicial tribunals of the neutral state have jurisdiction to determine the validity of captures so made, and to vindicate its own neutrality by restoring the property of its own subjects, or of other states in amity with it. 'A neutral nation,' says the Supreme Court of the United States, which knows its duty, will not interfere between belligerents, so as to obstruct them in the exercise of their undoubted right to judge, through the medium of their own courts, of the validity of every capture made under their respective commissions, and to decide on every question of prize law which may arise in the progress of such discussion. But it is no departure from this obligation if, in a case in which a captured vessel be brought, or voluntarily comes infra præsidia, the neutral nation extends its examination so far as to ascertain whether a trespass has been committed on its own neutrality by the vessel which has made the capture. So long as a

nation does not interfere in the war, but professes an exact impartiality towards both parties, it is its duty, as well as right, and its safety, good faith, and honour demand of it, to be vigilant in preventing its neutrality from being abused, for the purpose of hostility against either of them. In the performance of this duty, all the belligerents must be supposed to have an equal interest; and a disregard, or neglect of it, would inevitably expose a neutral nation to the charge of insincerity, and to the just dissatisfaction and complaints of the belligerent, the property of whose subjects should not, under such circumstances, be restored.' These are not, properly considered, exceptions to the general rule of prize jurisdiction, but are cases where the courts of a neutral state are called upon to interfere for the purpose of maintaining and vindicating its neutrality." Halleck, Int. Law (3d ed., by Baker), II. 395–396.

4. DAMAGES.

(1) RIGHT TO.

§ 1226.

The court of admiralty of Pennsylvania was held to have jurisdiction of an action of damages brought by the captain of an American privateer against three other American privateers, their owners and commanders, for wrongfully taking from on the high seas a prize which he had there captured.

Talbot v. The Commanders and Owners of Three Brigs, High Court of Errors and Appeals of Pennsylvania, 1784, 1 Dall. 95. This was during the existence of the Articles of Confederation.

It was held that the trespassers were liable at least to the value of the captured vessel.

(Ibid.)

"The sovereign is therefore held responsible to the state whose citizen the claimant is, that no injustice is done by the capture."

Dana's Wheaton, § 388, note 186, p. 483.

A court of admiralty (prize as well as instance) of one nation may carry into effect the decree of an admiralty court of another nation. And where the decree was for restitution, which could not be specifically enforced, it was held that damages might be decreed.

Penhallow v. Doane (1795), 3 Dall. 54.

The right to seize a vessel and send her in for further examination is not the right to spoliate and injure the property captured; and for any damage or spoliation the captors are answerable to the owners if the property be not condemned as prize.