RIGHT OF DEFENSE BEFORE CONDEMNATION

In a number of cases brought before the Court of Claims, it appeared that the conduct of the captors was such as to prevent the master of the captured vessels from appearing before the tribunal or from interposing any defense to the proceedings to condemn the vessel and cargo. These acts of violence, preventing any effective defense against the proceedings of the captors, have been of various kinds.

On arriving at the port of Basse Terre the master and crew of the vessel were imprisoned until after the condemnation of the vessel, when they were put on board a vessel carrying a flag of truce, which conveyed them to the island of St. Christopher. By the action of the French authorities the master and owners of the vessel and cargo were prevented from appearing before the prize court and of defending the rights of the owners against the claim of the captors; and it does not appear that the master or the owners were in any way represented before said prize court or given an opportunity to be heard.

In another 32 the officers and crew were taken off of the captured vessel and she was taken to Guadeloupe by a prize crew. When the privateer with the captured officers and crew on board got to Guadeloupe they found the vessel and her cargo already condemned and sold. Some part of the crew were put in prison. Others got liberty to work.

In another 33 these facts appear:

The Thetis was then ordered to Port au Paix, where the privateer belonged; that the captured vessel sailed in company with the privateer and a brig until spoken by a Spanish frigate, when the privateer left them; that they proceeded on the voyage, but came to anchor in company with the brig in the bay of Monte Christe, where the prize master obtained a pilot and proceeded to Fort Dauphin; from thence the master went to Cape François to put in a claim for the vessel and cargo, being the only officer left on board the Thetis; and thereupon the mate applied to the American consul at the cape for relief, and in company with the consul waited upon the French administration, but neither were permitted to see the authorities; thereupon they sent a petition in writing

31 Schooner Good Intent, 36 C. Cls. 262.

32 Brig Sally, 37 C. Cls. 74.

33 Snow Thetis, 37 C. Cls. 470, 471.

to the administration, but obtained no answer, and afterwards the prize master disclosed to the mate the condemnation of the vessel and the cargo.

The sloop Townsend, Daniel Campbell, master, sailed on a commercial voyage August 28, 1798, from Boothbay, Massachusetts (now Maine), bound for the English island of Antigua. While peacefully pursuing said voyage she was seized on the high seas, about the 1st of October, 1798, by the French privateer Le Pelletier and carried to the island of Guadeloupe, and her master was thrown into prison, with the loss of all his sea clothes, books, and papers, where he remained for a period of about three months. He was examined in preparatory on the 10th day of October, 1798, while in prison, in which it was shown that the cargo consisted of boards, staves, shingles, and codfish.

She was there condemned by the Tribunal of Commerce and Prizes, sitting at Basse Terre, on said island, and condemned on the ground of a want of rôle d'équipage and an invoice of the cargo, whereby the same became a total loss to the owners.

Again, in the case of the Brig Resolution,35 it appeared,

That the master and crew were imprisoned at Pointe à Pitre and were held as prisoners of war, and that the master was not given an opportunity to be heard by the court.

In the case of the Schooner Rebecca,36 it was found:

Second capture.-Said Schooner Rebecca again sailed from Baltimore, August 30, 1796, under the command of Capt. John Hall, bound for St. Thomas and St. Bartholomew. On the 4th of October, 1796, while making her course for St. Bartholomew, she was visited and boarded by the French schooner of the Republic, L'Hirondelle (The Swallow), Captain Caneray, of Guadeloupe, who, having examined all her papers and found them in the most perfect regularity, allowed the Rebecca to continue her course. The next day the Rebecca was again boarded, this time by a French privateer called the Passe Partout, Capt. Lange Doucet. This vessel captured her and first conducted her to the French island of St. Martin, with her officers and crew on board. At that place they took the captain and supercargo off their vessel and transferred them to a French pirogue, in which they were taken to Basse Terre,

34 Sloop Townsend, 42 C. Cls. 134, 136.

35 No. 3278, H. Doc. 89, 58 Cong., 2 Sess. 36 H. Doc. 1382, 60 Cong., 2 Sess.

Guadeloupe. They arrived at that port on the 14th of October, 1796, and were there placed in prison.

On the voyage from St. Martin to Guadeloupe the captain and supercargo were kept in irons, fed only on bread without water, and kept on deck exposed to the sun and rain as well as to the sea washing over the vessel. On arrival at Guadeloupe the supercargo was put in prison and the captain not allowed to communicate with him. The vessel and cargo were condemned by decree of a court sitting at Pointe à Pitre in the absence of the captain and supercargo, and no knowledge was had by them of the proceedings or decree until it was shown to Captain Hall by the secretary of Victor Hugues, then governor of Guadeloupe.

The condemnation was on the sole ground that the supercargo, Leon Haraneder, was a Frenchman by birth and had become naturalized in the United States, and that it appeared by his certificate of naturalization, which was taken from his possession and was examined by the prize court, that he renounced all allegiance and fidelity to all powers whatever and particularly to the French Republic, and that he was therefore an enemy of the French Republic, and being such enemy the schooner was good prize.

In the case of the Schooner Juno,37 William Burgess, Master, the captain "was treated like a dog by the French" and "was abused because he refused to let the French have his cargo at the price they offered him," and firally died.

In all these cases the court acted upon the rule laid down by Sir William Scott, afterwards Lord Stowell, in the English admiralty (as quoted 42 C. Cls. 150, 151):

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 thereupon as prize in a court of admiralty, judging by the law of nations and treaties.

Such violent proceedings on the part of the nation with whom we were on terms of peace excite indignation, even at the present day, and more than justify the conclusion of the court arrived at in all of them, that proceedings so violative of every rule of international law, and, indeed, every principle of justice, must be held to give rise to a valid claim primarily against the French Government, and ultimately against the United States who assumed the liabilities of France. Wherever the master or crew have been prevented by imprisonment

37 H. Doc. 362, 60 Cong., 1 Sess.

or by enforced absence from the place of trial from making a proper presentation of their case before the French tribunal acting in prize, the condemnation is thereby invalidated.

In case of the Schooner Maria, 39 C. Cls. 147, the court held:

It was the right of the master to be present at the trial before the prize court to defend the owners; and where he was prevented by imprisonment from so doing the proceeding was ex parte and wholly void.

The opinion in the case of the Sloop Townsend,38 thus sums up the rule: "A prize proceeding is no exception to the universal principle of justice which requires a proper legal hearing before condemnation can be ordered."

PERSONAL INJURIES

The descriptive terms of the jurisdictional Act of 1885 are "illegal captures, detentions, seizures, condemnations, and confiscations." On their face these terms seem broad enough to embrace injury to the person, as well as to property. This view would have special force in view of the many indignities and personal injuries which, as we have just seen, were inflicted upon the helpless American captains and their

crews.

Yet, just as we have seen that, although the terms of the Act are broad enough to include land captures, they have been limited to captures at sea; so by parity of reasoning the court has concluded that claims for the capture, detention and confiscation of property alone were intended to be covered by the terms of the Act. It has therefore disallowed all claims based upon personal injuries.39

The concluding article in the next number of the JOURNAL will deal with certain rules of exclusion of claims adopted by the court, as well as with the rules adopted by legislation and judicial decision, for assuring that the money allowed shall pass into the hands of the actual living next of kin of the original sufferer by French spoliations.

38 42 C. Cls. 134, 151.

39 Brigs Fanny and Hope, 46 C. Cls. 214.

GEORGE A. KING.

CAPTURE AFTER CAPITULATION: A JURISTIC

ANACHRONISM

One of the earliest mitigations of the horrors of war, particularly in its incidence upon private individuals, was the custom of sparing the inhabitants of a surrendered city in their persons and property, instead of subjecting them to the rapine and pillage which usually followed a capture by storm. Even the Mosaic Code made this exception in the midst of its barbarities, although the doomed cities of Canaan were excluded from the benefits of the exception. Both the general savagery and the one humane departure from it are well exemplified by verses ten to sixteen of the twentieth chapter of Deuteronomy:

10. When thou comest nigh unto a city to fight against it, then proclaim peace unto it.

11. And it shall be, if it make thee answer of peace, and open unto thee, then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.

12. And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.

13. And when the LORD thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword;

14. But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the LORD thy God hath given thee.

15. Thus shalt thou do unto all the cities which are very far off from thee, which are not of the cities of these nations.

16. But of the cities of these people, which the LORD thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth.

This distinction between the penalties of resistance and the immunities of surrender has been generally recognized throughout the ages. The previous learning on the subject was summed up by the learned Grotius in his monumental work on War and Peace. He declared to its fullest extent the general right of capture, even to the extent of pillage, and defended it as a legitimate method of warfare. He also declared, in the