Page images
PDF
EPUB

the rights of belligerents, when lawfully exercised over neutral merchant ships on the high seas, such, for instance, as rescue from capture, however cognizable or punishable as offences against international law, in the Prize Courts of the captor administering such law, are not cognizable by the municipal law of England, and cannot by that law be punished either by confiscation of the ship, or by any other penalty; and Her Majesty's Government cannot raise in an English court the question of the validity of the capture of the Emily St. Pierre, or of the subsequent rescue and recapture of that vessel, for such recapture is not an offence against the municipal law of this country "(i). The discussion ended by its being discovered that in 1800 England had asked the United States to do precisely the same thing, and that the American Government had refused to comply on the very grounds put forward by Lord Russell (k). It may therefore be taken as a settled point, that if a neutral vessel is captured by a belligerent cruiser, and before condemnation she manages to escape and reach her own country, the neutral Government is not bound to surrender her to that of the captor.

second recapture.

As to recaptors, although their right to salvage is extinguished Salvage on by a subsequent hostile recapture and regular sentence of condemnation, divesting the original owners of their property, yet if the vessel be restored upon such recapture, and resume her voyage, either in consequence of a judicial acquittal, or a release by the sovereign Power, the recaptors are redintegrated in their right of salvage (1). And recaptors and salvors have a legal interest in the property, which cannot be divested by other subjects, without an adjudication in a competent court; and it is not for the Government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them without cause (m).

In all cases of salvage where the rate is not ascertained by posi- Rate of tive law, it is in the discretion of the Court, as well upon recaptures salvage. as in other cases (n). And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, the Court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary services in rescuing the vessel in distress from the perils of the seas (o).

(i) See note (i), previous page. (k) U. S. Dipl. Cor. 1862, p. 113. (1) The Charlotte Caroline, 1 Dods. Ad. 192.

Blendenhall (1814), 1

(m) The Dods. Ad. 414.

(n) Talbot v. Seeman (1801), 1 Cranch, 1; 3 C. Rob. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5.

(0) The Louisa, 1 Dods. Ad. 317; Jecker v. Montgomery (1851), 13 Howard, 515.

PRIZE COURTS. Their functions.

Condemna.

tion of pro

the ports of an ally.

The validity of maritime captures must be determined in a court of the captor's Government, sitting either in his own country or in that of an ally. This rule of jurisdiction applies, whether the captured property be 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 perty lying in 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 measures 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.

Property

carried into a neutral

port.

But where the property is carried into a neutral port, it may appear, on principle, more doubtful whether the validity of a capture can be determined even by a Court of Prize established in the captor's country; and the reasoning of Sir W. Scott, in the case of The Henrick and Maria, is certainly very cogent, as tending to show the irregularity of the practice; but he considered that the English Court of Admiralty had gone too far in its own practice of condemning captured vessels lying in neutral ports, to recall it to the proper purity of the original principle. In delivering the judgment of the Court of Appeals in the same case, Sir William Grant also held that Great Britain was concluded by her own inveterate practice, and that neutral merchants were sufficiently warranted in purchasing under such a sentence of condemnation, by the constant adjudications of the British tribunals (p). The same rule has been adopted by the Supreme Court of the United States, as being justifiable on principles of convenience to belligerents as well as neutrals; and though the prize was in fact within a neutral jurisdiction, it was still to be considered as under the control of the captor, whose possession is considered as that of his sovereign (q). This rule is now confirmed by Article 23 of the thirteenth Convention of the Hague Conference, 1907, which provides that a neutral Power may allow prizes to enter its ports

(p) The Henrick and Maria (1799), 4 C. Rob. 43; 6 C. Rob. 138, note (a). (7) See also The Polka, 1 Spinks, 57; and the American cases, Hudson v. Guestier (1810), 4 Cranch, 293; The Invincible, 2 Gall. 39. Bynkershoek,

Quæst. Jur. Pub. lib. i. cap. 5 (Du-
ponceau's Transl. Note, p. 38). Kent,
Commentaries on American Law, vol. i.
p. 103.
Wheaton, Hist. Law of
Nations, p. 321.

and waters when they are brought there to be sequestrated pending the decision of a Prize Court.

exclusive.

This jurisdiction of the national courts of the captor, to deter- Jurisdiction mine the validity of captures made in war under the authority of of the courts of the captor, his Government, is exclusive of the judicial authority of every how far other country, with three 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 (r). 3. Where the prize was abandoned by the captor, and is the subject of a salvage claim made by neutrals (s).

In either of the first two cases, the judicial tribunals of the neutral State have jurisdiction to determine the validity of the 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. These exceptions to the exclusive jurisdiction of the national courts of the captor have been extended by the municipal regulations of some countries to the restitution of the property of their own subjects, in all cases where the same has been unlawfully captured, and afterwards brought into their ports; thus assuming to the neutral tribunal the jurisdiction of the question of prize or no prize, wherever the captured property is brought within the neutral territory. Such a regulation is contained in the marine ordinance of Louis XIV., of 1681, and its justice is vindicated by Valin, upon the ground that this is done. by way of compensation for the privilege of asylum granted to the captor and his prizes in the neutral port. There can be no doubt that such a condition may be expressly annexed by the neutral State to the privilege of bringing belligerent prizes into its ports, which it may grant or refuse at its pleasure, provided it be done impartially to all the belligerent Powers; but such a condition is not implied in a mere general permission to enter the neutral ports. The captor, who avails himself of such a permission, does not thereby lose the military possession of the captured property, which gives to the Prize Courts of his own country exclusive jurisdiction to determine the lawfulness of the capture. This jurisdiction may be exercised either whilst the captured property is lying in the neutral port, or the prize may be carried thence infra præsidia of the captor's country where the tribunal is sitting. In either case, the claim of any neutral proprietor, even a subject of the State into whose ports the captured vessel or

(r) The Estrella (1819), 4 Wheaton, 298; The Santissima Trinidad (1822), 7 Wheaton, 283; The Gran

Para

(1822), 7 Wheaton, 471.

(8) The Mary Ford (1796), 3 Dall. 188.

Condemnation by consular tribunal

neutral

country.

goods may have been carried, must, in general, be asserted in the Prize Court of the belligerent country, which alone has jurisdiction of the question of prize or no prize (t).

This jurisdiction cannot be exercised by a delegated authority in the neutral country, such as a consular tribunal sitting in the 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 Government 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 (u).

Responsibility of the captor's Government

for the acts of its commissioned

cruisers anl courts.

Unjust

sentence of a

ground of

In 1793, during the war between Great Britain and France, Genêt, the newly-appointed Minister of the French Republic, attempted among other acts in contravention of American neutrality to set up consular Prize Courts within the territory of the United States, for the purpose of trying and condemning British vessels captured by French cruisers. Washington demanded and secured his recall (x).

The jurisdiction of the court of the capturing nation is conclusive upon the question of property in the captured thing. Its sentence forecloses all controversy respecting the validity of the capture, as between claimant and captors, and those claiming under them, and terminates all ordinary judicial inquiry upon the subject-matter. But where the responsibility of the captors ceases, that of the State begins. It is responsible to other States for the acts of the captors under its commission, the moment these acts are confirmed by the definitive sentence of the tribunals which it has appointed to determine the validity of captures in war.

Grotius states that a judicial sentence plainly against right foreign court, ("in re minimè dubiâ "), to the prejudice of a foreigner, entitles his nation to obtain reparation by reprisals:-" For the authority of the judge" (says he) "is not of the same force against strangers as against subjects. Here is the difference: subjects are bound up and concluded by the sentence of the judge, though it be unjust,

reprisals.

(t) Valin, Comment. sur l'Ordon. de la Marine, liv. iii. tit. 9, Des Prises, Art. 15; tom. ii. p. 274. Lampredi, Trattato del Commercio de' Popoli Neutrali in Tempo de Guerra, p. 228.

(u) The Flad Oyen (1799), 1 C. Rob. 135.

(x) Cf. Moore, Digest, vol. iv. pp. 486, 487.

so that they cannot lawfully oppose its execution, nor by force recover their own right, on account of the controlling efficacy of that authority under which they live. But strangers have coercive power [that is, of reprisals], though it be not lawful to use it so long as they can obtain their right in the ordinary course of justice" (y).

So, also, Bynkershoek, in treating the same subject, puts an unjust judgment upon the same footing with naked violence, in authorizing reprisals on the part of the State whose subjects have been thus injured by the tribunals of another State. And Vattel, in enumerating the different modes in which justice may be refused, so as to authorize reprisals, mentions "a judgment manifestly unjust and partial"; and though he states what is undeniable, that the judgments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds, yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them (z).

These principles are sanctioned by the authority of numerous treaties between the different Powers of Europe regulating the subject of reprisals, and declaring that they shall not be granted unless in case of the denial of justice. An unjust sentence must certainly be considered a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice (a).

Another means adopted by a neutral State in order to protect its subjects' interests in view of what it considers an incorrect decision is intervention. Thus, in 1879, during the war between Chile and Peru, a German vessel was condemned by a Peruvian Court; whereupon the German Government, regarding the condemnation as unjustifiable, intervened and obtained the release of the vessel.

courts of

Even supposing that unjust judgments of municipal tribunals Distinction between do not form a ground of reprisals, there is evidently a wide municipal distinction in this respect between the ordinary tribunals of the tribunal and State, proceeding under the municipal law as their rule of decision, prize. and prize tribunals, appointed by its authority, and professing to administer the law of nations to foreigners as well as subjects. The ordinary municipal tribunals acquire jurisdiction over the

(y) Grotius, De Jur. Bel. ac Pac. lib. iii. cap. 2, § 5, No. 1.

(2) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 24. Vattel, Droit des Gens,

liv. ii. ch. 18, § 350.

(a) For such an instance of reprisals, see the case of the Silesian Loan, infra, p. 611.

« PreviousContinue »