As to recaptors, although their right to salvage is extinguished 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 voy. age, either in consequence of a judicial acquittal, or a release by the sovereign power, the recaptors are redintegrated in their right of salvage. And recaptors and salvors have a legal inte rest 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.2 In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the court, as well upon recaptures as in other cases. 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.4 § 13. Validity of captures, The validity of maritime captures must be determined maritime in a court of the captor's government, sitting either in determined his own country or in that of its ally. This rule of jurisdiction applies, whether the captured property be tor's coun- carried into a port of the captor's country, into that of demnation an ally, or into a neutral port. (a) in the courts of the cap try. Con of property lying in the Respecting the first case, there can be no doubt. In ports of an the second case, where the property is carried into the ally. 1 Dodson's Adm. Rep. vol. i. p. 192. The Charlotte Caroline. 2 Ibid. p. 414. The Blendenhale. 8 Cranch's Rep. vol. i. p. 1. Talbot v. Seeman. Robinson's Adm. Rep. vol. iii. p. 308. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. 4 Dodson's Adm. Rep. vol. i. p. 317. The Louisa. (a) [The Supreme Court decided, that condemnations by Prize Courts in California, of vessels and cargoes seized and brought in there, during the war between the United States and Mexico, were not sustainable under the law of nations or the Constitution of the United States, though these tribunals were established with the sanction of the Executive Department of the government. The port of an ally, there is nothing to prevent the government of the country, although it cannot itself condemn, from permitting prize courts within the districts of the United States, including the District of Columbia, had jurisdiction in such cases. "All captures jure belli are for the benefit of the sovereign under whose authority they are made; and the validity of the seizure, and the question of prize or no prize, can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the General Government is vested in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish. Every Court of the United States, therefore, must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States. And neither the President, nor any military officer, can establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals, in prize cases, nor to administer the law of nations. "The courts established and sanctioned in Mexico, during the war, by the commanders of the American forces, were nothing more than the agents of the military power, to assist in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to interfere. They were not Courts of the United States, and had no right to adjudicate upon a question of prize or no prize; and the sentence of condemnation in the court of Monterey is a nullity, and can have no effect upon the rights of any party. "A prize court, when a proper case is made for its interposition, will proceed to adjudicate and condemn the captured property, or award restitution, although it is not actually in the control of the court. It may always proceed in rem, whenever the prize, or proceeds of the prize, can be traced in the hands of any person whatever. "As a general rule, it is the duty of the captor to bring it within the jurisdiction of a prize court of the nation to which he 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 civilized countries, secures to the captured a trial in a court of competent jurisdiction, before he can finally be 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 cannot, 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 carried into a neutral port. 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 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. 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.1 § 14. Jurisdiction of the courts This jurisdiction of the national courts of the captor, to determine the validity of captures made in war under of the cap- the authority of his government, is exclusive of the exclusive. judicial authority of every other country, with two ex tor, how far to adjudication in a court of the United States." Howard's Reports, vol. xiii. p. 515. Jecker v. Montgomery.] 1 Robinson's Adm. Rep. vol. iv. p. 43; vol. vi. p. 138, Note (a). Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 5. Duponceau's Transl. Note, p. 38. Kent's Commentaries on American Law, vol. i. p. 103. Wheaton's Hist. Law of Nations, p. 321. ceptions 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.1 In either of these 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 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.2 1 Wheaton's Rep. vol. iv. p. 298. The Estrella. Vol. vii. p. 283. The Santissima Trinidad. 2 Valin, Comment. sur l'Ordon. de la Marine, liv. iii. tit. 9. Des Prises, art. § 15. Con by consular neutral country. This jurisdiction cannot be exercised by a delegated demnation authority in the neutral country, such as a consular tritribunal sit- bunal sitting in the neutral port, and acting in purting in the suance 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.1 § 16. Re of the cap ment for the commis ers and The jurisdiction of the court of the capturing nation sponsibility is conclusive upon the question of property in the captor's govern- tured thing. Its sentence forecloses all controversy reacts of its specting the validity of the capture, as between claimsioned cruis- ant and captors, and those claiming under them, and courts. 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. Unjust sentence of a foreign court, ground of Grotius states that a judicial sentence, plainly against right, (in re minimè dubiâ,) to the prejudice of a foreigner, entitles his nation to obtain reparation by reprisals: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, so that they cannot lawfully oppose its execution, nor by force recover their own right, 15, tom. ii. p. 274. Lampredi, Trattato del Commercio de' Popoli Neutrali in Tempo de Guerra, p. 228. 1 ' Robinson's Adm. Rep. vol. i. p. 135. The Flad Oyen. |