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

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 a neutral 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

neutral country.

This jurisdiction cannot be exercised by a delegated demnation authority in the neutral country, such as a consular triby consular tribunal 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 natiọn 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 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

courts.

war.

Unjust sen

foreign

Grotius states that a judicial sentence, plainly against tence of a right, (in re minimè dubiâ,) to the prejudice of a foreigner, court, entitles his nation to obtain reparation by reprisals: ground of 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.

' Robinson's Adm. Rep. vol. i. p. 135. The Flad Oyen.

on account of the controlling efficacy of that authority under which they live. But strangers have coercive power, (that is, of reprisals, of which the author is treating,) though it be not lawful to use it so long as they can obtain their right in the ordinary course of justice." 1

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.2

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.

municipal

Even supposing that unjust judgments of municipal Distinction tribunals do not form a ground of reprisals, there is evi- between dently a wide distinction in this respect between the tribunals ordinary tribunals of the State, proceeding under the of prize. municipal law as their rule of decision, and prize tribunals,

and courts

1 "Quod fieri intelligitur non tantum si in sontem aut debitorem judicium intra tempus idoneum obtineri nequeat, verum etiam si in re minimè dubiâ (nam in dubiâ re præsumptio est pro his qui ad judicia publicè electi sunt) plane contra jus judicatum sit. Nam auctoritas judicantis non idem in exteros quod in subditos valet. Hoc interest, quod subditi exsecutionem etiam injustæ sententiæ vi impedire, aut contra eam jus suum vi exsequi licitè non possunt, ob imperii in ipsos efficaciam: exteri autem jus habent cogendi, sed quo uti non liceat quàmdiu per judicium, suum possint obtinere." 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.