The taking to the prize court should be prompt, though a bona fide delay in this respect, caused by the peculiar conditions of the case, does not expose the captor to liability as a trespasser. Jecker v. Montgomery, 18 How., 111; Fay v. Montgomery, 1 Curtis, 266, and cases cited supra.

"The prize court of an ally cannot condemn. Prize or no prize is a question belonging, exclusively to the courts of the country of the captor." (1 Kent Com. 104; Glass v. Sloop Betsey, 3 Dall., 6.) But a prize court may take jurisdiction of property captured on a vessel although such vessel was not brought under its cognizance. (The Advocate, Blatch. Pr. Ca., 142, and other cases in same volume. The legislation of the United States in reference to prizes is to be found in the following statutes: (1) Act in respect to right of salvage in case of reprisals, Mar. 3, 1800. (2) Supplementary act of Jan. 27, 1813. (3) Act simplifying process of seizure, March 25, 1862. (4) Sections 2, 6, and 12 of the act of July 17, 1862, in reference to the U. S. Navy. (5) Act regulating prize procedure, March 3, 1863. (6) Act regulating prize procedure and distribution, 1864.)

The following is part of the award of the Geneva arbitrators on September 14, 1872:

"And whereas the judicial acquittal of the Oreto at Nassau cannot relieve Great Britain from the responsibility incurred by her under the principles of international law, * the tribunal, by a majority

of four voices to one, is of opinion that Great Britain has in this case failed, by omission, to fulfill the duties presented in the first, in the second, and in the third of the rules established by article 6 of the Treaty of Washington."

See more fully infra, §§ 329, 402a.

As will be seen hereafter (infra, § 359), the ruling the Supreme Court in the case of The Circassian was disregarded as authority by the subsequent British and American Mixed Commission.

"There are two apparent exceptions to this exclusive jurisdiction of the prize courts of the captor's country over questions of prize; first, where the capture is made within the territory of a neutral state; and, second, 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 such 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 honor 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 the 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."

2 Halleck's Int. Law (Baker's ed.), 413. As to neutral duties in this respect, see infra, § 399.

The infirmities which attach to the constitution of prize courts are elsewhere noticed (supra, § 238; infra, § 329a), and attention will be hereafter called to the circumstances which have tended to impair the authority of the prize courts of the United States. See remarks at close of § 362. In Kaltenborn's Seerecht ii, 389, the proceedings in the United States courts in this relation are examined in detail.

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, 3 Dall., 54.

A district court of the United States, though a court of admiralty, cannot take jurisdiction of a libel for damages, in case of a capture as prize, by a foreign belligerent power on the high seas, the captured vessel not being within the United States, but infra præsidia of the captors.

U. S. v. Peters, ibid., 121.

If a captured vessel is abandoned at sea by the captors, and being thus derelict is taken possession of by a neutral and brought into a neutral port and libeled for salvage, the district court has jurisdiction to entertain such libel, and, ex necessitate, may also adjudicate upon the conflicting claims of the captors and former owners to the surplus. In such a case the claim of the captors was allowed, as no neutral nation can impugn or destroy the right vested in the belligerent by the capt

ure.

McDonough v. Dannery, ibid., 188.

If a vessel has a Spanish register, and sails under Spanish colors, and has on board accounts describing her as Spanish property, there is probable cause for seizing her as belonging to Spanish subjects.

Del Col v. Arnold, ibid., 333.

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.

Ibid.

The facts in this case (Del Col v. Arnold) were as follows: A French privateer had captured as prize, on the high seas, an American brig, called the Grand Sachem, and owned by the defendant in error. At the time of taking possession of the brig, a sum of money was removed from her into the privateer; a prize master and several mariners were put on board of her, and were directed to steer for Charleston. On their way to Charleston a British frigate captured the privateer and gave chase to the prize; whereupon the prize-master run her into shoal water, and there she was abandoned by all on board, except a sailor originally belonging to her crew, and a passenger. In a short time she drove on shore, was scuttled, and plundered. The money taken from her by the French privateer, and taken in the latter by the British frigate, had been condemned in Jamaica. A libel was filed in the district court of South Carolina by the defendant in error against Del Col and others, the owners of the French privateer. When the marshal came with proc. ess against the brig, she was in the joint possession of the customhouse officers and the privateer's men, the latter of whom prevented the execution of the process. Thereupon a ship and cargo, a prize to the privateer, lying in the harbor of Charleston, were attached by the libelant, and sold by agreement between the parties, and the proceeds paid into court, to abide the issue of the suit. The district court pronounced a decree in favor of libelant for the full value of the Grand Sachem and her cargo, with interest at 10 per cent. from the day of capture; declared that the proceeds of the ship Industry and her cargo, attached in this cause, be held answerable to thas amount;" and directed that the defendant in error should enter into a stipulation to account to the plaintiffs in error for the money condemned as prize to the British frigate, or any part of it, that he might recover as neutral property. This decree was affirmed by the circuit court and in turn by the Supreme Court. So far as this case may be interpreted to lend support to the idea that the courts of a neutral can take cognizance of the legality of belligerent seizure, it has been severely critized by the Supreme Court (L'Invincible, 1 Wheat., 238), and pronounced to be "glaringly inconsistent" with the acknowledged doctrine of that court.

A belligerent cruiser who, with probable cause, seizes a neutral and takes her into port for adjudication, and proceeds regularly, is not a wrongdoer.

Jennings v. Carson, 4 Cranch, 2.

The question whether the res was so situated as to be subject to the jurisdiction of a foreign prize court is examinable.

Rose v. Himely, 4 Cranch, 241; but see Hudson v. Guestier, 6 ibid., 285.

In every case of a foreign sentence condemning a vessel as prize of war, the authority of the tribunal to act as a prize court is examinable. Hudson v. Guestier, 6 Cranch, 281.

A foreign sentence of a competent court, though contrary to the law of nations, is valid here, because not examinable. Hence, the condemnation of an American vessel, by a court of admiralty of France, sitting at Guadeloupe, professedly for a violation of the Milan decree in trading to a dependence of England, was held valid, though this decree had been declared by Congress to be a violation of international law. If, however, Congress had gone further and declared sentences of condemnation, pronounced under the decree, absolutely void, they would have been so treated by the courts.

Williams v. Armroyd, 7 Cranch, 423.

But the better view is that a sovereign is as much bound, internationally, for erroneous judicial as for erroneous executive or legislative action; and that though a prize court may bind in rem, it does not bar a diplomatic appeal for redress. Infra, § 329a.

The law of prize is part of the law of nations. In it a hostile character is attached to trade independently of the character of the trader who pursues or directs it.

The Rapid, 8 Cranch, 155.

A donation on the high seas, by a captor to a neutral, does not exempt the property from recapture, and the donee who brings it into a port of his own country, must be treated as a salvor.

The Adventure, 8 Cranch, 221.

In a prize cause, the claimant of cargo is not precluded by a sentence condemning the vessel as enemies' property, for want of a claim, from showing in the same cause that the vessel, in fact, was American property, and her owner, without any fault of the claimant of the cargo, has neglected to interpose a claim.

The Mary, 9 Cranch, 126.

On questions of belligerent and neutral rights the Supreme Court will recognize the decisions of the courts of every country, so far as they are founded on a law common to every country, not as authorities, but with respect. The decisions of the courts of every foreign civilized land show in a given case how the law of nations is understood in such lands, and will be considered in adopting the rule which is to prevail in the United States.

Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191. See supra, § 8, infra, § 329a. The United States having at one time formed a component part of the British Empire, their prize law was ours; and when we separated it continued to be our prize law, so far as it was adapted to our circum stances, and was not varied by the power which was capable of changing it.

Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191; The Siren, 13 Wall., 389. A prize case in the British courts, professing to be decided on ancient principles, will not be entirely disregarded, unless it be very unreason

able, or be founded on a construction rejected by other nations. But "it will not be advanced in consequence of the former relation between the two countries, that any obvious misconstruction of public law made by the British courts will be considered as forming a rule for the American courts, or that any recent rule of the British courts is entitled to more respect than the recent rules of other countries."

Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191.

The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country. By this law the definition of prize goods is that they are goods taken on the high seas, jure belli, out of the hands of the enemy.

Schooner Adeline, 9 Cranch, 244.

Recaptures are cases of prize and are to be proceeded in as such. Ibid.

In recaptures of property of friends the rule of reciprocity is followed, and as France.awards to recaptors the entire property of friends, recaptured after twenty-four hours' possession by the enemy, that rule must be applied to French property.

Ibid.

The power of the courts in the United States to adjudge prize cases is dependent upon legislation by Congress.

The Mary and Susan, 1 Wheat., 46.

The exclusive cognizance of prize questions belongs in general to the capturing power, and the courts of other countries will not undertake to redress alleged marine torts committed by public armed vessels in assertion of belligerent rights. This applies to privateers, duly commissioned. But our courts of admiralty will take jurisdiction, to inquire if the alleged wrong-doer is duly commissioned, or has, by the use of our territory to increase his force, trespassed on our neutral rights. L'Invincible, 1 Wheat., 238.

The courts of the United States would have authority, in the absence of any act of Congress, to decree restitution of property captured in violation of their neutrality.

The right of adjudicating on all captures and questions of prize be longs exclusively to the courts of the nation to which the captor belongs and from which his commission issues; but if a captured vessel be brought or voluntarily comes infra præsidia of a neutral power, the latter may inquire whether its neutrality has been violated by the capture, and, if any violation be shown, should decree restitution.

The Estrella, 4 Wheat., 298.