Whenever a capture is made by any belligerent in violation of our neutrality, if the prize come voluntarily within our jurisdiction, it should be restored to the original owners; this is done on the footing of the general law of nations.

La Amistad de Rues, 5 Wheat., 385.

A claimant cannot raise the question of the validity of the captor's commission. That is a question between the captor and his Government. If the commission be valid, the condemnation is to the captor; if not, to the Government.

The Amiable Isabella, 6 Wheat., 1, 66.

Permission to a foreign public ship to land goods in our ports does not involve a pledge that, if illegally captured, they shall be exempted from the ordinary operation of our laws. Though property may be condemned in the courts of the captor, while lying in a neutral port, it must be in the possession of the captor there, at the time of the condemnation; for, if the captor's possession has previously been divested, the condemnation is invalid.

The Santissima Trinidad, 7 Wheat., 283, affirmning S. C., 1 Brock, where it was held that the question of prize or no prize belongs exclusively to the courts of the captor; and in no case does a neutral assume the right of deciding it; but that at the same time, as offenses may be committed by a belligerent against a neutral, in his military operations, which it would be inconsistent with the neutral character to permit, and which give to the other belligerent, the party injured by those operations, claims upon the neutral which he is not at liberty to disregard; in such a situation, the neutral has a double duty to perform; he must vindicate his own rights, and afford redress to the party injured by their violation. It was also held that if the wrong-doer comes completely within the power of the neutral, the practice of this Government is to restore the thing wrongfully taken.

Whoever sets up a title under a condemnation is bound to show that the court had jurisdiction of the cause, and that the sentence has been rightly pronounced upon the application of parties competent to ask it. For this purpose it is necessary to show who are the captors, and how the court has acquired authority to decide the cause.

In the ordinary cases no difficulty arises on this subject, for the courts of the captors have general jurisdiction of prize, and their adju dication is conclusive upon the proprietary interest. But where the capture is made by captors acting under the commission of a foreign country, such capture gives them a right which no other nation, neutral to them, has authority to impugn, unless for the purpose of vindicating its own violated neutrality. The courts of another nation, whether an ally or a co-belligerent only, can acquire no general right to entertain cognizance of the cause, unless by the consent or upon the voluntary submission of the captors.

La Nereyda, 8 Wheat., 108.

The abuse of a commission by making a collusive capture does not render the commission void, but the captors acquire no title to the prize.

The Experiment, ibid., 261.

As to right to impugn capture, where the capturing vessel is equipped in our waters in violation of neutrality, see The Fanny, 9 Wheat., 668.

Though a superior physical force is not necessary to make a seizure, there must be an open, visible possession claimed, and a submission to the control of the seizing officer. If a seizure be voluntarily abandoned it becomes a nullity, and it must be followed up by appropriate proceedings to be effectual in conferring rights of property.

The Josefa Segunda, 10 Wheat., 312.

The validity of the seizure and the question of prize or no prize can only be determined in the courts upon which jurisdiction has been conferred by the sovereign under whose authority the capture was made. Neither the President nor any military officer can establish a court in a conquered country, and authorize it to decide prize cases and administer the laws of nations.

Jecker v. Montgomery, 13 How., 498; 18 ibid., 110.

When a vessel is captured, the rule is to bring her into some convenient port of the Government of the captor for adjudication. The mere fact of capture does not work a transfer of title, and until there is a sentence of condemnation or restitution, the captured vessel is held by the Government in trust for those who, by the decree of the court, may have the ultimate right to it.

Demands against property captured as prize of war must be adjusted in a prize-court. The property arrested as prize is not attachable at the suit of private parties; and if such parties have claims which in their opinion override the rights of the captors, they must present them to the prize court for settlement. The jurisdiction of a prize court over a captured vessel is determined by the capture and not by the filing of a libel.

The Nassau, 4 Wall., 634.

If a ship or cargo is enemy property, or if either be otherwise liable to condemnation, the circumstance that the vessel, at the time of the capture, was in neutral waters, would not, by itself, avail the claimants in a prize court. It might constitute a ground of claim by the neutral power, whose territories had suffered trespass, for apology or indemnity; but neither an enemy, nor a neutral acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters.

The Sir William Peel, 5 Wall., 517; The Adela, 6 ibid., 266. See as to neutral rights and duties in such cases, infra, §§ 394, 398; supra, § 227.

A Spanish-owned vessel on her way from New York to Havana, being in distress, put, by leave of the admiral commanding the squadron, into Port Royal, S. C., then in rebellion, and blockaded by a Government fleet, and was there seized as a prize of war and used by the Government. She was afterward condemned as prize, but ordered to be restored. She never was restored, damages for her seizure, detention, and value being awarded. It was held that she was not prize of war, or subject of capture; and that her owners were entitled to fair indemnity, although it might be well doubted whether the case was not more properly a subject for diplomatic adjustment than for determination by the courts.

The Nuestra Señora de Regla, 17 Wall., 30.

Prize courts are subject to the instructions of their own sovereign. In the absence of such instructions their jurisdiction and rules of decision are to be ascertained by reference to the known powers of such tribunals and the principles by which they are governed under the public law and the practice of nations.

The Amy Warwick, 2 Sprague, 123.

The proceedings of a prize court of the Confederate States are of no validity in the United States, and a condemnation and sale by such a court do not convey any title to the purchaser, or confer upon him any right to give a title to others.

The Lilla, 2 Sprague, 177.

A captured vessel must be brought within the jurisdiction of the country to which the captor belongs, before a regular condemnation can be awarded.

1 Op., 78, Lee, 1797.

Proceedings against the ship and cargo are to be had before the district court of the United States according to the laws of Congress and the usage and practice of courts of admiralty in prize causes.

1 Op., 85, Lee, 1798.

Where a vessel, alleged to be Danish property, was seized as French property, on the south side of the island of St. Domingo, and while proceeding for an examination, under the protection of the American flag, was seized by a British armed ship and taken into Jamaica and there condemned, and a claim was made by the Danish subject upon the Government of the United States for compensation, it was advised that the first captors were not liable for the first capture and detention for examination, there being probable cause for the seizure, nor for the second capture; and that the Governinent of the United States was not bound for the unlawful captures of its subjects.

1 Op., 106, Lincoln, 1802,

Where a French vessel was captured and condemned as lawful prize prior to the treaty with France of 1800 (expired by limitation), and one moiety had been paid to the captors and the other to the United States, after the signing of the treaty, and on hearing before the Supreme Court, on writ of error, the decree of the circuit court had been reversed, and the vessel, etc., had been ordered to be restored, and pursuant thereto the moiety of the United States had been paid over, and a claim made for the other moiety which had been paid to the captors, it was advised that the United States are not liable for such moiety.

1 Op., 114, Lincoln, 1802.

On a reconsideration of the case referred to in the preceding opinion, and on examination of the opinion delivered by the Supreme Court, giving a judicial interpretation of the treaty referred to, the preceding opinion is substantially reaffirmed.

1 Op., 119, Lincoln, 1802.

Proceedings in the vice-admiralty court at St. Domingo are nullities, for the reason that the court is not legally constituted.

5 Op., 689, appendix, Lee, 1798.

No title to a captured vessel and cargo passes to the captors till a sentence of condemnation has been passed by a court having jurisdiction.

3 Op., 317, Grundy, 1838.

When the courts have acquired jurisdiction of cases of maritime capture, the political department of the Government should postpone the consideration of questions concerning reclamations and indemnities until the judiciary has finally performed its functions in these cases. 11 Op., 117, Bates, 1864.

Prize courts are tribunals of the law of nations, and the jurisprudence they administer is a part of that law. They deal with cases of capture as distinguished from seizures; their decrees are decrees of condemnation, not of forfeiture; they judge the character and relations of the vessel and cargo, and not the acts of persons.

11 Op., 445, Speed, 1866.

As to captures, see infra, § 345.

VI. BUT NOT WHEN NOT IN CONFORMITY WITH INTERNATIONAL LAW.

§ 329a.

As is elsewhere seen, the executive and the judiciary, being co-ordi nate powers, and the former being intrusted distinctively with the foreign relations of the state, it is not governed in such relations by the decisions of the latter, though such decisions are entitled to great deference, Supra, § 238,

It has been also seen that a foreign judgment on a question of international law, to be a bar to a claim, must be in accordance with sound principles of international law. Supra, § 242, and cases cited in § 329. See as to judgments invalid by international law supra, § 242.

The question of the ubiquitous validity of the action of prize courts was discussed in the case of the Betsey by the board of commission ers acting under the 7th article of the treaty of 1794. The Betsey had been condemned by the vice-admiralty of Bermuda, and the condemnation had been affirmed by the lord commissioners of appeal. It hav ing been argued that this affirmance settled the question internationally, Mr. Pinkney, who was one of the commissioners under the treaty, conceded that, adopting the words of the answer to the British memorial, "the legality of a seizure as prize is to be determined in the courts of the nation to which the captor belongs, judging according to the law of nations, and to treaties (if any) subsisting between the states of the captor and claimant." He proceeded, however, to adopt from Rutherford (2 Nat. Law, 593) the position that "the right of the state to which the captors belong, to judge exclusively, is not a complete jurisdiction. The captors, who are its members, are bound to submit to its sentence, though this sentence should happen to be erroneous, because it has a complete jurisdiction over their persons; but the other parties to the controversy, as they are members of another state, are only bound to submit to its sentence as far as this sentence is agreeable to the law of nations or to particular treaties, because it has no jurisdiction over them in respect either of their persons or of the things that are the subject of the controversy. If justice, therefore, is not done them, they may apply to their own state for a remedy, which may, consistently with the law of nations, give them a remedy, either by solemn war or by reprisals." After adopting this position, as further explained by Rutherford, Mr. Pinkney proceeds to say: "From the foregoing quotations it may be collected that the jurisdiction of the court of the capturing nation is complete upon the point of property; that its sentence forecloses all controversy between claimant and captors, and those claiming under them; and that it terminates forever all ordinary judicial inquiry upon the matter of it. These are the unquestionable effects of a final admiralty sentence, and in these respects it is unimpeachable and conclusive." But "neither the United States nor the claimants, its citizens, are bound to take for just the sentence of the lords, if in fact it is not so; and that the affirmance of an illegal condemnation, so far from legitimating the wrong done by the original seizure, and precluding the neutral from seeking reparation for it against the British nation, is peculiarly that very act which consummates the wrong, and indisputably perfects the neutral's right of demanding that reparation through the medium of the Government. If the largest possible scope be given to the jurisdiction in question, still it is a jurisdiction which must be rightfully used by the state that claims it. The law of nations cannot be supposed to give to one state the right of invading, under judicial forms, the property of another." Dr. Nicholl, better known by his subsequent title of Sir J. Nicholl, an eminent civilian, who was also a commissioner, agreed in holding the action of the lords commissioners as not concluding the claimants from recourse to an international appeal. (Wheaton's Life of Pinkney, 199, 206, 208.) Prize courts, in fact, are to be viewed in two aspects: The first is that of international tribunals, in which capacity they bind the thing acted on everywhere, and bind the parties so far