CHAPTER XIII. PRIZE COURT. "Væ victis."-Eugénie. 1708. PRIZE COURTS can be established only in the belligerent countries. Contrary to all ordinary principles of adjudication, an interested party alone can be the judge. No neutral nation or court can take upon itself the responsibility of adjudicating between two nations, whether belligerents or neutrals; nor have nations entering upon hostilities a right to impose upon neutrals any such responsibility. 1709. If a neutral exercised the judicial office, it might become involved in war with other neutrals, on account of unsatisfactory decisions between the subjects of a belligerent and a neutral state. By sanctioning to some extent this anomalous judicature, each neutral nation retains to itself the right of reclamation against the belligerents for unjust judgment against its subjects. The adjudication of the prize court is not the subject of revision beyond the ultimate court of appeal in the belligerent country as to the title to the particular subject of its sentence; but it is the subject of reclamation on the part of the government of the country whose subject has been wronged by a judgment contrary to the law of nations. 2 Rutherford's Inst. 9, s. 19. Whea. 260-266. 1710. On such reclamations, in some cases a mixed commission of persons appointed by both nations has been constituted to determine complaints of condemnation alleged to be unjust, as between England and America under the treaty of 1794. That tribunal most properly overruled, as between the nations, the objection that the case had been determined by the Lords of Appeal in prize cases. Such decision gives a right to reparation. 1711. When several nations are allied in the war, they in effect constitute one belligerent, and their countries one country, for the purposes of the war. The ships of each may take the captured vessels for trial before the prize officers and prize courts of the ally, and that court has jurisdiction to condemn or acquit them. The allies undertake to neutral nations a common responsibility, a common obligation to make compensation, and a common obligation to support each other. It is necessary therefore that this construction of the law of nations should be consentaneous, otherwise serious danger of disruption of their alliance may ensue. 1712. Every country is, or ought to be, solicitous for the welfare of her own subjects, and must be assumed to be the best judge, not only of their interests, but also of their inducements and motives. 1713. When therefore two nations in alliance are warring against another, each of the allies is entitled to require that if any of the merchantmen belonging to it is captured by the ship of the ally, her trial shall be before the tribunal of her own country. 1714. This principle was acted upon in the convention between England and France for the Russian war in 1854. 1715. When the capture is joint by vessels of two allies, the prize should be brought under the jurisdiction of the country of the superior officer. But if the prize is actually captured by a ship belonging to one of the allies, it should be taken to the port of his country, although the prize was intimidated by even a superior ship of the other. 1716. A belligerent cannot establish a prize court within the limits of the dominions of any neutral nation, even with the consent of the neutral government. Neither its ambassadors nor its consuls can possess any such jurisdiction within the limits of another sovereignty, for which its action may compromise the neutral. It is a breach of neutrality, and a contravention of the laws of nations to permit it. The sentence of a court in such a situation has no force; it does not mterfere with further judicial proceeding; it is simply null and void. 1717. If a capture is effected in the waters of a neutral, or by a ship unlawfully fitted out from her ports, or if a belligerent brings a prize into a port of her own country, the neutral does not exercise a prize court jurisdiction to inquire into the question of prize, but compels the release of the vessel which has been captured, in vindication of her sovereign right. 1718. The prize court is temporary. It is a tribunal for whose jurisdiction there is no office during peace. It is the duty of every sovereign on the breaking out of war to establish a proper forum for adjudication on the propriety of captures. In England and some other countries the office is committed to the Admiralty by a commission or warrant from the sovereign, giving a jurisdiction limited to the particular war; in other countries it is committed to some one of the ordinary tribunals. 1719. The last institution of a prize court in England was on the outbreak of the war with Russia, in 1854. (17 Vict. c. 18, sec. 57.) It was to continue in force during that war and no longer, except as to such matters and things as should then be depending in judgment in the Admiralty, or before the Judicial Committee of the Privy Council, or any court of record, and in finally disposing of such matters as should arise out of them in relation to that Act. 1720. In the British Empire the Admiralty constitutes the prize court, with an appeal to the Judicial Committee of the Privy Council. (17 Vict. c. 18.) We use the expression Admiralty to signify the Judicial Court of the Admiralty. 1721. Although the prize court is temporary, and limited to the existence of war and the matters arising out of the war, it can entertain jurisdiction over a capture made after the war has ceased, as a matter which has sprung out of it. But although not bound by the Statute of Limitations, it will not entertain stale demands, at least unless very good reasons are assigned for the delay. Cargo ex Katharine. Mentor. Susanna. 1722. The jurisdiction of the prize court, like that of the Admiralty, is against the thing; it must therefore be brought within the scope of its jurisdiction for trial. In England, exception to this rule has only been allowed under very extraordinary circumstances. (Polka.) It is, under some circumstances, permitted by the English Prize Act when recaptured vessels have been allowed to proceed. 1723. In America, it has been held that property may be condemned in the court of the captor though lying in a neutral country, but only while in the legal possession of the captor, not after it has been taken from him into the custody of a neutral court. Santissima Trinidad. 1724. Where the Vice-Admiralty Courts have jurisdiction in capture, the jurisdiction of the Court of Admiralty is not excluded. Brazil. 1725. An alien enemy has, in some cases, a right to sue in the prize court, but his claim must state the ground on which his right to sue there is founded, and an omission to do so must be amended before his claim can be received. Troija. 1726. The adjudication of the court of final appeal or of the prize court, unappealed from, is conclusive on the right of property in the prize. Except that a sentence of condemnation of a vessel captured in the waters of a neutral state is void for want of jurisdiction, and a sentence of condemnation of a vessel captured by a ship fitted out and armed by the subjects of a nation neutral to the country to which the prize belongs is also void, as against the law of nations and the allegiance of the captors. The neutral sovereign in whose territories or by whose subjects the ship was captured, has a right to reclaim it, and to retake it on the open sea or within his maritime domain. 1727. The jurisdiction of the prize court excludes in the case of capture the jurisdiction of the ordinary tribunals, at least as against the commissioned officers of the Crown. Even a British subject cannot maintain, against the captain of a man-of-war, an action for seizing his ship as an enemy; his remedy is in the prize court, for damages as well as for restoration. De Caux v. Eden. 1728. PRELIMINARY EXAMINATION.-Officers, rather than courts, are appointed under the prize court in the considerable seaports of every maritime belligerent power to examine the masters and principal officers of the ships brought in as prizes on interrogatories, called the preparatory examination, and to investigate the papers. If they find no sufficient ground for condemnation, or for such suspicion as to render it proper to call for further proof, these officers discharge the ship. 1729. According to the English Prize Act, sec. 16, on a vessel or goods captured as prize being brought into port, the captor or one of his chief officers, or some person present at the capture, is to bring or send, as soon as possible, three or four of the principal persons belonging to the captured ship, of whom, if possible, two are to be the master, supercargo, mate, or boatswain, before the judge of the Admiralty or the person lawfully commissioned in that behalf, by whom they are to be sworn and examined upon the standing interrogatories. This preparatory examination is to be concluded, unless good reason can be shown for an extension of time, within five days after request to the judge of the Admiralty. 1730. The captor (sec. 17), at the time of producing such persons for examination, and before any monition is issued, must deliver into the registry of the Admiralty all such books, papers, passes, sea-briefs, charterparties, bills of lading, cockets, letters, and other documents and writings as are delivered up or found on board the vessel, and the captor or one of his chief officers, or some other person who was present at the capture and saw such papers and writings delivered up or found on board at the time of the capture, |