country, to make restitution of the property thus unjustly seized." 1 As recapture is possible only between the place of original capture and the port to which it is sent by the captor, the right of postliminy exists between the same limits of time and place. The title of the original owner is finally extinguished by the action of the prize-court in decreeing the condemnation and sale of the captured property; and the title acquired by the purchaser is good, even against the original owner or his government. If such property be recaptured after it has been regularly condemned and sold, it is not restored to the original owner, but is regarded as lawful prize, and is treated as such.2 England furnishes the only exception to this rule. According to the English law, property recaptured during the continuance of a war is restored to its owner upon payment of salvage, no matter how long it has been in the enemy's possession nor through how many hands it may have passed in the way of purchase and sale. A treaty of peace is alone held to confirm and perfect the title to captures made during a war.3 'Boyd's Wheaton, p. 435; I Halleck, p. 189; II Ibid. pp. 514-537; Woolsey, 152; Hall, § 152; Upton, pp. 241-251; II Twiss, p. 345. For the law of the United States on the subject, see § 4652 of Revised Statutes of the United States. For that of France, England, Spain, Portugal, Denmark, Sweden, Holland, see Boyd's Wheaton, pp. 442-450; Snow, p. 105; the Santa Cruz, 1 Robinson, Adm. Rep. p. 50; the Ceylon, 1 Dodson, pp. 105, 117-120. 2 Hall, pp. 493-495; II Halleck, PP. 522, 523; III Phillimore, pp. 617, 618; Upton, pp. 233-242; Valin, Traité des Prises, liv. iii. tit. ix. art. 10. "In cases of recapture the rule of reciprocity is applied. If France would restore in a like case, then we are bound to restore; if otherwise, then the whole property must be condemned to the re captors. It appears that by the law of France in cases of recapture, after the property has been twentyfour hours in possession of the enemy the whole property is adjudged good prize to the recaptors, whether it belonged to her subjects, to her allies, or to neutrals. We are bound, therefore, in this case to apply the same rule; and as the property in this case was recaptured after it had been in possession of the enemy more than twenty-four hours, it must, so far as it belonged to persons domiciled in France, be condemned to the captors.' - Schooner Adeline, 9 Cranch, 244 [288]; the Santa Cruz, I Robinson, Adm. Rep. p. 50; the Belle Edwards, Adm. Rep. p. 66; the Wight, 5 Robinson, 315. 3 II Halleck, pp. 514-526; 27 and 28 Victoria, chap. xxv. § 40; III Phillimore, §§ 418-436. PRIZE-COURTS Prize-Courts and their Jurisdiction. Whenever a capture has been made at sea, it becomes the first duty of the captor to cause it to be conveyed to a port of his own country, or that of an ally, for adjudication. The municipal laws of all states provide special tribunals whose duty it is to determine questions of prize. These tribunals are called Prize-Courts, and as the decision of such questions is an incident of admiralty jurisdiction, the admiralty courts of most states are given jurisdiction over cases of maritime capture. This power may be vested in these courts as a branch of their general admiralty jurisdiction, or jurisdiction may be conferred upon them by special commission during a particular war. The former practice prevails in the United States, the latter now prevails in England.' Prize-courts may sit in the ports or territory of a belligerent or in those of an ally. They cannot sit in neutral ports, even with the consent of the neutral government," and a belligerent would justly regard the granting of such permission as a violation of neutral obligation. This arises from the peculiar jurisdiction of these tribunals. Prize-courts do not try criminal cases or determine controversies arising between individuals. The question before them in case of a particular capture is whether, according to the law of nations, the ship and cargo were liable to capture, and, if so, whether the capture was lawfully made. If their decision be in the affirmative, the ship and cargo are condemned; if the decision be in the II Halleck, pp. 415-422; II Ferguson, § 282; Creasy, 8 519. "In the United States the district courts have original jurisdiction in prize cases, subject to appeal, however, direct to the Supreme Court of the United States."-V Calvo, §§ 3035-3044; III Phillimore, §§ 437-439. 2 Boyd's Wheaton, § 385; II Halleck, pp. 422, 423; Snow, pp. 166, 167; Manning, pp. 474, 475; the Heinrich and Maria, 4 Robinson, Adm. Rep. p. 43; V Calvo, 88 3045-3065; Dana's Wheaton, §§ 387-389, note 186. See, also, Appendix F, Convention No. 13, Art. IV. negative, they are released. In its investigation of the circumstances of the capture, and in reaching a decree of condemnation, the court, to a certain extent, acts in behalf of the state under whose authority it sits, and its decree fixes upon that government, in the highest degree, the responsibility for the seizure and condemnation of the enemy's property or contraband goods. Its action, therefore, to a much greater degree than is the case with ordinary judicial proceedings, constitutes an act of sovereignty, and for this reason it cannot perform such an act within the jurisdiction of another sovereign state.1 As the rules regulating captures at sea which are applied by the principal maritime powers are not precisely the same, and as most states have some statutory provisions on the subject, it follows that these variations in law and practice will be reflected in the decisions of their prize tribunals. The Law Applied by Prize-Courts. In deciding cases of maritime capture, prize-courts apply the rules of international rather than municipal law. For this reason decisions in similar cases, rendered by the prize-courts in other states, are regarded by them as constituting precedents of a binding character. "Prize-courts are in no way bound to regard local ordinances and municipal regulations, unless they are sanctioned by the law of nations. Indeed, if such ordinances and regulations are in contravention of the established rules of international jurisprudence, prize-courts must either violate their duty or entirely disregard them. They are not binding on the prize-courts, even of the country by which they are issued. The stipulations of treaties, however, are obligatory upon the nations which have entered into them, and prizecourts must observe them in adjudicating between subjects or citizens of the contracting parties." " II Halleck, pp. 422, 423; III Phillimore, §§ 433-436; V Calvo, 88 3056, 3057; Dana's Wheaton, § 389. II Halleck, PP. 433-436; II Ferguson, § 282; Creasy, 8 519; Procedure in Prize Cases. The rules of prize, as now applied to maritime captures, are largely based upon the provisions of the Roman Law on the same subject. Not only the proceedings, but also the rules of evidence are, in many respects, different from those of courts of Common Law; and prize-courts not only decide upon the claims of capture, but also upon their conduct in making the capture, and subsequently-and not infrequently-declare a forfeiture of their rights with vindictive damages. In prize cases the evidence to convict or condemn must come, in the first instance, from the papers and crew of the captured ship, and it is conclusively upon these papers and examinations that the case is disposed of in the first instance. If, from this evidence, the property clearly appears to be hostile or neutral, condemnation or restitution immediately follows. If the property appears to be doubtful, or the case suspicious, further proof may be granted according to the rules which govern the legal discretion of the court, if the claimant has not forfeited his right to it by a breach of good faith..... When the national character of the ship or cargo does not distinctly appear, or when the question of proprietary interest is left in doubt, further proof is usually ordered.' Wheaton, 397a; the Maria, I and rules of decision are to be ascertained by reference to the known powers of such tribunals, by which they are governed under the public law and practice of nations."-The Amy Warwick, 2 Sprague, 123. "Neither the President nor any military officer can establish a court in conquered country, and authorize it to decide upon the rights of the United States, or of individuals in prize causes, or to administer the law of nations.”—Jecker vs. Montgomery, 13 Howard, p. 498. II Halleck, pp. 434-436; Upton, pp. 396-434; III Phillimore, §§ 441-518; V Calvo, §§ 30603087. Right of Appeal in Prize Cases. The right of appeal is invariably recognized in the laws creating prize-courts and defining their jurisdiction; and, on account of the importance of the interests involved, special provision is frequently made to enable prize cases to be carried up, by way of appeal, to a court of last resort, in a much shorter time than is usual, and without passing through any of the courts intervening between those of original and final jurisdiction. The laws.of the United States provide for this contingency by permitting an appeal to be taken directly to the Supreme Court, from the district courts, which, in the United States, have original jurisdiction in all cases of maritime capture.1 The Prize Court of Appeal. One of the most important results of the labors of the Second Peace Conference at The Hague consisted in the establishment of a tribunal of appeal in prize cases. It has long been regarded as unsatisfactory that a municipal prize-court should have the power to pass, finally, upon controverted questions of prize, especially in those cases in which the rights of neutral states or their subjects are concerned. It has been held by the highest judicial authority that these courts apply the general rules of international law in the decision of prize cases, and, for that reason, their conclusions upon controverted questions of prize should be accepted as final.2 But a considerable number of states have dissented from this view, and do not attach decisive importance to the decisions of municipal courts having prize jurisdiction. was, therefore, in the highest degree expedient that a court of review should be established, having for its purpose to introduce finality, order, and uniformity into the decisions of the controverted questions that arise in the determination of such cases. It The Prize Court of Appeal, as established in the treaty, is composed of fifteen judges, nine of whom constitute a quorum. They are selected in rotation by the states who 'Upton, pp. 433, 434. See note 2, page 370, ante. 2 |