all recaptures, ransoms and ransom bills, and all incidental questions growing out of the circumstances of capture such as freights and damages. Speaking generally, we may lay down the proposition that the courts of neutrals have no jurisdiction over the captures of belligerents. But to this rule there are exceptions. Jurisdiction exists and can be exercised when the capture is made within the territorial limits of the neutral state, or when a vessel, originally equipped for war within neutral jurisdiction, or afterwards made more efficient by an augmentation of warlike force therein, takes a prize at sea and brings it within the waters of the injured neutral during the voyage in which the illegal equipment or augmentation took place. In both cases neutral sovereignty is violated by one belligerent, and in consequence the neutral is exposed to claims and remonstrances from the other. Jurisdiction is therefore conferred upon it for its own protection, and in order that it may insist upon the restoration of the property unlawfully taken. We shall see more fully the bearing of these principles when we deal with the rights and duties of neutral states in relation to the naval operations of the belligerents.1 § 214. The procedure of There is little in common between an ordinary trial and a suit in a Court of Prize. In the former an issue between two parties is tried. In the latter the state holds what, following Dana," we may call an inquest upon certain property to discover whether it has been lawfully captured or not, just as in England the coroner holds an inquest upon a body to discover whether the individual concerned came by his death lawfully or not. Proceedings commence when the captured vessel has been brought into port within the jurisdiction of a Prize Court by an officer of the vessel which made the seizure. He puts 1 See § 264. 2 Note 186 to Wheaton's International Law. in a libel, that is to say, he petitions the court to hold an inquiry, and with his libel or petition he forwards the necessary affidavits, the ship's papers and other documents. Notice is then given that any person having an interest in the property may appear and claim it, or any part of it. An enemy cannot come forward, but citizens, allies or neutrals may. As the next step, whether claimants appear or not, the court by its own officers examines the captured vessel, its papers and cargo, and administers interrogatories to the persons found on board. The captors are not examined at this stage, nor are they allowed to examine the claimants or the captured persons. When the court has taken the evidence, counsel for the interested parties inspect it and base their arguments upon it. The burden of proof lies on the claimants, the fact that the vessel was brought in under the control of the captors giving rise to a presumption in their favor. If the evidence above described, which is technically termed evidence in preparatory, is deemed satisfactory by the court, it gives its decision. If not, it calls for what is termed further proof. The proceedings then take more closely the form of a trial between litigants. The captors and the claimants produce evidence, and the court gives judgment accordingly.1 The obligation of captors to send their prizes in for adjudication. § 215. In our account of prize proceedings we have assumed throughout that the vessel has been brought into port and delivered over to the custody of the court. Undoubtedly this is the proper course, for the proceedings are proceedings in rem and the are the best eviBut though this Property may be vessel herself, with her papers and crew, dence that can be submitted to the judge. course is regular, it is not essential. 1 Wheaton, International Law (Dana's ed.), 480-483, note; Holland, Manual of Naval Prize Law, Ch. xxii.; Naval Prize Act of 1864, §§ 16–33, adjudicated upon when it lies in the port of an ally in the war, or in a foreign port under military occupation by the captor's country, or even in the port of a neutral. It is open to neutral sovereigns to admit the prizes of belligerent cruisers into their harbors. The prevailing tendency in modern times has been to exclude them; but it is impossible to say that a breach of International Law is committed when they are allowed to enter, provided that the permission be granted impartially to both sides. And if, in consequence of such a grant, prizes lie in neutral waters, the courts of the leading maritime powers will adjudicate upon them. Sometimes a captor sells his prize before condemnation. Grave necessity will, it is said, excuse such an act; but prize proceedings for adjudication on the proceeds of the sale ought to be commenced without delay. The irregularity, however, would be so exceedingly grave that we may well doubt whether it would now be countenanced. Should the capture turn out to be illegal, neutral owners would have good ground of complaint when the proceeds of a forced sale were handed over to them instead of the ship itself. And their complaints would have still greater justification if a belligerent destroyed at sea any prizes taken from neutrals. This question has given rise to much discussion in recent years. Hall gives an excellent summary of the views expressed by various authorities, and accompanies it by many acute remarks of his own.1 It appears to be generally conceded that when the captured ship and cargo is enemy property there is no good ground for complaining of her destruction, provided that her crippled condition rendered navigation difficult, or the contiguity of an enemy or any other cause made it unsafe to detach a prize crew. The doctrine that necessity justifies departure from the regular practice has been laid down in British and French Prize Courts. In 1812 the United States went further, and instructed their naval officers at the outbreak of the war with 1 International Law, § 150 and notes, England to destroy all the enemy merchantmen they took, unless they were "very valuable and near a friendly port."1 The exception was here turned into the rule and the rule into the exception. It was perhaps a natural recoil from this extreme severity which caused Woolsey to characterize the practice of destruction as "barbarous " and say that it "ought to disappear from the history of nations."2 Unfortunately, there appears to be more chance of its extension. The Confederates burnt or sank their prizes during the great American Civil War, on the ground that the strict blockade of their ports by Northern squadrons rendered it impossible to take vessels in for adjudication. In 1870 the French burned two German vessels in spite of the fact that they had neutral goods on board. The Russians in 1877 destroyed some of their prizes in the Black Sea, because the Turkish blockade of their ports made access to them difficult; and in the various pamphlets and articles in which continental fear and jealousy of England's maritime greatness gloat over a pictured downfall of her naval power, the attack which is fatal to her commerce is always carried on by cruisers who do not encumber themselves with captured British vessels.3 It may be that the older rule will give way under the impact of new conditions. The chance of rapidly sweeping an enemy's mercantile marine from the seas may prove to be more attractive than the chance of prize-money. But we may venture to hope that the minds of the naval officers of the future will not be perplexed by the task of choosing between the two alternatives; for the difficulty could not arise if the capture of innocent private property were no longer permitted at sea. Meanwhile it is necessary to point out that a broad line of distinction must be drawn between the destruction of enemy property and the destruction of neutral property. The former has changed 1 Quoted by Sir A. Cockburn in his Reasons for dissenting from the Award of the Tribunal of Arbitration, p. 93. 2 International Law, § 148. 3 e.g. Russia's Hope. owners directly the capture is effected; and it matters little to the enemy subject who has lost it whether it goes to the bottom of the sea or is divided by public authority among those who have deprived him of it. But the latter does not belong to the captors till a properly constituted court has decided that their seizure of it was good in International Law; and its owners have a right to insist that an adjudication upon their claim shall precede any further dealings with it. If this right of theirs is disregarded, a claim for satisfaction and indemnity may be put in by their government. It is far better for a naval officer to release a ship or goods as to which he is doubtful, than to risk personal punishment and international complications by destroying innocent neutral property. Even where what is believed to be enemy property is concerned, and destruction or release become the only possible alternatives, it would perhaps be wise to adopt the latter unless the hostile nationality of the vessel and ownership of the cargo are too clearly established to admit of mistake. But the necessity of rapid movement in modern naval warfare, combined with the fact that neutral ports will in most cases be closed to prizes, is almost certain to result in an increase of the practice of destruction, unless the nations will consent to take a further step forward, and prohibit the capture of private property unless it be contraband of war. § 216. private property From time immemorial the laws of war have allowed the capture of private property at sea. But within the last hundred years a strong dislike of the practice History of the prohas sprung up in America and on the continent posal to exempt of Europe. The United States has favored the from capture at sea. policy of exemption from the beginning of its national It was embodied in Franklin's treaty with Prussia in 1785,1 but found no place in the subsequent treaties with 1 Treaties of the United States, 905, 906. career. |