has been carried into a place of safety, infra præsidia. Grotius, Lib. III, cap. 6, § 3; cap. 9, § 14; Kluber, Droit des Gens. Moderne de l'Europe, § 254; Vattel, bk. III, cap. 14, § 196; cap. 14, § 209; Heffter, das Europäische Völkerrecht, § 136. It is upon authorities like the foregoing that the right and title of the claimants in the present case is predicated. But these general expressions refer to the time when the title of the original owner is divested, rather than when the right of the individuals making the capture vests. Attention for a moment to the foundation and origin of the right of the individual to the captured property will assist us in the solution of this question. That right is acquired not in virtue of the seizure of it as enemies' property, but by grant of the sovereign whose commission the captor bears. Judge Story says: "It is now clear that all captures in war inure to the sovereign, and become private property only by his grant." The Emulous, 1 Gall. 569; 11 East. 619. The right to all captures from the earliest times has vested primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, except that which he receives from the bounty of the State. Law of Marine Warfare, p. 374; Valin, Com. II. 235; Bynk., cap. 17; Sir L. Jenkins' Work, p. 714. An interest in a prize can only be derived from the government. 1 Phillips on Insurance, 182, § 320; The Joseph, 1 Gall. 558; 11 East. 428. It is even denied that the individual captors, prior to condemnation, have any insurable interest in the captured property. Routh v. Thompson, 11 East. 432; DeVause v. Steele, 6 Bingh. N. C. 370; Lucena v. Crawford, 3 B. & P. 75; 5 Id. 323; Crawford v. Hunter, 8 T. Rep. 13. The principle applicable to this case to be extracted from the authorities cited is, that by the capture of this ship the property to it vested in the United States, and whatever right to or title in it the claimants acquired must be derived from their sovereign authority. (1 Court of Claims, 113.) The late W. E. Hall draws the same distinction, and holds that in the case of enemy property, title passes to the captor's country immediately upon capture, and that it is taken out of the captor's country and vested in the individual captor by a prize court of that country, if individual captors are allowed an interest in the prize. Indeed, Mr. Hall goes further, and shows that a decision of a prize court is otherwise not necessary in the case of enemy property, because all enemy property upon the high seas is subject to capture and confiscation; that the intervention of a prize court is due to the interests of neutrals; and that in the case of neutral's property only the decision of a prize court is necessary to pass title. Thus he says: As the property in an enemy's vessel and cargo is vested in the state to which the captor belongs so soon as an effectual seizure has been made, they may in strictness be disposed of by him as the agent of his state in whatever manner he chooses. So long as they were clearly the property of the enemy at the time of capture, it is immaterial from the point of view of International Law whether the captor sends them home for sale, or destroys them, or releases them upon ransom. But as the property of belligerents is often much mixed up with that of neutrals, it is the universal practice for the former to guard the interests of the latter, by requiring captors as a general rule to bring their prizes into port for adjudication by a tribunal competent to decide whether the captured vessel and its cargo are in fact wholly, or only in part, the property of the enemy. (Hall's International Law, 4th ed., sec. 150.) But whether or not the title passes to the enemy country by capture without the intervention of the judgment of a prize court, and whatever the law may be on this point, there is no doubt that the attitude of the United States is against taking jurisdiction when a prize is not within its ports, and is opposed to the right of a foreign captor to bring its prize into the United States and to allow it to remain in this country pending judicial proceedings in a prize court of his nation. This is the attitude, but it has not always been the practice of the United States. A learned international lawyer and judge, Sir Robert Phillimore, felt himself justified in saying in his Commentaries upon International Law, that "an attentive review of all the cases decided in the courts of England and the North American United States leads to the conclusion that the condemnation of a capture, by a legal prize court, sitting in the country of the belligerent, of a prize lying at the time of the sentence in a neutral port, is irregular, but clearly valid." (Phillimore's Commentaries upon International Law, 3d ed., Vol. III, sec. CCCLXXIX.) In principle this should not be permitted; in practice, it has been allowed, and the case of the Polka (Spink's Eccles. and Adm. Reports, 447), decided by Dr. Lushington in a capture made in the Crimean War, is not to be taken as a prohibition of the practice, although it was a condemnation of it. It must be borne in mind that that great judge condemned the captured ships lying in a neutral port, because they could not be removed to British jurisdiction without danger of loss. He insisted that his condemnation of the prizes lying in a neutral juris diction should not be taken as a precedent, but the important point is that he assumed jurisdiction and passed title. This fact clearly weakens his condemnation of the principle to be found in the portion of his opinion quoted by Judge Waddill: I wish it, moreover, to be expressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of a prize while lying in a neutral port. The rule is that the prize shall be brought into a port belonging to the captor's country, and the court must guard itself against allowing a precedent to the contrary to be established. The following note by Dana to his edition to Wheaton is quoted by Judge Waddill, and is, it is believed, correct both as to the principle and practice. But apart from any such practice of neutrals, it seems clear that to allow prizes to fly to a neutral port and remain there in safety while prize proceedings are going on in a home port, would give occasion to nearly all the objections that exist against prize courts in neutral ports. It seems, therefore, to be the tendency, if not the settled rule, now, that a decree of condemnation will not be passed against prizes remaining aboard, unless in case of necessity, or if passed, will not be respected by other nations. (Wheaton's International Law, 8th Am. ed. Sec. 391.) But, even although there is doubt on this point, it does not follow that the United States would not now be justified in refusing to recognize the validity of a German prize court decision in the case of the Appam while that vessel was lying as the spoils of war in an American port. The exclusion by the United States of Article 23 from the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War, stated in clear and unmistakable terms that, in its opinion, "a neutral Power may" not "allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court." The District Court therefore was, it would seem, justified in rejecting the German contention that it could not take jurisdiction of the case of the Appam pending judicial proceedings in Germany; for if the view which has just been advanced is correct, the decision of a German prize court under the circumstances would be null and void in so far as the United States was concerned. It would be as if it had not been, and the question for the American court to consider was, whether irrespective of the attitude of the German judicial authorities, the Appam was guilty of such a violation of American neutrality as to justify its return to the original owners. Clearly, the capture of the Appam upon the high sea was not a violation of American neutrality, and it will be interesting to have the opinion of the Supreme Court on appeal upon the question whether the mere entry of the Appam into an American port, there to lay up during the war, claiming the right so to enter by virtue of a treaty between the captor's country and the United States, was in itself such a violation of neutrality as to justify the court in restoring it to the original owners, in view of the fact that the vessel had been allowed to enter and had not been notified by the Department of State that its entry was contrary to the treaty under which it claimed, and when the Secretary of State, in an official communication to the British Ambassador, declared himself unable to accept the "suggestion that the presence of the Appam in American waters, in the circumstances, constituted a violation of the neutrality of the United States." The case would be different if the United States had refused the Appam permission to enter or if, upon notice of its entrance, the government had ordered the vessel to depart as its presence violated American neutrality. Being allowed to enter and not being notified to depart, it would seem that there is ground for the contention that until the United States notified the Appam that its presence was, under the circumstances, a violation of American neutrality, the vessel was not a trespasser and was justified in remaining under such conditions as the United States. might impose until its right to enter and to remain had been decided. JAMES BROWN SCOTT. BOARD OF EDITORS OF THE AMERICAN JOURNAL OF INTERNATIONAL LAW CHANDLER P. ANDERSON, New York, N. Y. CHARLES CHENEY HYDE, Northwestern University. JOHN BASSETT MOORE, Columbia University. Editor in Chief JAMES BROWN SCOTT, Carnegie Endowment for International Peace, Washington, D. C. Secretary of the Board of Editors and Business Manager EDITORIAL COMMENT THE BLACK LIST OF GREAT BRITAIN AND HER ALLIES In the editorial comment on the Economic Conference,' attention is called to the recommendation that effective measures be taken during the war by the Allied Powers to prevent trade with the enemy, whether the trade proceed directly from the territory of the Allies, or indirectly through neutral countries, either by citizens thereof, or by enemy subjects domiciled therein, or by firms or corporations under enemy control or supervision. This particular recommendation was apparently de 1 Page 845. |