Portugal, and the Mediterranean; and taken, Jan., 1798, sailing under convoy of a ship of war, and proceeded against for resistance of visitation and search by British cruisers.

Judgment, Sir W. SCOTT.-(Only so much of the judgment is here given as applies to general principles). *** This being the actual state of facts, it is proper for me to examine, 2dly, what is their legal state, or, in other words, to what considerations they are justly subject, according to the law of nations; for which purpose I state a few principles of that system of law which I take to be incontrovertible.

"1st, That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, because, till they are visited and searched, it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely reg ulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force-something in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be resisted. For it is a wild conceit that wherever force is used, it may be forcibly resisted; a lawful force cannot lawfully be resisted. The only case where it can be so in matters of this nature, is in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative situation

of two countries at peace with each other, no such conflicting rights can possibly coexist.

"2dly, That the authority of the Sovereign of the neutral country being interposed in any manner of mere force cannot legally vary the rights of a lawfully-commissioned belligerent cruiser; I say legally, because what may be given, or be fit to be given, in the administration of this species of law, to considerations of comity or of national policy, are views of the matter which, sitting in this Court, I have no right to entertain. All that I assert is, that legally it cannot be maintained, that if a Swedish commissioned cruiser, during the wars of his own country, has a right by the law of nations to visit and examine neutral ships, the King of England, being neutral to Sweden, is authorized by that law to obstruct the exercise of that right with respect to the merchant-ships of his country. I add this, that I cannot but think that if he obstructed it by force, it would very much resemble (with all due reverence be it spoken) an opposition of illegal violence to legal right. Two sovereigns may unquestionably agree, if they think fit, (as in some late instances they have agreed,) by special covenant, that the presence of one of their armed ships along with their merchant-ships shall be mutually understood to imply that nothing is to be found in that convoy of merchant-ships inconsistent with amity or neutrality; and if they consent to accept this pledge no third party has a right to quarrel with it any more than with any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it. I am not ignorant, that amongst the loose doctrines which modern fancy, under the various denominations of philosophy and philanthropy, and I know not what, have thrown upon the world, it has been within these few years advanced, or rather insinuated, that it might possibly be well if such a security were accepted. Upon such unauthorized speculations it is not necessary for me to descant: the law and practice of nations (I include particularly the practice of Sweden when it happens to be belligerent) give them no sort of countenance; and until that law and practice are new-modelled in such a way as may surrender the known and ancient rights of some nations to the present convenience of other nations, (which nations may perhaps REMEMBER to forget them, when they happen to be themselves belligerent,) no reverence is due to them; they are the elements of that system which, if it is consistent, has for its real purpose an entire abolition of capture in war-that

is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a state of things not yet seen in the world, that of a military war and a commercial peace. If it were fit that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way which, professing gravely to adhere to that system which has for centuries prevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expence of the constant hazard of the harmony of states, and of the lives and safeties of innocent individuals.

"3dly, That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law." See Book III., c. vii., sect. 114.

1

SECTION 50.-PRIZE COURTS.

DECISIONS OF PRIZE COURTS.

(Lawrence's Wheaton, 960.)

The decision of a prize court is conclusive in respect of the title to the property.

"The constitution of prize courts is an anomaly in jurisprudence. Deriving their authority from one nation, they pass irrevocably on the title to the property belonging to the citizens or subjects of another. Tribunals exclusively of the belligerents, they pronounce on the rights of neutrals, who have no other appeal from the admiralty courts in the last resort than to the justice of the sovereign of the captor, through the diplomatic interposition of their own government.

"In England the common law courts, whatever protection they may have given to the rights of property as well as of person, have from an early day recognized the conclusiveness of foreign prize decisions on the question of title. A case in the King's Bench, which

See also the case of the Marianna Flora, 11 Wheaton, 1.

For decisions on Visit and Search in time of peace, see Le Louis, supra, § 20 (c); The Antelope, 10 Wheaton, 119.

occurred in 1683 (34 Car. II.), while declaring the absence in such cases of jurisdiction in the court, points out the only remedy for the party aggrieved. Trover having been brought by the original owner, an English denizen, for a Dutch built ship taken in the war between the Dutch and French, as a Dutch prize, and condemned in the French admiralty court, the chief question was, whether the sentence should be examined by the common law courts. It was resolved that it shall not, because, though it be in another king's dominions, we ought to give credit to it, or else they will not give credit to the sentences of our court of admiralty. And the defendants are at no prejudice. The way is, if they find themselves aggrieved, to petition the king, who will examine the case, and, if he finds cause of complaint, will send to his ambassador residing with the prince or state where the sentence was given, and upon failure of redress, will grant letters of marque and reprisal.'" 1

PRIZE COURTS ON BOARD SHIPS.

` (Captain Semmes: “Cruise of the Alabama,” I., 346.)

Does International Law sanction the establishment of prize courts by commanders of belligerent cruisers, on board their ships?

Captain Semmes, of the Confederate steamer Sumpter, and later commander of the Alabama, would seem to have turned his cabin into a prize court on the occasion of every capture made by him. It has generally been held that the commander of a belligerent cruiser has no right to decide controverted questions arising in cases of prize. He seizes a vessel on the belief or suspicion that she is enemy's property, or that she is engaged in a forbidden commerce, it is left to the prize court of the captor's country to determine whether these suspicions are warranted or not.

During his cruises in the Sumpter and the Alabama, Captain Semmes had occasion to adjudicate in more than seventy cases of prize; in fifty-nine of these cases, ship and cargo were condemned as enemy's property, and burned; in nine cases the ships were released on ransom bonds, the cargoes being plainly neutral. But in a large number of the cases of those condemned and burned, there were claims for the cargoes as neutral property. Captain Semmes seems to have condemned the cargo, unless there was positive proof

1 For the constitution and functions of prize courts, see Lawrence's Wheaton, 960; Baker's Halleck, II., 411; Phillimore, III., 648-679.

of its neutrality. This practice was carried on by him and others for four years, and was acquiesced in by neutral nations; who permitted their ships to be searched and their property adjudicated upon by these commanders. They received them into their ports, and supplied them with provisions and coal. Who shall say, therefore, that hereafter a prize court may not be established on the deck of every belligerent man-of-war, the commander constituting such court?

The following is a specimen of Captain Semmes' procedure, taken from his own memorandum.

Case of the Lafayette ("Cruise of the Alabama," I., 346):

"Ship and cargo condemned. The cargo of this ship was condemned by me as enemy's property, notwithstanding there were depositions of the shippers that it had been purchased by them on neutral account. These ex parte statements are precisely such as every unscrupulous merchant would prepare, to deceive his enemy and save his property from capture."

After an extended discussion of the case, showing that there was fraud, and that the neutrality of the cargo was not established, Captain Semmes continues:

"3d Phillimore, 599, to the effect, that further proof' is always necessary where the master cannot swear to the ownership of the property (as in this case). And as I cannot send my prizes in for adjudication, I must of necessity condemn in all cases where further proof' is necessary, since the granting of further proof' proceeds on the presumption that the neutrality of the cargo is not sufficiently established; and where the neutrality of the property does not fully appear from the ship's papers and the master's deposition, I had the right to act upon the presumption of enemy's property."

Again, in the case of the Express (Ib., 167), in which ship and cargo were condemned. "It must be admitted that this is a case in which, perhaps, a prize court would grant further proof;' but as I cannot do this, and as a distinct neutral character is not impressed upon the property by former evidence, I must act under the presumption of law. See 3d Phill., 589."

The following is an extract from the "Cape Argus," giving an interview with Captain Semmes :—

"You English people won't be neighborly enough to let me bring my prizes into your ports and get them condemned, so that I am obliged to sit here a court of myself, try every case, and condemn the ships I take."