within the realm, belonging as well to strangers as Englishmen. But capture by an enemy, in the exercise of war between two nations, does, according to the law of nations, wholly divest the property of the owner, and transfer it to the captor or the sovereign of his state at some period (a). The African States, having now acquired the character of established governments, and having regular treaties with this country, are not at present considered as pirates. And therefore in the case of a British ship captured by the Algerines, and sold under the authority of the Dey of Algiers, before the Spanish Consul, to a merchant of Minorca, who transferred it to a British merchant under the sanction of the Judge of the Vice-Admiralty Court at Minorca, the Court of Admiralty here refused to award restitution to the original owner (b), 9. There appears, however, to be no settled and uniform rule established in practice among nations, as to the precise period, at which property is divested [14] by capture. By some writers, and in some nations, this has been held to take place after a possession of twenty-four hours; by others not until the prize has been carried infra præsidia (c), an expression of very doubtful meaning as applied to maritime warfare. The present very learned Judge of the Court of Admiralty has said, that, in his apprehension, "by the "general practice of the law of nations, a sentence of "condemnation is at present deemed generally necessary, and that a neutral purchaser in Europe during war (a) Hale's Treatise in three parts, par. 2. ch. 28. in Hargrave's Law Tracts, p. 246. Goss v. Withers, 2 Burr. 683. 1 Rob. A. R. 59. Marshall on Insurance, p. 427. (e) March. 110. "looks to the legal sentence of condemnation as one "of the title deeds of a ship, if he buys a prize ves"sel (d)." Such a sentence was thought necessary in this country to divest the title of the original owner, and give a valid title to a purchaser under captors, more than a century ago: and a ship taken from an Englishman by a French squadron in the year 1691, and sent into Bergen in Norway, and there sold, coming afterwards into this country, was claimed by the original owner, and decreed to be restored to him by a sentence of the Court of Admiralty, affirmed afterwards upon appeal to the delegates (e). And upon the ground, that a legal sentence of condemnation cannot, according to the law of nations, be pronounced by a consul or minister of the belligerent power, in the country of a neutral power, to which the prize may have been [15] taken; ships have lately been restored by the judgment of the Court of Admiralty to their original owners, as well upon recapture from the purchaser (ƒ), as upon arrest in a port of this country (g). In one case, the ship, while in the hands of a neutral purchaser, had been taken by the French, and carried into a Spanish port, and there condemned by the French consul as prize, but that condemnation had been reversed on appeal to the superior prize court at Paris, and the ship restored to the purchaser. These facts, however, were held not to alter the case, or give validity to the title of the purchaser. According to the principle, upon which these decisions are founded, a ship carried into a neu (d) 1 Rob. A. R. 139. (e) The ship CONSTANT-MARY, 3 Rob. A. R. 97. note. Thermolin v. Sands, Carth. 423. (g) The KIERLIGHETT, Spoerewig, 3 Rob. A. R. 96. And the PROSPEROUS, Dec. 1800. See also Havelock v. Rockwood, 8 Term Rep (f) The FLAD-OYEN, Martin- in B. R. 268. Where this princi son, 1 Rob. A. R. 135. ple is adopted. tral port ought not, while remaining there, to be condemned in the country of the captors; but as it appeared in a late case (h) in the Court of Admiralty, that sentences of condemnation under such circumstances had been sometimes passed in this country, the learned Judge of that Court refused to restore a British ship carried into Norway by a Dutch privateer, and [16] condemned by a Court at the Hague. But states in alliance with the captors and at war with the country to which a captured ship belongs, are considered as forming one community with the captors and a prize carried into such a state may be legally condemned, either there by a consul belonging to the nation of the captors (i), or in the country of the captors (k), (1). 10. The subject of restitution on recapture will be mentioned in the chapter on Salvage.* (h) The HENRICK and MARIA, Baar, 4 Rob. A. R. 43. A short time before this case was argued, the same learned Judge having condemned a Dutch ship, but afterwards discovered that although she was described as lying at Plymouth, she was in truth in Norway, directed the Registrar to annul the decree. Note to the case of the HERSTELDE P, 1 Rob. A.R. 119 (2). (i) The BETSY, Kruger, 2 Rob. A. R. 210. note; and Oddy v. Bovil, 2 East, 473. (k) The CHRISTOPHER, Slyboom, 2 Rob. A. R. 209. (1) It seems to be the established law in the United States, that a condemnation is necessary to transfer the property in a prize. It was so held, as to neutrals, by Johnson J. in the Circuit Court of the U. S. for South Carolina, in Rose v. Himely, 4 Cranch, 508. Appx. who said, "I heartily concur in the opinion, that as far as between neutrals at least, a sentence of condemnation is indispensably necessary to produce a complete divesture of (2) The case of the Henrick and Maria was affirmed by the court of appeal in 1807, expressly as Sir W. Grant said upon the ground that the acknowledged practice of Great * Post. 398. Britain must have the effect of making those sentences valid whilst that practice continued. See also on the same ground the Comet, 5 Rob. 255. 11. It seems proper in this place to take notice of the question, whether the mortgagee of a ship is to be deemed in law the owner of it, entitled to the benefits, and liable to the burthens, which belong to that character, before he takes possession of the ship. The first decision, which I find in our books upon this subject is the case of (1) Chinnery against Blackburne; which was an action brought for the freight of (1) In K. B. East. Ter. 24 Geo. 3. Reported in a note. 1 Hen. Black. Rep. 117. property, and unless the neutral property captured be put in a train for adjudication, I should think a nation at liberty to seize it as piratically taken, for the capturing power is bound to satisfy the neutral nation, that she had a legal right to attack her citizens, and it will be found upon reflection, that this cannot be satisfactorily done in any other mode than by a decree of her tribunals of justice."—And the same doctrine seems to have been admitted by the Supreme Court of the U. S. in deciding the same case on the appeal. 4 Cranch. Rep. 241. And in Hudson, &c. v. Guestier, 4 Cranch. Rep. 293. the Court expressly say, that "the property in a neutral, captured as an enemy, is never changed until sentence of condemnation has passed."-In Wheelwright v. De Peyster, 1 John. Rep. 471. the Supreme Court of New York held, that the property in goods captured, cannot be transferred so as to divest the right of the original owner, unless by a sentence of condemnation by a Court of competent jurisdiction.-See also an ordinance of Congress in 1781, on this subject, 7 Journals of Congress, 68. 189. and Miller, &c. v. Ship Resolution. 2 Dall. Rep. 1. Every sentence of a court of a competent jurisdiction over the subject matter of its judgment, is conclusive as to the title to the thing claimed under it. 4 Cranch. Rep. 241. 293. See also Penhallow v. Doane, &c. 3 Dall. 54. and 1 John. Rep. 471., goods from Antigua to London, and upon the trial whereof it was proved in evidence, that by an Indenture of Assignment, dated January 4, 1783, Robert Merryfield, in consideration of £.1,166. 18s. which he owed to the plaintiff, assigned to her the ship B, &c. in which indenture there was a covenant from the plaintiff to re-assign the said ship, &c. to Merry- [17] field on payment of £. 1,166, with lawful interest, on or before the tenth of November then next ensuing; that at the time of the execution of the deed, the ship was But if a claim be set up under a sentence of condemnation of a foreign court, the courts of the U. S. will examine into the jurisdiction of the foreign court, and if its jurisdiction cannot con sistently with the law of nations be exercised, the sentence will be disregarded. 4 Cranch. ibid. 1 John. Rep. ibid.—If therefore a vessel for a breach of municipal law be seized without the territorial jurisdiction of a nation; or if the sentence be pronounced after the possession of a vessel is lost by recapture, escape, or voluntary discharge, the condemmation is invalid. Cranch. ibid. 4. It seems also established that a condemnation of a consul of a belligerent in a neutral country, is held invalid in the United States. In the above case of Wheelwright v. De Peyster, the court held that belligerents cammot establish prize courts in a neutral country, nor can there make sale of their prizes unless authorized by treaty; that the courts of the sovereign of the captors are the only competent tribunals to decide on the va lidity of captures; and that prize courts proceed in rem and cannot adjudicate on a prize lying in a foreign neutral port, or out of the jurisdiction of the captor or his ally. In Glass v. The Sloop Betsy, the Supreme Court of the U. S. decided, that no prize jurisdiction could be exercised in a neutral country, unless by treaty. G |