as concerns such thing. The second is that of domestic tribunals (in which light they are to be considered in all respects, except as to the proceedings in rem), which are simply agents of the sovereign which commissions them. Hence, a sovereign is as much liable internationally for the wrongful action of prize courts as he is for the wrongful action of any other courts. It was consequently held in the case of the Betsey, before the London commission of 1798-1804, that while the decisions of prize courts bind the parties, so far as concerns the particular litigation acting in rem, they may be contested by the Government of the party which feels aggrieved. MSS. Returns of Comm. Dept. of State. A judicial decree contravening the law of nations has no extraterritorial force. Mr. Evarts, Sec. of State, to Mr. Brunetti, Oct. 23, 1878. MSS. Notes, Spain. As to non-ubiquity of bankrupt decree, see supra, § 9. The preamble to the judgment of the Geneva Tribunal of 1872 declares that the judicial acquittal of the Oreto, at Nassau, cannot relieve Great Britain from the responsibility incurred by her under the principles of international law. See infra, § 402a; supra, § 329. "It is true that the vice-admiralty court of the Bahamas, by its judgment, which is given at page 521 of the fifth volume of the Appendix to the American case, acquitted the Florida of every charge; but, while respecting the authority of the res judicata, I ask whether it is possible to deduce from this an argument on which to found a moral conviction that the English Government is released from its responsibility under the rules laid down in Article VI of the Treaty of Washington? I abstain from repeating the considerations into which my honorable colleagues who have preceded me have entered on this subject. "It is not the question of special legal responsibility with which we have here to deal, but rather that of the responsibility which results from the principles of international law, and the moral conviction at which we have arrived in consequence of the acts imputed to the Florida. "This conviction is strengthened by a consideration of the terms of the conclusion of the judgment of the vice-admiralty court, where it is said, 'that all the circumstances of the case taken together seem sufficient to justify strong suspicion that an attempt was being made to infringe that neutrality so wisely determined upon by Her Majesty's Government.' "The decision of the vice-admiralty court may then be considered as conclusive, even if not perfectly correct, as between those who claimed the vessel and the British Government, which claimed its confiscation under the clauses of the foreign-enlistment act; but I do not think it is sufficient to bar the claim of the United States against Great Britain. The United States were not parties to the suit; everything relating to it is for them res inter alios acta." Count Sclopis, opinion in Geneva Tribunal of 1872. 193 "The objection that the judicial decision at Nassau relieves Great Britain of all responsibility cannot be maintained. As regards the internal (or municipal) law, the judgment is valid; but as far as international law is concerned, it does not alter the position of Great Britain." Mr. Staempli, ibid. In the opinion of Judge John Davis on French spoliations, Ct. of Cls., May 17, 1886, is the following: "The defendants say, further, the condemnation cannot be illegal because made by a prize court having jurisdiction, and the decisions of such courts are final and binding. This proposition is of course admitted so far as the res is concerned; the decision of the court, as to that, is undoubtedly final, and vests good title in the purchaser at the sale; not so as to the diplomatic claim, for that claim has its very foundation in the judicial decision, and its validity depends upon the justice of the court's proceedings and conclusion. It is an elementary doctrine of diplomacy that the citizen must exhaust his remedy in the local courts before he can fall back upon his Government for diplomatic redress; he must then present such a case as will authorize that Government to urge that there has been a failure of justice. The diplomatic claim, therefore, is based not so much upon the original wrong upon which the court decided, as upon the action and conclusion of the court itself, and, diplomatically speaking, there is no claim until the courts have decided. That decision, then, is not only not final, but on the contrary is the beginning, the very corner-stone, of the international controversy. This leads us naturally to another point made by the defense, in that the claimant did not 'exhaust his remedy' because he did not prosecute an appeal. We of course admit that usually there is no foundation for diplomatic action until a case cognizable by the local courts is prosecuted to that of last resort; but this doctrine involves the admission that there are courts freely open to the claimant, and that he is unhampered in the protection of his rights therein, including his right of appeal. It is within the knowledge of every casual reader of the history of the time that no such condition of affairs in fact then existed. "The very valuable report of Mr. Broadhead shows that prior to March 27, 1800, there was no appeal except to the department of the Loire-Inférieure, and in the then existing state of bad feeling and modified hostilities, and under the surrounding circumstances, this was to the captains of the seized vessels, in most if not in all cases, a physical impossibility. Nor prior to the agreement of 1800 was there any practical reason for appealing to a court when the result, as our seamen believed, whether rightly or not, but still honestly, was a foregone conclusion, and while negotiations were progressing for a settlement; nor is there anything in these negotiations showing that a technical exhaustion of legal remedy would be required. We are of opinion that the claimant was not, under these purely exceptional circumstances, obliged to prosecute his case through the highest court, even if he could have done so, which we doubt." "The Danish objection to the claims (for spoliations of American commerce in 1809 and 1810) was thus stated in a note of August 17, 1825, to Hughes: The sentences by which vessels bearing the flag of the United States have been released or condemned by the prize tribunals, or high court of admiralty, are without appeal, and cannot, without derogating from that which has been established from the remotest times in the Danish monarchy, be altered or annulled.' In a paper of marked ability, Wheaton controverted this. He said: The institution of these tribunals, so far from exempting or being intended to exempt the sovereign of the belligerent nation from responsibility, is designed to fix and ascertain that responsibility. Those cruisers are responsible only to the sovereign whose commission they bear. So long as seizures are regularly made upon apparent grounds of just suspicion, and followed by prompt adjudication in the usual mode, and until the acts of the captors are confirmed by the sovereign in the sentences of the tribunal appointed by him to adjudicate in matters of prize, the neutral has no ground of complaint, and what he suffers is the inevitable consequence of the belligerent right of capture. But the moment the decision of the tribunal of last resort has been pronounced against the claimant (supposing it not to be warranted by the facts of the case, and the law of nations as applied to those facts), and justice has thus been finally denied, the capture and the condemnation become the acts of the state, for which the sovereign is responsible to the Government of the claimant. No greater sanctity can be imputed to the proceedings of prize tribunals, even by the most extravagant theory of the conclusiveness of their sentences, than is justly attributed to the acts of the sovereign himself. But those acts, however binding on his own subjects, if they are not conformable to the public law of the world, cannot be considered as binding on the subjects of other states. A wrong done to them forms an equally just subject of complaint on the part of their Government, whether it proceed from the direct agency of the sovereign himself, or is inflicted by the instrumentality of his tribunals.' "The claimants sent an agent to Copenhagen, with power to agree upon a compromise sum in gross. The King of Denmark offered to pay half a million marks-banco of Hamburg. Wheaton said that the United States would consent to accept three millions of marks-banco. The parties agreed at length upon six hundred and fifty thousand Spanish milled dollars. In informing Mr. Van Buren of the signature of the treaty, Wheaton said: 'I have not before me sufficient material from which to form a judgment as to the real amount of the losses unjustly sustained by our citizens from Danish captures. You will find that Mr. Ewing, in his correspondence, estimates the actual loss at about $1,750,000, reckoning about thirty-five condemnations "quite unjust," to use his own expression. But supposing the real injury to have been considerably greater, the sum now recovered, considering the diminished resources of this exhausted country, will, I trust, be considered as a tolerable salvage from this calamitous concern."" Mr. J. C. B. Davis, Notes, &c. As to treaty relations with Denmark, see supra, § 147. "Where the responsibility of the captor ceases,' says Mr. Wheaton, 'that of the state begins. It is responsible to other states for the acts of the captors under its commission the moment these acts are confirmed by the definitive sentence of the tribunals which it has appointed to determine the validity of captures in war.' The sentence of the judge is conclusive against the subjects of the state, but it cannot have the same controlling efficiency towards the subjects of a foreign state. It prevents any further judicial inquiry into the subject-matter, but it does not prevent the foreign state from demanding indemnity for the property of its subjects, which may have been unlawfully condemned by the prize court of another nation."" 2 Halleck's Int. Law (Baker's ed.), 429, citing Wheaton's Elements, part iv, chap. 2, § 15. Mr. Alexander Hamilton took, as to the treaty of 1794, the same position in a letter of October 3, 1795, to Mr. Wolcott. (8 Hamilton's Works, Lodge's ed., 359.) Mr. Hamilton gives the following reasons: 1. "The subject of complaint to be redressed is irregular or illegal captures or condemnations." 2. "The article contemplates that various circumstances may obstruct compensation in the ordinary course of justice." After giving other reasons he asks: "Is not the constitution of such a tribunal (a commission) by the two parties a manifest abandonment of the pretension of one to administer justice definitely through its tribunals?" He states that he understood Mr. Burr and Mr. B. Livingston, whom he had met at a consultation, agreed with him in this view, though it was in conflict with an opinion given by Mr. Rawle and Mr. Lewis. "The attention of the mixed commission has been repeatedly called to the precedent of the authority exercised by a similar commission under the British treaty of 1794, and of the discussion between the British and American commissioners on the point, the American commissioners sustaining the fullness and supremacy of the jurisdiction which the British commissioners questioned. The disposition made of the doubt by the lord chancellor (Loughborough) in his answer to the fifth commissioner, Colonel Trumbull, who had submitted the point for his advice, is well known. The construction of the American gentlemen is correct. It was the intention of the high contracting parties to the treaty to clothe this commission with power paramount to all the maritime courts of both nations-a power to review and (if in their opinion it should appear just) to revise the decisions of any or all the maritime courts of both."" Trumbull's Reminiscences of his Own Times, 193, quoted in argument of Mr. Evarts before the British and American Mixed Commission in the Springbok case, 29. See infra, § 362. In 1753, Prussia successfully held Great Britain responsible for the erroneous action of British prize courts; and the same result attended the exceptions of the United States to British condemnations before the mixed commission under the treaty of 1794, as already stated, and the exceptions taken by the United States to Danish condemnations, for which Denmark was held responsible. 2 Halleck's Int. Law (Baker's ed.), 431. "The sovereign is therefore held responsible to the state whose citizen the claimaint is, that no injustice is done by the capture." Dana's Wheaton, § 388, note. In a dissenting opinion by Judge Thomas Cooper, in Dempsie, assignee of Brown, v. Insurance Company, in the Pennsylvania court of errors and appeals, 1808 (referred to supra, § 238), the following reasons are given for declining to assign international conclusive authority to the decisions of foreign prize courts: "They are emanations of the executive authority, the judges sitting, not during good behavior, but during pleasure. "They are bound by executive instructions which are always dictated by the interest of the belligerent. (To this a note is appended calling attention to the fact that Napoleon's Milan decrees were directed to the Tribunal des Prizes; and that the British orders of council of 1807 were directed inter alios to the British courts of admiralty and viceadmiralty.) "They are the courts of the belligerent; the plaintiffs, libelants, are the subjects of the belligerent, cruising under the authority and protec tion of the belligerent. "The property, if condemned, enriches the belligerent nation. . "The proceedings are written, by interrogatories and answers; by the civil law, and not by the common law of our own country or of England. "There is no intervention of a jury trial, nor any viva voce examination of testimony. "The salary of a British judge depends on a great degree upon the number of condemnations. I believe it is £15 sterling a vessel." On the last point it may be mentioned that the practice which exists in some countries of vesting in the judge the appointment of clerks and other officials who receive large emoluments from condemnations, coupled with the fact that the offices in question are often occupied by members of the judge's family, or by personal friends whose interests he has at heart, must, from the nature of things, influence the judge in the shape which he gives the case, unconscious as he may be of such influence. "A power over a man's sustenance," so substantially said Chief Justice Gibson, of Pennsylvania, in declaring unconstitutional an act of the legislature of that State reducing the salaries of the judges, "is a power over himself," and a power of this kind over the judiciary, it was held, it was not constitutional for the legislature to assume. Yet what power of this character could be more subtle than that exercised over an admiralty judge by a prize case coming before him with an offer of large emoluments to himself, or to some one of his family or friends, if a condemnation be decreed? That such a temptation would not be consciously yielded to by British or American judges may be unhesitatingly affirmed. But the atmosphere of influence which such a condition of things generates is no less pervasive and powerful than would be that of temptations directly and avowedly applied; and it is impossible not to admit that in this atmosphere judges of prize courts have been from time to time immersed, and that it is from some, at least, of these judges that the precedents which make up our prize law have been in part drawn. Judge Cooper's opinion, from which the above points are taken, was published in Philadelphia, in 1810, with a preface by Mr. A. J. Dallas, United States district attorney in Philadelphia, and afterwards Secretary of the Treasury. In this preface, which adopts and defends the |