If a prize, when in a position to leave neutral waters, delays its departure or does not conform to the order to depart immediately as notified to it by the neutral Power, the latter would be within its strict right to use all the means at its disposal to release the prize with its officers and its crew, and to intern the crew placed on board by the captor.

French Naval Instructions, 1912, sects. 129 and 130.

Articles 21 and 22, Hague Convention XIII, 1907, are substantially identical with sections 141, 142, respectively, Austro-Hungarian Manual, 1913.

On Aug. 28, 1801, President Jefferson wrote to Mr. Gallatin as follows:

"The doctrine as to the admission of prizes, maintained by the Government from the commencement of the war between England, France, etc., to this day has been this: The treaties give a right to armed vessels, with their prizes, to go where they please, (consequently into our ports), and that these prizes shall not be detained, seized, nor adjudicated, but that the armed vessel may depart as speedily as may be, with her prize, to the place of her commission; and we are not to suffer their enemies to sell in our ports the prizes taken by their privateers. Before the British treaty, no stipulation stood in the way of permitting France to sell her prizes here; and we did permit it, but expressly as a favor, not as a right. *These stipulations admit the prizes to put into our ports in cases of necessity, or perhaps of convenience, but no right to remain if disagreeable to us; and absolutely not to be sold."

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Moore's Digest, vol. vii, pp. 935, 936; 1 Gallatin's Writings, 41, 42.

On May 1, 1828, Mr. Clay, Secretary of State wrote to Mr. Rebello that "Neither belligerent is allowed by the laws of the United States to sell his prizes within their ports. The rights of hospitality are equally offered to both. They could not be denied, in many cases, without a violation of the duties of humanity."

Moore's Digest, vol. vii, p. 937; MS. Notes to Foreign Legations, IV, 16.

In the case of the American steamer Chesapeake, which was taken possession of, while on a voyage from New York to Portland, Me., by persons acting in the name of the Confederate States, and which was afterwards recaptured in Nova Scotian waters, where the captors had sought asylum, by a United States ship of war, who took the vessel to Halifax and delivered her to the colonial authorities, the Hon. Alex. Stewart, C. B., of the vice-admiralty court, held that the sovereign whose territorial rights are violated by the subjects or citizens of a friendly state can, if he finds them within his jurisdiction, inflict on them his own penalty in his own mode; that the Chesapeake, if a prize at all, was an uncondemned prize; that for a belligerent to bring an uncondemned prize into a neutral port to avoid recapture is such a grave offense against the neutral state that it ipso facto subjects the prize to forfeiture, and that the vessel should be restored to the owners on the payment of costs.

55565-18-17

Mr.

Seward had contended for the restitution of the vessel uncondi tionally, by executive authority, without waiting for an adjudication; but, on the rendition of the court's decision, he advised the owners to pay the costs under protest, and accepted the restitution as decreed.

Moore's Digest, vol. vii, p. 937; Mr. Seward, Secretary of State, to Mr. Adams, minister to England, No. 852, February 24, 1864, Dip. Cor. 1864, 1, 196.

Replying to an inquiry of the Peruvian legation as to the course the United States would pursue during the war between Spain and Peru, Mr. Seward said: "This Government will observe the neutrality which is enjoined by its own municipal law and by the law of nations. No armed vessels of either party will be allowed to bring their prizes into the ports of the United States."

Moore's Digest, vol. vii, p. 938; Mr. Seward, Secretary of State, to Señor Garcia, February 26, 1866.

BRINGING OF PRIZES INTO NEUTRAL PORT OR ROADSTEAD, TO AWAIT DECISION OF PRIZE COURT-DISPOSITION OF PRIZE CREWS.

A neutral Power may 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. It may have the prize taken to another of its ports.

If the prize is convoyed by a war-ship, the prize crew may go on board the convoying ship.

If the prize is not under convoy, the prize crew are left at liberty.-Hague Convention XIII, 1907, Article 23.

but, as Phillimore justly remarks, it would be pedantically rigid to consider, as a violation of neutrality, the allowing prizes captured by one belligerent to be brought into the neutral port,

*

*

*

Halleck, p. 515.

Contra.

The general practice of nations, dictated perhaps by comity, formerly permitted cruisers to bring their prizes into neutral ports. We have already seen that this is not obligatory on neutrals, and sound policy demands that it be prohibited.

The British Government in our war of secession prohibited, by an order of June 1, 1861, the bringing of prizes by vessels of war and privateers of both parties into the waters of the British kingdom and its colonies. France, by a declaration of June 10, 1861, made the same prohibition, excepting that such vessels with prizes are allowed to remain twenty-four hours in her ports, and to remain, in case of a forced suspension of a cruise (relâche forcée), as long as the necessity lasts. Treaties sometimes require this.

Woolsey, p. 274.

Nevertheless, although the neutral may permit or forbid the entry of prizes as he thinks best, the belligerent is held, until express prohibition. to have the privilege not only of placing his prizes within the security of a neutral harbour, but of keeping them there while the suit for their condemnation is being prosecuted in the appropriate court. Most writers think that he is also justified by usage in selling them at the neutral port after condemnation; and, as they then undoubtedly belong to him, it is hard to see on what ground he can be prohibited from dealing with his own.

Hall, pp. 642, 643.

Contra.

Phillimore, quoted with acquiescence by Hall, says that "an attentive review of all the cases decided in the courts of England and the North American United States during the last war, 1793-1815, leads to the conclusion that the condemnation of a capture by a regular 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." This, if established in practice, seems to be unsound in principle. To be a proper subject of adjudication a prize must have been brought infra praesidia, which is not the case while she lies in a neutral port, in which any forcible control of her ought not to be allowed by the territorial sovereign.

Westlake, vol. 2, p. 244; Phillimore, vol. 3, sec. 379, quoted by Hall, sec. 226.

Contra.

* *

*

To these was afterwards added [by the Second Hague Conference] the safe custody of the prize therein [in the neutral port] while it was awaiting the decision of a prize court sitting in the captor's country, and proceeding to adjudication on the papers and not on the ship herself. It is much to be regretted that any sanction was given to so irregular a course. The only serious argument that can be urged in favor of it is that it tends to remove from belligerents the temptation to sink their prizes at sea. Probably political reasons had more influence on the decision than considerations drawn from the fundamental principles of neutrality. States which possessed few harbors in distant parts of the world were unwilling to give up the right of sending their prizes into the ports of any neutral they could persuade to receive them.

Lawrence, p. 641.

Contra, to some extent.

* * *

the stipulation of article 23 of Convention XIII is of a very doubtful character. This article enacts that a neutral Power may allow prizes to enter its ports, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court. And it is of importance to state the fact that the restriction of article 21 does not apply to prizes brought into a neutral port under the rule of article 23. This rule actually enables a belligerent to safeguard all his prizes against recapture, and a neutral Power which allows belligerent prizes access to its ports under the rule of article 23 would indirectly render assistance to the naval operations of the belligerents concerned. For this reason, Great Britain as well as Japan and Siam entered a reservation against article 23. Be that as it may, those Powers which have accepted article 23 will not, I believe, object to the sale in the neutral, port concerned of such sequestrated prizes, provided they have previously been condemned by the proper Prize Court.

Oppenheim, vol. 2, pp. 396, 397.

If the Vessel appear not to be in a condition to be sent into a proper Port of Adjudication, the Commander should cause a Survey to be made thereof by the Officers of his Ship the best qualified for the duty.

The Surveying Officers should report to the Commander in writing; and the Report should be signed by them, and entered on the Log of the Ship.

If the Surveying Officers report that the Vessel is not in a condition to be sent into a proper Port of Adjudication, the Commander should, if practicable, take her into the nearest Neutral Port that may be willing to admit her.

The Commander, however, must bear in mind that he can not take the Vessel into a Neutral Port against the will of the Local authorities; and that under no circumstances can proceedings for Adjudication be instituted in a Neutral Country.

Both the Cruiser and, if admitted, her Prize are by the Comity of Nations exempt from the local jurisdiction.

If the Vessel is admitted into a Neutral Port, then, in order that proceedings for Adjudication may be duly instituted, the Commander should forward the witnesses, together with the Vessel's Papers and necessary Affidavits, in charge of one of the Officers of his Ship to the nearest British Prize Court.

Holland, pp. 85 and 86.

Although under the terms of Article 23 of Convention XIII of the Hague, a neutral Power has the right to permit access to its ports and roadsteads to prizes, whether escorted or not, when they are brought there to be left under sequestration while awaiting the decision of a prize tribunal, you will only seek to make use of this authorization if the circumstances force you to, and only after assuring yourself that the said neutral Power will in future permit access to its ports and roadsteads for your prizes within the conditions of the said Article 23.

If the neutral port in which it presents itself is absolutely forbidden to it, or if its presence is tolerated there only for an insufficient time, the captor or the master of a prize defers to the requests addressed to him by the government of the country where he is. He acts then for the best interest of his charge, and reports without delay to the Minister of the Navy the refusal he has met with.

French Naval Instructions, 1912, secs. 132 and 133.

Article 23, Hague Convention XIII, 1907, is substantially identical with section 143, Austro-Hungarian Manual, 1913.

The "Comet," 5 C. Rob., 285.-In this case the court upheld the validity of the sale of a French prize, in a Spanish port, after condemnation by the courts of France.

The "Ostsee," Spinks Prize Cases, 174.-In this case Russian vessels, captured by the British were left in a Prussian port, because of Unseaworthiness, and with the consent of the Prussian Government, and, while lying in such port, were condemned by a British Prize Court.