for a sale by authority of the Court, in order to ascertain the value. But (by the 8th section of the Act) the appeal is to be allowed in like manner as appeals from the Courts of Admiralty in England, with a special direction that the appellant shall enter into a security to prosecute the appeal, answer the condemnation, and pay treble costs, if the sentence shall be affirmed: no direction is given as to any security to be taken from the party appellate, but by reference to the practice of the Court of Admiralty in England on appeals to the Sovereign; and it is added, that the execution of the sentence shall not be suspended by reason of any appeal (r).

CCCLX. Before this part of the subject be dismissed, it should be observed, that in cases where a captured ship has been purchased, under a title invalid indeed, but not notoriously bad, it has been the practice of the English Court of Prize to decree restitution to the original owner, but at the same time to allow the vendor the expense of an amelioration beyond the ordinary repairs, but not the expense of ordinary repairs (s).

CCCLXI. 6. What must be done by the Captor after capture, and to what ports may the captured property be taken?

It is incumbent on the Captor-as will be seen more at length in a subsequent chapter-to bring his prize as speedily as may be consistent with his other duties within the jurisdiction of the Court which has the power of adjudicating upon it. But he may find it necessary to touch at a neutral port, or to deposit, if permitted, for a while his prize therein of course, no doubt can arise as to the lawfulness of taking the prize into the port of an ally. Accord

:

(r) Brymer v. Atkins, 1 H. Blackstone's Rep. pp. 189, 190. The Acts 6 Anne, c. 13 and c. 37, are now repealed by 27 & 28 Vict. c. 23. (s) The Kierlighett, 3 Rob. Adm. Rep. p. 96.

ing to the law of the English Prize Court, it is not, generally speaking, competent to captors to carry prizes into a foreign Court, and offer to restore them on bail. It is an irregularity which can only be justified by the evident and indeed overwhelming necessity of the particular case (†).

CCCLXII. It is perfectly competent to the Neutral State, and it is in accordance with modern practice, to prohibit (u) the ingress into her ports of all prizes made by all Belligerents; such cases of course excepted as belong to the class of urgent necessity, such as arise from distress of weather or the dangerous state of the vessels.

CCCLXIII. Upon the subject of permitting prizes to be brought into neutral ports, no uniformity of practice has prevailed. The matter has been sometimes governed (1) by domestic regulation, sometimes (2) by Treaties. In the absence of such provisions, it should seem that the presumption is in favour of the permission (x). It is a primâ facie presumption, however, only, and capable of being easily rebutted.

CCCLXIV. 1. With respect to domestic regulations upon this subject, Mr. Manning (y) refers us to various authorities. By a proclamation of Henry VI. in 1426, it was ordered that all prizes were to be brought into British ports; and a similar regulation was issued by Elizabeth, in 1602. Captors were desired to bring French prizes into the ports of France by various ordinances in 1400, in 1543, in 1674, and in 1689 the Ordinance of 1705 was the first that allowed French prizes to be taken into the ports of an ally. And

(t) The Peacock, 4 Rob. Adm. Rep. p. 192.

(u) Bynk, Q. J. P. l. i. c. xv.

Valin, Ord. de la Marine, t. ii. p. 272.
Wheaton's El. (Lawrence), p. 498.

De Pist. et Duverd. t. ii. p. 186.

(x) Wheaton's El. (Lawrence), p. 498.

(y) P. 387. The statements in the text on this subject are principally derived from this accurate and valuable work.

by the Danish Ordinance of 1710, it was forbidden, on pain of death, to carry Danish prizes into any but Danish ports (z). But such rules were not universal; and Loccenius, who wrote in 1651, decided that prizes in Neutral ports could not be interfered with unless special Treaty intervened (a).

By the French Ordonnance of 1650, no prizes brought into French ports by foreign cruisers were to be sold there (b); and by subsequent French Ordinances, no prize taken by a vessel with a foreign commission was to be allowed to remain more than twenty-four hours in a French port, unless compelled by stress of weather, or unless the prize had been taken from the enemies of the French; and also any goods belonging to the French, or to their allies, were to be taken out of any prizes brought into French ports, and restored to the original proprietors (c).

But by the Venetian Edict of 1779, respecting the Neutrality of Venice, the sale of prizes, and even equipment of cruisers, is equally allowed to all Belligerents (d).

CCCLXV. 7. In the Courts of what country must it be adjudicated upon ?

The answer to this question has, with an exception presently to be noticed, been universally the Court of the captor or of his ally (e)—for, as we have seen, the two unam con"stituunt civitatem" (f). In such cases there is nothing to

(2) Robinson's Collectanea Maritima, p. 30.

(a) Loccenius, De Jure Maritimo, l. ii. c. iv. s. 7.
(b) Valin, Ord. de la Marine, II. 1. iii. t. ix. art. i.
(c) Ib. 1. iii. tit. ix. arts. xiv. xv.

(d) De Martens, Rec. 1. iii. p. 85.

Manning's Law of Nations, pp. 388, 389.

(e) The Flad Oyen (leading English case), 1 Rob. Adm. Rep. p. 136. The doctrine of this case was affirmed by the Court of Appeal.

See the Falcon, 6 Rob. Adm. Rep. p. 198.

The Alerta, 9 Cranch's (Amer.) Reports, pp. 359–364.

(f) Vide antè, p. 126, and the Henrick & Maria, 4 Rob, Adm. Rep. p. 60.

prevent the Government from proceeding to that last act of hostility. There is a common interest between them on the subject; and both Governments may be presumed to authorise any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. Such a condemnation is sufficient in regard to property taken in the course of the operations of a common war (g). With respect to the Neutral State itself, the most vehement advocates of neutral rights have holden that it has no power of interfering with prizes brought within its ports; unless, indeed, such power have been conveyed to it by the provisions of special Treaties, of which some notice will be presently taken (h); or unless, as has been already stated, the capture has been made in violation of neutral rights, and the prize be brought voluntarily within the jurisdiction of the Neutral (i). And now by 27 & 28 Vict. c. 25. s. 35, it is provided that "where any ship or goods is or are taken by any of "Her Majesty's naval or naval and military forces while acting in conjunction with any forces of any of Her Majesty's "allies, a Prize Court shall have jurisdiction as to the same as in case of Prize, and shall have power, after condemnation, to apportion the due share of the proceeds to Her "Majesty's ally, the proportionate amount and the dis"position of which share shall be such as may from time "to time be agreed between Her Majesty and Her Majesty's ally."

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CCCLXVI. The exception arising from special Treaties referred to in the last paragraph, is to be found in the former practice of the French Government, at a period of

(g) The Christopher, 2 Rob. Adm. Rep. p. 210.

(h) Manning, p. 388, note (1).

Hübner, De la Saisie des Bâtiments Neutres, II. i. c. xi. s. 8.
De Martens, 1. viii. c. vii. s. 312.

(i) Vide antè, § cccxxviii. p. 531.

admitted anomaly with respect to the administration of Prize Law-viz., in the year 1796.

No such question, however, was presented for discussion during the Crimean War by the existing Prize Law of France, for, by the Décret du 18 Juillet, 1854, of the Emperor Napoleon the Third, all Commissions Consulaires were, by implication at least, annulled (k).

In fact, these commissions were never defended at the time of their de facto institution by any eminent French jurists(7), though a skilful gloss is thrown over their illegality by the authors of the recent Traité des Prises Maritimes (m).

They were always open to this dilemma-viz. :

1. Either they sat in the neutral territory without the sanction of the neutral authority, and then they were clearly illegal.

2. Or they sat with the sanction of the neutral authority: and then either the Neutral might be fairly holden, by the accordance of such sanction, to have acted as a Belligerent, or, at all events, the judgments of such Court would not be held binding upon any State but the neutral one which sanctioned so mischievous and unwarrantable an innovation upon the Rights of Nations. The truth is, that they were among the worst features of the Revolution, and to them, as well as to other abortive Courts of Prize, were applicable the words of that great jurist, M. Merlin: "On ne se

(k) Messieurs D'Hauterire and De Cussy state the law correctly: "L'usage moderne a généralement reconnu, pour juger les prises, la juridiction de l'État belligérant."-Traités de Commerce, t. ix. p. 375.

(1) MM. De Pist. and Duverd., speaking of the Arrêté du Germinal, An VIII. art. 23, on this subject, are obliged to admit, "La rédaction de cet article est pleine de réserves et de restrictions; on voit qu'elle avait été prise sous l'influence des observations faites au Conseil des Anciens par le rapporteur de la loi du 8 Floréal, An IV., lequel avait émis sans contradiction la doctrine que les principes du droit des gens, qui donnent exclusivement à chaque nation le pouvoir juridictionnel sur son territoire, et les traités qui, pour la plupart, répètent ces principes, concourent pour s'opposer à ce que nos consuls exercent une prérogative aussi extraordinaire chez l'étranger."

(m) De Pist. et Duverd. t. ii. p. 174.