from the Government of the tribunal in which an erroneous judgment is supposed to have been pronounced. The writers on the law of nations, in treating on the subject of reprisals, expressly make the unjust judgments of the tribunals of the offending nation, a ground of resort to that forcible proceeding. Thus Grotius states, that a 'judicial sentence, plainly against right, to the prejudice of a foreigner, entitles his sovereign to obtain reparation by reprisals: "Nam auctoritas judicantis non idem in exteras quod in subditos valet." For the authority of the judge is not of the same force against foreigners as against subjects. Here is the difference: Subjects are bound by the sentence of the judge, though it be unjust, so as that they cannot lawfully oppose the execution of it, nor by force recover their own right, on account of the authority of the dominion under which they live. But foreigners have coercive powers, (i. e. of reprisals,) though it is not lawful to use it, so long as they can obtain their right in the ordinary course of justice.' (De Jur. B. ac. P. lib. 3, cap. 2., sec. 5.) So, also, Bynkershoek, in treating of the same subject, puts an unjust judgment upon the same footing with naked violence, as equally authorizing reprisals on the part of the State whose subject had been thus injured by the tribunals of another State. (Quæst. Jur. Pub., lib. 1., cap. 24.) And Vattel (liv. 2, ch. 18, s. 350,) in enumerating the different modes in which justice may be refused, so as to authorize re

prisals, mentions a judgment manifestly unjust and partial.' And though he states (what nobody denies,) that the judgments of the ordinary tribunals ought not to be called in question upon frivolous or doubtful grounds; yet he is manifestly far from attributing to them that sanctity which would absolutely preclude foreigners from seeking redress against them.

These principles are sanctioned by the authority of numerous treaties between the different powers of Europe, regulating the subject of reprisals, and declaring that they shall not be granted unless in case of the denial of justice.

An unjust sentence must certainly be considered a denial of justice,' unless the mere privilege of being heard before condemnation is all that is included in the idea of justice.

But even supposing that the unjust judgments of the municipal tribunals do not form a ground of reprisals, there is evidently a wide distinction in this respect, between the ordinary tribunals of the country proceeding under the municipal law, as their rule of decision, and the same, or another tribunal, sitting in the belligerent state, and professing to administer the law of nations to foreigners as well as subjects. The ordinary municipal tribunals acquire jurisdiction over the person or property of a foreigner by his consent, either expressed by his voluntarily instituting the suit, or implied by the fact of his bringing his person or property within the territory of the country.

But

when courts of prize exercise their jurisdiction over vessels and cargoes captured at sea, the property of foreigners is brought by force within the territory of the state by which those tribunals are constituted. By the natural law of nations, the tribunals of the captor's country are no more the rightful, exclusive judges of captures in war, made on the high seas, from under the neutral flag, than are the tribunals of the neutral country. The equality of nations would, on principle, seem to forbid the exercise of a jurisdiction thus acquired by force and violence, and administered by tribunals which cannot be impartial between the litigating parties, because created by the sovereign of one to judge the other.

Such, however, is the constitution of the tribunals, in which, by the positive and customary law of nations, is vested the exclusive jurisdiction of prizes taken in war. But this imperfection of the voluntary law of nations, in its present state, cannot oppose an effectual bar to the claim of a neutral government seeking indemnity for its citizens, who have been unjustly deprived of their property under the erroneous administration of that law. 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 tribunals 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 the 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.

There is nothing more irregular in the supposition that the sovereign is responsible towards foreign states for the acts of his tribunals, than that he is responsible for his own acts, which, in the intercourse of nations, are constantly made the grounds of complaint of reprisals, and even of war. 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 upon his own subjects, if they are not conformable to the public law of the world, cannot be considered as binding upon 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.

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The tribunals of any country are but a part, and a subordinate part, of the Government of that country. But the right of redress against injurious acts of the whole Government of the supreme authority-incontestably exists in foreign States, whose citizens have suffered by these acts. Much more clearly, then, must it exist when those acts proceed from persons, authorities, or tribunals, responsible to their own sovereign, but irresponsible to a foreign government, otherwise than by its action on their sovereign.

These principles, so reasonable in themselves, are also supported by the authority of the writers on public law, and by historical examples.

The exclusive right of the State, to which the captors belong, to adjudicate upon the seizures made by them, (says Rutherford,) is founded upon another, i. e. its right to inspect into the conduct of the captors, both because they are members of it, and because it is responsible to all other States for what they do in war, since what they do in war is done either under its general, or under its special commission. The captors, therefore, are obliged, on account of the jurisdiction which the State has over their persons, to bring such ships or goods as they seize in the main ocean into their own ports; and they cannot acquire property in them until the State has determined whether

they were lawfully taken or not. This right, which their own State has to determine this matter, is so far an exclusive one that no other State can claim to judge o their behavior, till it has been thoroughly examined into by their own; both because no other State has jurisdiction over their persons, and, likewise, because no other State is answerable for what they do. But the State to which the captors belong, while it is thus examining into the behavior of its own members, and deciding whether the ship or goods, which they have seized upon, are lawfully taken or not, is determining a controversy between its own members and the foreigners who claim the ships or the goods; and this controversy did not arise within its own territory, but'in the main ocean. The right, therefore, which it exercises, is not civil jurisdiction; and the civil law, which is peculiar to its own territory, is not the law by which it ought to proceed. Neither the place where the controversy arose, nor the parties who are concerned in it, are subject to this law. The only law, by which this controversy can be determined, is the law of nature applied to the collective bodies of civil societies, that is, the law of nations, unless, indeed, there have been any particular treaties made between the two States, to which the captors and the other claimants belong.'

This right of the State to which the captors belong, to judge exclusively, is not a complete jurisdiction. The captors who are its own members, are bound to submit to its sentence, though this

sentence should happen to be erroneous; because it has a complete jurisdiction over their persons. But the other parties in the controversy, as they are members of another State, are only bound to submit to its sentence, so far as this sentence is agreeable to the law of nations, or to particular treaties; because it has no jurisdiction over them, in respect either of their persons, or of the things that are the subject of the controversy.

If justice, therefore, is not done them, they may apply to their own State for a remedy, which may, consistently with the law of nations, give them a remedy either by solemn war or by reprisals.'

In the celebrated report made to the British Government in 1753, upon the case of the reprisals granted by his Majesty the King of Prussia, on account of captures made by cruisers of Great Britain, of the property of his subjects, the exclusive juris

diction of the tribunals of the captor's country over captures made in war by its commissioned cruisers, is asserted; and it is laid down that the law of nations, founded upon justice, equity, convenience, and the reason of the thing, does not allow of reprisals, except in case of violent injuries directed or supported by the State, and justice absolutely denied in reminime dubia, by all the tribunals, and. afterwards by the prince. Plainly showing, that in the opinion of the eminent persons by whom that paper was drawn up, if justice be desired, in a clear case, by all the tribu

nals, and afterwards by the prince, it forms a lawful ground of reprisals against the nation by whose tribunals the injury is committed. And that Vattel was of the same opinion, is evident from the manner in which he quotes this paper, to support his own doctrine; that the sentences of the tribunals ought not to be made the ground of complaint by the State, against whose subjects they are pronounced, excepting in the case of a refusal of justice, palpable and evident injustice, a manifest violation of rules and forms,' &c. (Droit des Gens, liv. 2, ch. 7, $85.)

In the instance to which the commissioner of the United States has now referred, the King of Prussia (then neutral,) had undertaken to set up, in his own dominions, a commission to reexamine the sentences pronounced against his subjects in the British prize courts, which is treated by the authors of the report to his Britannic Majesty, as an innovation which never was attempted in any country of the world before. 'Prize or not prize must be determined by courts of admiralty, belonging to the power whose subjects made the capture.' But the report proceeds to state, that every foreign prince, in amity, has a right to demand that justice shall be done to his subjects in these courts, according to the law of nations, or particular treaties, where any are subsisting. If, in reminime dubia, these courts proceed upon foundations directly opposite to the law of nations, or subsisting treaties, the neutral State has a

right to complain of such determination.'

The King of Prussia did complain of the determinations of the British tribunals, and made reprisals, by stopping the interests upon a loan due to British subjects, and secured by hypothecation upon the revenues of Silesia, until he actually obtained from the British Government an indemnity for the Prussian vessels unjustly captured and condemned. The proceedings of the tribunals, though they were asserted by the British Government to be the only legitimate mode of determining the validity of captures made in war, were not considered as excluding the demand of his Prussian Majesty for redress upon the Government itself.

Nor are there wanting examples, in more recent times, of similar arrangements between nations. The United States themselves have repeatedly received from the principal belligerent powers indemnities for the property of their citizens, captured by the cruisers of those powers, and condemned in their courts of prize during the late maritime

wars.

Under the treaty of 1794 between the United States and Great Britain, a board of commissioners was constituted to determine the claims thus arising 'according to the merits of the several cases, and to justice, equity, and the law of nations.' In the course of the proceedings of this board, objections were made, on the part of the British Government, against the commissioners proceeding to hear and

determine any case where the sentence of condemnation had been affirmed by the lords of appeal in prize causes, upon the ground that full and entire credit was to be given to their final sentence, in as much as, according to the general law of nations, it was to be presumed that justice had been administered by this the competent and supreme tribunal in matters of prize. But this objection was overruled by the board, upon grounds which appear to be conclusive and unanswerable; and a full and satisfactory indemnity was awarded in many such cases, which was promptly paid by the British Government.

So, also, by the treaty of 1795 between the United States and Spain, it was stipulated that the claims of their citizens for losses sustained by Spanish captures should be referred to a mixed commission, which was impartially to examine and decide the claims in question, according to the merits of the several cases, and to equity, justice, and the law of nations.' Here, too, the sentences of the Spanish admiralty tribunals were not considered as presenting any obstacle to the decision of the claims according to their severa. merits, and to justice, equity, and the law of nations. And, by the treaty of 1818 with Spain, provision was again made for indemnifying the citizens of the United States for unlawful seizures by Spanish cruisers, the claims for which were to be determined by commissioners appointed by the Government of the United States. In the course of the proceedings of this board, it was never so