Of the effect of foreign judgments in mat ters of prize, as proving a for SECT. VI. Of the Effect of Foreign Judgments in Matters of One of the means most frequently resorted to in this country during the last war of proving that the ship or goods warranted neutral had forfeited their neutrality, was, by profeiture of neu- ducing the judgment or sentence of a competent prize court pronouncing their condemnation. trality. Sentences of foreign prize authenticated Copies of the sentence properly authenticated, and procourts properly duced under the seal of the court, were, in such cases, always deemed sufficient evidence of the fact of the condemnation, and of the ground on which it proceeded (g); the proper mode of authentication will be considered hereafter, in treatgrounds of con- ing of the general subject of evidence. (h) under seal of the court are sufficient evidence of the fact and of the demnation. In order to give a foreign court competent jurisdiction on questions of prize, it must be 1 1. A prize court We will consider here- 1st, what shall be deemed a court of competent jurisdiction in questions of prize; 2ndly, when the sentence of such court shall be deemed conclusive evidence to falsify the warranty. ART. 1. What are Courts of competent Jurisdiction in Questions of Prize. § 237. In order that a foreign sentence of condemnation may be receivable in our courts as admissible evidence of a forfeiture of neutrality, the prize court in which it was pronounced must be proved to have had competent jurisdiction. The question whether it had such jurisdiction or not depends mainly upon the points-1, by whom it was held; 2, in whose dominions it was held; and 3, where the prize itself lay. 1. The condemnation must be pronounced by a prize court of the govern- of the government of the captor; the question of prize or no ment of the captor. (g) See cases cited in Marshall on Ins. 393 and 723, and the dicta of Lord Ellenborough in Flindt v. Atkyns, 3 (h) See post, Part IV. foreign judg prize is a question belonging exclusively to the courts of the Of the effect of country of the captor; the prize court even of a co-belligerent ments in mathas no jurisdiction. 2. As to place. It is established that although the prize court of the captor may sit in the territory of an ally, yet it is not lawful for such a court to act in the territory of a neutral; the principle that a prize court of the belligerent captor cannot exercise jurisdiction in a neutral country, is as clearly established as any other rule of the law of nations. (i) ters of prize, as proving a forfeiture of neutrality. 2. Sitting in the territory either of the captor or of an ally, but Hence, where a ship, captured by the French, was con- No sentence of demned as prize by a French consul sitting at Bergen, in prize is valid Norway (a neutral territory), Lord Stowell and Lord Ken- nounced by a belligerent in yon both held that such condemnation had not the effect of the territory of divesting the property in the ship out of the original owner. (j) The ground on which this rule rests is partly the uniform usage of nations, and partly the unfitness and danger of making neutral ports the theatre of hostile proceedings. (k) The rule was extended by Lord Ellenborough to the case of a neutral territory in which the neutral government still existed, though the country was in the military occupation of one of the belligerents. The point arose on a condemnation pronounced by a Russian prize commission sitting at Corfu, at a time when it appeared that that island, though in the occupation of the Russian forces as a military station, still had the flag of the Ionian Republic flying from its forts, possessed its own port admiral, and received the consuls of foreign states. (1) But this rule does not extend to the territories of co-belligerents, as to which it is firmly established that a prize court of the government of the captors, sitting in the territory of an 268. (i) The Flad Owen, 1 Rob. Rep. (case on the same ship), 8 T. Rep. 135. Havelock v. Rookwood, 8 T. Rep. 268. The S. P. is held in the United States, L'Invincible, 1 Wheaton, 238. The Estrella, 4 Wheaton, 298. (j) The Flad Owen, 1 Rob. Rep. 135. See Havelock v. Rookwood (k) See the remarks of Lord Stowell in The Christopher, 2 Rob. Rep. 209. (1) Donaldson v. Thompson, 1 Camp. 429. a neutral. Even though such neutral territory may be in the mili tary occupation of the belligerent state. Aliter, if pronounced by a belligerent in the territory of an ally on ships brought into the ally's ports. foreign judg ments in mat ters of prize, as proving a for Of the effect of ally, may lawfully pronounce sentence of condemnation on a captured ship brought into the allied ports. (m) Thus, where a Danish ship was captured by a French cruiser, and carried feiture of neu- into Malaga (Spain being then an ally of France), a sentence trality. of condemnation pronounced on her by a French consul residing in Malaga was held conclusive to prove a forfeiture of neutrality. (n) 3. A belligerent prize court sitting in its own country has jurisdiction over prizes lying in neutral or allied ports. 3. It was for some time supposed that a prize court, though sitting in the country of the captors, had no jurisdiction over prizes lying in a neutral port, and Lord Stowell, in one case, seems to have acted on this principle. (o) Subsequently, however, though he still admitted the correctness of the principle, yet he felt himself bound by the contrary practice which had so long a period prevailed, and acted upon the rule which is now definitively settled and sanctioned, viz. that the condemnation by a court of the captors, sitting in the country of the captors, upon prizes carried into a neutral port and remaining there, is valid by the general usage of nations. (p) There can be no doubt, and, in fact, it has been so decided, that a belligerent prize court, sitting in its own country, has lawful jurisdiction to condemn as prize captured ships brought into the ports of an ally. (q) By comity of nations, the sentences of foreign prize courts are ad mitted in this country as conclusive upon all points falling within their jurisdiction, and upon which they profess to decide. ART. 2. When the Sentence of such Courts shall be deemed conclusive Evidence to falsify the Warranty. § 238. A certain comity of nations (comitas gentium) is recognised in this country, as prevailing among civilised states, by which the judgments of any tribunals, having competent jurisdiction in any one state, are regarded in the courts of all (m) The Betsey, 2 Rob. Adm. Rep. (n) Oddy v. Bovill, 2 East, 473. (p) The Henrick and Maria, 4 6 Rob. Rep. 138, note. Smart v. Wolff, 3 T. Rep. 283. This rule is adopted in the United States, † Hudson v. Guestier, 4 Cranch, 293. Williams v. Armroyd, 7 Cranch, 423. (q) The Christopher, 2 Rob. Rep 209. others as conclusive upon the subjects on which they have of the effect of been pronounced. (r) foreign judgments in mat ters of prize, as proving a for feiture of neu trality. the United States. In obedience to this principle, we in England admit the sentences of foreign prize courts of admiralty, bearing upon neutral rights, to be binding and conclusive evidence in our own courts upon all those points which fall within their jurisdiction, and upon which they profess to decide. (s) This rule of the English law has been adopted in the federal Same rule in courts of the United States (t), and though there has been some difference of opinion in the State Courts on the point, yet the weight of judicial authority on the other side the Atlantic seems clearly to be in favour of the binding force, and universal application of this doctrine of English law. (u) The law in France is different, and the French courts, But not in though they will enforce a foreign judgment in France, after subjecting to examination the grounds on which it proceeds, will not permit a foreign judgment, though pronounced by a competent court, to be conclusive evidence in the French courts of the facts as to which it decides. (v) The first English case in which this rule of international comity was established was that of Hughes v. Cornelius, in the year A. D. 1682, which decided that the judgment of a foreign court of admiralty belonging to a nation at that time friendly to our own, was conclusive in the courts of this country as to questions of prize. (w) France. The rule, when applied only to first established, the foreign courts of a the friendly state; but has since been extended to the sentences of hostile tri The rule has ever since been acted upon in English juris- bunals. prudence, and extended to the case of hostile, as well as friendly tribunals. Many of the English judges have expressed their regret at this establishment and extension of the rule. Lord Ellenborough, in particular, said "that he was by no means dis (r) Marshall on Ins. 396. (s) Established in Hughes v. Cornelius, Carth. 32. (t)† Croudson v. Leonard, 4 Cranch, 434. Bradstreet v. The Neptune Ins. Comp., 3 Sumner's Rep. 600. (u) Kent's Comm., vol. ii. p. 121. note (a), ed. 1844. (v) Such seems to be the result of the modern French authorities, which, however, are very conflicting. See the very elaborate and learned note of Chancellor Kent, Comm., vol. ii. p. 121. note (a), ed. 1844. (w) Carth. 32. T. Raym. 473, Shower, 143. T T Lord Ellenborough opposed to this extension of the rule. foreign judgments in mat Of the effect of posed to extend the comity which had been shown to these sentences of foreign admiralty courts," and declared "that he should die, like Lord Thurlow, in the belief that they ought never to have been admitted." (x) ters of prize, as proving a forfeiture of neutrality. The principle, however, is firmly established, though the courts have varied in its application. Limitations of the doctrine. These sentences are only con clusive as to points upon which, on the face of them, they profess to decide. But they are conclusive as to all facts speci fically alleged or referred to in the adjudi cative part of the sentence, as the professed grounds of con The doctrine, however, stands on too firm ground to be shaken, and it only remains to notice the somewhat perplexed decisions by which, under varying circumstances, the English courts have sought to modify and apply it. § 239. The proposition itself is: That the sentence of a foreign court of admiralty on questions of prize is conclusive evidence in our courts upon all points within its jurisdiction, and upon which the sentence, on the face of it, professes to decide, but upon none other. The chief point to be attended to is, that these judgments are only conclusive as to the points upon which they profess to decide. Hence it follows that, unless the sentence professes to be grounded on some fact or state of facts, which, by the law of nations, amounts to a forfeiture of neutrality; as, e. g., that the ship was "enemy's property," or "was not properly documented according to treaties," the sentence is not conclusive evidence of a breach of the warranty of neutrality. Formerly our courts in interpreting these sentences would not give a conclusive effect to facts merely set out in their preamble or reciting part as motives of the condemnation, but not expressly stated in the adjudicative clause as the ground on which the sentence proceeded. (y) Subsequently, however, a more liberal rule of interpretation prevailed, which is thus expressed by Lord Ellenborough:-"The sentence, in our opinion, is equally to be regarded as evidence of the facts inducing the condemnation, and upon which the condemnation proceeds, as of the judicial act of condemnataken together. tion itself;"-" the alleged grounds of a foreign sentence, as demnation; or which plainly appear to be so by necessary in 1erence from the whole of the sentence (x) Donaldson v. Thompson, 1 Camp. 429. See also his remarks in Fisher v. Ogle, ibid. 418. (y) Christie v. Secretan, 7 T. Rep. 192. Fisher v. Ogle. |