Opinion of Mr. Commissioner Frazer on the effect of failure of claimants to take and prosecute appeals in prize cases. (See p. 90, ante.)

Upon the question whether a claim can now be maintained before this commission for vessels and cargoes, or either, captured and by the proper courts of prize condemned as lawful prize, and no appeal prosecuted from the judgment of such courts, there being nothing in the circumstances to hinder or embarrass the claimant in prosecuting such appeal, I have reached a conclusion in the negative. The reasons which have led me to this opinion I put in writing for the consideration of my learned colleagues, with the remark that, if I am wrong, I shall gladly yield whenever it is shown.

“Justice and equity” constitute the rule of our decision by the terms of the treaty. This is the foundation of international law, and when that law speaks upon a question, we must be guided by it; for both countries, as well as the nations of Christendomr, ecognize its principles as equitable and just; and we shall be wholly at sea with no guide, and disappoint both governments, if we disregard it. If by the international law there is no valid claim in such a case, then I know not how its validity can be maintained. True, the treaty confers upon us jurisdiction of such claims, because it refers them to this commission. The question in hand is not of jurisdiction, but it is whether the cases as stated in the several memorials constitute claims which ought to be allowed. I do not doubt the jurisdiction, but that does not determine their validity. It only makes it our duty to decide whether they are valid or not; and that decision should be according to the principles of international law.

So far as I know, the approved writers upon international law are in accord upon this question.

Thus Rutherforth:

Natural equity will not allow that the state should be answerable for their (the captor’s) acts until those acts are examined by all the ways which the state has appointed for the purpose, (2 Inst., book 2, c. 9, § 16.)

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And again.

The subjects of a neutral state have no right to appeal to their own state for a remedy against the erroneous sentence of an interior court till they have appealed to the superior court, or to the several superior courts if there are more courts of this sort than one, and till the sentence has been confirmed in all of them. For these courts are so many means appointed by the state to which the captors belong to examine into their conduct; and till their conduct has been examined by all these means, the state’s exclusive right of judging continues. (Id.)

Wheaton, (Lawrence’s ed.,) p. 675, says that “the neutral has no ground of complaint” until the acts of the captors are confirmed by the sentences of the tribunals appointed by him to adjudicate in matters of prize, what he suffers being the inevitable result of the belligerent right of capture;” and cites Rutherforth at length in his text.

On the 7th March, 1862, Sir Roundell Palmer, solicitor-general, declared in a debate in Parliament that it was the ordinary law of nations, than which “nothing is better known,” that the neutral must not interfere except by appeal, if the first decision in prize is deemed wrong. (Law. Wheat, 680 n.)

An English commission in 1753, in a report concerning reprisals by Prussia for captures by Great Britain, said, concerning adjudications in prize, “If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive.” (Wheat., Hist. Law of Nations, 210; see also, Wheat., Int. Law, (Lawr., 678.)

Wildman seems to adopt this language as expressive of the rule of international law. (Inst., vol. 1, p. 353.)

Governor Lawrence, the learned editor of Wheaton, in a letter of date May 21, 1871, published in the World newspaper, concerning this very treaty, before its ratification by the American Senate, speaking of this commission and the character of claims which it could allow consistently with principles of public law, said:

So far as regards maritime prizes, it is a well-recognized principle that no claim can be made on the government of the captor till all the remedies provided through the prize courts have been exhausted. (Pamphlet, pp. 28, 29; see also, Law’s note 66, to Wheat., Int. Law, 189.)

Opposed to this uniform and unbroken current of authority, English and American, Her Britannic Majesty’s counsel cites only a single case, which it is urged should outweigh all the text-writers. The case cited (bark Jones—American and British commission under treaty of 1853, p. 83,) was not a prize of war. It was a capture of a supposed slave-trader made under British statutes. The capture was made at St. Helena, where there was a court of record having jurisdiction, but the vessel was taken to Sierra Leon, a distance of one thousand miles, for adjudication. She was acquitted of the charge, and it was adjudged that there was no probable cause for seizure. But the court assessed her with costs for “resistance of the master to fair inquiry”—a personal matter of which the court had no cognizance under the statute. There was no appeal. These are the circumstances under which Judge Upham was of opinion that the owner was not bound to take an appeal. He seems to have deemed the judgment for costs coram non judice and utterly void. It further appears that the master did not know where to follow his vessel, and was deprived of all means of following it, (p. 101.) He did not appear in court. How could he if such were the facts? Judge Upham, the American commissioner, might well hold that under such circumstances an appeal was not necessary to perfect the right of the American Government to demand redress.

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The opinion of Judge Upham seems to imply that in the absence of special circumstances an appeal would be necesaary.

The opinion of Mr. Hornby, British commissioner, is silent upon the question of appeal; and indeed it is difficult to see, from his opinion, (p. 107,) upon what ground he could have consented to award any damages unless it was that claimed by Judge Upham—that the court had no jurisdiction under the statute to adjudge costs against the vessel for the alleged personal misconduct of the master. He was willing to allow for detention of the vessel and damages to her, and sacrifice on cargo.

The umpire expressed no opinion upon the question of appeal.

The case was peculiar, and I do not deem it an authority applicable to the general question under consideration. General rules can never safely rest upon the precedents of exceptional or hard cases. That there should be some exceptions to the general rule as I deem it to be, I have no doubt. For instance, if, as in the case of the Jones, an appeal was rendered very difficult or impossible, or was embarrassed, by the act of the captors; or if previous appeals in similar cases had shown that the appellate tribunal of last resort did not govern itself by international law, thus indicating that an appeal would have been useless, or if it had been waived by the government of the captor, I would hesitate long before holding that appeal was necessary to lay the foundation for an international claim.

But it is suggested that the text-writers cited are considering only the grounds of war or reprisals, and not the causes adequate to justify a claim for indemnity by one nation against another. I can only say that I think this is a mistake. Besides, their reasoning, if correct, is absolutely conclusive against both. If, as Rutherford asserts, “natural equity will not allow that the state should be answerable,” or “if the subjects of the neutral state have no right to appeal to their own state for a remedy against the erroneous sentence;” or if, according to Wheaton, “the neutral has no ground of complaint,” and what he suffers is only “the inevitable result of the belligerent right of capture;” or if, according to Wildman, a failure to appeal is “an acknowledgment of the justice of the sentence;” or if, according to Lawrence, “no claim can be made on the government of the captor,” then I know not upon what ground it can be held that these claims can be sustained upon the facts as alleged.

But reprisals are justified by the public law for refusal to repair an injury, and when it is admitted that reprisals cannot be made, it is thereby confessed that there is no just international demand.

Granted a just claim or injury recognized by the public law, then by that law the state aggrieved is the exclusive judge of the mode of redress.

The note of Mr. Seward of December 22, 1862, concerning the case of the Will-o’-the-Wisp, (No. 378, p. 30,) has been referred to.’ Was this either a waiver of appeal in that case, or the expression of an opinion that an appeal was not necessary? That note does not stand alone. The reply of Lord Lyons (pp. 30, 31) seems to recognize that as a matter of right the United States might stand on the absence of an appeal; but it makes an appeal to the magnanimity of the American Government in the particular case. Mr. Seward’s answer thereto of April 2, 1863, gives distinct notice that the appeal is not waived, and that it is deemed necessary before the executive government can be called upon to consider the subject.