delinquency be such, that the penalty of confiscation might be justly applied; there can be no intrinsic difficulty in supporting a contract, by which the captors agree to waive their rights to a consideration of a sum of money voluntarily paid, or agreed to be paid, by the captured. Indeed, the case stands upon a stronger ground than that of a Ransom between enemies; for the latter have not, in general, a capacity to enter into contracts. The very law of war prohibits all commercial intercourse, and suspends all existing contracts between enemies; and the case of Ransoms is almost the only exception, which has been admitted, from the general rule. If then, neither the subject-matter, nor the nature of the title or consideration, nor the capacity of the parties, presents any serious objection to the contract, as between a friendly Belligerent and a Neutral, it remains to consider, if there be anything in the objection, *that it is a remitter of the right of forfeiture, which belongs exclusively to the sovereign.

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"The Commission of the Sovereign in general authorizes only captures of enemies' property. But, without any express clause, this Commission clearly extends to the capture of all neutral property seized in violating neutral duties; for in such case the property is deemed quasi enemies' property. And, for the same reason, it authorizes the bringing in of property, under neutral passports and papers, for adjudication, where there is probable cause to suspect its real character; for, until adjudication, it cannot be ascertained whether it be entitled to the protection of the neutral character. If, therefore, the Commission gives hostile property to the captors, and enables them to deliver it up on ransom, it also enables them to do the same in respect to Neutral property, which has acquired a hostile taint; and the ransom is not, in the one case, any more the exercise of the Sovereign's prerogative to remit a forfeiture, than it is in the other. In both instances, it is considered, by the Law of Nations, as a mere remitter of the rights of the captors acquired jure belli; and every prohibition of its exercise must expressly depend upon the municipal regulations of the particular country. Upon principle, therefore, the distinction of the counsel for the defendant, as to the incompetency of a Belligerent to deliver neutral property on Ransom is unsupported; and there is not a scintillation of authority in its favour." (0)

(0) See also:-Miller v. The Resolution, 2 Dallas's (Amer.) Rep., p. 15. Azuni, c. iv. art. 6. 1 Emerigon, c. xii. s. 21. 2 Valin, art. 66, p. 149. Le Guidon, c. vi., art. 2. Pothier, Traité du Droit de Propriété, No. 134, 135, 138, 139, 140, 144. Valin, Ord. des Prises, art. 19. Ib., II. 1. iii. t. ix. art. 19. Ib., Comm., t. ix., p. 261.

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PART THE ELEVENTH.

*CHAPTER I.

THE GENERAL CHARACTER AND DUTY OF TRIBUNALS OF PRIZE.

CCCCXXXIII. IT has been observed that the tribunal of maritime International Law, having cognizance of Prize, has, from circumstances sufficiently apparent upon a very slight reflection, assumed a form, consistency, and regularity of procedure which no tribunal of International Law, respecting military operations by land, and having cognizance of Booty, has yet attained; and that so far as English legislation and jurisprudence is concerned, there has been a growing tendency to submit both subjects to the same tribunal.(a)

It seems to the writer of these pages that, within the whole range of International Jurisprudence, there is no subject of more paramount importance than the character, constitution, and mode of procedure of the Prize Court and of the Appellate Tribunal.(6)

It ought to command the respect of nations-it ought to be above, not slander indeed, for then it would not be a human institution, but just and reasonable suspicion. It ought to administer International, not Municipal Law, except, in so far as it might happen that the latter was identical with or declaratory of the former. Its procedure ought to be open and exposed to all criticism. It ought to *allow every liberty of [*534] speech to the Claimant, or his representative, as well as to the

Belligerent, or his representative. It should administer a consistent law upon certain and known principles, impartially applied to all States and to their subjects. The high standard of the great philosopher and jurist of antiquity should be perpetually before its eyes. It should always remember that the law which it has to administer is not of one character at Rome and of another at Athens, (c) but one and the same everywhere, founded and applied, so far as human infirmity will permit, upon the principles of immutable right and eternal justice.

CCCCXXXIV. The Prize Courts to whose proceedings the greatest publicity(d) has been given, are, it will not be denied by any candid and intelligent person, those of Great Britain and of the United States of North America.

Nor will it be denied by the United States that they have taken, with few and inconsiderable exceptions, the rules, procedure and practice of the English Courts as their approved and recognized model.

(a) Vide ante, p. 197.

Pope.

Vide ante, Vol. II., pp. 327, 328, as to International Law administered by the

(c) "Neque erit alia lex Romæ alia Athenis: alia nunc alia posthac, &c.”—Cic. de Repub., 1. iii. c. 22.

(d) The reports are duly published, and in England, during the present war, under the authority of the High Court of Admiralty. These are independent of the daily reports in a great number of newspapers of various political creeds.

In the case of the Ostsee, decided by the highest English tribunal, the Judicial Committee of the Privy Council, during the present war, it was well observed that

"The law which we are to lay down cannot be confined to the British Navy; the rule must be applied to captors of all nations. No country can be permitted to establish an exceptional rule in its own favour, or in favour of particular classes of its own subjects. On the Law of Nations, foreign decisions are entitled to the same weight as those of the country in which the tribunal sits. America has adopted almost all her principles of prize *law from the decisions of English courts; and whatever may have been the case in former times, no authorities [*535] are now cited in English courts, in cases to which they are applicable, with greater respect than those of the distinguished jurists of France and America. Whatever is held in England to justify or excuse an officer of the British Navy, will be held by the tribunals of every country, both on this and the other side of the Atlantic, to justify or excuse the captors of their own nation." (e)

CCCCXXXV. Let us consider, first, whether there has been any theory upon this subject-viz. the duty of the Prize Court towards all Statespromulgated by the English courts; and next, whether that theory has been in accordance with the premises which have been just laid down; because these facts are of great importance to the civilized world.

States which openly proclaim the standard, by reference to which they assert that international justice ought to be administered in their tribunals, witness, as it were, against themsslves, if they depart from it.

True it is that their practice may fall short of their theory; but by the joint effect of openly promulgating their theory and openly conducting their practice, they have forever exposed themselves to the severest criticism, and challenged, in some sense, the institution of a constant comparison between the two. Nor, in these days, not only of free but universal discussion through the agency of the press, can it be contended that this exposure and this challenge do not constitute a great check upon the maladministration of justice, and a great safeguard to those States whose interests are necessarily submitted to the decisions of the Belligerent Tribunal.

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CCCCXXXVI. It has so happened that, during the long *and general War which ended in 1815, that great magistrate of nations, Lord Stowell, more than once felt it incumbent upon him to declare from the judgment seat what was in his opinion the duty of the tribunal over which he so long presided.

It has appeared desirable to the writer of these pages to collect these passages, and to place them consecutively before the eyes of the reader.

It has been already observed, that, in time of war, Neutral States have a right to demand, ex debito justitia,(f) that there be courts for the administration of International Law, sitting in the belligerent countries.

(e) The Ostsee. Judgment of the Judicial Committee of the Privy Council, delivered March 29th, 1855.

(f) The Snipe and others, Edwards's Adm. Rep., p. 381, also published separately. See important remarks of Mably, Droit de Gens, vol. ii. pp. 350, 351; and Wheaton, Hist., p. 171, n.

The duties of these courts are thus faithfully described by Lord Stowell in the case of the Swedish Convoy; "In forming my judgment, I trust that it has not for a moment escaped my anxious recollection what it is that the duty of my station calls for from me; namely, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out without distinction to independent States, some happening to be neutral and some belligerent; the seat of judicial authority is indeed locally here, in the belligerent country, according to the known law and practice of nations, but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain in the same character."

*In another case(g) he says: "It is to be recollected that this [*537] is a Court of the Law of Nations, though sitting here under the authority of the King of Great Britain. It belongs to other nations as well as to our own; and what foreigners have a right to demand from it is the administration of the Law of Nations simply, and exclusively of the introduction of principles borrowed from our own municipal jurisprudence, to which, it is well known, they have at all times expressed no inconsiderable reluctance."

In the case of the Fox, decided in 1811, Lord Stowell said :—

"In the course of the discussion a question has been started, What would be the duty of the Court under Orders in Council that were repugnant to the Law of Nations? It has been contended on one side that the Court would at all events be bound to enforce the Orders in Council; on the other, that the Court would be bound to apply the rule of the Law of Nations adapted to the particular case, in disregard of the Orders in Council. I have not observed, however, that these Orders in Council, in their retaliatory character, have been described in the argument as at all repugnant to the Law of Nations, however liable to be so described if merely original and abstract. And, therefore, it is rather to correct possible misapprehension on the subject, than from the sense of any obligation which the present discussion imposes upon me, that I observe that this Court is bound to administer the Law of Nations to the subjects of other countries in the different relations in which they may be placed towards this country and its government. That is what others have a right to demand for their subjects, and to complain if they receive it not. This is its unwritten law, evidenced in the course of its decisions, and collected from the common usage of civilized States. At the same time it is strictly true, that, by the constitution of this country, the King in Council possesses legislative rights over this Court, *and has power to issue orders and instructions which it is bound to obey and enforce; and these constitute the written law of

[*538]

(g) The Recovery, 6 Robinson's Adm. Rep., 348, 9.

this Court. These two propositions, that the Court is bound to administer the Law of Nations, and that it is bound to enforce the King's Orders in Council, are not at all inconsistent with each other; because these orders and instructions are presumed to conform themselves, under the given circumstances, to the principles of its unwritten law. They are either directory applications of those principles in the case indicated in them-cases which, with all the facts and circumstances belonging to them, and which constitute their legal character, could be but imperfectly known to the Court itself; or they are positive regulations, consistent with those principles, applying to matters which require more exact and definite rules than those general principles are capable of furnishing.

"The constitution of this Court, relatively to the legislative power of the King in Council, is analogous to that of the Courts of Common Law, relatively to that of the Parliament of this kingdom. Those Courts have their unwritten law, the approved principles of natural reason and justice; they have likewise the written or statute law in Acts of Parliament, which are directory applications of the same principles to particular subjects, or positive regulations consistent with them, upon matters which would remain too much at large if they were left to the imperfect information which the Courts could extract from mere general speculations. What would be the duty of the individuals who presided in those Courts, if required to enforce an Act of Parliament which contradicted those principles, is a question which I presume they would not entertain à priori, because they will not entertain à priori the supposition that any such will arise. In like manner this Court will not let itself loose into speculations as to what would be its duty under such an emergency; because it cannot, without extreme indecency, presume that any

*such emergency will happen. And it is the less disposed to [*539]

entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law. (h) In the particular case of the orders and instructions which give rise to the present question, the Court has not heard it at all maintained in argument that, as retaliatory orders they are not conformable to such principles; for retaliatory orders they are. They are so declared in their own language, and in the uniform language of the Government which has established them. I have no hesitation in saying that they would cease to be just if they ceased to be retaliatory; and they would cease to be retaliatory from the moment the enemy retracts, in a sincere manner, those measures of his which they were intended to retaliate."(i)

It is clear from these citations that it never has been the doctrine of the British Prize Courts that, because they sit under the authority of the Crown, the Crown has authority to prescribe to them rules which violate International Law. The Orders in Council of 1807(k) did, in

(h) "Todos reconocerán espontáneamente y admirarán el perfecto lenguage de esta exposicion," says Pando; but he proceeds to complain of Lord Stowell for not having followed his own rules; while upon his judgments delivered in 1798-9 he passes an unqualified eulogy. Pando (ed. 1852,) p. 536. (i) The Fox and others, Edwards's Adm. Rep., p. 312.

(k) Vide ante, p. 250.

SEPTEMBER, 1857.-25