CCCCXXX. M. De Martens considers whether there can be derived from certain expressions and phrases perpetually recurring in Treaties, (d) a general concurrence of States as to rules upon this subject, and more especially whether the subject of Recapture can be considered as falling under one or other of two clauses which are most frequently found in Treaties.

1. The clause of being treated as the most favoured nation (d'être traité comme la nation la plus favorisée.)(e)

2. The clause of being treated as the proper subjects of the State (d'être traité comme les propres sujets de l'état.)(f)

M. de Martens very wisely decides that Recapture cannot fairly be considered as falling within the purview and intendment of either of these clauses.

CCCCXXXI. So much for two of the sources from which we may in some measure derive the principles of International Law.

And with respect to a third, namely, the opinions of *Jurists, [*529] they are summed up by this author in contradiction to his own opinion(g) upon the subject of Recapture, as being agreed upon the two following propositions.

1st. With respect to the Recapture of a vessel, before the original Capture had been completed; that though in such case the captured property ought to be restored to the original proprietor, yet that even in this case the recaptor is entitled to demand a recompense, which, according to the principles of natural justice, cannot be fixed at any certain part of the value of the prize, but which ought to be proportioned to the dangers, expenses, and damages incurred in the effecting of it.

2nd. With respect to the Recapture of property duly vested in the captor, that, upon the same conditions by which it became so vested, it has become by the Recapture vested in the recaptor; and that the rights of the first proprietor lost by the Capture cannot revive, ipso jure, by virtue of the seizure effected by the recaptor. And that the first proprietor can no more revindicate his extinguished right of property, than he can exercise a right of redemption, the which always supposes the existence of positive municipal laws, without which no proprietor is bound to sell his property to any person.

CCCCXXXII. By the general Maritime Law, Ransom is allowed, and the master may bind by his contract for Ransom the whole cargo as well as the ship.(h) About the middle of George the Third's reign(1) Ran(d) Vide Antè, vol. i., p. 45. For specific Treaties on this subject see De Martens, Essai, and vol. ix. Traités de Comm., De Haut. et de C., p. 374, Prises et Reprises. (e) Vide Antè, p. 155. (f) Ib., p. 157. (g) He candidly admits that this opinion is at variance with the received opinion of Europe.

"Que toute reprise, faite à une époque quelleconque de la guerre, soit que la prise ait été légitime, soit qu'elle ait été illégitime, soit que la reprise se fasse par le Souverain, soit qu'elle se fasse par un armateur, doit être restituée à l'ancien propriétaire quelconque; moyennant une juste rétribution des frais et dommages du repreneur quelconque; à moins que l'illégitimité de la reprise ne prive le repreneur du droit de demander une réparation."-De Martens, Ess., and vol. ix. Tr. de Com., De Haut. et de C., pp. 130-1., Prises et Reprises.

(h) The Gratitudine, 3 Rob., p. 240.

(i) Present Prize Act, 17 Vict. c. 18:-"XLII. It shall not be lawful for any of

+

soms were, by the policy *of England, forbidden to English sub

[*530] jects.(7) But even now under circumstances of necessity they are still allowed.(?) Ransoms have never been prohibited by the North American United States; and the Act of Congress of August 2, 1813, interdicting the use of British licenses or passes, was holden not to apply to the contract of Ransom.(m)

The general law upon this subject is perspicuously stated in the following extract from a judgment of Lord Justice Story(n)" The second question," he says, " is, whether it be competent for a friendly Belligerent to demand, or take, a ransom for restoring the property of a Neutral after capture. It is argued by the defendant, that every ransom supposes a vested right in the captors; that this does not exist in respect to Neutrals, for the captors have only a right to bring in for adjudication; that neutral property is liable to condemnation, only in case of delinquency; and that captors have no right to remit, in behalf of their Sovereign, a forfeiture for violation of neutral duties.

It is not true, however, that the right to take a Ransom *is [*531] founded in a vested title in the captors to the captured property. For, whether the property vest after twenty-four hours' possession, or after bringing infra præsidia, as seems the doctrine of civilians; or after condemnation, as is the doctrine of Great Britain; it is clear that the right to take a Ransom exists from the moment of capture. And, by the general practice of the maritime world, a decree of condemnation is deemed necessary to ascertain and confirm the inchoate title of the captors, at least in respect to the Sovereign and subjects of their own country. Nor is a ransom, strictly speaking, a repurchase of the captured property. It is rather a repurchase of the actual right of the captors at the time, be it what it may; or, more properly, it is a relinquishment of all the interest and benefit, which the captors might acquire or consummate in the property by the regular adjudications of a Prize Tribunal, whether it be an interest in rem, a lien, or a mere title to expenses. In this respect there seems to be no legal difference between the case of a Ransom of the property of an enemy, and of a Neutral. For if the property be neutral, and yet there be probable cause of capture, or if the

Her Majesty's subjects to ransom or to enter into any contract or agreement for ransoming any ship, vessel, goods, or merchandise belonging to any of Her Majesty's subjects which shall be captured by any of Her Majesty's enemies; and all contracts and agreements which shall be entered into, and all bills, notes, and other securities, which shall be given by any person for Ransom of any ship, vessel, goods or merchandise, contrary to the provisions of this Act, shall be absolutely null and void.

(k) 22 G. III. c. 25, ss. 1, 2. See cases at common law on this subject:-Havelock v. Rockwood, 8 Durnford & East, p. 268. Wilson v. Bird, 1 Lord Raymond's Rep., p. 22. Anthon v. Fisher, 3 Douglas's Rep., p. 166. Same v. Same, 2 Douglas's Rep., p. 649, n. Woodward v. Larkin, 3 Espinasse's Rep., p. 266. Parsons v. Scott, 2 Taunton's Rep., p. 363. Webb v. Brooke, 3 Ib., p. 6. Ricard v. Bettenham, 3 Burrow's Rep., p. 1734. Cornu v. Blackburne, Douglas's Rep., p. 641.

(1) The ships taken at Genoa, 4 Rob., p. 403. The Hoop, 1 Ib., p. 169. (m) Goodrich v. Gordon, 15 Johnson's (Amer.) Rep., 6. Kent's Comm. vol. i. pp. (105,) 112.

(n) Maisonnaire et al. v. Keating, 2 Gallison's (Amer.) Rep. p. 337, (Story.)

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.

[*532] "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." (o)

(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.

ナ

[*533]

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.(b)

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.

Vide ante, p. 197.

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

(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.

十

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.

[*536]

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.