the vessel, but not necessarily good ground for condemnation. It affords a strong presumption of her guilt, but not a presumption which cannot be rebutted by evidence to the contrary. On the other hand, most European nations hold that it is absolutely conclusive against the ship, and exclude further proof. Courts and the re state for their decisions. § 212. As between belligerents superior force is its own justification. If enemy property is captured at sea under circumThe nature of Prize stances that render it liable to hostile seizure sponsibility of the and detention by the laws of war, the rights of the original owners are destroyed, though, as we have recently seen, they may be revived by the jus postliminii in cases of recapture. But sometimes it is doubtful whether certain property really belongs to an enemy owner, or whether the capture was effected in a place where warlike operations may be carried on; and it is always necessary to determine the exact extent of the proprietary rights accruing to the individual captors. It follows, therefore, that the intervention of a court is highly desirable, even in cases where belligerent property, or what is believed to be such, is the only subject-matter concerned. But desirability becomes necessity when neutral rights and neutral claims are involved. Force cannot control the relations of states at war with the subjects of powers which take no part in the contest. They may be condemned to lose their property under certain circumstances, but the mere fact that a belligerent has succeeded in obtaining and keeping possession of it does not give him a right to it. The question whether he has such a right or not is a question of law to be settled by judicial proceedings. Accordingly, all civilized belligerents establish Prize Courts for the protection of neutral subjects and the proper adjustment of the claims of captors. When the servants of a state seize enemy prop1 Halleck, International Law, Ch. xxvii., § 27. erty at sea, in strictness of law they seize it for their country, and not for themselves; but, as in the similar case of booty on land, the law of every civilized nation gives the whole or a portion of the captured movables to the captors according to some scale of reward fixed by public authority. In the United States Congress has power to make rules concerning captures at sea, and it exercised this power in 1864 by passing an act which gave the whole of the value to the captors when the vessel or vessels making the capture were of equal or inferior force to the prize; but if their force was superior, they were to receive a half only, the rest going to the Treasury. In the same year the British Parliament legislated on the subject in the Naval Prize Act, which expressly declares that captors "shall continue to take only the interest (if any) in the proceeds of prizes as may be from time to time granted to them by the Crown." But it is and has been the invariable rule of the Crown in modern times to surrender the entire proceeds to the officers and men engaged in the capture. The general practice of Prize Courts is to order a sale of the vessel or goods on condemnation; and the sum thus realized is divided among the captors. war. Prize Courts are municipal tribunals set up by belligerent states in their own territory, in territory under their military occupation, or in territory belonging to an ally in the In the last case the permission of the ally must be obtained beforehand. But a neutral cannot allow the establishment of a belligerent Prize Court in its territory without a grave breach of the duties prescribed by neutrality; and if one of the parties to the war attempts to set up such courts within the area of neutral jurisdiction, he commits a gross outrage upon the Right of Independence by his endeavor to exercise powers of sovereignty of the highest kind in the dominions of a friendly and peaceful nation. It is very improbable that anything of the kind will be attempted in future. But should such an aggression take place, the state which suffers from it may resent it by war, if diplomatic pressure fails to obtain redress. Submission on the part of the neutral government would bring upon it reclamations and possibly hostilities from the belligerent which suffered through its subservience. This was clearly seen by Washington when, in 1793, Genet, the Minister of the French Republic, endeavored to set up Consular Prize Courts within the territory of the United States. After a period of unavailing remonstrances addressed to him personally, his recall was demanded from his government, who complied with the request, and caused the discontinuance of the obnoxious proceedings. Though Prize Courts are set up by the authority of a belligerent government, and their judges are appointed and paid by it, they exist for the purpose of administering International Law. In America, court after court has decided that International Law is part and parcel of the law of the land; 2 and it is held that every member of the family of nations must submit to the rules of the society of which it forms a part. In England this view has not been so clearly expressed or so widely adopted. But it is nevertheless the dominant opinion, and on the continent of Europe it would meet with general acceptance, though it would hardly be stated in the terms we have used. All nations would, however, agree in holding that their Prize Courts were bound to apply the rules of the law of nations to the cases which came before them for settlement; and in the vast majority of cases practice on this point coincides with theory. While human nature remains what it is, the most upright and able of judges will find it impossible to divest themselves altogether of influences due to national predilections or professional training. But it is possible to reduce these disturbing elements to a minimum, and the great lights of 1 Special Message of Dec. 5, 1793. 2 Wharton, International Law of the United States, § 8. international jurisprudence who have adorned the judicial bench have been as conspicuous for impartiality as for learning. There is, however, one case where the most upright of judges may be compelled to give a decision which he knows to be contrary to the received principles and rules of the international code. It occurs when the government of his own country, through its appropriate department, issues for the guidance of its cruisers instructions which order them to make captures of enemy or neutral vessels, under circumstances deemed innocent by the law of nations as generally understood and acted upon. Such were the Berlin and Milan Decrees of the first Napoleon and the retaliatory British Orders in Council. The naval officers of each country were, of course, obliged to obey the orders issued to them by their superiors, and the courts were equally bound to notice and administer the rules laid down by legislative authority. If they had refused they would have been in a state of contumacy, and their judges would have been quickly dismissed. Wharton quotes an article in the Edinburgh Review of February, 1812, in which scorn is poured on the theory that French Courts of Prize are "bound by the decrees of the Tuileries "or English by the edicts of Windsor,1 and Halleck asserts that "local ordinances and municipal regulations . . . are not binding on the Prize Courts, even of the country by which they are issued."2 This doctrine. has found adherents in other quarters, but in truth it is simply anarchical. It implies that naval officers ought to disobey orders and judges refuse to administer laws imposed by proper legislative authority. It arises from a confusion between wrongful action on the part of the state and wrongful action on the part of its agents. Soldiers, sailors, civil servants, judges in short, all subordinate authorities must obey the orders of the supreme power, except in those rare cases in which resistance and revolution are justifiable. 1 International Law of the United States, § 329 a. 2 International Law, Ch. xxxii., § 19. But the state itself is responsible to other states for any injury done to them or their subjects by proceedings in excess of its lawful powers as a belligerent. Its Prize Courts, if left to themselves, as they ought to be and generally are, will administer International Law; but if legislation contrary to International Law is thrust upon them, they must obey it. Other states, however, are in no way bound to submit; and if neutrals think themselves aggrieved because of decisions arrived at, either spontaneously or in consequence of legislative acts, they will complain to the belligerent government. The effect of a decision in a Prize Court is to settle all proprietary rights in the vessel or goods under adjudication. Controversy between the captors and the claimants is terminated by the final judgment on appeal, and a court of another country cannot afterwards review the decision. But compensation for damage suffered in consequence of it may be demanded on behalf of neutral sufferers by their own government. A state is responsible for the decisions of its Prize Courts; and if they have acted unjustly, it is its duty to give satisfaction. Many instances where this has been done may be found in the history of international relations. We may give, as an example, the award of the Mixed Commission, appointed under the Treaty of 1794 between Great Britain and the United States. It granted an indemnity in respect of several cases in which the British Prize Courts, by a stretch of the extremest rights of a belligerent, had condemned American vessels laden with provisions for French ports.1 The jurisdiction § 213. The jurisdiction of Prize Courts extends over all captures made in war by their country's cruisers, over all captures made on land by a naval force acting alone or in conjunction with military forces, and over seizures made afloat in anticipation of war. It also includes 1 Treaties of the United States, 384, 385, 1322–1324. of Prize Courts. |