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lawful proprietor. That responsibility may be secured to the claimant by bail in court for its worth, or other equivalent protection to such contingent right.
The usage of this court is to place the value in deposit in the registry of the court * * * to be restored and paid to the claimant in case of the acquittal of the property, in place of relying upon individual undertakings or responsibilities therefor.
And he proceeds (at p. 206):
But all the decisions must rest on the same principle that it is competent to the Government, through the agency of the courts, to take immediate possession and use of the captured property on guaranteeing by bail or deposit, at its worth, the restoration of its value to its lawful claimants.
At a later stage, in dealing with the same vessel and her cargo, the learned judge said:
I retain the conviction that the Government possesses the legal rights of claiming a direct appropriation to public use of captured property, and that the courts are bound to carry such demand into execution, according to the usual course of procedure before it-vide The Ella Warley and cargo (Blatch. Pr. Cas., at p. 209).
The cases of The Memphis (supra) and The Ella Warley (supra) afterwards came on appeal before Mr. Justice Nelson, Associate Justice of the Supreme Court of the United States, who was no mean authority upon questions of prize law, and none of the principles enunciated by Betts, J., in that case were disapproved.
Finally, I would refer to the case of The Schooner Stephen Hart and cargo (Blatch. Pr. Cas., 387). The case was finally determined on July 30, 1863. Meantime, by interlocutory orders, some made before the libel in prize and others after proceedings were taken, but all made before final decree, parts of the cargo were delivered to the Navy Department for the use of the United States; other parts to the War Department, the Ordnance Department, and the Sanitary Department of the States; and the schooner herself and the remainder of her cargo were sold by public auction; and all the proceeds of the vessel and her cargo, delivered and sold as aforesaid, were paid into the registry of the court,to await the final determination and decree of the court.
In view of the cases to which reference has now been made, it cannot, in my opinion, be possible to maintain that the requisition by the state of captured property, which is provided for by Order XXIX of the Prize Court Rules, is a violation of an acknowledged or settled principle or rule of the law of nations.
If the view just expressed is correct, it is not necessary to discuss the question whether this court is bound to obey an Order in Council which may run contrary to the acknowledged law of nations. If that question should arise I am humbly and fully content to assume the standpoint of Lord Stowell in the case of The Fox (Edw., 312), in which he had to deal with the Orders in Council which were made by way of reprisal after the celebrated Berlin and Milan decrees of Napoleon. He expressed his view of the duty of the prize court with reference to the law of nations, and to Orders in Council by the state, in and under which the court exercised jurisdiction, in the following classical passages:
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. This is what other countries 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 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 principle of its unwritten law. They are either directory applications of those principles to the cases 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 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 preside 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 a priori; because they will not entertain a 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 entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law. 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. 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.
Judges and jurists have pronounced upon this subject after the judgment of Lord Stowell in The Fox (supra).
In Maisonnaire v. Keating (2 Gall., 325) Mr. Justice Story expressed his view as follows:
The legality of the conduct of the captors may, under circumstances, exclusively depend upon the ordinances of their own Government. If, for instance, the sovereign should, by a special order, authorize the capture of neutral property for a cause manifestly unfounded in the law of nations, there can be no doubt that it would afford a complete justification of the captors in all tribunals of prize. The acts of subjects, lawfully done under the orders of their sovereign, are not cognizable by foreign courts. If such acts be a violation of neutral rights, the only remedy lies by an appeal to the sovereign, or by a resort to arms. A capture, therefore, under the Berlin and Milan decrees, or the celebrated Orders in Council, although they might be violations of neutral rights, must still have been deemed, as to the captors, a rightful capture, and have authorized the exercise of all the usual rights of war.
Upon this subject I may again cite the following passage from the judgment of an American judge a generation later:
The general argument against the expediency of subjecting property to peremptory sale before condemnation or trial must yield to the provisions of positive law-vide per Betts, J., in The Nassau (Blatch. Pr. Cas., 198).
Our text writers acknowledge the binding force of Orders in Council of the state in which the court exercises jurisdiction. I will only cite the opinions of one of them, the late Dr. Westlake. In dealing with coast fishing vessels he writes:
But if the captures were made in pursuance of a Government order, the prize court, in the absence of anything to the contrary in the constitution of the country, will be bound by such an order emanating from the authority under which it sits (see Vol. II., p. 155).
And in dealing more generally with the subject this learned and esteemed author writes:
Questions of prize have always been matters of the domestic jurisdiction of the captor's country, commonly called the admiralty jurisdiction from its original form, by whatever name the branch exercising it may be known in any modern system of procedure. It is open to all those of any nationality whose interests may be affected by its decisions, and it is the duty of its judges, a duty in which they have seldom failed in any civilized country, to do justice to them all with strict impartiality. In that sense a court of admiralty is an international one, but in that sense only, for the law which it administers cannot help bearing the impress of its own nationality.
A court must take its law from the authority under which it sits, and for a court of admiralty that authority has never been any other than that of its own country. It must apply any rules on international questions which it finds to be generally agreed on, a condition which involves the agreement of its own country with them. Where there is no general agreement and the supreme authority of its own country has not taken a decided line, the court must take that line which justice appears to it to require, whether favorable or not to a fellow-subject being a party before it, or to what it may conceive to be the interest of its country. But where the supreme authority under which it sits has taken a decided line, a court of admiralty, like any other court, can only obey. Thus we have seen the English Parliament and Privy Council determining from time to time whether neutral goods in enemy ships should be deemed lawful prize, and the English Admiralty deciding one way in 1357 and the other way two centuries and a half afterwards. When the famous Orders in Council laid down rules, as to neutral shipping for the then naval war, which were certainly not justifiable otherwise than by way of retorsion against the Berlin and Milan decrees, the British Admiralty did not and could not presume either to refuse execution to the orders, or to exercise an independent judgment as to their justification (Vol. II., pp. 317–318).
I am not called upon to declare what this court would or ought to do in an extreme case if an Order in Council directed something to be done which was clearly repugnant to and subversive of an acknowledged principle of the law of nations.
I make bold to express the hope and belief that the nations of the world need not be apprehensive that Orders in Council will emanate from the Government of this country in such violation of the acknowledged law of nations as to make it conceivable that our prize tribunals, holding the law of nations in reverence, would feel called upon to disregard and refuse obedience to the provisions of such orders.
For the reasons, historical and other, which I have endeavoured to set forth, I am of opinion that nothing contained in the provisions of Order XXIX of the Prize Court Rules is repugnant to international law; and that the powers entrusted to and to be exercised by the court under the order are in accordance with the inherent powers of the court itself and are well within the rights of the Crown under the statutory provisions referred to, no less than under its prerogative authority.
I therefore order the copper to be delivered up to the Crown as prayed by the summons.
Leave to enter an appeal within 21 days, security for costs £250.
FRENCH PRIZE COUNCIL
(Journal Officiel, August 26, 1915)
Edward Breitung, residing at Marquette, Michigan, U. S. A., professing to be the owner of the steamer Dacia, captured at sea, February 27, 1915, at the entrance to the English Channel, by the French auxiliary cruiser Europe, together with the captain of the said vessel, on the one hand;
And the Minister of Marine, acting in behalf of the captors and of the fund for disabled sailors (caisse des invalides de la marine) on the other hand;
Having duly examined the letters and the statements of the Minister of Marine of March 30, April 29, July 15 and 26, 1915, filed with the Council April 29, and July 16 and 19, 1915, enclosing the file regarding the capture of the steamer Dacia and praying that it may please the Council to declare right and lawful the capture of the Dacia and all of its accessories, including the supplies and provisions of every kind without exception found on board, even those claimed as personal property by Capt. MacDonald, except the ship's papers; Having duly examined the documents comprising the said file to wit: First, the report of the capture drawn up at sea February 27, 1915;
Second, the ship's papers, among them an instrument dated New York, December 17, 1914, in which the German Hamburg-America