Изображения страниц


in Council or an act of Parliament. In the case of The Louis, decided in 1817, that great and learned judge said:

Two principles of public law are generally recognized as fundamental. One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate. The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another.

It would seem to follow from these decisions that an act of Congress or a British statute inconsistent with international law is null and void in so far as foreign nations are concerned and in so far as their citizens and subjects not within the jurisdiction of the United States or of Great Britain are concerned, although it may well be, and is in fact the case, that an act of Congress or an act of Parliament contrary to international law binds the authorities of the United States and American citizens, on the one hand, and British authorities and British subjects, on the other.

Finally, the question arises as to the effect of an Order in Council upon British prize courts, a question to be determined exclusively by Great Britain, which can by statute prescribe the law to be administered in British prize courts. To the foreigner it is immaterial whether the law is prescribed by an act of Parliament or by an Order in Council, as the question is not what particular municipal organ may prescribe the law but whether the law has been prescribed in such a way as to force the prize court to apply a rule contrary to international law in the decision of cases involving neutral rights. Whether this be done by act of Parliament or by Order in Council is a matter of indifference to the foreign nation, whose desire is that it be done neither by one nor the other, nor both working in common. It is, of course, a matter of considerable importance to British authorities in the performance of their duties whether they are or are not bound by an Order in Council, but this is a question of constitutional, and therefore domestic, not of international, law.



The nature of an Order in Council and its effect upon a British prize court was recently considered in the case of the Zamora, 4 and the holding of the Judicial Committee of the Privy Council on appeal has been a source of much favorable comment on the part of American publicists. It is believed, however, that, carefully considered, the decision, while worthy of the greatest respect, is not to be taken as laying down the broad principle that a British prize court cannot decide a case involving neutrals against international law; but that the statute creating the prize court and prescribing that its decisions be in accordance with the law of nations cannot be varied by an order of the King in Council, although it may be varied by an act of Parliament.

Briefly stated, the facts in the case were that the Zamora, a Swedish (therefore a neutral) ship, bound from New York to Stockholm (therefore on a voyage between two neutral points), was seized off the coast of Scotland, between the Faroe and Shetland Islands, on April 8, 1915, by a British cruiser, and sent into the Orkney Islands as prize. The vessel carried copper and, during proceedings instituted in the prize court for the condemnation of the ship and cargo because of the contraband character of the latter, “the Crown applied to the prize court for an interlocutory order that about 400 tons of copper, which formed part of the cargo, should be released and delivered up to the Crown under Order XXIX of the Prize Court Rules, upon an undertaking of the Crown to pay into court the appraised value of the copper in accordance with Rule 5 of the Order.” This request was based upon the Prize Court Rules issued by the King in Council, allowing cargo to be requisitioned by the Crown pending the decision of the court upon the validity of the capture. The application was resisted on behalf of the Swedish firm which claimed to own the cargo on the ground "that the provisions of the Order referred to violated the law of nations and were not binding upon the court.”

Sir Samuel Evans, President of the Prize Court, decided that the Order in Council was imperative in nature, that is, that it commanded him to grant the application of the Crown made in pursuance of the Order, and decreed as requested. Upon appeal to the Judicial Committee of the Privy Council, that

4 Printed in this JOURNAL for April, 1916, p. 422.


[ocr errors]



learned body reversed the decision of the prize court, not because the Crown did not possess the right to requisition the copper, but because, in the opinion of their lordships, no sufficient evidence had been adduced by the Crown for the necessity of such requisition. In the course of its decision the Privy Council stated that the Order in Council invoked in the case was not imperative, as Sir Samuel Evans had supposed, and that even if it were imperative it would not be binding upon the court if inconsistent with the law of nations, because by statute the British prize court is required and authorized, as their lordships said, “to proceed upon all and all manner of captures, seizures, prizes, and reprisals of all ships or goods that are or shall be taken, and to hear and determine according to the course of admiralty and the law of nations." Their lordships stated, in clear and unmistakable terms, per Lord Parker, who delivered their judgment, that an Order of the King in Council contrary to international law did not bind the prize court, for the very simple reason that the prize court was constituted "to hear and determine according to

the law of nations” and that an Order in Council could not modify the law of nations.

The court, however, did not say that Parliament could not prescribe a rule of decision contrary to the law of nations. Indeed, the judgment expressly declared that Parliament possessed this power and that a Brit

a ish prize court was bound to obey and give effect to an act of Parliament, even although such act should be contrary to the law of nations. The King in Council could prescribe procedure to be observed in the prize court not inconsistent with the law of nations. Parliament could not merely prescribe procedure at variance with the law of nations but could pass a statute in the teeth of international law.

It should further be said that their lordships did not deny the right under international law to requisition vessels or goods before their condemnation, but expressly affirmed this right and reversed the judgment of the prize court, because in the exercise of this right the judge, Sir Samuel Evans, had not had evidence before him which would justify the requisition. It is perhaps well to quote this portion of the judgment before proceeding to that portion dealing with the Order in Council.

On the whole question their lordships have come to the following conclusion: A belligerent Power has by international law the right to requisition vessels or goods

in the custody of its prize court pending a decision of the question whether they should be condemned or released, but such right is subject to certain limitations. First, the vessel or goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. Secondly, there must be a real question to be tried, so that it would be improper to order an immediate release. And, thirdly, the right must be enforced by application to the prize court, which must determine judicially whether, under the particular circumstances of the case, the right is exercisable.


In speaking of the effect of the Order in Council in a court of prize and of the nature of the prize court itself, Lord Parker said, speaking for the court:

In the first place, all those matters on which the court was authorized to proceed were, or arose out of, acts done by the sovereign power in right of war. It followed that the King must, directly or indirectly, be a party to all proceedings in a court of prize. In such a court his position was in fact the same as in the ordinary courts of the realm on a petition of right which had been duly fiated. Rights based on sovereignty were waived and the Crown accepted for most purposes the position of an ordinary litigant. A prize court must, of course, deal judicially with all questions which came before it for determination, and it would be impossible for it to act judicially if it were bound to take its orders from one of the parties to the proceedings.

In the second place, the law which the prize court was to administer was not the national, or, as it was sometimes called, the municipal law, but the law of nationsin other words, international law. It was worth while dwelling for a moment on that distinction. Of course, the prize court was a municipal court and its decrees and orders owed their validity to municipal law. The law which it enforced might, therefore, in one sense, be considered a branch of municipal law. Nevertheless, the distinction between municipal and international law was well defined. A court which administered municipal law was bound by and gave effect to the law as laid down by the sovereign state which called it into being. It need inquire only what that law was, but a court which administered international law must ascertain and give effect to a law which was not laid down by any particular state, but originated in the practice and usage long observed by civilized nations in their relations with each other or in express international agreement.

It was obvious that, if and so far as a court of prize in this country was bound by and gave effect to orders of the King in Council purporting to prescribe or alter the international law, it was administering not international but municipal law; for an exercise of the prerogative could not impose legal obligation on anyone outside the King's dominions who was not the King's subject. If an Order in Council were binding on the prize court such court might be compelled to act contrary to the express terms of the commission from which it derived its jurisdiction.

There was yet another consideration which pointed to the same conclusion. The acts of a belligerent Power in right of war were not justiciable in its own courts unless such Power, as a matter of grace, submitted to their jurisdiction. Still less were such acts justiciable in the courts of any other Power. As was said by Mr. Justice


[ocr errors]

Story in the case of The Invincible (2 Gall., 43), “acts done under the authority of one sovereign can never be subject to the revision of the tribunals of another sovereign, and the parties to such acts are not responsible therefor in their individual capacity.” It followed that, but for the existence of courts of prize, no one aggrieved by the acts of a belligerent Power in times of war could obtain redress otherwise than through diplomatic channels and at the risk of disturbing international amity. An appropriate remedy was, however, provided by the fact that, according to international law, every belligerent Power must appoint and submit to the jurisdiction of a prize court, to which any person aggrieved had access, and which administered international as opposed to municipal law-a law which was theoretically the same, whether the court which administered it was constituted under the municipal law of the belligerent Power or of the sovereign of the person aggrieved, and was equally binding on both parties to the litigation. It had long been well settled by diplomatic usage that in view of the remedy thus afforded, a neutral aggrieved by any act of a belligerent Power cognizable in a court of prize ought, before resorting to diplomatic intervention, to exhaust his remedies in the prize courts of the belligerent Power.

A case for such intervention arose only if the decisions of those courts were such as to amount to a gross miscarriage of justice. It was obvious, however, that the reason for that rule of diplomacy would entirely vanish if a court of prize, while nominally administering a law of international obligation, were in reality acting under the direction of the Executive of the belligerent Power.

His lordship, however, made it perfectly clear that the power resided in Parliament to pass an act contrary to international law and that in such a case it would be the duty of the judges of the prize court, as British judges, to obey and to apply the statute.

It could not, of course she said), be disputed that a prize court, like any other court, was bound by the legislative enactments of its own sovereign state. A British prize court would certainly be bound by acts of the Imperial Legislature. But it was none the less true that if the Imperial Legislature passed an act the provisions of which were inconsistent with the law of nations, the prize court in giving effect to such provisions would no longer be administering international law. It would in the field covered by such provisions be deprived of its proper function as a prize court. Even if the provisions of the act were merely declaratory of the international law, the authority of the court as an interpreter of the law of nations would be thereby materially weakened, for no one could say whether its decision were based on a due consideration of international obligations or on the binding nature of the act itself. The fact, however, that the prize courts in this country would be bound by acts of the Imperial Legislature afforded no ground for arguing that they were bound by the Executive Orders of the King in Council.

It would be easy to quote passages from British and American decisions that prize courts are courts of international law sitting in belligerent countries, that in the performance of their duties they administer

« ПредыдущаяПродолжить »