by a British cruiser, and sent into the Orkney Islands as prize. Pending a hearing of the claim of the Crown for the condemnation of the ship and cargo on the ground 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. The application was resisted on behalf of a Swedish firm, who claimed to be the owners of 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.

After stating that the capture or seizure as prize vests possession of the property captured in the Crown, and that its custody by the marshal of the prize court subjects the property fully to the jurisdiction of the court, the President of the Prize Court proceeded:

In my view persons who lay claim to property captured or seized have no right by any rule of international law to demand that the property should be preserved in specie until the final decree determines whether it is to be released or to be condemned. Prize courts have always acted upon the principle that the capture is lawful, until claimants establish the contrary. All that it is necessary for captors to allege in prize proceedings is that the capture was made, and that the property captured is claimed as prize: thereupon claimants must establish their claim to release. If their claim to release is sustained they may have the property delivered up, if it has been kept intact; or they will receive its value if it has been sold or otherwise disposed of with or without costs and damages against the captors as the circumstances may require. The argument of counsel for the claimants was, or necessarily involved, that the goods captured must in any circumstances be preserved to be delivered up in the same character if release is ordered; and that they cannot, except with the consent of the claimants, be sold or converted into a fund; or, in other words, that the claimants, in case their claim is allowed, must be put in possession of the property itself, and not of its value. I know of no principle or rule of international law to that effect.

If the claimants have no such legal right to have the property delivered up in specie, it matters not whether the property is sold for good reasons, and so converted into money, or is requisitioned by the Crown

(instead of going through the form of sale) upon an undertaking to pay into court the appraised value.

But apart from any inherent power of the court, the Order referred to in the Prize Court Rules (Order XXIX) deals expressly with the matter and prescribes the practice to be pursued. I will consider hereafter the larger question whether this Order violates an acknowledged and settled principle of the law of nations, and whether, if it does, it nevertheless, as an Order made by his Majesty in Council, must be observed and obeyed by this court.

Before approaching that wide and important subject, I must declare that, in my view, Order XXIX deals only with a matter affecting the procedure and practice of the court-a domestic affair, in which no foreigner, neutral or enemy, has any voice or right to interfere. It deals only with interlocutory steps which may be taken in this court after prize proceedings have been instituted.

Matters of practice in proceedings such as sale of property, or delivery upon bail, or upon appraisement are not of international concern, and are not and cannot be regulated by uniform international principles or procedure to be applied in the courts of all countries; as an example, a reference to the Prize Regulations of Russia and of Japan during the war of 1904-1905 will show that they differ as to the rules regulating sale of captured vessels and goods before or after the institution of prize proceedings.

If Order XXIX deals, as I think it does, merely with the regulation of the practice and procedure of this prize court, it has the force of an Act of Parliament, as it has been made under statutory powers. But if it goes beyond procedure and practice it has nevertheless the force properly attributable to an Order in Council. This appears by the Order itself, and in the Naval Prize Act of 1864 there is an express saving of the right, power or prerogative of the Crown, as there is also of the jurisdiction or authority of or exercisable by the prize court.

If it is regarded as an Order in Council, it is in my opinion within the power and prerogative of the Crown to make an Order giving the right to requisition neutral property which may be of use to the Crown as a belligerent, subject to making compensation therefor. For instance, in former wars such things as planks, sailcloths, pitch, hemp, and copper sheets belonging to neutrals were ordered before condemnation to be handed over to the Government pursuant to an order or declaration of the Crown: see the following cases, gathered from Hay and Marriott's

reports: The Vrow Antoinette, 142; De Jonge Joslers, 148; Concordia Affinitatis, 169; The Sarah and Bernhardus, 176; The Hoppet, 217; Jonge Gertruyda, 246; Concordia Sophia, 267; The Drei Gebroeders, 270; The Jonge Juffers, 272; and also the cases mentioned at pp. 287-8.

As to the law relating to foodstuffs, reference may be made to The Haabet (2 C. Rob., 174). Lord Stowell (at pp. 182 and 183) deals with this question as follows:

The right of taking possession of cargoes of this description, commeatus, or provisions, going to the enemy's ports, is no peculiar claim of this country; it belongs generally to belligerent nations; the ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely; a century has not elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times of holding such cargoes subject only to a right of preemption—that is, to a right of purchase upon a reasonable compensation to the individual whose property is thus diverted. I have never understood that, on the side of the belligerent, this claim goes beyond the case of cargoes avowedly bound to the enemy's ports, or suspected, on just grounds, to have a concealed destination of that kind; or that on the side of the neutral, the same exact compensation is to be expected which he might have demanded from the enemy in his own port; the enemy may be distressed by famine, and may be driven by his necessities to pay a famine price for the commodity if it gets there; it does not follow that acting upon my rights of war in intercepting such supplies I am under the obligation of paying that price of distress. It is a mitigated exercise of war on which my purchase is made, and no rule has established that such a purchase shall be regulated exactly upon the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a reasonable indemnification and a fair profit on the commodity that is due, reference being had to the original price actually paid by the exporter and the expenses which he has incurred. As to what is to be deemed a reasonable indemnification and profit I hope and trust that this country will never be found backward in giving a liberal interpretation to these terms. But certainly the capturing nation does not always take these cargoes on the same terms on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs and damages, in which all loss of possible profit is to be laid upon unjust captors, for these are not unjust captures, but authorized exercises of the rights of

war.

As to interlocutory orders dealing with seized cargoes in prize proceedings from early times in this country up to more recent times in the United States of America, numbers of instances will be found of orders for sale before condemnation, and also for delivery to the state of goods not already condemned upon their value being paid into court or secured: in some cases where on the final hearing it was decided the goods were not confiscable, and in some even before legal proceedings in prize had been commenced.

As it was contended that to give effect to Order XXIX by allowing the state to requisition would be to act in violation of the law of nations, it would appear to be more useful for the purpose of inducing conviction to extract instances from the practice of other countries. Accordingly, I will refer to some cases from the United States of America, the courts of which, next possibly to our own, have done most for the elucidation and development of the law of nations applicable to the law of prize.

In The St. Lawrence and cargo (2 Gall., 19) Mr. Justice Story states (at p. 21) that in that case the property was sold under an interlocutory order before final condemnation, and the proceeds were brought into the registry to abide the final decision of the appellate court.

In The Avery and cargo (2 Gall., 307), the same learned judge dealt on appeal with an application by the captors relating to the proceeds of sale of goods made under an interlocutory order pending the proceedings in the court below (whereof restoration was afterwards decreed); and in the course of his judgment he said (at p. 309):

It is very clear that the terms of this Act (cited) apply only to sales after a final condemnation, and not to sales made pendente lite under interlocutory decrees of Interlocutory sales are often ordered under a perishable monition

court.

and survey, or for other good cause in the discretion of the court.

I will cite a few later instances decided in 1862-3 which arose during the American Civil War. In The Schooner Sarah and Caroline and cargo (Blatch. Pr. Cas., 123) a neutral vessel was captured on the ground that she was trying to break a blockade. The cargo was sold before condemnation, as appears from the following passage in the judgment of Betts, J.:

No appearance having been entered in the suit on due return of the warrant of arrest of the cargo, and the capture having vested jurisdiction in the prize court over the property seized, it is ordered that an interlocutory order for the sale of the cargo arrested in the cause be made, and that the proceeds thereof be deposited in the cause in the registry of the court, to abide the further order of the court.

Another significant case when the vessel and cargo were delivered over o the public use by order made even before the libel in prize was filed and without notice to any claimant, was The Steamer Memphis and cargo (Blatch. Pr. Cas., 202).

The vessel was British and the cargo also belonged to British subjects. The headnote is as follows:

This vessel having been sent in to the court as a prize, the court, on the application of the District Attorney before libel filed, and before any appearance by any claimant,

and without notice to any claimant, made an order appointing appraisers to value the prize, with the view to her being taken for the use of the Government. After the libel was filed the claimant appeared in the suit, and moved to vacate the order because it was made without notice to him. Held, that the motion could not be granted.

Property captured as prize is under the control of the court from the time it is delivered to the court by the prizemaster until it is finally disposed of, and the filing of a libel is not necessary to give the court cognizance of the property.

I may observe that the order for appraisement and delivery embraced the cargo as well as the ship. I will cite one passage from the judgment (at pp. 203 and 204), as it appears to me to be important.

The point most strenuously urged by the several counsel was that the prize court acquires no cognizance of a prize case except by means of a libel, which causes an arrest, in law, of the property captured, and subjects it thereafter to judicial jurisdiction. This, it appears to me, is a manifest misapprehension of the state of the matter under the jurisprudence of the United States. The prize vessel and all her cargo and papers are, in the first instance, transmitted by the officer making the capture to the charge of the judge of the district to which such prize is ordered to proceed (2 U. S. Stat. at Large, Art. 7).

The standing Prize Rules, fully confirmed by the Act of Congress relative to judicial proceedings upon captured property and the administration of the law of prize, approved March 25, 1862, place the property captured under the control of the court and its officers, until the final adjudication and disposal of it by the court.

The notion, therefore, that the prerogative powers of the Government can be exercised only directly by the United States in its military capacity, and not at all through the courts, cannot be supported under our laws. Those high functions are legitimately put in force by the instrumentality of the judiciary, in obtaining, through its agency, the active use of the possession of prize property, which first vests in that department.

Accordingly, an order for the appraisal of captured property, and the surrender or transfer of it to governmental uses, under precautionary provisions to secure individual interests vesting in it, is palpably a judicial power, to be performed at the instance of the Government, and need not, if, indeed, it can, be superseded or dispensed with by a direct and summary act of appropriation of the property by the executive authority.

In the case of The Steamer Ella Warley and cargo (Blatch. Pr. Cas., 204) the method to be adopted for ascertaining the value of property handed over to the use of the captors was the matter chiefly discussed; but in the judgment Mr. Justice Betts dealt with the right of the captors thus:

The prerogative right of the captors to take the property seized to their own use is modified only in subserviency to the modern law of war, that, in case a judicial confiscation of it is not secured, the captors are responsible only for its value to the