Dallas proceeds to declare that whatever the animosity of the bellig erents can generate against each other, whatever their power can impose on the rest of the world, is now the law of war, the only measure of justice, while the neutral flag, instead of producing respect and safety, is the certain signal for insult and agression.””

Note of Dr. Wharton, Wharton's Int. Law Dig. III. 197, § 329a.

"The instant that a court sitting to administer international law recognizes either governmental orders or proclamations setting forth governmental policy as constituting rules of that code, at once that court ceases in fact to administer in its purity that law which it pretends to administer. The function of the tribunal has undergone a change which is justly and inevitably fatal to its weight and influence with foreign powers. It is not only a degradation of the court itself, but it is a mischievous injury to the government which has destroyed the efficiency of an able ally."

5 Am. Law Rev. 255.

In an article in the Edinburgh Review for February, 1812, under the title
of "Disputes with America" (vol. 19, p. 290), the contrast between
Sir William Scott's opinions in 1798 and 1799 and those made by
him in 1811, is thus stated. In The Maria, (1 Rob. 350, June 11,
1799), he spoke as follows: "In my opinion, if it could be shown
that, regarding mere speculative general principles, such a condem-
nation ought to be deemed sufficient, that would not be enough; mor?
must be proved: It must be shown that it is conformable to the usage
and practice of nations." "A great part," he continues, "of the law
of nations," stands on no other foundation. It is introduced, indeed,
by general principles, but it travels with those general principles
only to a certain extent; and if it stops there, you are not at liberty
to go further, and to say that mere general speculation would bear
you out in a further progress." "It is my duty not to admit, that
because one nation has thought proper to depart from the common
usage of the world, and to meet the notice of mankind in a new and
unprecedented manner, that I am on that account under the necessity
of acknowledging the efficacy of such a novel institution, merely
because general theory might give it a degree of countenance, inde-
pendent of all practice, from the earliest history of mankind. The
institution must conform to the tert law, and likewise to the con-
stant usage upon the matter." (1 Rob. 139.) "Such," says the
Edinburgh Review, were the sound, enlightened, and consistent
doctrines promulgated by the learned judge, in the years 1798 and
1799-doctrines wholly unconnected with any present purpose of
particular national interest;' uninfluenced by any preference or
'distinction to independent states;' delivered from a seat of judicial
authority locally here,' indeed, but according to a law which ‘has no
locality, and by one whose duty it is to determine the question
exactly as he would determine the same question, if sitting at Stock-
holm,'-' asserting no pretentions, on the part of Great Britain, which
he would not allow to Sweden."
"Twelve years," so con-
tinues the Review, have passed away since the period of those

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beautiful doctrines-an interval not maked by any general change of character among neutrals, or any new atrocities on the part of the belligerents distinguished by no pretentions which had not frequently before been set up by the different parties in the war, except that on both sides the right of unlimited blockade had been asserted. France, complaining that England, in 1806, and previously, exercised this power, had declared England and her colonies in a state of blockade, and England, in her turn, proclaimed all France, and her allies, blockaded. There were orders and decrees on both sides; and both parties acted upon them. The neutrals protested; and, recollecting the sound and impartial principles of our prize courts in 1798 and 1799, they appealed to that 'judicial authority which has its seat locally here,' but is bound to enforce a law that has no locality,' and to determine in London exactly as it would in Stockholm.' The question arose, whether those orders and decrees of one belligerent justified the capture of a neutral trader; and on this point we find Sir W. Scott delivering himself with his accustomed eloquence—with a power of language, indeed, which never forsakes him—and which might have convinced any person, except the suffering parties to whom it was addressed. (Case of the Fox, 30th May, 1811.) "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 inconsisent with each other; because these orders and instructions are presumed to conform themselves, under the given circumstances, to the principles 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 the 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 can not, without extreme indecency, presume that any such emergency will happen; and it is the less disposed to entertain them, because

66

its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law.' (Pp. 2, 3.) "Here there are two propositions mentioned, asserting two several duties which the court has to perform. One of these is very clearly described the duty of listening to orders in council, and proclamations issued by one of the parties before the court-the other, the duty of administering the law of nations, seems so little consistent with the former, that we naturally go back to the preceding passage of the judgment where a more particular mention is made of it. 'This court,' says the learned judge, ‘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.'

The faultless language of this statement all will readily confess and admire. The more judicial virtues of clearness and consistency may be more doubtful in the eyes of those who have been studying the law of nations under the same judge, when ruling the cases of the Flad Oyen and Swedish Convoy. It is with great reluctance that we enter upon any observations which may appear to question anything stated by such accurate reporters as Dr. Edwards and Sir C. Robinson, to have been delivered in the high court of admiralty. But we have no choice-we must be content to make our election between the doctrines of 1799 and 1811, and to abandon one or the other. The reluctance which we feel is therefore materially diminished; for, if we venture to dispute the law recently laid down by the learned judge, it is upon his own authority in times but a little removed from the present in point of date, and nowise differing from them in any other respect.

"How then can the court be said to administer the unwritten law of nations between contending states, if it allows that one government. within whose territories it 'locally has its seat,' to make alterations on that law at any moment of time? And by what stretch of ingenuity can we reconcile the position, that the court treats the English Government and foreign claimants alike, determining the cause exactly as it would if sitting in the claimant's country, with the new position, that the English Government possesses legislative powers over the court, and that its orders are in the law of nations what statutes are in the body of municipal law? These are questions which, we believe, the combined skill and address of the whole doctors of either law may safely be defied to answer.

“Again:-What analogy is there between the proclamations of one belligerent, as relating to points in the law of nations, and the enactments of statute, as regarding the common law of the land? Were there indeed any general council of civilized states-any congress such as that fancied in Henry IV.'s famous project for a perpetual peace-any amphyctyonic council for modern Europe; its decisions and edicts might bear to the established public law the same relation that statutes have to the municipal code; because they would be the enactments of a common head, binding on and acknowledged by the

whole body. But the edicts of one state, in questions between that state and foreign powers-or between that state and the subjects of foreign powers or between those who stand in the place of that state and foreign governments or individuals, much more nearly resemble the acts of a party to the cause, than the enactments of the law by which both parties are bound to abide."

In 115 Edinburgh Review, (January, 1862,) 261, we have the following: "Lord Stowell conceived this country to be engaged in a revolutionary contest, because we had the misfortune to be at war with a revolutionary government. The landmarks of former times and the stipulations of more recent treaties were swept away by the torrent; but we are bold enough to assert that it is not for the interest or the honour of this country to attempt at this day to apply the extreme, and often unjustifiable rules, which may boast Lord Stowell's authority."

His Majesty's Government desire to point out that the decision of the prize court of the captor in such matters, in order to be binding on neutral states, must be in accordance with recognized rules and principles of international law.

"His Majesty's Government feel themselves bound to reserve their rights by protesting against the doctrine that it is for the belligerent to decide that certain articles, or classes of articles, are as a matter of course, and without reference to the considerations referred to in the earlier portion of this despatch, to be dealt with as contraband of war regardless of the well-established rights of neutrals; and His Majesty's Government could not consider themselves bound to recognize as valid the decision of any prize court which violated those rights, or was otherwise not in conformity with the recognized principles of international law."

Lord Lansdowne, Sec. for For. Aff., to Sir C. Hardinge, Brit. ambass. at
St. Petersburg, June 1, 1904, Parl. Papers, Russia, No. 1 (1905), 9-10.

The principle that the decisions of prize courts are not internationally conclusive as to the doctrines applied, and that a claimant injured by a wrongful decision may seek indemnity through the action of his government, is no longer open to question. The right to indemnity in such cases was demonstrated in the remarkable opinion delivered by William Pinkney, as one of the commissioners under Article VII. of the Jay treaty, under which large amounts were paid by the British Government to citizens of the United States as indemnity for captures and condemnations under orders in council violative of the rights of neutral trade. Similar indemnities were obtained from France for wrongful captures and condemnations during the Napoleonic wars, as well as from Spain, Naples, and Denmark. In the case of Denmark, the question of the international finality of prize sentences gave rise to a long discussion, which was conducted on the part of the United States by Henry Wheaton, as

minister to Denmark. Indemnities were also obtained by British subjects from the United States in certain prize cases under Article XII. of the treaty of Washington of May 8, 1871.

Moore, Int. Arbitrations, I. 336; III. 3209, 3210; V. 4555.

For the opinion of Mr. Pinkney in the case of the Betsey, see Moore, Int.
Arbitrations, III. 3180.

VIII. PRIZE MONEY AND BOUNTY.

1. CLAIMANTS OF PRIZE MONEY.

$ 1245.

The crew of a privateer may proceed by libel in admiralty for their respective portions of a prize.

Keane . The Brig Gloucester, Federal Court of Appeals (1782), 2
Dall. 36.

Members of a crew of a privateer wrongfully dismissed and left on shore, after the beginning of the voyage, are entitled to their share of the prize money as joint tenants of the right to capture and make prizes conceded by the privateer's commission. It was said that this right attached when they were shipped and received on board by the captain as part of the crew.

Keane . Gloucester, Federal Court of Appeals (1782), 2 Dall. 36.

In a case of capture from an enemy by a privateer, persons in other privateers acquire no right merely by witnessing the making of the capture.

Talbot v. The Commanders and Owners of Three Brigs, High Court of
Errors and Appeals of Pennsylvania, 1784, 1 Dall. 95.

Where a capture has actually taken place with the assent of the commander of a squadron, express or implied, the question of liability assumes a different aspect, and the prize-master may be considered as bailee to the use of the whole squadron who are to share in the prize money; but not so as to mere trespasses unattended with a conversion to the use of the squadron.

The Eleanor, 2 Wheat. 345.

The profits of a capture made by individuals acting without a commission inure to the Government, but it has not been the practice to exact them. On the contrary, it has been the practice to recompense gratuitous enterprise, courage, and patriotism, by assigning the captors a part and sometimes the whole prize.

Wirt, At. Gen. 1821, 1 Op. 463.

This related to the case of the Dos Hermancs, 2 Wheat. 77.