treatment which would render it incapable of further unneutral service.1 The Russian Declaration of February 14, 1904, - states that: "There are assimilated to contraband of war the following acts, forbidden to neutrals: The transport of enemy troops, the dispatches or correspondence of the enemy, the furnishing of transports or ships of war to the enemy. Neutral vessels guilty of forbidden acts of this character may be, according to circumstances, seized and confiscated."

It is evident that a neutral repair vessel or a neutral collier, accompanying and serving a belligerent fleet, has so far forfeited its neutral character as to make it and its personnel liable to the treatment that would be accorded to a belligerent vessel serving in the same capacity. Professor Lawrence says of carrying contraband in contrast to unneutral service:

"They are unlike in nature, unlike in proof, and unlike in penalty. To carry contraband is to engage in an ordinary trading transaction, which is directed toward a belligerent community simply because a better market is likely to be found there than elsewhere. To perform unneutral service is to interfere in the struggle by doing in aid of a belligerent acts which are in themselves not mercantile, but warlike. In order that a cargo of contraband may be condemned as a good prize, the captors must show that it was on the way to a belligerent destination. If, without subterfuge, it is bound to a neutral port, the voyage is innocent, whatever may be the nature of the goods. In the case of unneutral service, the destination. of the captured vessel is immaterial. The nature of her mission is the all-important point. She may be seized and confiscated when sailing between two neutral ports. The penalty of carrying contraband is the forfeiture of the forbidden goods; the ship being retained as prize of war only under special circumstances. The penalty for unneutral service is first and foremost the confiscation of the vessel; the goods on board being condemned when the owner is involved, or when fraud and concealment have been resorted to.

"Nothing but confusion can arise from attempting to treat together offenses so widely divergent as the two now under consideration." 15

14 Dupuis, La Guerre Maritime, p. 282.

15 Principles of Int. Law, p. 633.

The Declaration of London, 1909, recognized the distinction between unneutral service and the carriage of contraband, or violation of blockade, and made specific provision for penalties for certain cases of unneutral service.

This Declaration (article 45) makes liable to the same treatment as for carriage of contraband:

(1) A neutral vessel which specifically engages in the transport of individuals of the enemy's armed forces or in the transmission of intelligence in the interest of the enemy.

(2) A neutral vessel which, with the knowledge of those in control, transports an enemy military detachment or persons who during the voyage directly assist the enemy operations. The Declaration (article 46) assimilates a neutral vessel to an enemy merchant vessel:

(1) If she takes direct part in the hostilities.

(2) If she is under control of the enemy authority.

(3) If she is exclusively in the enemy employment.

(4) If she is exclusively engaged in transport of enemy troops or transmission of enemy intelligence.16

16 Appendix, p. 581.

205. "Prize is generally used as a technical term to express a legal capture." 1

While in early days prize was regarded as belonging to the person who made the capture, in modern warfare prize is regarded as belonging to the state. Capture should be established by some act indicative of the intention to take possession. The right to capture naval stores as prize, even though at a naval station, has been maintained. Non-seagoing boats propelled by poling, boats on remote inland waters, and boats without means of propulsion are not considered as liable to capture as prize of war. Private property on land is not the subject of maritime prize. The domicile of the owner or of the house of trade is usually held to establish the liability to capture in states following the Anglo-Saxon jurisprudence and in some of the continental states, while other continental states adopt the principle of nationality of the owner as determining the liability of the property. Property captured at sea, however, can never be converted till after adjudication, and must so far as possible be maintained in a condition equal

1 Miller v. The Resolution, 2 Dall. 1, 1 L. Ed. 263.

2 The Adventure, 8 Cranch, 221, 3 L. Ed. 542; The Siren v. United States, 7 Wall. 163, 19 L. Ed. 129.

3 The Grotius, 9 Cranch, 368, 3 L. Ed. 762.

4 United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463.

5 The Cotton Plant v. United States, 10 Wall. 577, 19 L. Ed. 983; United States v. Dewey, 188 U. S. 254, 23 Sup. Ct. 415, 47 L. Ed. 463. • United States v. Alexander, 2 Wall. 404, 17 L. Ed. 915.

7 The Pedro, 175 U. S. 368, 20 Sup. Ct. 138, 44 L. Ed. 195.

to that of the time of capture. The judgment of a national prize court was, prior to the Hague Convention of 1907, regarded as conclusive."

NATIONAL PRIZE COURT.

206. The validity of maritime capture is determined in the first instance by the prize court of the belligerent captor.10

It has been repeatedly claimed that the prize court of a belligerent administers international law. Sir William Scott, in 1799, said of the basis of his function as a prize court judge: "I trust it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me-namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out without distinction to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm: to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances; and to impose no duties on Sweden, as a neutral country, which he would not admit to belong to Great Britain and in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question—a question regarding one of the most important rights of belligerent nations relatively to neutrals." 11 This position has been repeatedly affirmed, both in British and other courts.

8 Lamar v. Browne, 92 U. S. 187, 23 L. Ed. 650.

The Star, 3 Wheat. 78, 4 L. Ed. 338.

10 For general subject, see 7 Moore, §§ 1222-1248. 11 The Maria, 1 C. Rob. 340.

The judges of national prize courts are appointed and the courts are constituted according to municipal law, and have no direct international status.12 They are responsible to their own state for their action.

The United States early and formally recognized the need of a properly constituted court for appeal, and on January 15, 1780, the American Congress

"Resolved, that a court be established for the trial of all appeals from the courts of admiralty in these United States, in cases of capture, to consist of three judges, appointed and commissioned by Congress, either two of whom, in the absence of the other, to hold the said court for the dispatch of business.

"That the said court appoint their own register.

"That the trials therein be according to the usage of nations and not by jury."

13

In the United States the District Courts act as prize courts, with appeal to the Supreme Court. National prize courts are differently constituted in different states. Continental states often allow certain administrative officers to act upon prize.

The prize court sitting at Vladivostok during the RussoJapanese War, which supported the action of Admiral Jessen in sinking the British steamer, Knight Commander, was largely made up of administrative officials; three of the six members being military officers. The decision of this court was followed by protests, and the case was appealed to a higher court; but the higher court was likewise national court, and from the national court there was no appeal. Of course, the decision of the court might become a subject for diplomatic negotiation. The results of diplomatic negotiations are, however, often determined by political considerations, rather than by the principles of law.

The procedure in prize courts is usually such as to give due weight to the facts, regardless of too minute technicalities. In many states the whole or a portion of the property con

12 The British courts are based on the Naval Prize Act, 1864 (St. 27 & 28 Vict. c. 25), and the Prize Court Act, 1894 (St. 57 & 58 Vict. c. 39).

183 Jour. of Cong. p. 425.