views of Judge Cooper, is cited Lord Ellenborough's contemptuous censure in Fisher v. Ogle, 1 Camp., 418, and Donaldson v. Thompson, ibid, 429) of foreign courts of admiralty, and Mr. Dallas proceeds to declare that "whatever the animosity of the belligerents 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 aggression."

Mr. Wheaton, after noticing Lord Stowell's claim to absolute superiority from national prejudice, argues that it was impossible for that eminent judge to divest himself of prejudices favorable to the develop ment of a great maritime nation such as England. (Wheat. Hist., 711.) On the other hand, Chancellor Kent (1 Com., 8) declares that "there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts."

But, as is illustrated by the remarks of Mr. Cushing and Sir. T. Twiss (quoted supra, § 238a), the present tendency of opinion is to regard the prize-court rulings of Great Britain during the Napoleonic wars, and the rulings in this country based on them, as not binding executive action in matters of international law. And, as has also been noticed, the high belligerent prerogatives claimed by Sir W. Scott (Lord Stowell), and adopted on his authority by our own Supreme Court, have lately been so modified by the English courts as to make them consonant with the views held on the same topic by the executive department of the Government of the United States as well as by the great body of European publicists.

Supra, §§ 238, 238a, 242; infra, § 362; note to the Springbok case.

The prevalent opinion now is, that in international controversies a sovereign can no more protect himself by a decision in his favor by courts established by him, even though they be prize courts, than he can by the action of any other department of his Government.

Supra, §§ 238a, 242. See this noticed in the Springbok case, infra, § 362. "The instant that a court sitting to administer international law recognizes either governmental orders or proclamations setting forth gov ernmental policy as constituting rules of that code, at once that court ceases in fact to administer in its purity the law which it pretends to administer. The functions of the tribunal have undergone a change which is justly and inevitably fatal to its weight and influence with foreign powers. It is not only a degradation to 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 stated 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 condemnation ought to be deemed sufficient, that would not be enough; more must be proved, it must be shown that it is conformable to the usage and practice of nations.' A great part of the law of nations stands on no other foundation. It is introduced, indeed, by gene

ral 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, independent of all practice from the earliest history of the world." (1 Rob., 139 ƒƒ.) “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,' aninfluenced 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 question, if sitting at Stockholm,' asserting no pretentions, on the part of Great Britain, which he would not allow to Sweden.'" * "Twelve

years," so continues the Review, "have passed away since the period of those beautiful doctrines-an interval not marked by any general change of character among neutrals, or any new atrocities on the part of belligerents-distinguished by no pretensions 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 1790, 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 inconsistent 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 nɔt 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.' (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, by Dr. Edwards and Sir C. Robinson, to have been delivered in the high court of admiralty. But we have no choice left; 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 litt le 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 territory 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 statesany congress, such as that fancied in Henry IV's famous project for a perpetual peace-any amphytyonic 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.

"Mark the consequences of such loose doctrines, such feeble analogies. They resolve themselves into an immediate denial that any such thing as the law of nations

exists, or that contending parties have any common court to which all may resort for justice. There may be a court for French captors in France and for English captors in England. To these tribunals such parties may respectively appeal in safety; for they derive their rights from edicts issued by the Governments of the two countries severally; and those edicts are good law in the prize courts of each. But for the American claimant, there is no law by which he may be redressed, no court to which he may resort. The edicts of his Government are listened to in neither the French nor the English tribunals; and he is a prey to the orders of each belligerent in succession. Perhaps it may be thought quite a sufficient hardship, without this aggravation, that even under the old and pure system laid down in 1799 and 1798, the neutral was forced to receive his sentence in a foreign court, always in the courts of the.captor's country. But this undoubted rule of law, tempered by the just principles with which it was accompanied, appeared safe and harmless. For, though the court sat locally in the belligerent country, it disclaimed all allegiance to its Government, and professed to decide exactly as it would have done sitting in the neutral territory. How is it now, when the court, sitting as before, has made so large a stride in allegiance as to profess an implicit obedience to the orders of the belligerent Government within whose dominion it acts?

"That a Government should issue edicts repugnant to the law of nations, may be a supposition unwillingly admitted; but it is one not contrary to the fact, for all Governments have done so, and England among the rest, according to the learned judge's own statement. Neither will it avail to say that, to inquire into the probable conduct of the prize courts in such circumstances, is to favor a supposition which cannot be entertained without extreme indecency,' or to compare this with an inquiry into the probable conduct of municipal courts in the event of a statute being passed repugnant to the principles of municipal law. The cases are quite dissimilar. The line of conduct for municipal courts in such an emergency is clear. No one ever doubted that they must obey the law. The old law is abrogated, and they can only look to the new. But the courts of prize are to administer a law which cannot, according to Sir William Scott (and if we err it is under the shelter of a grave authority), be altered by the practice of one nation, unless it be acquiesced in by the rest for a course of years; for he has laid down that the law, with which they are conversant, is to be gathered from general principles, as exemplified in the constant and common usage of all nations.

"Perhaps it may bring the present case somewhat nearer the feelings of the reader if he figures to himself a war between America and France, in which England is neutral. At first, the English traders engross all the commerce which each belligerent sacrifices to his quarrel with his adversary. Speedily the two belligerents become jealous of England, and endeavor to draw her into their contest. They issue decrees against each other nominally, but, in effect, bearing hard on the English trade; and English vessels are carried by scores into the ports of America and France. Here they appeal to the law of nations: but are told, at Paris, that this law admits of modifications, and that the French courts must be bound by the decrees of the Tuilleries; at New York, that American courts take the law of nations from Washington; and, in both tribunals, that it is impossible, without extreme indecency,' to suppose the case of any public act of state being done which shall be an infringement on the law of nations. The argument may be long, and its windings intricate and subtle; but the result is short, plain, and savoring of matter of fact, rather than matter of law; all the English vessels carried into either country would be condemned as good and lawful prize to the captors."

In 115 Edinburgh Review, (January, 1862,) 261, we have the follow. ing: "Lord Stowell conceived this country to be engaged in a revolu tionary contest, because we had the misfortune to be at war with a revolutionary government. The landmarks of former times and the stipu

lations of more recent treaties were swept away by the torrent; but we are bold to assert that it is not for the interest or the honor of this country to attempt at this day to apply the extreme, and often unjustifiable, rules which may boast Lord Stowell's authority."

VII. PROCEEDINGS OF such courts.

§ 330.

District courts of the United States possess all the powers of a court of admiralty, both instance and prize, and may award restitution of property claimed as prize of war by a foreign captor.

Glass v. The Sloop Betsey, 3 Dall., 6.

A sentence of condemnation as prize does not establish any particular fact without which the sentence may have been rightfully pronounced.

Maley v. Shattuck, 3 Cranch, 458.

The commander of a public armed vessel who unlawfully seizes a vessel on the high seas, which is afterwards captured by a belligerent and condemned as lawful prize, though actually neutral property, is liable to make restitution in value, with damages; and the neutral owner is not bound to appear and defend in the prize court in which his vessel is proceeded against.

Ibid.

A seizure for the breach of a municipal regulation made within the territorial jurisdiction of the sovereign, being valid, and conferring ju risdiction on the sovereign, his courts may proceed to sentence, though the res be lying in a port of another friendly power.

Hudson v. Guestier, 4 Cranch, 293. See Hudson v. Guestier, 6 ibid., 285. Supra, § 329.

An American vessel sailed from Naples in the year 1812 with a British license to carry her cargo to England. She touched at Gibraltar, and, after leaving her deck-load, sailed thence for the United States. Learning afterwards that war had broken out between the United States and Great Britain, she altered her course for England, was captured by the British, carried into Cork, libeled, and acquitted upon her license. She then sold her cargo, and, after a detention of seven months in Ireland, purchased a return cargo in Liverpool, and sailed for the United States. She was captured by an American privateer, and both vessel and cargo were condemned as prize to the captors. It was held that the capture was not abandoned, though only a prize master was put on board, the crew being Americans, and there being no reason to apprehend a rescue.

The Alexander, 8 Cranch, 169.