PRIZE COURTS AND PRIZE JURIS DICTION. As a general rule when enemy property is captured at sea under circumstances that render it liable to appropriation and con fiscation by the captor the rights of the original owner are extinguished. But it may be that there is doubt as to whether the property is really enemy-owned, or whether it was captured in waters where warlike operations may be lawfully carried on, or whether it was not immune from capture by reason of its being in a neutral vessel, and the like. It is now a well-established rule of the law of nations that in all such cases the right of the captor to the property in question ought to be made the sub ject of adjudication by a court. It is generally admitted that the captor may destroy by sink ing or otherwise an enemy prize when there is no doubt as to its character and ownership, and when for lack of a sufficient coal supply or inability to spare a prize crew he cannot take the prize in to a home port for adjudication by a prize court, or when the taking of it in would expose the captor to the danger of destruc tion or his prize to liability to recapture. The right of destruction in such cases was gen erally exercised by Confederate naval com manders during the American Civil War, and it has been exercised on a large scale by German naval commanders during the present war. In both cases the home ports of the captor were blockaded by the enemy and since neutral ports are not open to a belligerent for the sequestration of his prizes the captors had no other alternative than to destroy their prizes. But as to the right to destroy neutral prizes without submitting the question of the legality of the capture to a prize court for adjudication, the law and practice of the past is otherwise. Most text-writers on international law main tain that in such cases a captor has no right of destruction. German naval commanders during the recent World War, however, acted on the contrary assumption and made no dis tinction between enemy prizes and neutral prizes, and whenever possible destroyed both alike without taking them in for adjudica tion by the courts. Sir Edward Grey recently stated the customary rule when he said eGreat Britain has always maintained that the right to destroy is confined to enemy vessels only, and this view is favored by other powers." Con cerning the right to destroy neutral vessels, the view hitherto taken by the greater naval powers has been that, in the event of its being im possible to bring in a vessel for adjudication she must be released. The prize courts of Great Britain for more than two centuries have held this to be a rule of the law of nations and there appears to be no instance during the wars of the 19th century in which a captor deliberately destroyed a neutral prize instead of taking it in for adjudication by a prize court.
The institution of prize courts for the de termination of the legality of captures at sea is, however, of modern origin. Prior to the 16th century there does not appear to have been any such institution as a prize tribunal. When, therefore, a capture was made at sea the captor determined for himself by a summary inspec tion of the ship's papers and an examination of the persons on board whether the vessel or its cargo should be confiscated as lawful prize or allowed to proceed. The only remedy of the i owner in such cases was to petition the king for redress. By a British order in council issued in 1585 it was decreed that henceforth all prizes should be brought in for adjudication. Ultimately it became the practice in all countries in time of war to set up tribunals for the purpose of deciding upon the validity of captures made by their cruisers at sea. These tribunals came to be known as prize courts. In England jurisdiction in all matters of prize was conferred upon the High Court of Ad miralty by virtue of a special commission issued by the Crown at the outbreak of war, and by the Naval Prize Act of 1864 the Court of Admiralty was constituted a permanent court of prize, independent of any commission issued under the great seal. More recently the High Court of Justice was substituted for the Court of Admiralty as a permanent prize court and its jurisdiction is actually exercised by the Pro bate, Admiralty and Divorce Division. During the Napoleonic wars the prize court of Eng land was made famous by the decisions of Lord Stowell. During the Crimean War the court was presided over by Dr. Lushington and during the World War it was held by Sir Samuel Evans. Special commissions to de cide questions of prize were also issued to various courts in the overseas dominions and the colonies, for example at Alexandria, Malta, Ottawa and other places. Appeals may be taken to the judicial committee of the Privy Council. In the United States the Federal District Courts have original jurisdiction in prize cases but claimants may take appeals to the Supreme Court. In France the prize jurisdiction is ex ercised by a Council of Prizes consisting of five members. In Germany there were during the World War two prize courts, one located at Hamburg, the other at Kiel, each held by five judges. Cases could be appealed to the
Supreme Court of Prize at Berlin, composed of seven judges. Prize courts are municipal tribunals although the law which they apply is international law and the rights which they are called upon to adjudicate are in most cases those asserted by the citizens or subjects of foreign states. They are, in short, practically judges in their own cases and are exposed to the temptation, to the bias and prejudice which may be expected of courts in deciding issues between their own government and foreign claimants. Added to this defect is the absence of an international code of prize law and the consequent divergences of view regarding the rules to be applied. To remove these defects the second Hague Conference in 1907 adopted a convention providing for the establishment of an international prize court, and the Inter national Naval Conference at London in 1909 formulated a code of prize law dealing with such matters as blockade, contraband, the de struction of prizes, transfer of flag, unneutral service and the like. The international prize court was to be composed of 15 judges and upon the court the eight principal maritine powers were to be always represented. From the decisions of national prize courts appeals might be taken to the international tribunal, which it was believed would be more likely to decide the questions submitted to it with less bias and prejudice than could be expected of national courts. Unfortunately, however, owing to differences of opinion among the nations in regard to the constitution of the court it has never been organized, and in consequence of the failure of the powers to ratify the Declara tion of London (q.v.) there is as vet no inter national prize code banding upon the national tribunals. Some states like Germany and France have put into effect prize codes of their own. The United States government issued such a code in 1900 but five years later it was revoked by President Roosevelt (see LAWS OF Wail, THE). Great Britain issued a manual of naval prize law in 1888 but it has since been withdrawn. British prize law is now found mainly in the Naval Prize Act of 1864, the Prize Courts Act of 1894 and various orders in council issued thereunder. The remainder con sists of custom and judicial precedent. All authorities are in agreement that although prize courts are municipal tribunals the law which they must apply is international law, but as stated above there are wide divergencies of opinions to what that law is in respect to many questions, and the failure to ratify the Declara tion of London leaves the prize courts of each nation free to interpret the customary law ac cording to their own notions and apply such rules as they consider to have become well established. The view that prize courts are bound to apply the law of nations was affirmed by Lord Stowell in the case of the Maria as long ago as 1799 and the early commissions issued to the Court of Admiralty required that it should °hear and determine according to the course of admiralty and the law of nations.* As late as the year 1916 the judicial committee of the Privy Council in the case of the Zamora laid down this principle. °The law which the prize court is to administer,* it said, °is not the national law, or, as it is sometimes called, the municipal law, but the law of nations; In other words international law.' But suppose the municipal law of a state is contrary to international law. Must the prize court give effect to the former or the latter? question was presented to Lord Stowell in 1811 in the case of the Fox and he disposed of it rather unsatisfactorily by saying that the court would assume that an order in council of the king which was believed to be contrary to the rules of international law was in accord with international law and that the court could not °without extreme indecency* presume the existence of a conflict The issue was again raised in England during the World War in the case of the Zamora which involved the question as to whether an order of the king in council contrary to the estab lished rule of international law was binding upon the prize court, and upon appeal to the judicial committee of the Privy Council it was held that such an order was not binding. The Privy Council admitted that if an act of Parlia ment contrary to international law were passed it would be binding upon the prize court, but orders in council stood on a different footing and they were not so binding when in conflict with international law. The idea that the king in council could prescribe or alter the law to be administered by the prize court, it said, was out of harmony with the principles of the British Constitution. The Supreme Court of the United States has long held to the same rule, that is to say, the courts are bound by munici pal statutes even when they are contrary to international law, although they are not bound by executive orders which are in conflict with the established principles of international law.