The procedure of a prize court is in the nature of an inquest upon the property which has been placed within its custody, for the purpose of discovering whether it has been lawfully captured and whether it was liable to capture. The proceedings begin by the action of a representative of the captor government in libelling the property, that is, by petitioning the court to hold an inquiry. He submits with the petition the ship's papers, affidavits and other documents which contain evidence of the liability of the ship or cargo to capture and of the lawfulness of the capture. Notice is then given to the claimant in order that he may come forward and assert whatever rights he may have in the property libelled. Ordinarily enemy claimants are not allowed to appear but airing the World War the president of the British prize court made an exception in the case of enemy claimants who asserted any right, title or inter est under any of The Hague conventions. All such persons were permitted to appear by counsel and assert freely their rights, in spite of their enemy character. Prior to the Ameri can Civil War it was considered to be an estab fished rule of prize procedure that the evidence must come in the first instance from the ship's papers and the depositions of the officers and crew of the vessel. Ordinarily extrinsic evi dence could not be adduced by the captor. Dur ing that war, however, it was found impossible to adhere strictly to the old rule, especially in cases of continuous voyages where it was necessary to prove the actual intention of the shipper. In theory the burden of proof lies upon the captor, but generally in practice it is upon the claimant, and property brought in by the captor rarely escapes condemnation un less the owner can prove that it was not liable to capture. If the character of the evidence referred to above, technically known as evi dence °in preparatory,* is deemed sufficient by the court, it renders its decision. If not, what is styled 'further proof' is called for and the proceedings take on more of the character of an ordinary judicial trial between litigants.
The British prize court rules of 1914 intro duced an important change in the established procedure by allowing cases to be decided in the first instance upon such further evidence, if any, as might be admitted by the judge.' Un der this rule each side was free at the outset, as in an ordinary civil or criminal action, to establish his case by any and all evidence that it could produce. The United States govern ment complained of this new rule and asserted that it was a well-established and long-settled practice to consider at the first hearing only the ship's papers and documents and that the introduction of additional evidence could not be allowed except upon an order of the court for 'further proof' and then only after the case had been fully heard upon the facts already in evidence. In short, under the new rule there
was no longer a hearing* on the evidence derived from the ship and the prize court was no longer precluded from receiving extrinsic evidence from any and every source. To this criticism the British government replied that modern conditions had rendered the old rule obsolete and in any case the practice and pro cedure of prize courts were not regulated by international law but were determined by each nation for itself. Finally, the procedure re ferred to in the American note of protest had never been followed by the prize courts of France or any other Continental country; it was not, therefore, international law. The decree of the prize court is usually that the ship orgoods or both shall be condemned or released. In the case of enemy ships found in port at the outbreak of war, if not liable to condemnation, decrees detaining them until the end of the war are issued. A large number of such decrees were issued by the British prize court dur ing the World War. Except during the first days of the war there were few captures at sea. Most of the ships which were made the object of prize proceedings were seized in port at the beginning of the war and decrees of detention rather than of condemnation were issued. Ger man merchant vessels encountered on the high seas proceeding to and from British ports, in ignorance of the outbreak of hostilities, how ever, were condemned by the prize court, in consequence of Germany's failure to ratify the article of The Hague Convention which ex empted such vessels from capture.
When a decree of condemnation is issued the vessel in some countries, e.g., France, is condemned to the captors who divide the pro ceeds of the prize among them. This was the practice in Great Britain until the outbreak of the World War when the rules relating to bounties were altered. The captors no longer receive the prize but the court awards a bounty of £5 to each person actually present or taking part in the capture or destruction of the ships. In 1898 bounties for captures at sea were abol ished by an act of Congress. It has always been the British practice to award compensa tion to neutral merchants by condemning the captor in damages and costs when the latter fails to make out a case against a prize brought in for carrying contraband and there was no for the seizure. Bat this practice not been followed on the Continent. Bibliography.—Alfin, Minnesota Law Re view (Vol. II, pp. 22-36); Lawrence, 'Princi ples of International Law> (Secs. 1M-192); Moore, 'Digest of International Law> (Vol. VII), ch. 25); Phillimore, 'International Law> (Vol. III, pp. 658ff.) • Pyke, 'Law of Contra band of War' (pp. 114-219); Rascoe, 'Prize Cases); Trehern, 'British and Colonial Prize Cases> (1914-17); Wheaton, 'International Law> (ed. by Dana, p. 480fL).
Jas W. GARNER., Professor of Political Science, University of Illinois.