the injury which war has hitherto inflicted upon commerce. It is, it should be remembered, at all times open to the Government of the neutral State to impose statutory restrictions upon such a trade, if by its results the neutrality of the country is seriously imperilled. This has been done in this country by the Foreign Enlistment Act, which was necessary in order to make that a municipal offence by the law of Great Britain which without such enactment would not have been so at all; and indeed the very circumstance of such an Act having been passed is in itself a proof that, to constitute transactions between British subjects when neutral and belligerents a municipal offence by the law of Great Britain, a statute was necessary. On a declaration of war being formally announced to a neutral Sovereign, he may, and usually does, notify his subjects of it, and accompanies such notification with instructions to decline all contraband trade with nations at war, declaring, if they are detected in embarking in such trade, he cannot protect them-a course which was taken in this country by the Queen's Proclamation of the 13th of May, 1861, on the outbreak of hostilities in America; but the neutral Sovereign does not denounce the trade as a violation of his own laws, the Powers at war do not impute to him the practices of his subjects, and the proclamation2 which he issues in vindication of his neutrality does not make or unmake the law, but makes known the law as it exists, and has no effect whatever on the legality of the adventures against which the subjects of the neutral State are warned. 1 Richardson v. The Marine Insu- 2 Ex parte Chavasse, Jurist, rance Company, 6 Mass. Rep. p. 112. N.S., May, 1865. Mode of determin ing whether prize be lawful. CHAPTER VIII. PROCEDURE IN CASES OF PRIZE. JURISDICTION OF COURTS. PROCEDURE IN CASES OF PRIZE—JUDICIAL PROCEEDING NECESSARY "By the maritime law of nations universally and im- "Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize in the Court of Admiralty, judging by the law of nations and treaties. "The proper and regular Court for these condemna tions is the Court of that State to which the captor belongs. "The evidence to acquit or condemn, with or without costs or damages, must in the first instance come merely from the ship taken-viz. the papers on board, and the examination on oath of the master and other principal officers—for which purpose there are officers of the Admiralty in all the considerable seaports of every maritime Power at war to examine the captains and other principal officers of every ship brought in as prize upon general and impartial interrogatories. If there do not appear from thence ground to condemn, as enemy's property or contraband, goods going to the enemy, there must be an acquittal, unless from the aforesaid evidence the property shall appear so doubtful that it is reasonable to go into the further proof thereof. 66 "A claim of ships or goods must be supported by the oath of somebody, at least as to belief. "The law of nations requires good faith: therefore every ship must be provided with complete and genuine papers, and the master at least should be privy to the truth of the transaction. "To enforce these rules, if there be false or colourable papers, if any papers be thrown overboard, if the master and officers examined in præparatorio grossly prevaricate, if proper ship's papers are not on board, or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehaviour or suspicion arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant in case of an acquittal and restitution. On the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages; for which purpose all privateers are obliged to give security for their good behaviour, and this is referred to and expressly stipulated for in many treaties. 66 Though from the ship's papers and the preparatory examinations the property does not sufficiently appear to be neutral, the claimant is often indulged with time to send over affidavits to supply that defect; but if he will not show the property by sufficient affidavits to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captor is justified in bringing her in, and excused paying costs, because he is not in fault; or, according to the circumstances of the case, may be justly entitled to receive his costs. "If the sentence of the Court of Admiralty is thought to be erroneous, there is in every maritime country a Superior Court of Review, consisting of the most considerable persons, to whom the parties who think themselves aggrieved may appeal; and this Superior Court judges by the same rule which governs the Court of Admiralty-viz. the law of nations, and the treaties subsisting with that neutral Power whose subject is a party before them. "If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive." 1 Answer to the Prussian Me- note appended to the case of Schacht morial concerning Neutral Ships. v. Otter before the Court of Appeal, Harg. Coll. Jur. 134. See also the | 9 Moore, P. C. C. p. 156. These are the principles, as stated by a celebrated Judge, which, under the law of nations, govern the proceedings of duly constituted Courts of Admiralty in determining questions of prize-proceedings which, it is to be observed, are absolutely essential in order to furnish due proof that the seizure was lawful,2 and to render legal that change of property in the subjectmatter of the enquiry which it is the province of the Court of Prize to effect. In Great Britain the mode of procedure adopted for the purpose of constituting prize courts under the commission of the Sovereign is thus stated by Dr. Twiss, in his work on the Law of Nations in Time of War.3 "In Great Britain it is usual at the outset of a war for the Crown to issue in the first place an Order in Council granting general reprisals against the ships, vessels, and goods of the enemy Sovereign and of his subjects, and others inhabiting within any of his countries, territories, or dominions.' So that Her Majesty's fleets and ships may lawfully seize them and bring the same to judgment in such Courts of Admiralty within Her Majesty's dominions, possessions, or colonies, as shall be duly commissioned to take cognizance thereof.' The Crown thereupon issues a Commission under the Great Seal (which is prepared by Her Majesty's Advocate-General and Her Majesty's Advocate in her Office of Admiralty), addressed to the Lord High Admiral, or the Commissioners for executing his office, authorising him or them to require the High Court of Admiralty in 6 The paper was drawn up by Lord Mansfield. 2 Kent, Com. vol. i. P. 109. 3 Pp. 334 et seq. 4 Order in Council of March 29, 1854. |