else. Thus in the case of the Marie Glaeser,1 Sir Samuel Evans declared that the "law of nations alone is the law which this court has to administer." Again in the case of the Odessa and the Cape Corso, he said: "The law to be administered here is the law of nations-that is, the law which is generally understood and acknowledged to be the existing law applicable between nations by the general body of enlightened international legal opinion." In the case of the Hakan," he said: "there is no doubt that the law to be administered in this Court is the law of nations. -or international law, as it is often called-and not our municipal law." In the case of the Bärenfels,* Judge Grain of the Prize Court for Egypt said:

"By the Order in Council and the commission appointing us to sit in prize in this Court, we are commissioned to hear and determine according to the law of nations. If we had been sitting solely for the purpose of administering the municipal law of this land I should have had grave doubts as to the application of the Hague Convention; but as we are sitting to administer the law of nations, or international law, the question becomes a comparatively simple one."

The Judicial Committee expressed itself in similar fashion. In the case of the Consul Corfitzon," their Lordships said: "the substantive law administered by the Court [of prize] is international law, which cannot be affected by the municipal legislation of any one state." Again in the case of the Zamora, Lord Parker, speaking for the Judicial Committee, said: "The law which the Prize Court is to administer is not the national or, as it is sometimes called, the municipal law, but the law of nations, in other words, international law . . . a law which is not laid down by any particular state, but originates in the practice and usage long observed by civilized nations in their relations towards each other or in express international agreement."

Finally, it may be observed that the British foreign office likewise on various occasions during the war asserted this view. Thus in a white paper issued by it in January, 1916, relative to the measures adopted to intercept the seaborne commerce of Germany, it was said that "a Prize Court is bound by international law and not by the ordinary law of the country in which it

1I Lloyd 56; I Br. & Col. Pr. Cas. 38.

2 I, ibid., 301; I, ibid., 163.

V, ibid., 161; II, ibid., 210.

I Br. & Col. Pr. Cas. 129.

5 VI Lloyd 268; III Br. & Col. Pr. Cas. 8.

sits." Again in a memorandum transmitted to the United States government in April, 1916, the foreign office stated that: "in some matters it is true that the Prize Court is bound by the municipal enactments of its own country . . . but the substantive law which the Court applies as between captor and claimant consists of the rules and principles of international law, and not the municipal legislation of the country."

Sec. 127. The Same (Continued). When one reads, on the other hand, the decisions of the continental Prize Courts, and particularly those of Germany, which emphasize that, first of all, it is the national law which they apply, he might conclude that there is a fundamental difference between the function and obligation of English and continental prize tribunals. In reality, however, the difference is largely theoretical and leads to no important difference of results; it is in reality a difference of point of view and of emphasis rather than of practice. The British Prize Courts in fact while proclaiming that they administer only international law, admit that they apply it only when it has received the assent of the British government given through its appropriate organs; that is, they regard the rules of international law as deriving their force and validity as law from the authority of the state in which they sit, and they acknowledge their duty to apply acts of Parliament, if not Orders of the Crown in Council, which are admittedly contrary to international law, although they will of course always endeavor to so construe municipal legislation in such a way as to make it accord with international law. This was emphatically asserted by the Judicial Committee in the case of the Zamora (1916), where Lord Parker said: "It cannot, of course, be disputed that a Prize Court, like any other court, is bound by the legislative acts of its own sovereign state. A British Prize Court would certainly be bound by Acts of the Imperial Legislature." He ad

Parl. Paper, Misc., No. 2 (1916), p. 4.

4

Supp. to 10 Amr. Jour. of Int. Law (Oct., 1916), p. 138.

Pyke, "The Law of the Prize Court," 32 Law Quarterly Review (1916), p. 152; Le Louis (1817), 2 Dods 210; Mortensen v. Peters, 14 Scots L. J. R. 227 (1906); the Recovery, 6 Rob. 341; Holland, Studies in International Law (1898), pp. 195, 198; Cobbett, Cases on Int. Law, 3d ed., Vol. II, p. 192; and Wright, "Conflicts of Int. Law with National Law and Ordinances," 11 Amer. Jour. of Int. Law (1917), p. 10. The English Prize Courts, it may be observed, lay down the principle that where the consistency of an act of Parliament with international law is contested or is doubtful, there is a presumption that parliament did not intend by its act to contravene the prescriptions of international law. See the cases referred to by Picciotto, op. cit., pp. 27 ff.; Holland, op. cit., pp. 198 ff., and Wright, Art. cited, pp. 10-11.

IV Lloyd 62; II Br. & Col. Pr. Cas. 13.

Baty, Picciotto, and others, ranged themselves on the side of Sir James Mackintosh and denied that the Crown could lawfully in the exercise of its prerogative bind the Prize Court by orders or instructions which were inconsistent with the generally recognized rules of international law. Westlake, on the other hand, maintained that the Crown possessed such power and adverting to Lord Stowell's discussion of the question he expressed the opinion that Lord Stowell was bound by the Orders in Council issued during the Napoleonic wars, whether he considered them justifiable according to international law or not, and that he had no choice but to give effect to them.3

Sec. 129. The Same. View of the British Foreign Office. In the course of the controversy which was raised with neutral countries by the British Orders in Council in the early part of 1915, the British foreign office had occasion to make certain pronouncements on the source and nature of the law administered by the British Prize Courts. In a note of July 31, 1915, to the American Ambassador at London, Sir Edward Grey stated that Prize Courts "are subject to the instructions of their own sovereign" and that in the absence of such "instructions," their jurisdiction and rules of decision "are to be ascertained by reference to the known powers of such tribunals and the principles by which they are governed under the public law and practice of nations." This he said was the view laid down in the American case of the Amy Warwick, and it was the view of the British government. It will be noted that Sir Edward employed the term "instructions" in the place of "law" or "legislation" evidently with a view to bringing within its category Orders in Council. At the same time, it was clearly his view that the validity of Orders in Council could be challenged in the Prize Court and that if they were found to be inconsistent with international law, the Court would not be bound by them, as appears from the following passage: 5

instructions are inconsistent with international law." But he adds: "This position has never before been insisted on by any Prize Court in any country." Brit. Yr. Bk. of Int. Law (1920-21), p. 13.

Baty & Morgan, War, Its Conduct and Legal Results (1915), p. 362. "International Law and the Law of England and the United States (1915), p. 35.

Collected Papers on International Law, p. 516; International Law, 2d ed., Vol. II, pp. 155, 317. To the same effect also (apparently) Lawrence, Principles (Sec. 188); Cobbett, Cases (II, 192); and Holland, Studies (199).

2 Sprague 123.

Supp. to 9 Amer. Jour. of Int. Law (1915), p. 164.

"The legality of these measures [Orders in Council] has not yet formed the subject of a decision of the Prize Court; but I wish to take this opportunity of reminding your Excellency that it is open to any United States citizen whose claim is before the Prize Court to contend that any Order in Council which may affect his claim is inconsistent with the principles of international law and is therefore not binding upon the Court. If the Prize Court declines to accept his contentions and if, after such a decision has been upheld on appeal by the Judicial Committee of His Majesty's Privy Council, the government of the United States of America considers that there is serious ground for holding that the decision is incorrect and infringes the rights of their citizens, it is open to them to claim that it should be subjected to review by an international tribunal."

Sec. 130. The Same. Case of the "Zamora." View of Sir Samuel Evans. The question came before the Prize Court in the case of the Zamora,1 decided in June, 1915, where the legality of an Order of March 23, 1915, for the requisition of a cargo of copper consigned to Sweden was challenged on the ground that it was ultra vires as being contrary to international law and therefore not binding on the Prize Court. Sir Samuel Evans was here. faced with a situation similar to that which confronted Sir William Scott in the case of the Fox. The Attorney-General argued that it was not open to a claimant to contend that an act done by the executive in defense of the realm, was ultra vires and that if a subject of a foreign country desired to raise the question he must do it through the diplomatic channel by an address to the foreign office. There was no case, it was said, in which a neutral had ever directly challenged the validity of an Order in Council or in which a Prize Court had not given effect to such an Order. In a long opinion in which he reviewed the decisions and the opinions of text writers Sir Samuel showed that Prize Courts were bound to apply the law of their own country even when it was not in accord with international law. At the same time he endeavored to show that the order in question was not contrary to "any acknowledged or settled principle or rule of the law of nations." Consequently he did not consider it necessary to

"discuss the question whether this Court is bound to obey an Order in Council which may run contrary to the acknowledged law of nations. If that question should arise, I am humbly and fully content to assume the standpoint of Lord Stowell in the Fox (Edw. 312), in which he had to deal with the Orders in Council which were made by way of reprisal after the celebrated Berlin and Milan decrees of Napoleon."

IV Lloyd 1; I Br. & Col. Pr. Cas. 309.

He concluded:

"I am not called upon to declare what this Court would or ought to do in an extreme case if an Order in Council directed something to be done which was clearly repugnant to, and subversive of an acknowledged principle of the law of nations.

"I make bold to express the hope and belief that the nations of the world need not be apprehensive that Orders in Council will emanate from the government of this country in such violation of the acknowledged law of nations as to make it conceivable that our prize tribunals, holding the law of nations in reverence would feel called upon to disregard and refuse obedience to the provisions of such Orders."

Sir Samuel, having like Sir William Scott, declined to say what he would have decided in case the Order in Council had been found to be inconsistent with international law, the question of the right of the Crown by executive order to bind the Court to apply rules in violation of the law of nations remained undetermined. The question came before the Prize Court in other cases where the validity of Orders in Council was attacked as being contrary to international law and therefore not binding on it, but as the Orders were held to be not in contravention of the law of nations the Court was able to avoid pronouncing on the question whether it would be bound to give effect to them in case of their inconsistency with international law.1

Sec. 131. The Same. View of the Judicial Committee. The question was finally and definitely disposed of by the Judicial Committee to which Sir Samuel Evans' decision in the Zamora case was appealed. There the Attorney-General argued, somewhat inconsistently it would seem, that while the Court was bound to administer international law, it must follow the directions of the Crown even if they differed from that law. Their Lordships, however, made short shrift of this argument; reversed the judgment of Sir Samuel Evans; held the particular order of requisition to be invalid as contrary to international law; and declared that although the Prize Court is bound by acts of Parliament which may be contrary to international law it is not

See the cases of the Hakan, the Kim, and the Leonora. In the Kim the Solicitor-General argued that in case of an alleged contradiction between an order in council and an alleged rule of international law, the presumption was in favor of the legality of the order and that if the contradiction was clear and undoubted it would be the duty of the Prize Court to give effect to the order. But since Sir Samuel found that the order in question was not in violation of any rule or principle of international law, he said he did not deem it necessary to add to, or detract from, anything he had said in the case of the Zamora.

IV Lloyd 62; II Br. & Col. Pr. Cas. 1.