those who think that mixed commissions of maritime prize, sitting in the country of either belligerent, would be preferable, by reason of the mixed nationality of their members, to belligerent tribunals constituted as they are at present according to the practice of Great Britain and of the United States. The judicial bench of either country is above the seductive influences of an exaggerated patriotism, but it will be sometimes difficult for judges trained up in schools of municipal jurisprudence, like those of Great Britain and the United States, in which they are frequently called upon to apply the principles of an unwritten law to novel circumstances, to resist the mental habit of reasoning from analogy, and of allowing even fictions of law to be invoked, so as to bring a new case within the scope of some acknowledged precedent.* This is a practice full of danger to neutrals, if it should find general acceptance with prize courts in cases, where the traditions of belligerent right are light in the scale. Lord Stowell has well observed that "International Law rests upon general principles, but that the use and practice of nations has intervened in the application of those principles, and in many cases has shifted the matter from its foundations of that species. The expression," he adds, "which Grotius uses on these occasions, placuit gentibus, is in my opinion perfectly correct, intimating that there is a use and practice of nations, to which we are now expected to conform." t

It would be an error to regard Courts of Prize Jurisdiction simply as creations of municipal law, except as regards the constitution of their members. By the maritime law of

Thus Albericus Gentilis, arguing the case of a Spanish Claimant in the English Court of Prize in the reign of Queen Elizabeth, observes that a great part of the Law of England was in the breasts of the judges, so that Foreign Powers could not be expected to submit to their conclusions, "Etiam in scrinio pectoris nostrorum judicum esse multum Anglici juris dicitur, ubi non se patientur concludi exteriores Reges." Hispanicae Advocationes, L.. 1, Ch. VIII. The Henrich and Alida, 4 Ch. Robinson, p. 54.

nations universally and immemorially received, there is an established method of determining, whether a capture made by a belligerent cruiser is, or is not lawful prize of war. The personal obligation of the captor, indeed, to bring his captures into port for inquiry and adjudication, is founded on the instructions, which he has received from the Government, which has authorised him to make captures. The obligation on the other hand of every Government to require its cruisers to bring their captures into port for adjudication before a competent Court of Prize rests upon the general law of nations. This obligation, however, under the common law of nations, exists only in respect of vessels navigated under the neutral flag, the object of the inquiry in such cases being to ascertain, whether the captured property belongs to a neutral or to an enemy, and if it belongs to the subject of a neutral Power, to release it, unless the owner has forfeited his title to restitution by conduct inconsistent with the neutral character. The proof of his neutral conduct, as required by the Prize Court, becomes thus a question of vital importance to the owner of the ship and cargo, and the long-established rule of the Prize Courts, that the evidence should come in the first instance from on board the ship itself in the state in which she was captured, is not per se an inequitable rule. "It is from the ship-papers on board and the examination on oath of the master and principal officers of the captured ship, that the evidence to acquit or to condemn with or without costs and damages must in the first instance come." Such is the language of Sir William Scott and of Sir John Nicholl in their celebrated letter* addressed to his Excellency John Jay, the Minister of the United States of America at the Court of St. James's in 1794, in which they stated at the

The letter in question contained an extract from a Report presented to the Crown in 1753 by Sir George Lee, then Judge of the Prerogative Court, Dr. Faul, H.M. Advocate-General, Sir Dudley Ryder, H.M. Attorney-General, and Mr. Murray (afterwards Lord Mansfield), H.M. Solicitor-General.

request of the American Government the immemorial rule of the English Prize Courts. To the same purport is the well known note of Mr. Justice Story appended to the first volume of Wheaton's Reports (American). "It is upon the ship's papers and depositions," Mr. Justice Story says, "thus taken and transmitted that the cause is, in the first instance, to be heard and tried. This is not a mere matter of practice or form, it is of the very essence of the administration of prize law, and it is a great mistake to admit the Common Law notions, in respect to evidence, to prevail in proceedings which have no analogy to those at Common Law." Again, "By the law of prize the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured vessel. The captors are not, unless under peculiar circumstances, entitled to adduce any extrinsic evidence." Such also is the rule of the English Prize Courts at the present day, and I am not aware of any instance, in which the rule was departed from, during the Crimean War. The French Prize Regulations are equally peremptory in confining the proofs in the first instance to the papers and persons on board of the captured vessel. If it should appear from the evidence thus taken, that the captured property is enemies' property, cadit quæstio, unless the vessel is protected by a license from the Government of the captor or of his Ally. But in case the cause appears doubtful on the original papers and on the examination of the officers and others on board of the captured ship, the Prize Court may, in its discretion, indulge the claimants with time to supply the defects by the introduction of new evidence. But further proof is in no case a matter of right; it rests with the discretion of the Court, and in cases where further proof is necessary to clear away doubts, and the Court does not allow it, although the claimants ask for the indulgence, the penal consequences are as fatal, as if the property were originally hostile, since a condemnation certainly follows the denial. It is here, I

think, that there is room in the present day for a larger equity to be shown to neutrals in the matter of further proof, and it well deserves the thoughtful consideration of Governments, whether in all DOUBTFUL cases before the Prize Courts, instead of further proof being matter of grace, the neutral claimant should not be entitled of right to bring in further proof after the hearing in the first instance, subject, however, to the discretion of the Court to require security for costs. Of course I except cases, where there has been actual misconduct on the part of the claimant. I can speak from experience that such a modification in the practice of Prize Courts, would diminish much of the odium, which attaches at present to the inquisitorial character of the proceedings. There was only one case, as I have already remarked, in which I regretted the decision of the English Court of Appeal in prize matters during the Crimean War, and that was a case, 、 where the Court refused to allow an Austrian subject to bring in further proof of his alleged ownership of a vessel, sailing when she was captured under the Austrian flag, but which the captors asserted to be Russian property. I was unable to satisfy the representative of the Austrian Government in London, that it was a just proceeding on the part of the British Prize Court to refuse absolutely to allow the production of further evidence on the part of the claimant, which, as he assured his Government, would clear up his title and supply what was defective in the ship's papers. The conscience of the British Prize Court may have been fully satisfied under the circumstances of this particular case in condemning the ship as enemy's property, but it would have been preferable, that the judgment of the Government of a friendly Power should also have been satisfied, that its subject had not been debarred by a technical rule of the Prize Court from producing evidence, which, as he alleged, would have cleared away all doubts as to the bona fides of his claim.

It was an avowed object of the Powers, who took part in

drawing up the Declaration of Paris in 1856, to establish an uniformity of doctrine on the subject of the rights and duties of belligerents and neutrals respectively, in order to avoid any diversity of practice, that might give rise to serious difficulties, and even to conflicts between them; but the Declaration of Paris, as a Public Act, will be little more than a snare to neutrals, unless an uniform Ratio decidendi should be observed by Prize Courts, as regards the interpretation to be given to the terms "Contraband of War," and "Effective Blockades." For instance, the term 66 Con

traband of War " has recently obtained in the Prize Courts of the United States an enlarged interpretation, in a sense unfavourable to neutrals, which it had not received in European Prize Courts at the time when the Declaration of Paris was drawn up; yet this term is the gauge, as it were, of the liberty secured to neutral trade under the second and third articles of that Declaration, and it is not too much to say, that if the novel interpretation recently given to the term "Contraband of War," by the Supreme Court of the United States in the case of the Bermuda (3 Wallace's Reports, p. 515) should be adopted by the Prize Courts of half the Powers who have acceded to the Declaration of Paris, the Declaration, as a Public Act, will be little else than diplomatic waste paper, or it will aggravate the difficulties and conflicts between belligerents and neutrals, which it was intended to mitigate.

It has been well observed in a leading English Journal (Times, June 15, 1877), "that International Law ought to be more perfect common sense than any other law, since there is no Supreme Power to enforce it, and its varying problems can never be solved, but by an appeal to the judgment or sentiment of mankind." It is accordingly one of the first duties of Courts, called upon to administer International Law, to repudiate fictions of all kinds, as they are as distasteful to common sense, as a vacuum is repugnant to nature. The doctrine, for instance, as it is