CCCCXXXVIII. The Prize Tribunal(e) in France has undergone great changes.

Originally the Admiral or his Lieutenant exercised Prize Jurisdiction.

As late as 1624 it appears that Henry de Montmorency exercised this jurisdiction en vertu du pouvoir attaché à sa charge d'amirauté.

In the time of Louis XIII. the office of Admiral was suppressed and replaced by that of a Grand-maître who took cognizance of Prizes. This office was filled by Cardinal Richelieu.(ƒ)

During the minority of Louis XIV., Anne of Austria exercised the jurisdiction. She was speedily succeeded by the Duc de Vendôme (1650.) His appointment introduced a great and lasting change in the tribunal. He found himself much embarrassed with the questions of International Law, upon which he was obliged to adjudicate, and appeals were constantly prosecuted from his judgments to the Throne, till at last it became necessary to establish a permanent commission for his assistance, with an appeal to the Conseil d'Etat *du Roi. Such was the origin of [*544] the Conseil des Prises, which, with some interruptions and variations, has continued to the present day.

The office of the Admiral was re-established in favour of M. le Comte de Vermandois; and in 1695 it appears to have been fully revived in the person of M. le Comte de Toulouse. The Admiral continued to adjudicate with his attendant council till 1789. The last Conseil des Prises under the old law was appointed in 1778 to take cognizance of Prizes made from the English during the war between England and her colonies.

This Conseil des Prises was nominated for each war, having no authority during peace. The members were nominated by the King, with a Procureur-général.

The famous treatise of Valin-his Traité des Prises-was supervised and richly instructed with precedents by the Procureur-général of

his time.

In 1793, when the war broke out between France and England, a decree of the Convention (14 July, 1793,) gave the jurisdiction over Prizes to the Tribunals of Commerce. Not long afterwards another decree issued, clothing the Conseil executif provisoire with this jurisdiction. The effect of this decree was to restore the jurisdiction to the administrative authority of the State, which the French writers appear,(g) in very direct opposition to the doctrine of the English and North American United States, to consider as the proper repository of International Law. In a short time the Comité du Salut public seized, and abused with shameless ignorance and injustice, the jurisdiction.

Afterwards the Tribunaux de Commerce possessed the jurisdiction,

(e) De Pist. et Duverdy, Traité des Prises, t. ii., P. viii.; cc. i. ii. iii. iv. (f) Ib., p. 162.

(9) "C'était là rendre la connaissance des prises maritimes à l'autorité administrative, qui devoit naturellement en connoître."-De Pist. et Duverdy, Traité des Prises, t. iii., P. viii., c. iv., p. 149.

and with respect to their discharge of these functions Cambacérès, Minister of Justice, said :—

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“Que la course était devenue un brigandage, pour que les lois que lui étaient appliquées étaient insuffisantes ou *mauvaise et que l'on avoit entendu s'élever de toutes parts les plaintes des négociants et des ministres étrangers, et que, cependant le Gouvernement, pénétré de la justice de ces plaintes, avoit toujours été sans pouvoir pour y faire droit."(h)

Under Napoleon the First, a Conseil des Prises was instituted to sit at Paris without any relation to the office of Admiral; and special tribunals with a limited jurisdiction were established in the ports, chiefly, it should seem, for the purpose of collecting information as to the facts of the cases submitted to the Conseil des Prises. From this tribunal there was an appeal to the revived Conseil d'Etat.

Besides the Commissions des Ports, there were also Commissions Coloniales to sit in the French Colonies, and Commissions Consulaires, which established, in violation of the soundest principles of International Law, French Tribunals in the ports of Neutrals or Allies.

Napoleon the Third in the present war (1856) re-instituted by decree a Conseil des Prises at Paris. By the fourth article of that decree the sittings of the Council were to be private, a provision which is much to be regretted by all who consider publicity as a great security for the impartial execution of public or international justice.

With respect to Spain, Abreu(i) has a chapter upon the necessity of a regular and formal procedure in a Prize Court in order to obtain the condemnation of a capture, the forms of which are, he says, wisely provided for in las Ordonnanzas de Corso,(k) with a view to secure the due administration of international justice.

*In Holland(7) there are ancient and regular tribunals for the administration of Maritime International Law.

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In fact, no civilized State which has a commercial or an armed navy, is without them.(m) There are different forms of procedure in different States, but the principles of the law, and the rules for ascertaining the

(h) De Pist. et Duverdy, Tr. des Prises, t. iii. P. viii. c. iv. p. 158. (i) Abreu, cap. xxiii. :-" Sobre el modo de probar el dominio de la Pressa y si la prueba de que se hizo legitimamente incumbe al apressador o el apressado." (k) Ib., p. 251. Ordonnanza para Navegar en Corso, December 4th, 1621, are to be found in Phil. iv. t. i., p. 555, and cedul., pp. 372-430, to be compared with later ordinances of 1718-1779, &c. Cf. Colecion de los Tratados de Paz, Allianza, Neutralidad, &c., por Joseph Antonio De Abreu y Bertodano.-Ed. Madrid, 1740. His collection begins in 1598 (Philip II. and Henry IV.,) consists of eight small folios, ending 1700, and contains Treaties between France and Spain. It has a continuation, published at Madrid in 1796, of Treaties from 1701 to 1736; a work valuable for its accuracy, fulness of detail, and beauty of type and paper. (7) De Martens, His. des Armateurs, s. 7, notes. For the Dutch Laws on the subject he refers to Instructie voor de Collegienter Admiraliteyt in dato d. 13 August, 1597, in the Recueil von Placaarten, C. D. L., P. i., 26.

(m) Azuni, Droit Maritime de l'Europe (Paris, 1805,) II. ch. iv. des Tribunaux des Prises. The account is meagre, but useful. The Swedish are to be found in a folio volume, published at Orebro in 1831, by Lindh, entitled Ny Lag. Samling, Första Häftet inneha1lende de tyra förste Balkarne of 1734 ars Lag.

truth of facts ought to be, and, as a general proposition, are, pretty much the same.

The proper constitution of these Courts, and the due administration of justice therein, has not unfrequently been matter of positive stipulation in Treaties.(n)

One instance may be cited by way of illustration, taken from Mr. Pitt's Commercial Treaty between France and England in 1787. "Their said Majesties," it is there said, "being willing mutually to treat in their dominions the subjects of each other as favourably as if they were their own subjects, will give such orders as shall be necessary and effectual, that the judgments and decrees, concerning prizes in the Court of Admiralty, be given *conformably to the rules of justice and equity, [*547] and to the stipulations of this treaty, by judges who are above all

suspicion, and who have no manner of interest in the cause of dispute." (o)

CCCCXXXIX. The constitution of the Prize Court in England is in its origin much the same as that of similar tribunals in other countries. It is the Court of the Judicial Lieutenant of the Lord High Admiral, which for more than a century it has been the practice of the Legislature(p) and the Crown, at the breaking out of every war, to clothe with the authority of a Prize Court, such authority being limited to the continuance of that war.

What amount of international authority it might possess irrespectively of such statutes, is not an uninteresting inquiry, but one of which the discussion would occupy an undue space in the present work.

But there is no reason to doubt that it has such authority exclusive of the Prize Acts.

"It is the common practice" (Lord Stowell observes) "of European States in every war, to issue proclamations and edicts on the subject of Prize; but till they appear, Courts of Admiralty have a law and usage on which they proceed, from ancient habit and practice, as regularly as they afterwards. conform to the express regulations of their Prize Acts."(q)

Sir L. Jenkins says:

“A mere routine and common experience will not do the business of a Register of the Admiralty, as it doth in other posts not unlike it. A man must in this place have a stock of Civil law, and endeavour to increase it, by searching into the style and practice of Maritime.

[*548] Courts beyond the seas, (which alters and varies considerably in a few years;) and he must be skilled in the neighbour languages, French and Dutch at least, (otherwise he must make use of a deputy, in taking the depositions of foreigners, which hath many great inconveniences in it;) these Mr. Bedford hath perfectly, having sojourned abroad a considerable time in foreign parts, in order to acquire them.

(n) Cf. Traités de Commerce, D'Hauterive et De Cussy, t. ix., p. 374, tit. Prises et Reprises.

(0) Chalmer's Collect. of Treaties, vol. i. p. 536, art. xxxii.

(p) From the 13 Geo. II. c. iv., A. D. 1740, Prize Acts have been regularly issued. (q) The Santa Cruz, 1 Rob. Rep., p. 63.

"Another thing is, that this Court is one of the King's Courts of Justice, where foreigners almost of all nations are suitors; and 'tis for the reputation of the Government, that such a trust be committed to a person that is to be responsible in his own right; and to one that will have a concern that nothing of mal-administration, either through ignorance or corruption, be charged upon him. For miscarriages in this post have sometimes come at last to public sharpness and resentments between our and other neighbouring nations."

The Advocates who practise in the Prize Court constitute, under Royal Charter, a peculiar College,(s) and have been for centuries a distinct profession from the Common Law and Equity Bar.

It is the duty of these advocates to be acquainted both with the Civil Law of ancient and, to a certain extent, the Ecclesiastical Law of modern Rome, but especially with International and Maritime Law, many principles of which are to be found in the compilations of Justinian.(t) From these advocates are selected the principal advisers of the Crown(u) in matters of International Law; and the *fact has been relied in the British House of Peers by a very distinguished per[*549] upon son, once Lord High Chancellor of England, as having a most important bearing upon the conduct of the international relations of the Empire.(x)

The appeal from the Prize Court lay formerly to Judges Delegate chosen by the Crown, which sometimes also granted a Commission of Review:(y) it now lies to a Judicial Committee,(z) composed of the most eminent lawyers of all branches of the profession, who are also Privy Councillors.

This appeal is final. The form of the sentence of this Court is a recommendation to the Crown to confirm or reverse the sentence of the Court below; but in substance and effect the recommendation operates

(r) Life of Sir Leoline Jenkins, vol. ii. pp. 709, 710. Letter to Samuel Pepys, Esq., Secretary to the Lords Commissioners of the Admiralty.

(8) Vide ante, Vol. I. Pref. p. xxv., &c.

(t) Vide ante, Vol. I. pt. i. ch. iv.

(u) The Queen's Advocate is the first law officer of the Crown, and its adviser in all international affairs. The Advocate to the Admiralty advises the Crown only in its office of Admiralty.

(x) "He (Lord St. Leonards) had already called the attention of the noble Earl at the head of Her Majesty's Government to the advantage of keeping together a bar for matrimonial causes and testamentary jurisdiction. In the Ecclesiastical Courts the gentlemen who now practised there were disciplined and learned in International Law-men of independence, honour, and high character, whose opinions not only guided the Government in the most difficult cases, but carried a weight with them in Europe; for foreign Governments were satisfied when they found that this Government was acting not merely upon its own will and feelings, but was guided by the learning and opinions of persons who were amenable to the profession and the country for the opinions which they gave."-Hansard, Parl. Deb. vol. cxxxiv. p. 938, June 30th, 1854.

(y) Life of Sir Leoline Jenkins, vol. ii. p. 721.

(2) 2 & 3 William IV., c. 92, and 3 & 4 William IV., c. 41. 6 & 7 Victoria, c. 38. But it is provided that nothing in the 3 & 4 Will. IV. c. 41 contained shall impeach any Treaty or engagement with a Foreign Power by which it shall be stipulated that the appeal in cases of Prize shall belong to another jurisdiction, but that the judgment of any persons appointed by such Treaty shall be of the same force as if the Act had not been passed.

as a judgment. The Crown never is, and perhaps constitutionally could not be, *advised to do otherwise than adopt the recommendation of her Judicial Privy Councillors.

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The whole proceedings in the Court of Appeal, as in the High Court of Admiralty, are conducted in an open Court accessible to everybody, and of which the Reports are duly published to the world.

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*CHAPTER III.

THE PRINCIPLES AND PRACTICE OF THE PRIZE TRIBUNALS.-GENERAL OUTLINE.

CCCCXL. IN the year 1794, (a) Sir W. Scott and Sir J. Nicholl, the two civilians best acquainted with the jurisprudence and procedure of the Tribunal of Maritime International Law, wrote an answer to a letter of inquiry upon this subject from the American Ambassador, Mr. Jay, which answer contained an outline of the principles and practice of these Courts. Judge Story refers to it as in all respects satisfactory. The North American Prize Courts have seldom if ever departed from the rules contained in it.

It is extremely valuable both on account of the authority of the writers themselves and on account of their unreserved adoption in this letter of the celebrated Memorial of 1753, which has been often referred to in this work.

This remarkable letter(b) is in the following terms:

“SIR,

"We have the honour of transmitting, agreeably to your Excellency's request, a statement of the general principles of proceeding in Prize Causes in British Courts of Admiralty, and of the measures proper to be taken when a ship and cargo are brought in as Prize within their jurisdictions.

"The general principles of proceeding cannot, in our judgment, be stated more correctly or succinctly, than we find them laid down in the following extract from a report made to his late Majesty, in [*552] the year 1753, by Sir George Lee, then judge of the Prerogative Court, Dr. Paul, his Majesty's Advocate-General, Sir Dudley Rider, his Majesty's Attorney-General, and Mr. Murray, (afterwards Lord Mansfield,) his Majesty's Solicitor-General :—(c)

"When two powers are at war, they have a right to make prizes of the ships, goods, and effects of each other, upon the high seas. Whatever is the property of the enemy may be acquired by capture at sea; but

(a) Pratt's Story, p. 1. Wheaton on Captures, Appendix. 1 Wheaton's (Amer.) Reports, p. 494, Appendix, n. ii.

(b) It was enclosed in a civil and formal note to Mr. Jay, the American Minister. (c) Cabinet Library of scarce and celebrated Tracts. Edinb. 1837.