nevertheless important matters to be left to the general principles of justice and equity. The additional protocol urged upon the signatories of the declaration of London by the United States has been incorporated in this convention as mentioned, the matter having been initiated in the wish (vou) of the declaration of London. There is no doubt that the dual system of jurisprudence now embodied in the international prize convention entails disadvantages, but it is hoped notwithstanding that the convention and court will be put into operation, and defects and omissions can be remedied in the light of experience. 205. Compensation for Capture When Found Void.-The article of the declaration of London treating of this subject states as follows: "If the capture of a vessel or of goods is not upheld by the prize-court, or if the prize is released without any judgment. being given, the parties interested have the right to compensation, unless there were good reasons for capturing the vessel or goods."1 The accompanying report on this subject says: "A cruiser has captured a neutral vessel on the ground, for example, of carriage of contraband or breach of blockade. The prize-court releases the vessel, declaring the capture to be void. This decision alone is evidently not enough to indemnify the parties interested for the loss incurred in consequence of the capture, and this loss may have been considerable, since the vessel has been during a period, which may often be a very long one, prevented from engaging in her ordinary trade. May these parties claim to be compensated for this injury? Reason requires that the affirmative answer should be given, if the injury has been undeserved, that is to say, if the capture was not brought about by some fault of the parties. It may, indeed, happen that there was good reason for the capture, because the master of the vessel searched did not produce evi1 Declaration of London, Art. 64, Appendix IV. dence which ought in the ordinary course to have been available, and which was only furnished at a later stage. In such a case it would be unjust that compensation should be awarded. On the other hand, if the cruiser has really been at fault, if the vessel has been captured when there were not good reasons for doing so, it is just that compensation should be granted. "For the sake of simplicity mention has only been made of the vessel, but what has been said applies of course to cargo captured and afterward released. Innocent goods on board a vessel which has been captured suffer, in the same way, all the inconvenience which attends the capture of the vessel; but if there was good cause for capturing the vessel, whether the capture has subsequently been held to be valid or not, the owners of the cargo have no right to compensation."1 "Prize-courts properly deny damages or costs where there has been probable cause for seizure. Probable cause exists where there are circumstances sufficient to warrant suspicion though not sufficient to warrant condemnation."2 "A captor may, under imperative circumstances, sell the captured property and subject the proceeds to the adjudication of a court of prize. The orders of the commander-in-chief not to weaken his force by detaching an officer and crew for the prize, or his own deliberate and honest judgment, exercised with reference to all the circumstances, that the public service does not permit him to make such detachment, will excuse the captor from sending in his prize for adjudication. But if no sufficient cause is shown to justify the sale, or if the captor has unreasonably neglected to bring the question of prize or no prize to an adjudication, the court may refuse to proceed to an adjudication and may award restitution, with or without damages, upon the ground of forfeiture of rights by the captor, although his seizure was originally lawful." Report accompanying declaration of London, Appendix IV. 3 Jecker v. Montgomery (13 How., p. 498). TOPICS AND REFERENCES 1. Transfer to a Neutral Flag Declaration of London and accompanying report, Appendix IV. Moore's "Digest," vol. VII, 415-425. Naval War College, "International Law Topics," 1909, 123, etc. 2. Enemy Character Naval War College, "International Law Topics," 1906, 22-24; 1910, 108, etc. Moore's "Digest," vol. VII, pars. 1189-94. Oppenheim, vol. II, 2d ed., 106-121. 3. The Sending in of Prizes for Adjudication— Hershey, "Essentials," etc., 13. Scott's "Cases," 899-933. Wilson, chap. XXVIII. Dana's "Wheaton," 2d ed., note 186; 450, etc. 4. Jurisdiction of National Prize Tribunals Scott's "Cases," 701-5. Moore's "Digest," vol. VII, pars. 1232, etc. Phillimore, vol. III, par. 481. 5. The International Prize-Court Higgins, "Hague Conferences," Convention XII, 407-444. Lawrence, "Principles," 4th ed., par. 192. George C. Butte, "The Protocol Additional," A. J. I. L., vol. VI, no. 44, 799, etc. 6. Compensation for Capture When Found Void Declaration of London and accompanying report, Appendix IV. Moore's "Digest," vol. VII, 593-8. Oppenheim, 2d ed., vol. II, 555, 557. CHAPTER XXIX OPEN AND UNSETTLED QUESTIONS IN MARITIME WARFARE 206. A General Discussion of Unsettled Questions in Maritime Warfare.-There are a number of questions that are discussed with respect to maritime warfare that may be considered open to discussion, so far as the principles are considered, and are hence more or less unsettled as to actual practice from a want of common agreement. If this agreement is lacking, practically each state is a law to itself in the policy pursued during a war. There may be, however, a common practice modified by treaty with one or more powers which is binding when the signatory parties are at war with each other; the treaty is not necessarily binding, and in most cases it is so stated in the treaty, if a signatory power is at war with a nonsignatory power. The declaration of Paris is generally and formally accepted, but the United States has not adhered to it as a signatory adherent, though it has followed it in principle in the wars that it has engaged in since its formulation. So far no power signatory to the declaration has been at war with the United States. From the tenets of international law, as well as from the declaration itself, any signatory power is absolved from carrying out the rules of the declaration of Paris in any war which it should engage in with the United States. It does not seem wise for the United States under the circumstances to delay any further in adhering to the declaration of Paris, in fact as well as in principle-its non-adherence serves no good purpose and cannot, in view of the fact of the general adoption of the declaration, secure any advantage to the United States by its delay in the formal acceptance of the instrument itself. Privateering is a thing of the past for all the world, including the United States. Another matter that may be mentioned in a general way is the question upon which we based our refusal to sign the declaration of Paris, namely, the immunity from capture in war of private property at sea. The practice of this capture is almost universal; it includes among those who exercise this belligerent right the United States itself except where it is otherwise held in accordance with treaty. The only war of late in which such capture was not made was that between Prussia and Austria, which included also Italy, in 1866. This abstention arose out of the declaration of Austria and Prussia at the outbreak of the war that enemy's ships and cargoes should not be captured so long as the enemy state granted a like indulgence. The Prussian Government issued an ordinance in 1870 exempting French vessels from capture which was not reciprocated by France, and hence was not carried into effect by either belligerent. The United States by treaty with Prussia, of September 10, 1785, and by treaty with Italy, of February 26, 1871, provided for the mutual exemption of privately owned vessels from capture in case of war. This subject of immunity was brought before the two Hague conferences by the United States, but without ultimate success. The best method in attaining such result will probably be by gradual increase of exemptions of certain classes of vessels. Other matters, some of which will be discussed separately as questions unsettled as to principle and common practice are those of the duration of days of grace, etc., at the outbreak of war, that of domicile or nationality as a governing factor in the determination of the enemy character of ships and cargoes, 1 Hall, "Int. Law," 6th ed., pp. 438, 439. 1 |