Although this view of the super-national status of

our Prize Courts was familiar in the Napoleonic wars to

all classes of society, ignorance of such matters amongst laymen not acquainted with their importance was widespread in August 1914. In that month we were hard put to it to find merchant ships to meet unexpected demands that were received from the Army for trooptransports. A number of enemy vessels lay idle at the time in the ports of India, compelled to await the decisions of the Prize Court before they could be used to meet an urgent need to transport Indian troops to various destinations. The delay might have led to serious military results, but the law was nevertheless respected.

Then, in December 1914, the late Sir Samuel Evans, delivering judgment in the Prize Court, followed Lord Stowell's line of argument in these words:

"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' ('The Odessa,' 1915, Probate, p. 61).

We are all familiar with the point that, on later occasions in the late war, our Prize Courts' procedure was over-ridden by Orders in Council, which were issued by the Executive Authority on the plea of reprisals for infraction of the Law of Nations by our principal opponent, such as laying mines in highways of sea-traffic and unrestricted submarine warfare. With the doctrine of the legality of reprisals it is not possible for us to deal, as they represent the negation of law. It would nevertheless be wise to take note here of the point that violence, unrestricted by law (which has frequently been resorted to in land warfare), has far more effect upon neutrals when applied at sea than it has when applied on land. In the interests of a world-peace, there is, therefore, more demand for a law of nations at sea than there is on land, where violence is confined to the area covered by the territory of the belligerents.

We pass now to the subject of appeals against the decisions of those national Prize Courts. With us, this is provided for by the Privy Council, sitting in a judicial

and not in its executive capacity. Here we find that sea-law is unaffected either by the territorial locality of the Court of Appeal, or even by the personality of its most exalted exponents. This point was brought out clearly by Lord Birkenhead, when he addressed the New York Bar. As Attorney-General in the late war, he explained, it came within his province to put before the Judicial Committee of the Privy Council the opinion of a British Government that that judicial body had no right to challenge Orders in Council of the King; but in spite of his pleading, the decision on that question was that, when sitting as a Court of International Law, the Judicial Committee of the Privy Council 'utterly refused to be bound by Orders-in-Council issued by the Executive' ('Renascence of International Law,' by Manfred Nathan, K.C., 1925, p. 154).

While we are dealing with the super-national status of Prize Courts, and of the law which they administer, we must take due account of a different attitude assumed, in an Appeal Case, by the Imperial Supreme Prize Court in Berlin on May 18, 1915. The German Prize Regulations, issued under the authority of the Kaiser, were there deemed to over-ride all international law on points which they covered:

The Prize Courts, when judging of the legality of prize actions, can take general international principles into account only when the Prize Regulations contain no instructions' ('The Elida.' Decided by the Imperial Supreme Court, Berlin, on an appeal from a decision by the Kiel Prize Court. English translation in the 'American Law Journal,' 1916, vol. x, p. 916 seq.).

This ruling, it will doubtless be observed, goes to the root of the matter. It is in direct conflict with the opinion that Prize Courts administer (as Lord Stowell expressed it) a Law of Nations which over-rides all principles borrowed from 'municipal jurisprudence.' Precedents prove that it is difficult to reconcile the world-wide conception of law, that is taken by the exponents of sea-warfare, with the narrower views of continental military nations, accustomed as they are to consider war chiefly as a business of defending local territory and its inhabitants against the lawless violence of neighbours. Unless this difficulty can be overcome,

at

of

no great Sea-Power can come into line with the great military States. Radical differences of opinion between nations, about the nature of Sea-Law, will cause opposition to the jurisdiction of National Prize Courts if they differ from each other in their rulings and in their conceptions. The Prize Courts, moreover, now find a rival in the Permanent Court of International Justice, which, for reasons given above, does not seem likely to be accepted as a court of appeal in cases involving the interpretation of Sea-Law. The question is unfortunately in a state of flux at a critical period, when, to use an old metaphor, 'Neptune's Sceptre of the Seas' is wielded by several nations by the prongs, instead of by one nation by the handle.*

Such, then, have been the steps that have hitherto been taken to provide impartial Courts to administer the law of the sea in the interests of all concerned therein, whether belligerent or neutral. But what is that Law? As we ourselves understand it, it is the law laid down by British legal authorities and enforced by the overwhelming strength of the British Navy. The question may well be asked whether these conditions can be expected to endure?

The difficulty lies in reconciling the interests of belligerents with those of neutrals. Throughout our period of maritime predominance, from the time when we wrested it from the Dutch in the 16th century until 1856, when the 'Declaration of Paris' was annexed as one of a multitude of Protocols to a Treaty of Peace, we held firmly to the principle that the enemy's property of all natures, no matter by whom carried, was lawful prize of war if taken on the high seas. For this policy to be effective, the right of visiting and of searching both belligerent and neutral merchant shipping was constantly maintained, and enemy property of all kinds was seized in neutral ships.

Admiral Richmond, in his Raleigh lecture, traced to pamphleteers of the 17th century an acknowledgment

* Even if Sea-Law, though administered by Prize Courts, is ruled to come under the definition of municipal jurisprudence,' there is a parallel for its general acceptance. For the obvious good of mankind, the law of marriage in one country is generally considered to be binding upon nationals of other countries.

of the principle that 'by knowledge of Trade and commerce and the course of it, one nation knows how to straiten and pinch another, and to compel compliance.' Hence arose the doctrine of sea-war under which our sea-power was established-that, no matter by whom carried, goods for an enemy or belonging to an enemy, could legitimately be taken. Admiral Richmond added:

'These were those fundamental "maritime rights," shorn of which the naval weapon would become offenceless, unable to use its most effective means for "compelling compliance.'

This he calls the corner-stone of our naval policy. British Governments have constantly refused even to listen to proposals for their modification, even though war should result; for war was deemed by them to be preferable to a diminution of our power at sea. In 1812, the maintenance of these rights was considered of so great importance that, although we were then engaged in our titanic struggle with Napoleon, we considered the disadvantages of having the United States added to our enemies less than those that would follow the modification of our code.

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The changes made in the law and custom of the sea by the Declaration of Paris were of vital importance to the predominant Sea-Power. The previous custom, let us repeat, was to forfeit all enemy property that was captured on the high seas, without taking any account of the flag under which the cargoes were carried. Under the Declaration of Paris, a neutral flag safeguarded all enemy property, except contraband of war.' Contraband of war was not legally defined, so this might mean except everything' or 'except nothing'; and the seeds were thereby sown of constant friction between belligerents and neutrals-especially if America was neutral -in time of war. British maritime predominance having endured for half a century, the idea seems to have become ossified in the brains of our statesmen that it would endure for ever, and that Britain would therefore be neutral in all future conflicts at sea. A recent debate in the House of Lords, and Press comments thereon, showed little understanding of the real problem. Much use was made of the point that the simultaneous

abolition of privateering in 1856 conferred an (alleged) advantage upon Sea-Powers.

If war-vessels, directly under Government control, can be compared with police of the seas, who administer a law of nations, privateers can be compared to special constables, reinforcing the regular police, both classes upholding the same law; but it is only fair to remind ourselves that, if we look upon the subject from the point of view of the military nations who do not take kindly to the sea, there is no doubt that swarms of privateers, paying their own expenses, conferred a great advantage in time of war upon seafaring nations. Some illuminating material, bearing upon this point, is to be found in the British and American State Papers for the year 1812.

After experience in the Great War the opinion can confidently be advanced that, in any war in which great Sea-Powers (especially the United States) are neutral, compliance with the Declaration of Paris would prevent belligerents from making effective use of strength at sea against 'aggressor' military States. Relaxation of the rights of deprivation, exercised under a Law of Nations at sea, would prolong indefinitely the destruction caused by the lawlessness of land warfare, and it is that destruction which leads to the widespread disturbance and distress that follow conflicts in these days of the economic interdependence of the whole human race.*

The half-century, providing no experience of the nature of world-wide sea-warfare, which followed the Declaration of Paris, produced the Declaration of London of 1909. With that we can best deal by referring to the Foreign Office memorandum that was issued to neutral Powers in the name of the Allies on July 7, 1916. We read there that 'in their anxiety to regulate their conduct by the principles of the law of nations,' the Allied Governments believed, at the beginning of the War, that in the Declaration of London they would find 'a suitable digest of principles and compendium of working rules,' but subsequent experience had proved that the Declaration 'could not stand the strain imposed by the test of rapidly changing conditions and tendencies

* This point was further developed in an article on Mr Stewart Bowles's 'The Strength of England,' in the 'Quarterly Review,' for January 1927.