think that this Court has the inherent power of regulating and prescribing its own practice, unless fettered by enactment. Lord Stowell from time to time made rules of practice, and his power to do so was not questioned.

"Moreover, by Order XLV of the Prize Court Rules, 1914, it is laid down that 'In all cases not provided for by these Rules, the practice of the late High Court of Admiralty in England in prize proceedings shall be followed, or such other practice as the President may direct.' The Rules do not provide for the case now arising. I therefore assume that as President of this Court I can give directions as to the practice in such cases as that with which the Court is now dealing.

"The practice should conform to sound ideas of what is fair and just. When a sea of passions rises and rages as a natural result of such a calamitous series of wars as the present, it behooves a court of justice to preserve a calm and equable attitude in all controversies which come before it for decision, not only where they concern neutrals, but also where they may affect enemy subjects. In times of peace the Admiralty Courts of this realm are appealed to by people of all nationalities who engage in commerce upon the sea, with a confidence that right will be done. So in the unhappy and dire times of war the Court of Prize as a Court of justice will, it is hoped, show that it holds evenly the scales between friend, neutral, and foe.

"A merchant who is a citizen of an enemy country would not unnaturally expect that when the State to which he belongs, and other States with which it may unhappily be at war, have bound themselves by formal and solemn Conventions dealing with a state of war, like those formulated at The Hague in 1907, he should have the benefit of the provisions of such international compacts. He might equally naturally expect that he would be heard, in cases where his property or interests were affected, as to the effect and results of such compacts upon his individual position. It is to be remembered also that, in the international commerce of our day, the ramifications of the shipping business are manifold, and others concerned, like underwriters or insurers, would feel a greater sense of fairness and security if, through an owner (though he be an enemy), the case for a seized or captured

vessel were permitted to be independently placed before the Court.

"For the considerations to which I have adverted, and in order to induce and justify a conviction of fairness, as well as to promote just and right decisions, I deem it fitting, pursuant to powers which I think the Court possesses, to direct that the practice of the Court shall be that whenever an alien enemy conceives that he is entitled to any protection, privilege, or relief under any of The Hague Conventions of 1907, he shall be entitled to appear as a claimant and to argue his claim before this Court. The grounds of his claim should be stated in the affidavit to lead to appearance which is required to be filed by Order III, rule 5 of the Prize Court Rules, 1914.

"I will now proceed to deal with the substance of the claim of the owner in the present case. He contends that his vessel cannot be condemned as prize. Was his vessel captured at sea, or seized in port? It was argued for him that she was seized in port, and therefore ought only to be detained during the war. For the Crown, on the other hand, it was contended that the vessel was captured at sea, and ought to be condemned. I have sufficiently stated the facts.

"It was urged that the vessel was seized within the port of Leith, and, alternatively, that she was taken within territorial waters, and not 'on the high seas,' and therefore is not confiscable. See article 3 of the sixth Hague Convention, to which Germany did not agree, and under which her citizens cannot benefit.

"In this Convention I am of opinion that the word 'port' must be construed in its usual and limited popular or commercial sense as a place where ships are in the habit of coming for the purpose of loading or unloading, embarking or disembarking. It does not mean the fiscal port. The ports of Morrison's Haven, Granton, and Bo'ness, I was informed, are within the fiscal port of Leith, but they are all separate ports in the ordinary sense. The vessel was not seized in any of such 'ports' as the term is so understood, and as it seems to me to be used in the Convention. She was not in a port from which, if days of grace had been arranged, she could be said to 'depart' (sortir). Alternatively, it was

alleged but not proved that she was taken in 'territorial waters,' and that therefore she was not captured on the high seas. But I will assume that she was within territorial waters when the capture was made. In my view that is wholly immaterial. The sixth Hague Convention does not refer to 'territorial waters.' A vessel might be in territorial waters for scores of miles, either innocently or nefariously, and pass numerous ports, without any intention to enter any of them. It is idle to say that on this account she would be free from capture. Where The Hague Conventions intended to deal with territorial waters they are expressly mentioned as distinguished from 'port' - for example, in Convention XII, arts. 3 and 4, and Convention XIII, arts. 2, 3, 9, 10, etc., the words 'les eaux territoriales' are used in contradistinction to les ports. (Cf. also the Declaration of London, art. 37, where territorial waters are described as les eaux des belligérants.) En mer, which is the phrase used in article 3 of the sixth Convention, is also inapt to indicate 'territorial waters.'

"Then it was contended that the vessel could not be condemned because she was not captured on 'the high seas.' The words 'encountered on the high seas,' in article 3, are not an accurate rendering of the authoritative French, rencontrés en mer. Where the Conventions intend to describe 'upon the high seas,' the appropriate phrase en pleine mer is used. See Convention VII, recital. Another phrase, en haute mer, is used in the Declaration of London, art. 37, to signify the same thing.

"To illustrate the meaning of the word 'port' in the Conventions I would further observe that the word 'ports' is used in various places in conjunction with, but in contradistinction to, roadsteads, and to territorial waters. See Convention XIII, where the words, les ports, les rades, ou les eaux territoriales are frequently used.

"In my view the claimant in his affidavit was accurate when he said his vessel was 'taken at sea.' The words of article 3, rencontrés en mer, are exactly applicable to this case. And I have no hesitation in finding that she was captured at sea, and not seized in port. I therefore decree that the vessel be condemned as lawful prize."

(Extract from the opinion as given in E. C. M. Trehern's Prize Cases [London, 1916], pp. 63–74.)

§ 6. UNNECESSARY CRUELTY

THE DIPLOMATIC CORPS PROTESTS AGAINST THE BOMBARDMENT OF PARIS WITHOUT NOTIFICATION (1871)

Communication of the Diplomatic Corps to Count Bismarck

PARIS, January 13, 1871.

His Excellency the Count Bismarck-Schönhausen,

Chancellor of the North German Confederation, Versailles.

Sir: For some days past a large number of shells, coming from positions occupied by the besieging troops, have entered the interior of Paris.

Women, children, and sick persons have been struck. Among the victims there are many who belong to neutral states. The lives and property of persons of all nationalities, residing in Paris, are in constant danger.

These things have happened without the undersigned (the greater part of whom have no other mission for the present at Paris, except to watch over the security and interests of their countrymen) having been enabled by a preliminary notice to warn against the dangers which menaced them, those of their countrymen who had been hitherto prevented by "force majeure," and especially by the impediments placed in the way of their departure by the belligerents, from placing themselves in safety. In presence of events of so grave a character, the members of the diplomatic corps present at Paris, with whom are associated in the absence of their respective embassies and legations, the undersigned members of the consular corps, have thought it necessary, with a full sense of their responsibility toward their respective governments, and of their duties toward their fellow-countrymen, to concert upon the measure to take.

Their deliberations have led the undersigned to the unanimous resolution to request that, in accordance with the recognized principles and usages of the law of nations, steps be taken to per

mit their countrymen to place themselves and their property in safety.

Expressing with confidence the hope that your excellency will interpose your good offices with the military authorities, in accordance with the object of this request, the undersigned take this opportunity to beg you will receive the assurances of their very high consideration.

[Here follow the signatures of the diplomatic corps present in Paris.]

Count Bismarck replied in a note dated January 17. He placed the responsibility for the attack upon Paris upon those who had converted the city into a great fortress. He referred to the ample warning of the approaching siege and military operations, and cited Vattel as authority for the employment of extreme measures when necessary to reduce a besieged city. As for the diplomatic corps, he pointed out that they had been authorized to pass through the lines, and that if they were detained they should address their complaints to the French authorities. In regard to the bombardment of Paris, Bismarck declared that in view of the scrupulous manner in which the obligations of the Geneva Convention had been observed it was unnecessary to state that women, children, and hospitals had not been intentionally injured.

On January 23, the Swiss Minister, acting for the diplomatic corps and with the unanimous approval of all the signers of the previous note, drew attention to certain inaccuracies in Count Bismarck's answer to the protest of the diplomatic corps, and declared that their egress from Paris had been prevented by the action of the German military authorities. As regards the substance of their request the Minister stated that it appeared "to the signers of the 'note' of January 13 that the point of view in which the German military authorities have placed themselves is too widely different from their own, and that the refusal is conceived in too positive terms to permit that any further argument upon the principles and usages of the law of nations should reach the desired conclusion. They cannot, however, omit to observe that your excellency principally endeavors to show, invoking the authority of Vattel, that the laws of war authorize, as a last extremity, the bombardment of a fortified city. The intention of the