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as on the competence of the officer to issue it. If such competence exists, usually the order would be on the same plane as a statute and so would rule when in conflict with international law, but would be interpreted so far as possible in accord with it. Thus, in the case of the Zamora the primary ground upon which the British Privy Council declared the Order in Council, contrary to international law, non-mandator, was that by custom and statute the Crown had been divested of its prerogative to legislate for prize courts.


In England and the United States judicial precedents bave a legislative value only second to that of statutes. Courts are obliged to follow them according to well-defined rules. It thus happens that precedents will generally be followed, if there are any, irrespective of existing international law. Such precedents may be originally adopted as applications of international law, but once established may prove less flexible than international law, and hence in time come in conflict with it. In such cases, however, the presence of an international rule undoubtedly makes it less difficult to break a precedent than it would otherwise be. Thus the British Prize Court in the war of 1914 broke the precedent established by Lord Stowell over a hundred years before in reference to the confiscability of enemy coast fishing vessels.51 Although the rule declaring such vessels immune was included in the Hague conventions, 52 the court noted that this convention was not in terms binding, because all of

51 In the Berlin, L. R. (1914), P. 265; this JOURNAL, 9: 544; after citing the American decision in the Paquete Habana, 175 U. S. 677, and some Japanese decisions and instructions the court said: “In this country I do not think any decided and reported case has treated the immunity of such vessels as a part or rule of the law of nations: vide the Young Jacob and Johanna, 1 Rob. 20, and the Liesbet von der Tol, 5 Rob. 283. But after the lapse of a century I am of opinion that it has become a sufficiently settled doctrine and practice of the law of nations.” The alteration of judicial precedents by international law is also illustrated in the Ringende Jacob, 1 Rob. 89 (1798), in which the court refused to follow the old rule forfeiting neutral vessels for carrying contraband, but applied the more humane rule of releasing the vessel, on the ground that international law had changed. See, also, Westlake, Collected Papers, p. 250.

52 Hague Conventions, 1907, XI, Art. 3.


- The Hoop, 1 Rob. 196 (1799); Scott, 521, 523. 67 Act of July 17, 1862, 12 Stat. 319.

the belligerents were not signatories, and based its decision primarily on the change in the rule of customary international law. During the seventeenth century both Admiralty and Common Law courts supported executions against the body on foreign judgments as warranted by international law.53 But international practice did not approve of the rule, and during the next century the British courts over ruled the precedent on the ground that international law had

There has also been a tendency in both British and American courts to abandon the old Common Law rule which permitted an alien enemy no persona standi in judicio, in accordance with alterations in international law. Lord Stowell stated the old doctrine in the case of the Hoop: 55

In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain in language of the civilians a persona standi in judicio. The peculiar law of our own country applies this principle with great rigor. The same principle is received in our courts of the law of nations; they are so far British courts that no man can sue therein who is a subject of the enemy, unless under particular circumstances that pro hac vice discharge him from the character of an enemy. . . . But otherwise he is totally ex ler.

The Supreme Court of the United States modified this doctrine in McVeigh v. United States,56 which involved the Confiscation Act

This Act had provided for the appropriation by the United States of property used in rebellion, after a judicial process resembling an admiralty action in rem. The Supreme Court permitted the enemy owner to defend and commence action on appeal

* Malloy, De Jure Maritimo et Narali, 7th ed. London, 1722, Bk. 5, chap. 9, sec. 9. Baldwin, " The Part Taken by Courts of Justice in the Development of International Law,” Am. Law Rev., 35: 228. * Sinclair v. Fraser, 20 How. St. Tr. 468, cited Baldwin, op. cit., Am. Law.

v. U. S. 11 Wall. 259 (1870).

of 1862,57

Rev., 35: 228.



in such proceedings, thereby reversing the court below. Referring to the decision of that court, Justice Swayne remarked:

It is alleged that he was in the position of an enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and our civilization. We cannot hesitate to doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.

This decision was cited with approval in the recent British case of Merten's Patents,58 in which the Court of Appeals permitted an alien enemy to commence action on appeal. The court distinguished the right of bringing suit and the right of defending when sued. Although it did not sustain the appellee's contention that a provision of the Hague conventions 59 required a complete abandonment of all restrictions upon the legal status of alien enemies, and consequently affirmed the traditional view that such persons could not commence an original action, yet it admitted that an alien enemy could be sued, in which case he “could appear and be heard in his defense,” and take all such steps as may be necessary for the proper presentment of his defense. To deny him these rights, said the court, "would be to deny him justice and would be quite contrary to the basic principles guiding the King's courts in the administration of justice.''60

In prize courts a similar tendency to admit alien enemies to a limited status in court has developed as an accompaniment of the exemption from seizure of certain types of enemy property at sea, required under modern international law.61 The extreme doctrine of the Hoop has undoubtedly been much limited in both Common Law and Admiralty courts by the progress of international law. The

58 In re Merten's Patents, Porter o. Freudenberg, Krelinger v. Samuels, 112 L. T. 313, 321 (1915).

59 Hague Convention, 1907, IV, Art. 23 (h). 60 For cases

king other exceptions to the disabilities of alien enemies, see L. Oppenheim, International Law, 2nd ed., New York, 1912, 2: 133.

61 The Möwe, L. J. (1915), p. 57, this JOURNAL, 9: 547.

disabilities of alien enemies have been entirely removed in Germany, 62 and remain to but a limited extent in France.63

In conclusion, it may be said that, while customary international law will generally be overruled when coming in conflict with definite written sources of municipal law such as written constitutions, statutes, and executive orders, the presumption will ordinarily exist that no infraction of international law is intended and such instruments will be interpreted in accordance with its principles. International law will furnish a basis for modifying judicial precedents in Great Britain and the United States, and in these countries, especially the former, prize courts assert an authority to ignore executive orders in conflict with international law.

QUINCY WRIGHT. 62 The newspapers reported that on Feb. 15, 1916, the Reichsgericht handed down a decision upon an action commenced by a French citizen serving at the front, and appearing through attorney. The decision of the court below, declaring the plaintiff's patent right confiscated, was reversed.

Oppenheim, op. cit., 2: 133.



The history of the development of the law of maritime capture is a record of progress. Throughout the series of overlapping changes from the time of indiscriminate capture, changes which brought successively into operation the rules of hostile infection, of the Consolato del Mare, of free ships, free goods, and finally of the Declaration of Paris of 1856, the movement has been continuously in the direction of relieving neutral property owners from the strictures imposed upon them by maritime war. “In spite of the interruptions and temporary backward movements in all these various reforms of the law of capture, one cannot fail to trace the red thread which runs through them all: the tendency, advancing in spite of obstacles and efforts at resistance, toward exempting private life from the influence of war.” 1

Nevertheless the failure to comprehend or the reluctance to accept the plain conclusions to be drawn from history tend to obscure the elements which at any given time enter into the question of immunity of private property in war at sea. It is easy to regard the establishment of partial limitations upon the right of capture as examples in evidence of a movement toward complete freedom of private property. This is especially encouraged by the existence of the principle of immunity in warfare on land. The advocates of inviolability for the ships and cargoes of maritime entrepreneurs proceed from the argument that war at sea should be assimilated in this respect to war on land to the assertion that the developments which mark the history of the law of capture constitute not only the beginnings of that assimilation but its practical realization in principle.

Whether or not immunity for private enemy property rests upon any fundamental postulate of international law will be considered

1 R. Kleen, Lois et Usages de la Neutralité, Paris, 1898–1900, II, p. 675.

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