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large if they were left to the imperfect information which the courts could extract from mere general speculations. What would be the duty of the individuals who preside in those courts if required to enforce an Act of Parliament which contradicted those principles is a question which I presume they would not entertain a priori; because they will not entertain o priori the supposition that any such will arise. In like manner, this court will not let itself loose into speculations as to what would be its duty under such an emergency; because it cannot, without extreme indecency, presume that any such emergency will happen; and it is the less disposed to entertain them, because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law. In the particular case of the orders and instructions which give rise to the present question, the court has not heard it at all maintained in argument that, as retaliatory orders, they are not conformable to such principles. They are so declared in their own language and in the uniform language of the Government which has established them. I have no hesitation in saying that they would cease to be just if they ceased to be retaliatory; and they would cease to be retaliatory from the moment the enemy retracts, in a sincere manner, those measures of his which they were intended to retaliate.
Judges and jurists have pronounced upon this subject after the judgment of Lord Stowell in The Fox (supra).
In Maisonnaire v. Keating (2 Gall., 325) Mr. Justice Story expressed his view as follows:
The legality of the conduct of the captors may, under circumstances, exclusively depend upon the ordinances of their own Government. If, for instance, the sovereign should, by a special order, authorize the capture of neutral property for a cause manifestly unfounded in the law of nations, there can be no doubt that it would afford a complete justification of the captors in all tribunals of prize. The acts of subjects, lawfully done under the orders of their sovereign, are not cognizable by foreign courts. If such acts be a violation of neutral rights, the only remedy lies by an appeal to the sovereign, or by a resort to arms. A capture, therefore, under the Berlin and Milan decrees, or the celebrated Orders in Council, although they might be violations of neutral rights, must still have been deemed, as to the captors, a rightful capture, and have authorized the exercise of all the usual rights of war.
Upon this subject I may again cite the following passage from the judgment of an American judge a generation later:
The general argument against the expediency of subjecting property to peremptory sale before condemnation or trial must yield to the provisions of positive law—vide per Betts, J., in The Nassau (Blatch. Pr. Cas., 198).
Our text writers acknowledge the binding force of Orders in Council of the state in which the court exercises jurisdiction. I will only cite the opinions of one of them, the late Dr. Westlake. In dealing with coast fishing vessels he writes:
But if the captures were made in pursuance of a Government order, the prize court, in the absence of anything to the contrary in the constitution of the country, will be bound by such an order emanating from the authority under which it sits (see Vol. II., p. 155).
And in dealing more generally with the subject this learned and esteemed author writes:
Questions of prize have always been matters of the domestic jurisdiction of the captor's country, commonly called the admiralty jurisdiction from its original form, by whatever name the branch exercising it may be known in any modern system of procedure. It is open to all those of any nationality whose interests may be affected by its decisions, and it is the duty of its judges, a duty in which they have seldom failed in any civilized country, to do justice to them all with strict impartiality. In that sense a court of admiralty is an international one, but in that sense only, for the law which it administers cannot help bearing the impress of its own nationality.
A court must take its law from the authority under which it sits, and for a court of admiralty that authority has never been any other than that of its own country. It must apply any rules on international questions which it finds to be generally agreed on, a condition which involves the agreement of its own country with them. Where there is no general agreement and the supreme authority of its own country has not taken a decided line, the court must take that line which justice appears to it to require, whether favorable or not to a fellow-subject being a party before it, or to what it may conceive to be the interest of its country. But where the supreme authority under which it sits has taken a decided line, a court of admiralty, like any other court, can only obey. Thus we have seen the English Parliament and Privy Council determining from time to time whether neutral goods in enemy ships should be deemed lawful prize, and the English Admiralty deciding one way in 1357 and the other way two centuries and a half afterwards. When the famous Orders in Council laid down rules, as to neutral shipping for the then naval war, which were certainly not justifiable otherwise than by way of retorsion against the Berlin and Milan decrees, the British Admiralty did not and could not presume either to refuse execution to the orders, or to exercise an independent judgment as to their justification (Vol. II., pp. 317-318).
I am not called upon to declare what this court would or ought to do in an extreme case if an Order in Council directed something to be done which was clearly repugnant to and subversive of an acknowledged principle of the law of nations.
I make bold to express the hope and belief that the nations of the world need not be apprehensive that Orders in Council will emanate from the Government of this country in such violation of the acknowledged law of nations as to make it conceivable that our prize tribunals, holding the law of nations in reverence, would feel called upon to disregard and refuse obedience to the provisions of such orders.
For the reasons, historical and other, which I have endeavoured to set forth, I am of opinion that nothing contained in the provisions of Order XXIX of the Prize Court Rules is repugnant to international law; and that the powers entrusted to and to be exercised by the court under the order are in accordance with the inherent powers of the court itself and are well within the rights of the Crown under the statutory provisions referred to, no less than under its prerogative authority.
I therefore order the copper to be delivered up to the Crown as prayed by the summons.
Leave to enter an appeal within 21 days, security for costs £250.
French Prize Council
The Prize Council has rendered the following decision between: Edward Breitung, residing at Marquette, Michigan, U. S. A., professing to be the owner of the steamer Dacia, captured at sea, February 27, 1915, at the entrance to the English Channel, by the French auxiliary cruiser Europe, together with the captain of the said vessel, on the one hand;
And the Minister of Marine, acting in behalf of the captors and of the fund for disabled sailors (caisse des invalides de la marine) on the other hand;
Having duly examined the letters and the statements of the Minister of Marine of March 30, April 29, July 15 and 26, 1915, filed with the Council April 29, and July 16 and 19, 1915, enclosing the file regarding the capture of the steamer Dacia and praying that it may please the Council to declare right and lawful the capture of the Dacia and all of its accessories, including the supplies and provisions of every kind without exception found on board, even those claimed as personal property by Capt. MacDonald, except the ship's papers;
Having duly examined the documents comprising the said file to wit:
First, the report of the capture drawn up at sea February 27, 1915;
Second, the ship's papers, among them an instrument dated New York, December 17, 1914, in which the German Hamburg-America Company affirms the sale of the Dacia to Edward N. Breitung, and an affidavit of December 19, 1915, of the said Breitung declaring this sale to be true and without reservations; the certificate of American registry of the said Dacia at Port Arthur, Texas, January 4, 1915; the manifest of the cargo and the bills of lading, dated Galveston, Texas, January 22, 1915; the log book of the Dacia;
Third, two agreements dated December 9, 1914 and January 17,1915 regarding the chartering of the Dacia to transport its cargo;
Fourth, the documents concerning the cargo, among them the contracts of sale and for the transportation of the said cargo, drawn up at Bremen, December 10 and 12, 1914, together with the invoices under date of December 29, 1914, and the insurance policy against the risk of war dated January 22, 1915;
Having duly examined the brief and the supplementary and additional notes presented by M. Morillot, advocate of the Council of State, filed with the Council May 12, and July 13 and 28, 1915, in the name of Edward N. Breitung, alleged owner of the Dacia, and praying that it may please the Council: to order the immediate release of the Dacia on bail to be fixed by the Council, the amount of which shall not in any case exceed 870,000 fr.; to declare valid, under Article 56 of the Declaration of London, the transfer of the Dacia from the German to the American flag, carried out according to the provisions of American law; to declare void the capture of the Dacia, claimed to be neutral property; to release the ship and to restore the provisions and various supplies seized with the ship; to grant him, under Article 64 of the Declaration of London, the sum of 300,000 fr. damages for the injury caused him by the unjustifiable capture of his ship, to grant him a sum, to be decided upon hereafter, to cover the freight charges on the cargo and the demurrage incurred by the shippers of the said cargo;
Having duly examined the documents appended to the said brief among them an affidavit of W. Sickel, Manager of the Hamburg-America Company at New York, dated May 13, 1915, also a bill of sale dated December 16,1914, in which he sells the said Dacia to Egon von Novelly, and a deed of transfer from Egon von Novelly to Breitung; the document of the United States Congress entitled Senate No. 563, 63rd Congress, 2nd Session, containing the opinion of the Hon. Cone Johnson, Solicitor for the Department of State, concerning the transfer of merchant ships in time of war;
Having duly examined the written demands of the Government Commissioner, to the effect that it may please the Council to decide that the capture of the steamer Dacia, its rigging, apparatus, equipment, and supplies of every kind, effected February 27, 1915 by the French auxiliary cruiser Europe, be declared legal and valid, that the amount realized on the ship be assigned to the claimants, in accordance with the laws and regulations; and that their effects and personal belongings not constituting part of the cargo or private venture be restored to the captain and the crew;
Having duly examined the other documents appended to the file;
Having duly examined the notice published in the Journal Officiel of April 10, 1915, together with the interlocutory decisions rendered by the Council May 11 and June 8, 1915, and having granted, at the request of the United States Ambassador, additional time to Edward N. Breitung in which to produce his statements;
Having duly examined the decisions of Germinal 6, year VIII and Prairial 2, year XI;
Having duly examined the decrees of May 9, 1859 and of November 28, 1861;
Having duly examined the declarations of the Congress of Paris, of April 16, 1856;
Having duly examined the decree of November 6, 1914 declaring in force during the course of the present war the Declaration signed at London, February 26, 1909;
Having heard M. Henri Fromageot, member of the Council, in his report, and M. Chardenet, Government Commissioner, in his remarks in support of the demands cited above;
The Council, after due deliberation,
Considering that on February 27, 1915, the French auxiliary cruiser Europe met the steamer Dacia on the high seas, at the entrance to the English Channel, and summoned her to show colors, which steamer was flying the American flag and was said to be proceeding from Norfolk, Virginia, U. S. A., to Rotterdam, Holland; that the examination of the ship's papers and the search conducted on board proved that the ship, carrying a cargo taken on at Galveston, Texas, consigned to Bremen, Germany, was at the outbreak of hostilities and until January 4, 1915, under the German flag, registered at Hamburg, Germany, in the name of the German Hamburg-America Company, and that the said ship was captured because it could not in time of war avail itself of the right of transfer to a neutral flag;