international law, and hence would not consider an Order in Council in conflict therewith as mandatory. It being held that the requisition of neutral property before condemnation was not permitted by international law, except in extraordinary cases, the application of the Crown was refused. Lord Parker of Waddington, speaking for the court, said:

If the court is to decide judicially in accordance with what it conceives to be the law of nations, it can not even in doubtful cases, take its directions from the Crown, which is a party to the proceedings. It must itself determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order. Only in this way can it fulfil its function as a prize court and justify the confidence which other nations have hitherto placed in its decisions.

The Meat Packers' Cases 42 further illustrate the present attitude of the British Prize Court. Neutral vessels, laden with provisions bound from New York to the neutral port of Copenhagen, had been seized for contraband trade, and the owners attempted to show that the Order in Council of October 29, 1914,43 was contrary to international law and void. By an Order in Council of August 20, 1914, Great Britain had adopted the Declaration of London with slight modifications, but by the later order further modifications had superseded that part of the Declaration forbidding confiscation of conditional contraband according to the doctrine of continuous voyage. The meat packers maintained that their cargoes, as conditional contraband bound immediately for a neutral port, were, irrespective of their ultimate destination, entitled to the advantages of the rule of the Declaration of London. The court, however, took a different view and pointed out that the Declaration, not having been ratified, was not binding and in this respect was not declaratory of customary international law, but was an innovation. Hence in abrogating it, and returning to the doctrine of continuous voyage, which the court did not fail to point out was a rule "nurtured and specially

42 The Kim, the Alfred Nobel, the Bjornstjerne Bjornson, the Fridland, this JOURNAL, 9: 979.

43 Man. Em. Leg., Supp. No. 1, p. 17; this JOURNAL, Special Supp., 9: 14 (July, 1915.)

favored by the United States," the Order in Council simply prevented an innovation and "proceeded not in violation of, but upon the basis of the existing international law upon the subject."

In American courts, executive orders are probably of the same effect as statutes, if made under adequate authority. In Maissonaire v. Keating, Justice Story asserted in dicta that an ordinance would exonerate the captors, and the only recourse open to the injured neutral was through diplomacy or war. There does not seem to have been any doubt expressed as to the binding force of the various blockade orders of the Civil War, or of other executive orders affecting prize in this and other wars.45

In Germany the Emperor, by statute,46 has the authority to determine by ordinance "the place of sitting and composition of prize courts, the procedure in cases brought before them, and the duties imposed on other administrative authorities, Imperial as well as State, in respect of their coöperation with such courts." Under this law a comprehensive prize code47 has been promulgated, which appears to be obligatory law for prize courts.

44 Maissonaire v. Keating, 2 Gall. 325.

45 Naval Instruction of Aug. 18, 1862 (Moore, 7: 700), provided for the seizure of vessels reasonably believed to be “engaged in carrying contraband of war for or to the insurgents, and to their ports directly or indirectly by transshipment or otherwise violating the blockade." This application of the doctrine of continuous voyage to contraband and blockade was considered in violation of international law by many European publicists such as Twiss, Phillimore, Bluntschli, and Fiore (Moore, 7: 723-739), but was applied by United States prize courts. In the Stephen Hart, Blatch. 387, Scott, 852, affirmed in the Hart, 3 Wall. 559. The instructions are particularly referred to as authority for the decision. See also The Circassian, 2 Wall. 135; The Bermuda, 3 Wall. 514; The Springbok, 5 Wall. 1. In most of these cases it was not clear whether condemnation was for breach of blockade or carriage of contraband, but in the case of the Peterhoff, 5 Wall. 28, the distinction was recognized, and it was held that transshipments from neutral ports by land could not be regarded as violations of blockade, and hence such cargoes could only be condemned if contraband. It should be added that the American view of international law was sustained in the arbitral awards subsequently given in most of these cases. Moore, 7: 725; Moore, Int. Arb. 4: 3928-3935.

46 Law of May 3, 1884, Reichsgesetzblatt, 1884, p. 49. Translation in Huberich and King, The Prize Code of the German Empire in Force July 1, 1915, New York, 1915, p. xv.

47 Prize Code, Sept. 30, 1909, Reichsgesetzblatt, 1914, p. 275, translated in Huberich and King, op. cit. Under the Prussian ordinance of July 20, 1864 (Preuss.

In the case of the Elida 48 the Supreme Prize Court at Berlin clearly defined the position of ordinances in the German prize courts.

The prize regulations contain the principles laid down by the Kaiser as commander in chief within his Imperial jurisdiction for the practice of prize law pertaining to naval warfare, and are, therefore, primarily law not only for the navy, but also for the inland authorities, particularly prize courts, in so far as they have to pass upon the legality of the action of commanders at sea falling within the prize law. International law only lays down rights and duties as between different states. The prize courts when judging of the legality of prize actions, can take general international principles only into account when the prize regulations contain no instructions and, therefore, tacitly refer to the principles of international law. Therefore, the question whether an instruction of the prize regulations agrees with general international law is not for the prize courts to decide. If a contradiction in this connection is asserted, the point in controversy is to be settled in another manner.

The same rule appears to apply in French courts. The prize law is largely found in ordinances, which are of binding force in courts.49 During the Napoleonic Wars, French decrees, such as those of Berlin and Milan, vied with British Orders in Council in violating international law, but they were applied in prize courts.50

Ordinarily, in the case of executive orders, the question would not be so much on the conflict of the order with international law Gesetzblatt, 1864, p. 369; Huberich and King, op. cit., p. xii), prize courts were to apply the existing prize regulations, supplemented if necessary by the general principles of international law and subject to existing treaties. They were also empowered to apply special rules by way of retaliation. See comments on German prize practice in a review of Huberich and King's translation, this JOURNAL, 9: 1028.

48 The Elida, Oberprisengericht, Berlin, May 8, 1915, this JOURNAL, 10: 916. 49 The famous ordonnance de la marine, issued by Louis XIV in 1681, forms the basis of French prize law. Comprehensive instructions applicable in prize courts were issued July 28, 1870 (Freeman Snow, Cases and Opinions on International Law, Boston, 1893, p. 577), and on December 12, 1912 (Naval War College, International Law Topics and Discussions, 13: 169).

50 One of the most remarkable of these decrees was that of Bayonne which ordered the seizure of American vessels entering French ports after the passage of the American Embargo Act in 1807, under the theory that such seizures were legal as assisting President Jefferson in enforcing the embargo. Am. St. Pap., For. Rel., 3: 291. For the various French and British retaliatory orders of the Napoleonic Wars, see ibid., 3: 262, 270, 286; British and For. St. Pap., 8: 401-513.

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.

INTERNATIONAL LAW AND JUDICIAL PRECEDENTS

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 Toll, 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 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 changed.54

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 lex.

The Supreme Court of the United States modified this doctrine in McVeigh v. United States,56 which involved the Confiscation Act of 1862.57 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

53 Malloy, De Jure Maritimo et Navali, 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.

54 Sinclair v. Fraser, 20 How. St. Tr. 468, cited Baldwin, op. cit., Am. Law. Rev., 35: 228.

55 The Hoop, 1 Rob. 196 (1799); Scott, 521, 523.

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

57 Act of July 17, 1862, 12 Stat. 319.