contrary we have also been informed that even a prize court is bound to obey a positive mandate of its government, even when in conflict with the law of nations. Lord Stowell seized the dilemma by the horns. "These two propositions," he said, "that the court is bound to administer the law of nations and that it is bound to enforce the king's orders in council are not at all inconsistent with each other," because one could not "without extreme indecency" presume that a conflict could exist. In the United States Chief Justice Marshall solved the dilemma by resort to the magic power of legal interpretation. "It has also been observed that an act of congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights or to affect neutral commerce further than is warranted by the law of nations as understood in this country."'8

Neither Stowell's confidence in the impossibility of a conflict nor Marshall's reliance upon interpretation can obscure the fact that conflicts between the law of nations and of the nation have occurred and have been so direct that no interpretation can avail. In such circumstances prize courts, the same as any other courts, must obey municipal law.10 A failure to trary to municipal law. United States cases-Talbot vs. Seamans, I Cranch 1, 37, (1801); The Nereide, 9 Cranch 388; United States vs. The Active, Fed Cas. 759; Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch 191; The Scotia, 14 Wall. 170; The Paquete Habana, 175 U. S. 677. "The Fox, Edw. Adm. 312, (1811).

"Murray vs. The Charming Betsey, 2 Cranch 64, 118, (1804).

'Strangely enough the very case in which Lord Stowell spoke involved just such a conflict. The orders in council upon the basis of which he decreed condemnation of the neutral vessel before him, have been universally denounced as contrary to international law. See article entitled Disputes with America in Edinburgh Rev., Feb. 1812, 19;290, severely censuring Lord Stowell's alteration of opinion from 1798 to 1811, quoted Moore's Digest, 7;648-651. Phillimore in his international law, 3; sec. 436, implies a similar censure. "If he (Lord Stowell) had not so considered them (i.e. considered the orders in council to be consistent with international law) and nevertheless executed them, he would have incurred the same guilt and deserved the same reprehension as the judge of a municipal court who executed by his sentence an edict of the legislature which plainly violated the law written by the Creator upon the conscience of his creature." See Holland, op. cit. p. 198.

10 Regina vs. Keyn, L. R. 2 Ex. D. 160; The Schooner Exchange vs. McFaddon, 7 Cranch 116; Murray vs. The Charming Betsey, 2 Cranch 64; Mortenson vs. Peters, 14 Scot. L. T. R. 227, (1906) Bentwich, p. 12.

do so would be a dereliction of duty on the high way to rebellion. The duty therefore rests with the belligerent state to see that the law applied by its prize courts is international law. We will examine the principles of law thus applied in the United States, in cases involving the rights of neutral individuals. They are to be found largely in prize court decisions, but there have also been statutes, treaties, and executive orders stating principles of this branch of law which the courts are bound to observe.

NEUTRAL PROPERTY AT SEA.

The doctrine is maintained in the United States that title to property seized at sea does not vest until after decision of the court.11 The government, therefore, appears before the prize court as an applicant for condemnation while the neutral individual claims restitution, compensation, damages, or, if the vessel is a recapture, restoration.

The bases upon which condemnation of neutral vessels and property are justified under international law are (1) breach of blockade, (2) carriage of contraband, (3) unneutral service, (4) presumption of enemy character, (5) necessity or the right of angary. The belligerent government will therefore claim condemnation on one of these grounds. The neutral owner will claim restitution if the belligerent does not make good his claim for condemnation; he will claim compensation if in such a case the vessel has been sold, destroyed or requisitioned; he will claim damages if the vessel has been seized without probable cause or has not been treated with proper care in bringing in; or he will claim restoration if he is an original owner of a recaptured prize.

GROUNDS FOR CONDEMNATION.

(1) Breach of Blockade. In a number of early treaties the principles of blockade were laid down, requiring effectiveness and sometimes individual notification of vessels.12 The

11 The Adventure, 8 Cranch 221, (1814); The Nassau, 4 Wall. 634; The Nuestra Senora de Regla, 108 U. S. 92, 103, (1882); The Tom, 29 Ct. Cl. 68, 97, (1894); Grundy, Att. Gen., 3 op. 377, (1838). See letter of Sir W. Scott, (Lord Stowell) and Sir J. Nicholl, to Mr. Jay, 1794, stating the general principles of prize law and the necessity of adjudication. Am. St. Pap., I;494, printed in Moore's Digest, 7;603-608.

12 Effectiveness has been required in nineteen treaties with thirteen countries, of which the following are in force: Bolivia, 1858, art. 18,

Declaration of London of 190913 lays down the rules of blockade at length. This treaty, however, has not received general ratification, although the United States senate has approved it.

The United States has instituted blockades during the Mexican, Civil and Spanish wars. On these occasions the law to be applied in dealing with neutrals was defined in proclamations declaring the blockades and instructions to naval commanders. The prize courts in applying the law have relied on these treaties, proclamations and instructions in addition to judicial precedents and general principles of international law on the subject. In proclamations and instructions the principles that the blockade must be effective and declared in order to be binding have been generally specified. Individual warning, however, has usually not been required. The whole practice on the subject stating these points was embodied in Stockton's Naval war code in force as a general order of the Navy Department from 1900 to 1904.14

Malloy, p. 119; Colombia, 1846, art. 18, p. 308; Italy, 1871, art. 13, p. 973; Sweden, 1783-1798, revived, 1816, 1827, art. 10, p. 1728.

Individual notification of vessels ignorant of blockade has been required in twenty-one treaties with seventeen countries, of which the following are in force: Bolivia, 1858, art. 26, p. 120; Colombia, 1846, art. 20, p. 308; Italy, 1871, art. 13, p. 973. Individual warning unless the vessel could have heard of the blockade has been required in six treaties with five countries, of which the following are in force: Sweden, 1827, art. 18, p. 1754; Prussia, 1828, art. 13, p. 1500; Greece, 1837, art. 16, p. 853. See also Moore's Digest, 7;827.

13 Declaration of London, Charles, Treaties, 1913, pp. 269-272, signed Feb. 26, 1909. Ratification advised by senate, Apr. 24, 1912.

14 Proclamations of Blockade: Aug. 19, 1846, by Commodore Stockton, (Moore's Digest, 7:790, Br. and For. St. Pap. 34;1139); Apr. 19, 27, 1861, by President Lincoln, (12 stat. 1259); Apr. 30, 1861, by Commander Prendergast, (F. H. Upton, Law of Nations affecting commerce during war, 3rd ed., N. Y. 1863, p. 487); Apr. 22, 1898, by President McKinley, (30 stat. 1769). Naval Instructions relating to blockade, May 14, 1846, (Moore's Digest, 7;828; Br. and For. St. Pap., 34;1139); Dec. 24, 1846, (Moore's Digest, 7;790); May 8, 1861, (Prize cases, 2 Black 676); Nov. 6, 1861, May 14, 1862, (Upton, op. cit., p. 490); Aug. 18, 1862, (Official Records, Union and Confederate Navies, Ser. 1, 1;417, Moore's Digest, 7:700); June 20, 1898, (Gen. Ord., Navy Dept., 1898, No. 492, For. Rel., 1898, p. 780, Freeman Snow, International Law, 2nd. ed., Washington, 1898, p. 174); June 27, 1900, Stockton's Naval War Code, (Gen. Ord., Navy Dept., 1900, No. 551, revoked Gen. Ord., Navy Dept., Feb. 4, 1904, No. 150, Printed, Naval War College, International Law Discussions, 1903, p. 112).

The courts have held that proof of three questions of fact is necessary to justify condemnation, (1) existence of blockade, (2) knowledge on the part of the violating vessel, (3) actual or constructive violation.15 To exist, a blockade must be effective,10 but a single cruiser may be sufficient to make it so;17 it need not be declared, de facto blockades having been considered legitimate,18 although they are denounced by the Declaration of London,19 and it terminates only on notification or occupation of the port.20

23

Knowledge of the blockade will be presumed21 when the vessel left port after notification to that government,22 or had an opportunity to learn of the blockade en route.2 An individual warning is only necessary when required by treaty24 or where the vessel sailed before notification and arrived in ignorance of the blockade.2

25

In defining the acts constituting a violation of blockade the courts in the civil war cases seem to have gone beyond the bounds of international law.20 Besides attempting to enter27

15 The Nayade, Fed. Cas. 7,046; The Betsey, I Rob. 29; The Nancy, 1 Act. 59.

16 The Andromeda, 2 Wall. 48; The Baigorry, 2 Wall. 474.

17 The Olinde Rodriguez, 174 U. S. 510.

18 The Adula, 176 U. S. 361.

19 Declaration of London, 1909, art. 8.

20The Baigorry, 2 Wall. 474; The Josephine, 3 Wall. 83; The Circassian, 2 Wall. 135; The Adula, 176 U. S. 361.

21 Condemnations without special warning-The Circassian, 2 Wall. 135; The Hallie Jackson, Blatch. 248; The Empress, Blatch. 175; The Prize Cases, 2 Black 635; The Revenge, 2 Sprague 107; The Hiawatha, 2 Black 677; The Admiral, 3 Wall. 603; The Cornelius, 3 Wall. 214; The Herald, 3 Wall. 768; U. S. vs. Halleck, 154 U. S. 537; The Adula, 176 U. S. 361; The Cheshire, 3 Wall. 231.

22 The Circassian, 2 Wall. 135.

28U. S. vs. Halleck, 154 U. S. 537, (1864).

24 Fitzsimmons vs. Newport Ins. Co., 4 Cranch 185, (1818).

25 The Nayade, Fed. Cas. 7046; Yeaton vs. Frey, 5 Cranch 335, (1809). 26This is partly accounted for by the fact that the court considered the civil war blockade a municipal rather than an international measure. For an interesting statement of this view, written while the war was in progress, see Upton, op. cit., pp. 298-307. He says, "No one surely whose intelligence is not clouded by prejudice or obscured by selfish considerations can fail to perceive the broad distinction between that blockade which is proclaimed by a sovereign nation of a portion of its own ports, for the purpose of quelling a domestic insurrection and compelling the

or leave28 a blockaded port or hovering about in a suspicious manner, 29 the court applied the doctrine of continuous voyage to blockade, condemning cargoes bound for blockaded ports by transhipment.30 No limits to the zone of operations were required. Vessels with an "intent" to break blockade were held liable from the beginning of the voyage to the end of the return voyages and even on a subsequent voyage.32 These rules were misguided insurgents to 'unthread the rude eye of rebellion and welcome home again discarded peace', and that which is ordered and enforced by a sovereign government of the ports of its foreign enemy, for the purpose of paralyzing his power and compelling him to repair his wrongs, and submit to the terms of equitable pacification." p. 301. This view is wholly indefensible by modern international law. The law of blockade is for the benefit of neutrals and it makes no difference to them whether the war is rebellion or international war-they have a right to the same law in either case.

27 Fitzsimmons vs. Newport Ins. Co., 4 Cranch 185, 200; McCall vs. Marine Ins. Co., 8 Cranch 59; The Diana, 7 Wall. 354; The Nuestra Senora de Regla, 17 Wall. 29.

28 The Jeune Nelly, in U. S. vs. Guillam, 11 Wall. 47; The Tropic Wind, Fed. Cas. 14,186, 16,541a; The Hiawatha, Fed. Cas. 6451, affirmed, 2 Black 677; The Lynchburg, Fed. Cas. 8637a, 8638, 8639; The Crenshaw, Fed. Cas. 3384, affirmed, The Prize Cases, 2 Black 635. Days of grace have generally been allowed in which vessels in port may leave. In the civil war cases no cargo could be loaded in this time, The Hiawatha, Fed. Cas. 6451, although a limited permission to do so was given by the Navy Instructions of May 8, 1861, see Prize Cases, 2 Black, 676. According to the instructions of 1898 and Stockton's Naval War Code cargo may be loaded in this time.

29 The Cheshire, 3 Wall. 231; The Coosa, I Newb. Adm. 393; The Hiawatha, Blatch. 1, Fed. Cas. 6451; The Empress, Blatch. 175; The Josephine, 3 Wall. 83; The Dashing Wave, 5 Wall. 170; The Teresita, 5 Wall. 180; The Newfoundland, 176 U. S. 97, (1900); The Cornelius, 3 Wall. 214.

30 The Circassian, 2 Wall. 135; The Springbok, 5 Wall. 1, (1866); The Bermuda, 3 Wall. 514; The Flying Scud, 6 Wall. 263; The Thompson, 3 Wall. 155. In The Peterhoff, 5 Wall 28 it was held that a transhipment by land could not be regarded as a breach of blockade.

31The Galen, 37 Ct. Cl. 89, (1901); The Admiral, 3 Wall. 603; The Circassian, 2 Wall. 135; The Baigorry, 2 Wall. 474; The Cornelius, 3 Wall. 214; The Jenny, 5 Wall. 183; The Adela, 6 Wall. 266.

32 The Mersey, Fed. Cas. 9,489, reversed Fed. Cas. 9,490; The Major Barbour, Fed. Cas. 8,983; The Joseph H. Toone, Fed. Cas. 7,541. The principle of liability on a subsequent voyage was not relied upon exclusively in these cases. For discussion see Upton, op. cit. p. 288. Contra, see The Wren, 6 Wall. 155.