[The following extracts from this letter may be given for the purpose of explaining from a most authoritative source the general character of the procedure pursued :—

66

66

66

By the maritime Law of Nations, universally and immemorially received, there is an established method "of determination whether the capture be, or be not, "lawful prize. Before the ship, or goods, can be disposed of by the captors, there must be a regular judicial proceeding, wherein both parties may be "heard; and condemnation therefore, as prize, in a "Court of Admiralty, judging by the Law of Nations "and treaties. The proper and regular court for these "condemnations is the court of that State to whom the

66

66

captor belongs. The evidence to acquit or condemn, "with or without costs or damages, must, in the first "instance, come merely from the ship taken, viz., the "papers on board, and the examination on oath of the "master and other principal officers; for which purpose "there are officers of Admiralty in all the considerable seaports of every maritime power at war, to examine "the captains, and other principal officers of every ship 'brought in as a prize, upon general and impartial interrogatories. If there do not appear from thence grounds to condemn as enemies' property or con"traband goods going to the enemy, there must be an

66

66

66

66

66

acquittal, unless, from the aforesaid evidence, the "property shall appear so doubtful that it is reasonable "to go into farther proof thereof. A claim of ship, or goods, must be supported by the oath of somebody, at "least as to belief. The Law of Nations requires good "faith. Therefore, every ship must be provided with "complete and genuine papers; and the master at "least should be privy to the truth of the transaction. "To enforce these rules, if there be false or colourable papers; if any papers be thrown overboard; if the "master and officers examined in præparatorio grossly "prevaricate; if proper ship's papers are not on board;

66

M.

I I

66

["or if the master and crew cannot say whether the 'ship or cargo be the property of a friend or enemy, "the Law of Nations allows, according to the degrees "of misbehaviour or suspicion, arising from the fault of "the ship taken, and other circumstances of the case, "costs to be paid, or not to be received, by the claimant, "in case of acquittal and restitution. On the other hand, if a seizure is made without probable cause, the "captor is adjudged to pay costs and damages.”

66

The Naval Prize Act of 1864 (27 & 28 Vict. c. xxv.) provides,-in close, but not exact, accordance with the previously existing practice, that (1) the captor shall bring the ship's papers into the registry of the court within the jurisdiction of which the ship captured is brought; (2) the officer in command or one of the chief officers of the capturing ship shall make oath that they are brought in as they were taken without fraud or the like; (3) the captor shall bring three or four of the principal persons belonging to the captured ship before the judge of the court or some person authorized in this behalf, "by whom they shall be examined on "oath on the standing interrogatories;" (4) on the affidavit as to the ship's papers being filed, a monition shall issue, returnable within twenty days, calling all persons in general to shew cause why the captured ship should not be condemned; (5) on the return of the "monition," the court shall, "on production of the

66

preparatory examinations and ship's papers, proceed "with all convenient speed either to condemn or to "release the captured ship;" (6) "where, on production "of the preparatory examinations and ship's papers, it appears to the court doubtful whether the captured

66

66

ship is good prize or not, the court may direct further "proof to be adduced, either by affidavit or by exami"nation of witnesses, with or without pleadings, or by

production of further documents; and on such further "proof being adduced, the court shall with all con

["venient speed proceed to adjudication." The procedure and practice of the British High Court of Admiralty with respect to penalties, estimation of damages, allowance of freight and of costs, will be found given in careful detail in Sir R. Phillimore's third volume. In the same volume will also be found a general account of the Courts of Prize existing in other countries.-ED.]

Plans for securing the observance of

the Law of Nations; that of Leibnitz.

CHAPTER XIV.

OF THE PROBABILITY OF AN IMPROVED OBSERVANCE
OF INTERNATIONAL JUSTICE.

STILL it cannot be denied that there is a want of cer-
tainty with regard to the Law of Nations as compared
with the decisions of municipal law; and various plans
have been suggested, by different authors, for the remedy
of this defect; but all hitherto advanced have been unfit
for practical application. Some reference has been
already made to the plan of Leibnitz, who desired that
the Pope and the Emperor, whom he represents as the
spiritual and temporal heads of the Christian common-
wealth, should have authority over the other potentates
of Europe. He proposed that some permanent council
should be established by these two sovereigns, to act as
a tribunal for the judgment of disputed cases of treaty,
and other international questions, and to settle all con-
tested points by peaceful adjustment. (1) But this
scheme, even in the time of Leibnitz, could only have
been congenial to the minds of those who were at once
loyal Germans and devout Catholics; and, at the present
day, its faultiness is hardly worth consideration, as it is
rendered impracticable by the formal dissolution of the
empire, and by the loss of all temporal authority by the
Pope. Whatever might formerly have been the pre-
tensions of the Pope and the Emperor, whose dignity
Leibnitz greatly extols, they certainly never could claim
as a right such jurisdiction over independent States, and
the tribunal proposed would have been of too suspected

(1) Leibnitii Opera (1768), IV. 330, 331.

a character to be the object of voluntary recognition by the other European sovereigns.

During the prevalence of the love of discussing elementary principles, which the French revolution elicited, the Abbé Grégoire proposed to the National Convention, in April, 1795, a series of declarations of the rights of States. His propositions partook of the general nature of such schemes at that period, they were dangerous when they ceased to be common-place. Thus as long as he confined himself to such remarks as, Art. 21, "Treaties between States are sacred and inviolable;" Art. 10, "Every nation is mistress of its own territory;" -Art. 3, "A nation should act towards others as she desires that others should act towards her," he only asserted harmless truisms; but when he proceeded to declare, Art. 5, that "The individual interest of a nation is subordinate to the general interest of the human family," either the position was equally a truism, or he made a way for the entrance of the most pernicious fallacy in political morality, that of discovering the standard of right in the present advantage of the numerical majority, a confusion that would annihilate the rights of small States, and justify the destruction of any nation by a confederacy of many nations. The Abbé Grégoire's scheme would have been liable to Burke's criticism on the Declaration of the Rights of Man, "that institute and digest of anarchy;" but it was not adopted even by the Convention, who would have found, in propositions that are to us stale truisms, that which was opposed to their system of tyrannizing under the name of liberty, and of conquering under the guise of fraternization. (1)

Scheme of the

Abbé Grégoire.

I have already remarked that Kant proposed to remedy Plan of Kant the want of an authoritative tribunal to decide questions and of Mill.

(1) See some good remarks on the Abbé Grégoire's plan in De

Martens, Précis du Droit des Gens,
preface to the edition of 1796.