It must be specially observed that postal correspondence, and not parcels sent by parcel post, are immune from capture.
III APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN
Hall, §§ 149-152, 171, 269—Lawrence, §§ 183-191—Westlake, II. pp. 156-160—Phillimore, III. §§ 345-381—Twiss, II. §§ 72-97—Halleck, II. pp. 362-431, 510-526—Taylor, §§ 552-567—Wharton, III. § 345—Wheaton, §§ 355-394—Moore, VII. §§ 1206-1214—Bluntschli, §§ 672-673—Heffter, §§ 137-138—Geffcken in Holtzendorff, IV. pp. 588-596—Ullmann, § 189—Bonfils, Nos. 1396-1440—Despagnet, Nos. 670-682—Pradier-Fodéré, VIII. Nos. 3179-3207—Rivier, II. § 66—Calvo, IV. §§ 2294-2366, V. §§ 3004-3034—Fiore, III. Nos. 1426-1443, and Code, Nos. 1693-1706—Martens, II. §§ 125-126—Pillet, pp. 342-352—Perels, §§ 36, 55-58—Testa, pp. 147-160—Valin, Traité des prises, 2 vols. (1758-60), and Commentaire sur l'ordonnance de 1681, 2 vols. (1766)—Pistoye et Duverdy, Traité des prises maritimes, 2 vols. (1854-1859)—Upton, The Law of Nations affecting Commerce during War (1863)—Boeck, Nos. 156-209, 329-380—Dupuis, Nos. 96-149, 282-301—Bernsten, § 8—Marsden, Early Prize Jurisdiction and Prize Law in England in The English Historical Review, XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p. 34—Roscoe, The Growth of English Law (1911), pp. 92-140. See also the literature quoted by Bonfils at the commencement of No. 1396.
Prize Courts.
§ 192. It has already been stated above, in § [185], that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through the latter's adjudication that the vessel becomes finally appropriated. The origin[379] of Prize Courts is to be traced back to the end of the Middle Ages. During the Middle Ages, after the Roman Empire had broken up, a state of lawlessness established itself on the High Seas. Piratical vessels of the Danes covered the North Sea and the Baltic, and navigation of the Mediterranean Sea was threatened by Greek and Saracen pirates. Merchantmen, therefore, associated themselves for mutual protection and sailed as a merchant fleet under a specially elected chief, the so-called Admiral. They also occasionally sent out a fleet of armed vessels for the purpose of sweeping pirates from certain parts of the High Seas. Piratical vessels and goods which were captured were divided among the captors according to a decision of their Admiral. During the thirteenth century the maritime States of Europe themselves endeavoured to keep order on the Open Sea. By-and-by armed vessels were obliged to be furnished with Letters Patent or Letters of Marque from the Sovereign of a maritime State and their captures submitted to the official control of such State as had furnished them with their Letters. A board, called the Admiralty, was instituted by maritime States, and officers of that Board of Admiralty exercised control over the armed vessels and their captures, inquiring in each case[380] into the legitimation of the captor and the nationality of the captured vessel and her goods. And after modern International Law had grown up, it was a recognised customary rule that in time of war the Admiralty of maritime belligerents should be obliged to institute a Court[381] or Courts whenever a prize was captured by public vessels or privateers in order to decide whether the capture was lawful or not. These Courts were called Prize Courts. This institution has come down to our times, and nowadays all maritime States either constitute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole institution is essentially one in the interest of neutrals, since belligerents want to be guarded by a decision of a Court against claims of neutral States regarding alleged unjustified capture of neutral vessels and goods. The capture of any private vessel, whether prima facie belonging to an enemy or a neutral, must, therefore, be submitted to a Prize Court. Article 1 of Convention XII. (as yet unratified) of the Second Peace Conference now expressly enacts the old customary rule that "the validity of the capture of a merchantman or its cargo, when neutral or enemy property is involved, is decided before a Prize Court." It must, however, be emphasised that the ordinary Prize-Courts are not International Courts, but National Courts instituted by Municipal Law, and that the law they administer is Municipal Law,[382] based on custom, statutes, or special regulations of their State. Every State is, however, bound by International Law to enact only such statutes and regulations[383] for its Prize Courts as are in conformity with International Law. A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be instituted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays constitute a breach of neutrality on the part of a neutral State to allow the institution on its territory of a Prize Court.[384]
[379] I follow the excellent summary of the facts given by Twiss, II. §§ 74-75, but Marsden's articles in The English Historical Review, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34, must likewise be referred to.
[380] The first case that is mentioned as having led to judicial proceedings before the Admiral in England dates from 1357; see Marsden, loc. cit. XXIV. (1909), p. 680.
[381] In England an Order in Council, dated July 20, 1589, first provided that all captures should be submitted to the High Court of Admiralty; see Marsden, loc. cit. XXIV. (1909), p. 690.
[383] The constitution and procedure of Prize Courts in Great Britain are governed by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25), and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Naval Prize Bill introduced by the British Government in 1911, although accepted by the House of Commons, was thrown out by the House of Lords.—It should be mentioned that the Institute of International Law has in various meetings occupied itself with the whole matter of capture, and adopted a body of rules in the Règlement international des Prises Maritimes, which represent a code of Prize Law; see Annuaire, IX. pp. 218-243, but also XVI. pp. 44 and 311.