The custom has been to constitute admiralty and vice admiralty courts into prize courts by special commission on the outbreak of war. It has been questioned whether a special commission granting authority to adjudicate prize matters to the admiralty courts is necessary. Blackstone seems to consider the authority inherent. He says:
"In case of prizes also in time of war, between our own nation and another or between two other nations, which are taken at sea and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the laws of nations."[24] Phillimore expresses a similar view.[25] However the general opinion seems to be that the prize and instance jurisdiction of the admiralty courts are separated and the former is granted only by commission from the crown in time of war.[26] Thus the naval prize act of 1864[27] provides that all admiralty and vice admiralty courts may be commissioned to act as prize courts during war under the jurisdiction of the high court of admiralty with appeal in all cases to the queen in council.
The Supreme Court of Judicature act of 1891[28] declared the high court to be a prize court within the meaning of the prize court act of 1864.[29] It therefore is a perpetual prize court and requires no special commission.[30] Other admiralty and vice admiralty courts exercise prize jurisdiction under provisions of the prize courts act of 1894[31] which declares that commissions for the establishment of prize courts may be issued at any time even during peace by the office of admiralty to become effective on the issuance of a proclamation declaring war. Laws of procedure may likewise be issued at any time by order in council in accordance with the provisions of the naval prize act of 1864.[32]
In earliest times the Lord High Admiral of England and the Warden of the Cinque Ports were the highest appellate authorities in prize cases in their respective jurisdictions. Later, appeal apparently lay to the king in chancery but by 1534[33] the custom was established of appointing a special commission of appeals. This commission was appointed by the crown and consisted generally of members of the privy council. This condition prevailed until 1833[34] when the "delegates of appeals" was abolished and it was provided that all admiralty appeals whether instance or prize, should lie to the judicial committee of the privy council. By act of 1832[35] it had been provided that appeals from all vice admiralty courts lie to the same body. The naval prize act of 1864[36] likewise provided for appeal to the queen in council.
After the incorporation of the high court of admiralty with the High Court of Justice in 1873 it was provided in the appellate jurisdiction act of 1876[37] that in its instance jurisdiction appeal lie, as in the other courts, to the High Court of Appeal and then to the House of Lords. Appeal in prize cases however was allowed to remain to the privy council as prescribed by the act of 1864.[38] At present, therefore, appeal from all prize courts of Great Britain lie ultimately to the judicial committee of the privy council.
In the Hague Conference of 1907 a convention[39] providing for an international prize court composed of fifteen judges selected from the leading countries to act as a court of final appeal in prize cases for all nations was adopted. In 1909 the declaration of London[40] signed by the leading maritime nations provided definite rules for many unsettled points of maritime law. Shortly after the meeting of this conference, autumn of 1910, a bill was proposed in the House of Commons to reorganize the English prize procedure so as to allow for appeal to the international court. The bill was defeated.[41] The international prize court has not as yet been organized. At present there is no provision in English law which would permit of appeal to it in case it came into being. Although her delegates signed the Convention at the Hague, England has never officially ratified it and it is difficult to say whether in case of a war Great Britain would feel bound by this convention.
NOTES.
Chapter V, Part 1.
[1] For history and discussion of admiralty and prize courts see Marsdon, Introduction to select pleas of the Admiralty; Roscoe, Growth of English Law; Carter, History of English Legal Institutions; Ridges, Constitutional Laws of England; Benedict, The American Admiralty; Encyclopedia Britannica, 11th Edition, titles, Admiral, Lord High; Admiralty, Jurisdiction.