File No. 763.72112/1423
The Ambassador in Great Britain (Page) to the Secretary of State
2575. Your 1848, July 14, 5 p. m.3 I have to-day received the following note from Sir Edward Grey:
Foreign Office, July 31, 1915.
1. I have the honour to acknowledge the receipt of the note dated the 16th [14th] instant3 in which you were good enough to communicate to me, for the information of His Majesty’s Government, the opinion held by the Government of the United States that, in view of differences which they understand to exist between the two countries as to the principles of law applicable in cases before the prize court, they could not recognize the validity of proceedings taken in His Majesty’s prize court in derogation of the rights of citizens of the United States.
2. I do not understand to what divergence of views as to the principles of law applicable in cases before the prize court the Government of the United States refer, for I am not aware of any differences existing between the two countries as to the principles of law applicable in cases before such courts.
3. British prize courts, “according to the ancient form of commission under which they sit, are to determine cases which come before them according to the course of Admiralty and the law of nations and the statutes, rules, and regulations for the time being in force in that behalf.”
As to the principles applied by the American prize courts, I note that in the case of the Amy Warwick (2 Sprague, 123), it was held that prize courts are subject to the instructions of their own sovereign. In the absence of such instructions, their jurisdiction and rules of decision are to be ascertained by [Page 497] reference to the known powers of such tribunals and the principles by which they are governed under the public law and the practice of nations. It would appear, therefore, that the principles applied by the prize courts of the two countries are identical.
4. As illustrating further the attitude adopted by the judges of British prize courts toward these two sources of law, the municipal legislation of its Sovereign on the one hand and the principles of international law on the other, I should like to refer your excellency to a classical passage in the judgment of Lord Stowell, in the case of the Fox, in which that famous judge observed:
In the course of the discussion a question has been started, What would be the duty of the court under orders in council, that were repugnant to the law of nations? It has been contended on one side that the court would at all events be bound to enforce the orders in council; on the other, that the court would be bound to apply the rule of the law of nations adapted to the particular case, in disregard of the orders in council. This court is bound to administer the law of nations to the subjects of other countries in the different relations in which they may be placed toward this country and its Government. That is what others have a right to demand for their subjects and to complain if they receive it not. This is its unwritten law evidenced in the course of its decisions and collected from the common usage of civilized states. At the same time it is strictly true that, by the Constitution of this country, the King in Council possesses legislative rights over this court and has power to issue orders and instructions which it is bound to obey and enforce; and these constitute the written law of this court. These two propositions, 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 these orders and instructions are presumed to conform themselves, under the given circumstances, to the principles of its unwritten law. They are either directory applications of these principles to the cases indicated in them, cases which, with all the facts and circumstances belonging to them, and which constitute their legal character, could be but imperfectly known to the court itself; or they are positive regulations, consistent with these principles, applying to matters which require more exact and definite rules than those general principles are capable of furnishing. The constitution of this court, relatively to the legislative power of the King in Council, is analogous to that of the courts of common law relatively to the Parliament, of this Kingdom. These courts have their unwritten law, the approved principles of natural reason and justice; they have likewise the written or statute law in acts of Parliament, which are directory applications of the same principles to particular subjects, or positive regulations consistent with them, upon matters which would remain too much at large if they were left to the imperfect information which the courts could extract from mere general speculations. What could be the duty of the individuals who preside in these courts, if required to enforce an act of Parliament which, contradicted those principles, is a question which I presume they would not entertain a priori; because they will not entertain a priori the supposition that any such will arise. In like manner this court will not let itself loose into speculations as to what would be its duty under such an emergency; because it can not, without extreme indecency, presume that any such emergency will happen. And it is the less disposed to entertain them because its own observation and experience attest the general conformity of such orders and instructions to its principles of unwritten law.
5. The above passage has recently been quoted and adopted by the president of the prize court in the case of the Zamora, in which Sir S. Evans said: “I, make bold to express the hope and belief that the nations of the world need not be apprehensive that orders in council will emanate from the Government of this country in such violation of the acknowledged law of nations that it is conceivable that our prize tribunals, holding the law of nations in reverence, would feel called upon to disregard and refuse obedience to the provisions of such orders.”[Page 498]
6. In the note which I handed to your excellency on the 23d July,1 I endeavoured to convince the Government of the United States, and I trust with success, that the measures that we have felt ourselves compelled to adopt, in consequence of the numerous acts committed by our enemies in violation of the laws of war and the dictates of humanity, are consistent with the principles of international law. The legality of these measures has not yet formed the subject of a decision of the prize court; but I wish to take this opportunity of reminding your excellency that it is open to any United States citizen whose claim is before the prize court to contend that any order in council which may affect his claim is inconsistent with the principles of international law and is, therefore, not binding upon the court. If the prize court declines to accept his contentions, and if, after such a decision has been upheld on appeal by the judicial committee of His Majesty’s Privy Council, the Government of the United States of America consider that there is serious ground for holding that the decision is incorrect and infringes the rights of their citizens, it is open to them to claim that it should be subjected to review by an international tribunal.
7. This principle that the decisions of the national prize courts may properly be subjected to international review was conceded by Great Britain in Article 7 of the Jay treaty of 1793 and by the United States of America under the treaty of Washington of 1871. Your excellency will no doubt remember that certain cases (collectively known as the “Matamoras cases”) were submitted to the commission established under Articles 12–17 of the treaty of Washington. In each of these cases proceedings in prize had been instituted in the prize courts of the United States, and in each case the judgment of the Supreme Court, the court of last resort in cases of prize, had been obtained. The United States filed a demurrer in these cases, alleging that as they had been heard by the prize courts of the United States of original and appellate jurisdiction, the decision of the appellate court was final and no claim based upon it could be made before the commission. The demurrer was unanimously overruled and the cases heard, and the agent of the United States, in his report of the proceedings of the commission, stated that he personally “maintained no doubt of the jurisdiction of the commission as an international tribunal to review the decisions of the prize courts of the United States, where the parties alleging themselves aggrieved had prosecuted their claims by appeals to the court of last resort. As this jurisdiction, however, had been sometimes questioned, he deemed it desirable that a formal adjudication by the commission should be had upon this question.”
8. The same principle was accepted both by the United States Government and His Majesty’s Government in 1907 in connection with the proposed establishment of an International Prize Court, although certain constitutional difficulties have led the United States Government to propose that the right of recourse to the International Prize Court in connection with a decision of the Supreme Court of the United States should take the form of a direct claim for compensation.
9. It is clear, therefore, that both the United States Government and His Majesty’s Government have adopted the principle that the decisions of a national prize court may be open to review. If it is held in the prize court and in the judicial committee of the Privy Council, on appeal, that the orders and instructions issued by His Majesty’s Government in matters relating to prize are in harmony with the principles of international law, and should the Government of the United States, unfortunately, feel compelled to maintain a contrary view, His Majesty’s Government will be prepared to concert with the United States Government in order to decide upon the best way of applying the above principle to the situation which would then have arisen. I trust, however, that the defence of our action, which I have already communicated to your excellency, and the willingness of His Majesty’s Government (which has been shown in so many instances) to make reasonable concessions to American interests, will prevent the necessity for such action arising.
10. In any case, I trust that the explanations given above will remove the misapprehension under which I can not but feel the Government of the United States are labouring as to the principles applied by British prize courts in dealing with the cases which come before them.
I have [etc.]