File No. 300.115/8039

The Consul General at London (Skinner) to the Secretary of State

No. 1605

Sir: I have the honor to enclose herewith the text of a very important decision handed down on April 7 by the Judicial Committee of the Privy Council, giving judgment for the appellants in the matter of the S. S. Zamora. According to the decision British prize courts must be governed by international law as against orders in council. On the same day the president of the prize court, giving judgment in another case, and no doubt with the decision in the Zamora case in his thoughts, said that “it might be found that the right doctrine now was that orders in council which proposed to alter international law were invalid, in which event he would have to proceed without the assistance of any orders in council.”

I have [etc.]

Robert P. Skinner

Judgment delivered by Lord Parker for the Judicial Committee of the Privy Council, April 7, 1916, in the appeal from the prize court’s decision in the case of the “Zamora,”2 printed in “Lloyd’s List,” April 10

. . . In the first place, all those matters upon which the Court is authorised to proceed are, or arise out of, acts done by the Sovereign power in right of war. It follows that the King must directly or indirectly be a party to all proceedings in a Court of Prize. In such a Court his position is in fact the same as in the ordinary Courts of the realm, upon a petition of right which has been duly fiated. Rights based on sovereignty are waived and the Crown for most purposes accepts the position of an ordinary litigant. A Prize Court must, [Page 365] of course, deal judicially with all questions which come before it for determination, and it would be impossible for it to act judicially if it were found to take its orders from one of the parties to the proceedings.

In the second place, the law which the Prize Court is to administer is not the national, or, as it is sometimes called, the municipal law, but the law of nations—in other words, International Law. It is worth while dwelling for a moment on this distinction. Of course, the Prize Court is a municipal Court, and its decrees and orders owe their validity to municipal law. The law it enforces may therefore, in one sense, be considered a branch of municipal law. Nevertheless, the distinction between municipal and International Law is well defined.

A Court which administers municipal law is bound by and gives effect to the law as laid down by the Sovereign State which calls it into being. It need inquire only what that law is. But a Court which administers International Law must ascertain and give effect to a law which is not laid down by any particular State, but originates in the practice and usage long observed by civilised nations in their relations towards each other, or in express international agreement.

It is obvious that, if and so far as a Court of Prize in this country is bound by or gives effect to orders of the King in Council purporting to prescribe or alter the International Law, it is administering, not International but municipal law, for an exercise of the Prerogative can not impose legal obligation on anyone outside the King’s Dominions who is not the King’s subject If an Order in Council were binding on the Prize Court, such Court might be compelled to act contrary to the express terms of the Commission from which it derived its jurisdiction.

There is yet another consideration, which points to the same conclusion. The acts of a belligerent Power in right of war are not justifiable in its own Courts unless such Power, as a matter of grace, submit to their jurisdiction. Still less are such acts justifiable in the Courts of any other Power.

As is said by Mr. Justice Story in the case of the Invincible (2 Gall. 43, 1814)—

acts done under the authority of one sovereign can never be subject to the revision of the tribunals of another sovereign, and the parties to such acts are hot responsible therefor in their individual capacity.

It follows that but for the existence of Courts of Prize no one aggrieved by the acts of a belligerent Power in times of war could obtain redress otherwise than through diplomatic channels, and at the risk of disturbing international amity. An appropriate remedy is, however, provided by the fact that, according to International Law, every belligerent Power must appoint and submit to the jurisdiction of a Prize Court, to which any person aggrieved has access, and which administers International, as opposed to municipal, law—a law which is theoretically the same, whether the Court which administers it is constituted under the municipal law of the belligerent Power or of the sovereign of the person aggrieved, and is equally binding on both parties to the litigation.

It has long been well settled by diplomatic usage that, in view of the remedy thus afforded, a neutral aggrieved by any act of a belligerent Power cognisable in a Court of Prize ought, before resorting to diplomatic intervention, to exhaust his remedies in the Prize Courts of the belligerent power. A case for such intervention arises only if the decisions of these Courts are such as to amount to a gross miscarriage of justice.

It is obvious, however, that the reason for this rule of diplomacy would entirely vanish if a Court of Prize, while nominally administering a law of international obligation, were in reality acting under the direction of the executive of the belligerent Power.

It can not, of course, be disputed that a Prize Court, like any other Court, is bound by the legislative enactments of its own Sovereign State. A British Prize Court would certainly be bound by Acts of the Imperial Legislature. But it is none the less true that if the Imperial Legislature passed an Act the provisions of which were inconsistent with the Law of Nations, the Prize Court, in giving effect to such provisions, would no longer be administering International Law. It would in the field covered by such provisions be deprived of its proper function as a Prize Court.

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Even if the provisions of the Act were merely declaratory of the International Law, the authority of the Court as an interpreter of the Law of Nations would be thereby materially weakened, for no one could say whether its decisions were based on a due consideration of international obligations or on the binding nature of the Act itself. The fact, however, that the Prize Courts in this country would be bound by Acts of the Imperial Legislature affords no ground for arguing that they are bound by the executive Orders of the King in Council. . . .

There are two further points requiring notice in this part of the case. The first arises on the argument addressed to the Board by the Solicitor General. It may be, he said, that the Court would not be bound by an Order in Council which is manifestly contrary to the established rules of International Law, but there are regions in which such law is imperfectly determined and defined, and when this is so, it would not be unreasonable to hold that the Court should subordinate its own opinion to the directions of the executive.

This argument is open to the same objection as the argument of the Attorney General. If the Court is to decide judicially in accordance with what it conceives to be the law of nations it cannot, even in doubtful cases, take its directions from the Crown, which is a party to the proceedings. It must determine what the law is according to the best of its ability, and its view, with whatever hesitation it be arrived at, must prevail over any executive order.

Only in this way can it fulfil its functions as a Prize Court and justify the confidence which other nations have hitherto placed in its decisions.

The second point requiring notice is this. It does not follow that because Orders in Council cannot prescribe or alter the law to be administered by the Prize Court such Court will ignore them entirely. . . .

Thus an Order declaring a blockade will, prima facie, justify the capture and condemnation of vessels attempting to enter the blockaded ports, but will not preclude evidence to show that the blockade is ineffective, and, therefore, unlawful. An Order authorising reprisals will be conclusive as to the facts which are recited as showing that a case for reprisals exists, and will have due weight as showing what, in the opinion of his Majesty’s advisers, are the best or only means of meeting the emergency; but this will not preclude the right of any party aggrieved to contend, or the right of the Court to hold, that these means are unlawful, as entailing on neutrals a degree of inconvenience unreasonable, considering all the circumstances of the case. . . .

A belligerent Power has by International Law the right to requisition vessels or goods in the custody of its Prize Court pending a decision of the question whether they should be condemned or released, but such right is subject to certain limitations. First, the vessel of goods in question must be urgently required for use in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. Secondly, there must be a real question to be tried so that it would be improper to order an immediate release. And, thirdly, the right must be enforced by application to the Prize Court which must determine judicially whether under the particular circumstances of the case the right is exercisable. ...

If the captors do not promptly bring in the property seized for adjudication, the Court will, at the instance of any party aggrieved, compel them so to do. From the moment of seizure the rights of all parties are governed by International Law. It was suggested in argument that a vessel brought into harbour for search might, before seizure, be requisitioned under the municipal law. This point, if it ever arises, would fall to be decided by a Court administering municipal law, but from the point of view of International Law it would be a misfortune if the practice of bringing a vessel into harbour for the purpose of search—a practice which is justifiable because search at sea is impossible under the conditions of modern warfare—were held to give rise to rights which could not arise if the search took place at sea.

It remains to apply what has been said to the present case. In their Lord ships’ opinion the Order appealed from was wrong, not because, as contended by the appellants, there is by International Law no right at all to requisition ships or goods in the custody of the Court, but because the Judge had before him no satisfactory evidence that such a right was exercisable. ...

Their Lordships, therefore, have come to the conclusion that, in proceedings to which under the new practice the Crown instead of the actual captors is a party, both damages and costs may, in a proper case, be awarded against the Crown or the officer who, in such proceedings, represents the Crown.

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The proper course, therefore, in the present case is to declare that upon the evidence before the President he was not justified in making the Order the subject of this appeal, and to give the appellants leave, in the event of their ultimately succeeding in the proceedings for condemnation, to apply to the Court below for such damage, if any, as they may have sustained by reason of the Order and what has been done under it.

Their Lordships will humbly advise his Majesty accordingly, but inasmuch as the case put forward by the appellants has succeeded in part only, they do not think that any order should be made as to costs of the appeal.