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"5

§ 66.

of war. It follows that the King must, directly or indirectly, be a party

to all proceedings in a Court of Prize A Prize Court must of course

deal judicially with all questions which come before it for deterrnination, and it would be impossible for it to act judicially if it were bound tó 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, themunicipallaw, 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 which 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 cahs it into being. It need enquire 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 and 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

There is yet another consideration which points to the same conclusion

It has long been well settled by diplomatic usage that, in view of the

remedy (c.a.d. : l'établissement d'une juridiction des prises par chaque Etat belligérant), a neutral aggrieved by any act of a belligerent Power cognisable in a Court of Prize ought, before resorting to diplomatic interventioh, to exhaust his remedies in the Prize Courts of the belligerent Power. A case for such intervention arises only, if the décisions of these Courts are such as toamounttoagrossmiscarriage of justice. Itis 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."

Cependant, a 1'argumentation éminente reproduite ci-dessus, le Tribunal ajoute sur-le-champ la grande concession qui équivaut a une jretraite :

„It cannot of course be disputed that a Prizé 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 Impérial Legislature. But it is none the less true that if the Impérial 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 cóvered by such provisions be deprived of its proper function as a Prize Court.

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