Harrisburg telegraph. [volume] (Harrisburg, Pa.) 1879-1948, 1915-08-04

on the other. L should like to refer
your eSceilency to classical passage
in the judgment of Lord Stowell. In the
Judge observed In the course of the
discussion: "A question has been stat
ed. what would be the duty of the court
under orders in Council that were
repugnant to the law of nations? Iii
has been contended on one side that
the court would at all events be found
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.
This court is bound to administer the
Law of nations to the subjects OF other
which they may be placed toward this
country and its Government That is
what others have a right to demand
they receive 1t not This is its un-
written law. evidenced in the course OF
its decisions and collected from the
common usage of civilized States. At
the same time 1t is strictly true that
by the Constitution of this country. the
King in Council possesses Legislative
! rights over this court. and has power
I to issue orders and instructions which
| 1t is bound to obey and enforce; and
these constitute the written law of this
the court is bound to administer the
! law of nations, and that II Is bound to
enforce the Kings order 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.
Law and Orders in Harmony
They are either directory applica-
tions of these principles to the cases
! indicated in them-cases which, with
all the facts and circumstances be-
| longing to them and which consti-
| tute their legal character. could he but
imperfectly known to the Court itself,
or they are positive regulations. con-
sistent with these principles, applying
to matters which requires more exact
and definite rules than those general
/ principles are capable OF furnishing
| The constitution Of this court, relative
| ly to the legislative power of the King
| in Council, is analogous to that OF the
| courts of common law relatively to that
| These courts have their unwritten law,
| the approved reasons, principles of ma
tural reason and justice; they have
nkewlse sats f pti sne written or statute law IN
applications of the same principles to
| particular subjects, or positive regu-
matters which would remain too much
at large II they were left to the i'm
perfect information which the courts
could extract from mere general specu-
What would be the duty of individ-
| uals who preside in these courts. IL re-
which contra ted those principies is
/ a question which I presume they would
| not entertain a priori because they
VII not entertain priorL the suppo-
| manner this court will not let itrelf
loose into spscuiations as to what
gencv. because It cannot. without ey-
| treme indecency. presume that anv
| such emergency will happen. And 1t is
| the less disposed to entertain them be-
! cause Its own observation and expert
| ence attest the general conformity Of
such orders. and instructions to it's
| principles of unwritten law"
Fifth. The above passage has recent:
| ~ been quoted and adopted by the pres
ident of the prize court in the case Of
| the Zamora. in which Sir S Evans said:
! Il 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 Gov
ernment Of this country in such viola
| ton of the acknowledged laws of ma
| ttons that it is conceivable that our
prize tribunals, holding the law of ma
! upon to disregard and refuse obedience
to the provisions of such orders"
sixth. In the note which I handed
endeavored to convince the Govern
ment of the United States, and / trust
with success, that the measures that
adopt, in consequence of the numerous
acts committed by our enemies IN vio
lation of the laws of war and the die
tates Of humanity. are consistent with
the principles of international law.
Seventh. This principle that the de-
| cisions of the national prize courts
| may properly be subjected to interna-
tionai review was conceded by Great
Britain in Article of the jaw Treaty
| of 1913 and by the United States Of
America under the Treaty of Washing
ton OF 1871. Your exceilency will no
doubt remember that certain cases
COLLECTIVELY known as the 'Matamoros
casesD were submitted to the commits
sion established under Articles I2-17
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, had been obtained; ;
the United States filed demurrer in
! these cases, alleging that as they had
! been heard by the prize courts of the
! United States. original and appellate
| Jurisdiction, the decision or the APP
pellate court was final and no claim
/ based upon 1t could be made before the
| commission The demurrer was unan-
| imously 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
tribunal. to review the decisions of the
prize courts OF the United States
Eight: The same principle was ac-
cepted both by. the United States Gov
in 1907.
Ninth. It is clear. therefore, that
and His Majesty's Government have
adopted the principle that the decisions
OF 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 re-
lating to prize are in harmony with
the principles of International law; and
should the Government of the United
states, unfortunately, feel compelled
to maintain contrary view His
MaJestys Government will be prepared
to concert with the United States Gov
ernment In order to decide upon the
best way of applying the above prin-
ctple to the situation which would have
, arisen. l trust. however, that the de-
Tense OF our action. which have AL
, ready communicated to your excel
lency and the willingness of His Mai
esty's Government (Which has been
shown in so many instances) to make
reasonable concessions to American in
terests, will prevent the necessity for
> Tenth: In any case I trust that the
explanations given above will remove
the misappreh ension under which I
cannot but feel the Government OF the
United States are laboring as to the
principles applied by British prize
courts in dealing with the cases which
2 come before them.
have. etc. f. GREY.