Convention offers the neutral shipowner or neutral merchant whose property has been unlawfully confiscated, the assurance of an even more direct and effectual relief. Together with damages, it will command (ordonne) the restoration of the property. It will construe any sale of the property by the belligerent to himself at any stage of the proceedings to be a legal impossibility, a fiction and a subterfuge, and treat such property in his possession and use as subject to execution and not beyond the power of the captor. Behind its command stands not only the pledged faith of the belligerent himself and the moral support of the civilized world and all the sanctions of international law; but also, in the event of a violation thereof, and the consequent rescission of the treaty, all the suspended means of redress which the neutral government involved could single-handed, in the first instance, have exercised for the protection of its subject. Moreover, the mandate of the International Court is sent for execution directly to the court of prize which the sovereign Power itself has set up and recognizes as supreme in its dominions in matters of prize, and in whose custody the property is actually or constructively to be found. It operates directly upon the res involved, and assures the neutral victim of a certain, speedy and satisfactory relief. Above all, the immediate consequence of this form of relief is to make unlawful seizure and confiscation before final condemnation, with or without a tender of purchase money, unprofitable and abortive, and thus to protect all legitimate commerce against the most dangerous risk likely to disturb it.

The convention assures the neutral further of a security he does not enjoy now in that it guarantees him a full, free and impartial trial before a tribunal upon which his country is represented. It guarantees him a trial before this tribunal de novo of the validity of the seizure of his property. Before he has such a trial, it is not contemplated that, pending appeal, his property should be sold, destroyed, or confiscated (except as sanctioned by international law) and thereby entirely new and different issues injected into the case before the Hague Court, possibly at the last moment, first of the validity of such conversion, and second of the proof of values and damages. A suit for damages for conversion in the appellate court, which originated as an action in replevin in the lower court, can hardly be called a trial de novo by any of the ordinary definitions of that phrase. The exercise of such an unfair option by the captor

could greatly delay and vex the neutral appellant, increase his expenses, multiply his difficulties in getting evidence after the lapse of months or years, or overtake him at an unfortunate moment or in unfortunate circumstances, and seriously diminish his chances of proving either the wrong done by the belligerent or the full extent of his own damage, in a contest that is at best unequal and extra-legal. The property is his till the last court has spoken.53 That the convention does not expressly provide for the giving by the neutral appellant of a supersedeas bond to stay the execution of the judgment of the national court, proves nothing to the contrary. In fact, so far as the neutral is concerned, there is nothing to stay. The judgment was executed, out upon the high seas, by way of anticipation, even before the suit was filed; and the belligerent then got and still holds the property. In view of the circumstances surrounding such anomalous proceedings, the belligerent ought in no event to be put in a position where he can circumvent the neutral's getting a fair trial, and the court's giving him the most direct and effectual relief in its power.

The "action in damages" is the negation of all these propositions. It neutralizes the restrictions on the belligerent's power to sell, destroy or confiscate the vessels and goods of peaceful commerce. It denies the power of the International Court to grant direct and specific relief. It changes the nature of the action on appeal and compels the neutral to meet new issues for the first time. It disregards the suspensory effect of an appeal to the International Court, and leaves the captor a free hand to confiscate transports and stores before the same have been condemned or even brought in for adjudication. It cuts off all relations between the International Court and the national supreme authority in matters of prize, and leaves the execution of the appellate court's mandate to the commander-in-chief of the belligerent's forces, who in turn must obtain the sanction of the legislative department of the government. 53 Cf. The Peterhoff (1865), Blatchford's Prize Cases, 620, 19 Federal Cases No. 11,025:

"The prize remains in the hands of the captor lawfully sequestrated, under a species of trusteeship, awaiting a trial in the courts of the nation seizing it. While undergoing the processes of law necessary to ascertain its character, it is exempt from all power of the captors other than that of safe-keeping for the purposes of trial of determining its culpability."

It denies the neutral's primary right of property in every case, yet in the same breath offers compensation "if the capture is considered illegal." Nor does it offer to bring the money into court for the property of neutrals sold, destroyed, or confiscated. The only relief it offers is a judgment, to put it as strongly as possible, against a nation in the throes of war, that is worth no more on the dollar than the public securities thereof at the time, to put it as favorably as possible. The victim is made a creditor of the government that has despoiled him. What if that government is Honduras, China, Cuba, Mexico, Persia, Paraguay, Santo Domingo, or Venezuela,54 all of which may become parties to the Prize Convention? There is no question that the neutral would in every case prefer a decree for the release of the specific property taken from him, which is easy to perform and does not admit of postponement and delays on one pretext or another, or because the national treasury is depleted or more pressing claims are made on the resources of the country, as would a judgment for damages. The danger to peaceful commerce is heightened by the fact that not one of the nations mentioned has acceded to the Declaration of Paris. If the seizures made by their duly commissioned privateers may be confiscated by the government even before adjudication, or sold and the prize moneys distributed among avaricious captors before a hearing can be had in an impartial court; and the despoiled neutral is then left no recourse but a long litigation that may result at best in a judgment of questionable value, it is easy to see that unarmed commerce will remain the prey of war in an undiminished degree, and the convention, which was drawn in the interest of neutrals as a weapon of defence better than arms, is emasculated, and made in effect to legalize that which it was designed to prohibit.

The views expressed in this article are taken from the standpoint of the interests, in actual war, of peaceful commerce, which was likewise the viewpoint of the framers of the convention. As to the possible advantages and disadvantages to the respective belligerents under the one system or the other, we venture only the opinion that in time of war every restraint is resisted almost to the breaking point, and every license is

54 Or any other nation signatory. These are named only because their public credit has fluctuated notoriously even in time of peace.

War may lay even the greatest low.

exploited to the last degree of plausibility. The American system and the international system are different; and Article 2 of the protocole additionnel admittedly embodies only a part of the remedies of Article 8 of the convention. If this difference is crystallized into law by the ratification of the protocol, any advantages or disadvantages of the dual system will be legalized and no blame can attach to any belligerent for exploiting them.

There is no doubt that the proposal of the United States, as reduced to form in the protocol, did not originate in amour propre, for the United States did not lose sight of the significance of the King of Great Britain in Council, and of the Emperor of Germany, whose word in prize matters in his dominions is little short of law, submitting their acts to review by a foreign court. It originated in an over-anxious desire to accept the convention and to be bound beyond all cavil.55 But the frequency with which our "constitutional difficulties" block the ratification of treaties as an afterthought,56 has undoubtedly created in Europe an undercurrent of dissatisfaction, if not of suspicion and resentment.57 Nations hesitated to ratify the Prize Court Convention before they knew what law the court would administer will they not again hesitate before they know what remedy the court will administer? Is there no other way of removing our internal difficulties but by requiring the world to accommodate itself to them?

GEORGE C. BUTTE.

55 No treaty in our history was ever declared unconstitutional. Cf. Butler, Chas. H., The Treaty Making Power of the United States, § 454.

56 When the convention was under discussion, July 11, 1907, our delegate, Mr. Choate, incidentally remarked, "As to our firm conviction in favor of the appeals being taken only from our own Supreme Court," etc. Vol. II, Actes et Documents de la Seconde Conférence de la Paix, p. 811. He was clearly unaware then of any constitutional difficulty in this form of appeal.

57 Cf. von Martitz, Ferdinand, in "Die neuesten Vorgänge in der Bewegung für internationale allgemeine Schiedsabkommen" in Internationale Monatschrift, Nov., 1911, pp. 149-150.

"Die auffallende Ratifikationsweigerung begegnete lebhafter Missbilligung der europäischen Regierungen, die an dem Tenor ihrer Verträge gar keine Bedenken gefunden hatten. Dass das von den Amerikanern mit Enthusiasmus propagierte Vertragssystem an einer internen Frage ihres Staatsrechts scheitern sollte

war seltsam genug. Als es im Jahre 1907 zur zweiten Haager Konferenz kam, spielte in den Debatten über den Weltschiedsvertrag auch dieser Punkt eine erhebliche Rolle. Er bildete mit den anderen einen Ablehnungsgrund."

THE FRENCH SPOLIATION CLAIMS

PART III

TREATY OF 1803 WITH FRANCE

The jurisdictional act of 1885 provides

That the provisions of this act shall not extend to such claims as were embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1800.

The question has sometimes been asked, whether these French spoliation claims were not pressed by our government against France after the conclusion of the treaty of September 30, 1800, which has always been relied upon as surrendering the rights of these claimants to France for a valuable consideration.

We have seen 2 that Napoleon in ratifiying the convention of 1800, did so with the proviso "that by this retrenchment the two states renounce the respective pretensions, which are the object of the said article," that is, "the indemnities mutually due, or claimed." The claims here referred to were, on our side, for seizure of our ships and cargoes.

The question asked is whether we accepted Napoleon's construction of the abrogation of the second article of the original treaty of 1800, as extinguishing our claim to indemnities for French spoliations.

No claim for ships or cargoes captured by the French prior to September 30, 1800, was ever urged by our government upon France, subsequent to the ratification of the treaty of that date, July 31, 1801.

123 Statutes at Large, 283; Opinions, 1912, p. 7.

The volume referred to throughout this article as Opinions, 1912, is as follows: "Opinions of the Court of Claims in French Spoliation Cases, 1886 to 1911, Court of Claims Reports, Volumes 21 to 46 and Digest of Opinions, printed for Committee

on War Claims, House of Representatives, Washington, 1912."

2 AMERICAN JOURNAL OF INTERNATIONAL LAW, April, 1912, p. 309.