The Laws Of War, Affecting Commerce And Shipping
by H. Byerley Thomson
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If the cause be adjudged in the Vice-Admiralty Court, it is usual, on entering the appeal there, to procure a copy of the proceedings, which the appellant sends over to his correspondent in, England, who carries it to a proctor, and the same steps are taken to procure and send the inhibition as when the cause has been adjudged in the High Court of Admiralty. But if a copy of the proceedings cannot be procured in due time, an inhibition can be obtained, by sending over a copy of the instrument of appeal, or by writing to the correspondent an account only of the time and substance of the sentence.

Upon an appeal, fresh evidence may be introduced, if, upon hearing, the Lords of Appeal should be of an opinion that the cause is of such doubt, or that further proof ought to have been ordered by the court below.

Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined with their clerks, and others acquainted with the real transactions, and with the real property of the goods claimed. In corroboration of these affidavits, may be annexed the original correspondence, duplicates of bills of lading, invoices, extracts from books, &c. These papers must be proved by affidavits of persons who can speak of their authenticity; and if copies or extracts, they should be collected and certified by public notaries. The affidavits are sworn before magistrates, or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British Consul.

The degree of proof required depends upon the degree of suspicion or doubt that belongs to the case. In case of heavy suspicion and great importance, the court may order what is called "plea and proof," that is, instead of admitting affidavits and documents introduced by the claimant only, each party is at liberty to allege, in regular pleadings, such circumstance as may tend to acquit or condemn the capture, and to examine witnesses in support of the allegation, to whom the opposite party may administer interrogatories. The depositions of the witnesses are taken in writing. If the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are seldom resorted to. Standing Commissions may be sent to any neutral country for the general purpose of receiving examinations of witnesses, in all cases where the court may find it necessary, for the purposes of justice, to decree an enquiry to be conducted in that manner.[100]

[Sidenote: Prize Jurisdiction.]

The Jurisdiction over Prizes is exercised by the Judge of the Admiralty, exclusively of every other judicature of the kind, except in cases of appeal.

This Jurisdiction in matter of Prize, (whether it is coeval with the Court of Admiralty, or, which is much more probable, of a later institution, beyond the time of memory,) though exercised by the same person, is quite distinct in its nature.

The Judge of the Admiralty is appointed by a commission under the great seal, which enumerates particularly, as well as generally, every object of his jurisdiction, but not a word of prize.

To constitute that authority, in every war, a commission under the great seal issues to the Lord High Admiral to will and require the Court of Admiralty, and the Lieutenant and Judge of the said court, his surrogate or surrogates, and they are thereby authorised and required to proceed upon all and all manner of captures, seizures, prizes, and reprisals, of all ships and goods that are or shall be taken, and to hear and determine according to the Courts of Admiralty and the Law of Nations.

A warrant issues to the judge accordingly.

The Court of Admiralty is called the Instance Court; the other the Prize Court. The manner of proceeding is totally different. The whole system of litigation and jurisprudence in the Prize Court is peculiar to itself.

[Sidenote: Common Law Courts not always excluded]

A thing being done on the high seas does not exclude the jurisdiction of the Courts of Common Law. For seizure, stopping, or taking a ship upon the high seas, but not as prize, an action will lie; but for taking as prize, no action will lie. The nature of the question, not the locality, excludes.

The end of a Prize Court is to suspend the property till condemnation, to punish every sort of misbehaviour in the captors; to restore instantly (full sail) if upon the most summary examination there does not appear a sufficient ground; to condemn finally, if the goods really are prize, against everybody; giving every body a fair opportunity of being heard. A captor may, and must force everybody interested to defend; and every person interested may force him to proceed to condemn without delay.[101]

[Sidenote: Prize Courts.]

Before the sixth of the reign of Queen Anne there were no laws made on this subject. Previous to that time all prizes taken in war were of right vested in the Crown, and questions concerning the property of such prizes were not the subject of discussion in courts of law. But in order to do justice to claimants, from the first year after the Restoration of Charles the Second, special commissions were issued to enable the Courts of Admiralty to condemn such captures as appeared to be lawful prizes; to give relief where there was no colour for taking; and generally to make satisfaction to parties injured. By the Act of the 13 Car. II. c. 9, (now repealed) indeed, some regulations were made concerning the treatment of ships taken, but no provisions enacted respecting any security to be given on delivery; the sole interest in the thing condemned being in the Crown; it was in public custody, and the disposition of it a mere matter of prerogative; no such provisions therefore were necessary.

But in the sixth year of Queen Anne, it was thought proper, for the encouragement of seamen, to vest in them the prizes they should take; and for that purpose the statutes, 6 Anne, c. 13 and c. 37, were passed.

The first of these acts only relates to proceedings in the Courts of Admiralty in England, but contains no particular directions to them; the practice of those courts being already settled.[102]

There is a long series of statutes, which follows the above, on the subject of the Prize Courts. The following may be taken as a general description of their operation.

The judge should proceed, according to their form, to sentence with all possible expedition. If on the preparatory examination there arises a doubt in the breast of the judge, whether the capture is prize or not, and further proof appears to be necessary, the ship and cargo is appraised by persons named on the part of the captor, and is delivered up to the claimants, on their giving good and sufficient security to pay to the captor the full value, according to the appraisement, if the ship is adjudged lawful prize by the judge; by this the claimant is entitled to the immediate possession of the subject in dispute, which the captor cannot obtain but on the refusal of the claimant to give security for the appraised value. After a sentence of condemnation, the captor has a right to the possession; the execution of the sentence is not suspended by an appeal, but the party appellant gives good and sufficient security to restore the cargo, or its full value, in case the sentence is reversed.[103]

[Sidenote: Where Prize Courts can be held.]

Having explained shortly the operation of the Prize Courts, it must be observed, that the Prize Court of an Ally cannot condemn. Prize or no prize is a question belonging exclusively to the courts of the country of the captor. The reason is, that the Sovran has a right and is bound to inspect the conduct of the captors, for he is answerable to other states for the acts of the captor. The Prize Court of the captor may sit in the country of a co-belligerent or an ally, because there is a common interest between such on the subject, and both governments may be presumed to authorize any measures conducing to give effect to their arms, and to consider each others ports as mutually subservient.[104]

It is not lawful for such a court to act in a neutral territory; and it was at one time even doubted, where property had been carried into, and was lying in a neutral port, whether the validity of the capture could be determined even by a Court of Prize established in the captor's country; because it was thought that the possession in reach of the court was essential to the exercise of a jurisdiction in a proceeding in rem. The principle was admitted by Sir Wm. Scott to be correct, in the case of the Henrick and the Maria;[105] but he considered that the English Admiralty had gone too far in supporting condemnations in England, of prizes abroad in neutral ports, to permit him to recall the vicious practice of the Court to acknowledged principle.

[Sidenote: Judgments of Prize Courts conclusive.]

The jurisdiction of the Court of the capturing nation is conclusive upon the question of property in the captured thing. Its sentence settles all further dispute between claimants; and if that sentence is manifestly unjust, or against the Law of Nations, the state is alone responsible, and not the captors. An unjust sentence is a good ground for issuing commissions of Reprisals. Numerous treaties between the different powers of Europe, regulating the subject of Reprisals, declare that they shall not be granted, unless in case of the denial of justice. "An unjust sentence," says Wheaton, "must certainly be considered as a denial of justice, unless the mere privilege of being heard before condemnation is all that is included in the idea of justice."[106]

Thus the sentence of a Prize Court, it is plain, is sufficient to confirm the captor's title to captures at sea; but a different rule applies to real property or immoveables.

Immoveable possessions, lands, towns, provinces, &c., become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire subjugation and extinction of the state to which those towns and provinces belonged, that the acquisition is completed, and the property becomes stable and perfect. Thus, a third party cannot safely purchase conquered land till the Sovran from whom it has been taken has renounced it by a treaty of peace, or has irretrievably lost his sovereignty.[107] Until such confirmation, it continues liable to be divested by the jus postliminii. The purchaser of any portion takes it, at the peril of being evicted by the original Sovran owner, when he is restored to his dominions.[108]

I now pass on to the more commercial question of Passports, Safe-Conducts, and Licences to Trade.



[Sidenote: Passports and Safe Conducts]

Passports, and Safe-conducts, are a kind of privilege, insuring safety to persons in passing and repassing, or to certain things during their conveyance from one place to another. All Safe-conducts, like every other act of Supreme Command, emanate from the Sovran authority, but are constantly delegated to inferior officers, either by an express commission, or by a natural consequence of the nature of their functions. The person named in the Passport cannot transfer his privilege to another. They generally promise security wherever the grantor has authority and command, and are interpreted by the same rules of liberality and good faith, with other acts of the Sovran power.[109]

[Sidenote: Licences to Trade with the Enemy]

A Licence granted by a state to its own subjects, or to those or the enemy, is a dispensation on its own side of the Laws of War, as far as its terms can be fairly construed. The adverse party may justly consider such licence as a ground of capture and confiscation per se; but the Prize Courts of the state, under whose authority they are issued, are bound to consider them as lawful relaxations of the ordinary state of war. In the country which grants them, licences to carry on a pacific commerce are rigidly interpreted, as being exceptions to a general rule; though they are not to be construed with pedantic accuracy, nor will every small deviation be held to vitiate the fair effect of them.[111]

During the later period of the last century, and the earlier portion of this, licences were considered as privileges granted to individuals for their own benefit, and in which the nation at large was but little, or remotely, interested. They were therefore held liable to the same strict construction with other similar grants. Yet this rule was never held in a narrow captious manner; and if the apparent intention of Government was complied with, and there was no suspicion of fraud, a sufficient liberality was allowed in the construction. When the extraordinary mode of warfare established by the Emperor Napoleon, (by an attempt at a general embargo) was carried on, new expedients were required to counteract its evils, and licences to a great extent were granted to relieve the stagnant trade of the country; and this measure, so highly beneficial, and even necessary, was facilitated by the adoption of a still more liberal mode of construction, and which, no doubt, will again guide these cases.[112]

[Sidenote: Duties of Merchants using Licences]

In trading under a Licence, the merchant ought to follow the terms or it as strictly as possible; but if he is acting bona fides, some breaches of it will be permitted. Being high acts of Sovranty, they are necessarily the creatures of that act of power, and must not be carried further than the intention of the great authority that grants them may be supposed to extend; not that they are to be construed with pedantic accuracy, nor that any small deviation should be held to vitiate the fair effect of them. An excess in the quantity of goods permitted might not he considered noxious to any extent. A variation in the quality or substance of the goods might be more significant, because a liberty assumed of trading in one species of goods, under a license to trade in another, might lead to very dangerous abuses. The license must be looked to for the enumeration of goods that are to be protected by it.[113]

The principles on which courts act in treating licences is thus succinctly laid down by Sir William Scott.—

"I need not repeat what I have so often stated, the anxious wish of this court to relieve, as much as possible, the difficulties under which the commerce of the world now labours (November 1812,) and to apply the most favourable consideration to the construction of license cases. At the same time it is to be remembered, that the court possesses the mere power of interpretation; that it must confine itself to a reasonable explanation of the terms made use of, and cannot alter or dispense with conditions considered as essential by the Government granting the license. If the court assumes the power of extension by favourable interpretation, it does so only where there is a total absence of bad faith, and where unavoidable obstacles have been thrown in the way of an exact compliance with the terms prescribed. Where there has been a want of good faith, or a departure from the terms, beyond the necessity thus imposed, the court has not felt itself called upon to mitigate the penalties incurred by such a deviation."[114]

[Sidenote: The Vessel.]

It is not an essential deviation from the licence, if ships of other countries than those designated in the license are employed; provided those other countries have the same political bearing towards this kingdom as those mentioned in the licence. But it is not a matter of indifference to substitute a ship belonging to a country at war, for a neutral or native ship, at the will and pleasure of the holder of the licence.[115]

Where an enemy's ship was represented to be neutral, and under that disguise obtained a licence and was navigated, the ship and freight were condemned; and the cargo would have been involved in the same fate had it been shown that the owner of the cargo was privy to the fraud.[116]

A licence to trade in neutral bottoms does not extend to British ships.[117]

[Sidenote: The Cargo.]

The exportation of the produce and manufactures of this country is undoubtedly of great importance; but in time of war, it may be a matter of serious injury to the kingdom, if the commerce of the enemy is to be carried on in security under the abuse of British licences. The Courts of Admiralty and Prize, therefore, as far as lie in their power, guard against the fraudulent application of licences.

The following are a few practical rules for the guidance of merchants:—

1. Where the goods are enumerated in the licence, the best endeavour ought to be made to follow that enumeration. It is not a fatal departure from the licence to take on board non-enumerated articles, if done so by mistake, or inadvertence; but an essential and fraudulent departure from the conditions of the licence is a total defeasance of it.[118]

2. When a licence is granted to one person, it cannot be made to extend to the protection of all other persons who may be permitted by that person to take advantage of it.[119]

3. Where A and B have obtained a licence to import, as for themselves, or their agents, or the bearers of their bill of lading, the only persons entitled to act under that licence, are A and B, as importers, or their agents, or persons holding their bills of lading, and claiming under bills of lading, which A and B, after having conducted the importation from the enemy on their own account, have transferred to them.[120]

4. Under a licence to import, the British merchant must not also be the exporter. He is not permitted under such a licence to go to the enemy's country, and there act as an enemy's merchant, carrying on the export trade of that country.[121]

5. Sometimes, in describing the property in licences, the privilege is extended to all property of a certain class, "to whomsoever the property may appear to belong." In such cases no enquiry is ever made as to the proprietary interest in the property; but if the words are not introduced into the licence, it does not protect enemy's property.[122]

[Sidenote: The Voyage.]

In the Voyage, also, the merchant must follow the licence. It is vitiated by changing the place of shipment. Thus, where a licence was to bring away a cargo from Bordeaux, and the party thought proper to change the licence, and accommodate it to another port in France, it was held by the English Admiralty that the licence was vitiated, and the vessel and cargo were condemned.[123]

Enemies trading to the ports of this country must strictly comply with the conditions under which that permission is granted. No voluntary deviation from the course pointed out can on any account be tolerated; except under the pressure of irresistible necessity. The character of enemy revives, when such a trader so deviates from his appointed course, even if there is no mala fides, and he runs all the perils of an enemy on an English coast.[124]

It is a violation of a licence to touch at an intermediate port under a licence for a direct voyage to this country, the presumption being that at the intermediate port the vessel might receive another destination, or might actually deliver her cargo in that port.[125]

[Sidenote: Time.]

Of course when the period for which a licence has been granted has expired, it no longer has any operation; yet in cases in which parties have used due diligence, but have been prevented by accident from carrying their intentions into effect within the time, it has been holden that, though their licences have expired, they are entitled to protection.[126]

A licence cannot be ante dated, and if granted subsequent to capture it is no protection against condemnation. It is in its very nature prospective, pointing to something which has not yet been done, and cannot be done at all without such permission. Where the act has already been done, and requires to be upheld, it must be by an express confirmation of the act itself, as by an indemnity granted to the party; but a licence necessarily looks to that which remains to be done, and can extend its influence only to future operations.[127]

Note.—It has been before pointed out, that the Queen has, by her prerogative, the power of granting licences. But the Navigation Laws could not, of course, be dispensed with by the royal prerogative. Various acts, therefore, were passed to alter or qualify them, according to the new condition of things which was produced in time of war. These acts expired with the several wars that suggested them; but the almost total repeal of the celebrated Navigation Laws will render the re-enactment of similar war measures almost unnecessary.


Ransom, Recaptures, and Salvage.

[Sidenote: Ransom.]

Sometimes circumstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to redeem it.

It was formerly the general custom to redeem property from the hands of the enemy by Ransom, and the contract is undoubtedly valid, when municipal regulations do not intervene. It is now but little known in the commercial law of England, for several statutes in the reign of George the Third absolutely prohibited British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity—to be judged of by the Court of Admiralty.[128]

These contracts are generally drawn up at sea, and by virtue of them, the captain of the captor engages for the release and safe conduct of the taken ship, in consideration of a sum of money, which the master of the captured vessel, on behalf of himself and the owners of his ship and cargo, engages to pay, and for the payment of which he delivers a hostage as security. The contract is drawn up in two parts, of which the captor has one, which is called the ransom bill; the master of the captured vessel has the other, which operates as his safe conduct.

By the French law this safe conduct only protects the vessel to its own port, or its port of destination, if nearer that. In other countries the pass allows the ship to continue its voyage; but operates only to protect the vessel in the course prescribed, and within the time limited by the contract. It protects only against capture, unless by agreement it provides also against total loss by perils of the seas.

During war, and while the character of alien enemy continues, no suit will lie in the British Courts by the enemy, in proper person, on a ransom bill, notwithstanding it is a contract arising out of the law of war. The remedy to enforce payment of the ransom bill for the benefit of the enemy captor, is by an action by the imprisoned hostage, in the courts of his own country, for the recovery of his freedom.

The hostage consists generally of one or two principal officers of the captured prize, more generally one only.

As the ransom is in the nature of a pledge, the ransom cannot exceed the value of the ship, so that the master cannot bind his owner for a larger value; and on the same principle, the captor is bound to take the vessel or its value if abandoned by the owner, or what it sells for if the owner is insolvent. He is also bound to maintain the hostage, and that is an item in the ransom bill. In estimating the ransom and expenses of the hostage as a damage or loss, they are regarded in the nature of general average, and the several persons interested in the ship, freight, and cargo, must all contribute towards them.[129]

[Sidenote: Recaptures.]

Although in strictness every prize legally made, may be adjudged to the captor, yet there are cases where he ought to restore, wholly, or in part, that which he may legally have taken from the enemy. This is the case of recaptures.

According to the universal law of nations, the question whether the recapture ought to be restored to the first proprietor, seems to depend essentially on another, namely, whether the captor has become full proprietor of the prize, to the total extinction of the rights of the first proprietor. If we admit that he may have become so, there would be no further perfect and external obligation on the recaptor to restore property which has become that of the enemy; and on which the first proprietor has lost all claim. There may be a thousand reasons of equity why he should not enrich himself by the spoil of his fellow citizens or friends; but then, that restitution would not be according to the strict rule of natural law; if indeed all claim had so passed away.

The captor has, without doubt, a right to take away the enemy's goods. He may, without troubling himself with the proprietor's rights, detain them, with intent to appropriate to himself, in the same manner, in every respect, as he may seize res nullius in the time of peace; but it does not follow from thence that the effect of these two actions is the same, when applied to objects of so different a condition, or that the right of war alone, without cession or renunciation, is a title sufficient for a full property.

By the Laws of War the right and power of possession is in the captor; the right of property remains in the proprietor. This right of war, which is personal in the captor, not being capable of cession, cannot bind a third person, who acquires the prize by recapture during war; and nothing prohibits the original proprietor from prosecuting his rights against him; accordingly, without making any distinction between conquest, booty, or prize; the goods taken by the enemy, however legal that capture might be, however certain the possession of them might be, do not become his full property till the moment of peace; and that during the whole course of the war it may be claimed by the first proprietor from the hands of every third possessor. From this it follows that every recapture, made at any period of the war whatever, whether the capture may have been legal, or whether it may have been illegal; whether the recapture be made by a Sovran, or by a privateer; ought to be restored to the original owner on a just repayment of the costs and damages of every recaptor, unless the illegality of the recapture precludes the recaptor from the privilege of demanding the indemnification.[130]

[Sidenote: Salvage.]

The costs and damages paid to the recaptor are termed Salvage. It was the ancient law of this country, that a possession of twenty-four hours was a sufficient conversion of the property, and unless it was reclaimed before sundown, the owner was divested of his property. Thus there was a complete obliteration of the rights of former owners. This was the ancient law of England, and was in accordance with the ancient law of Europe.

This rule has been receded from in this country, since the increase of her commerce. During the time of the usurpation, when England was becoming commercial, an alteration was effected by the ordinance of 1649, which directed a restitution, upon salvage, to British subjects; and the same indulgent rule was continued afterwards, when this country became still more commercial.

This country, as a commercial country, has thus departed from the old law, and has made a new and peculiar law for itself, in favour of merchant property recaptured, introducing a policy not then introduced by other countries, and differing from its own ancient practice.

[Sidenote: Recaptures converted into Ships of War are not restored.]

There is one exception to this law. The Prize Act provides that if a recaptured ship, originally taken by her Majesty's enemies, shall appear to have been by them "set forth as a ship or vessel of war," the said ship or vessel shall not be restored to the former owners or proprietors; but shall, in all cases, whether retaken by any of Her Majesty's ships, or by any privateer, be adjudged lawful prize for the benefit of the captors. When the former character of the vessel has been once obliterated by her conversion into a ship of war, the title of the former owner, and his claim to restitution, are extinguished, and cannot be revived by any subsequent variation of the character of the vessel.

Setting forth does not necessarily mean sending out of port with a regular commission. It is sufficient if she has been used as part of the national force of the enemy, by those in competent authority.[131]

[Sidenote: Capture a material question in cases of Recapture.]

As it has been stated above, in cases of recapture, the material question is, whether there was such a capture made by the enemy, as to found a case of re-capture.

This is settled by the question whether the enemy have an effectual possession; by this is not meant the complete and firm possession obtained by condemnation in a Court of Prize, but that effectual possession, that if not interrupted by recapture, would have enabled the captor to exercise rights of war over her. For this purpose it is not necessary that the possession should be long maintained. The following are some examples of such effectual possession.

An English merchantman, separated from her convoy during a storm, was brought to by an enemy's lugger, which came up and told the master to stay by her till the storm was abated, when they would send a man on board; a British frigate coming up afterwards chased the lugger and took her, thus releasing the merchantman; the frigate was held entitled to salvage.[132]

But when a small English vessel, armed with two swivels, forced a privateer row-boat from Dunkirk to strike, but was not able to board her, because the English vessel has only three men, and no arms but the swivels,—the Frenchman being filled with a well armed crew; and subsequently, the row-boat was forced to put into the port of Ostend, then the port of an ally; this might not be a capture under the act, so much as it was under the general maritime law.

A vessel brought out of port, and which was in the power, though not in the actual occupation of the enemy, was thus rescued from considerable peril, was held to be recaptured.[133]

Similarly, with a vessel abandoned by the enemy, having possession of her, through the terror of an approaching force.[134]

There is no claim to Salvage where the property rescued was not in the possession of the enemy, or so nearly as to be certainly and inevitably under his grasp.

[Sidenote: Recapture of Property of Allies.]

England restores the Recaptured Property of her Allies, on the payment of salvage; but if instances can be given of British property retaken by them, and condemned as prize, the Court of Admiralty will determine their cases according to their own rule.[135]

[Sidenote: Recapture of Neutral Property.]

It is not the practice of modern nations to grant Salvage on the Recapture of Neutral Vessels; and upon this plain principle, that the liberation of a clear neutral from the hand of the enemy, is no essential service to him; for the enemy would be compelled by the tribunals of his own country, after he had carried the neutral into port, to release him with costs and damages, for the injurious seizure and detention. This proceeds on the supposition, that those tribunals would duly respect the law of nations; a presumption which, in the wars of civilized states, each belligerent is bound to entertain in their respective dealings with neutrals. But in the wild hostilities declared and practised by France in the Revolutionary War, there was a constant struggle between the governing powers of France and the maritime courts, which should most outrage the rights of neutral property; the liberation of neutral property out of their hands then came to be deemed, not only by Lord Stowell, but by the neutrals themselves, a substantial benefit; and salvage for such service was not only awarded, but thankfully paid.[136]

[Sidenote: Jus Postliminii.]

The rule by which things taken by the enemy are restored to their former owner, upon coming again under the power of the nation to which they formerly belonged, is termed jus postliminii, or the right of postliminy. Real property, which is easily identified, is more completely within the right of postliminy than moveable property, which is more transitory in its nature, and less easily recognized. During war, the right of postliminy can only be claimed in the tribunals of the belligerent powers, and not in the courts of neutrals; for by a general law of nations, neutrals have no right to enquire into any captures, except such as are an infringement of their own neutrality.[137]

[Sidenote: Costs and Damages to Owners for invalid Seizures.]

It often happens that captains of ships of war and privateers make seizures of native or neutral vessels, under the impression that such vessels are occupied in illicit trade or other condemnatory acts. This may arise from error, and in such cases the vessel is restored to the owner by the prize court; but still there may be circumstances justifying the seizure, though not condemnation; and if condemnation is not granted, the owner sets up a claim for any damage that may have occurred to his vessel.

And the rule is, that where the capture is not justifiable, a captor is answerable for every damage.[138]

But if a seizure is justifiable, all that the law requires is that the captor shall be held responsible for due diligence; it is not enough that the captor should use as much caution as he would in his own affairs, the law requires that there should be no deficiency of due diligence.[139]

When property is confided by an owner to another person, the care that the owner would take of his own property may be a reasonable criterion of the care that he may expect his agent to take. But in the case of capture, there is no confidence reposed, nor any voluntary election of the person in whose care the property is left. It is a compulsory act of justifiable force, but still of such force as removes from the owner any responsibility for the imprudent conduct of the prize-master. Hence, where the prize-master refused to take a pilot, and the ship and cargo were lost, restitution in value was decreed.




[Sidenote: Rights of Neutral Nations.]

It now only remains for me to place before the reader the Rights and Obligations of Neutral Nations, as they influence Commerce.

Neutral Nations are those who, in time of war, take no part in the contest, but remain common friends to both parties, without favouring the arms of the one to the prejudice of the other.[140]

Neutrality consists in—1st, Giving no assistance when there is no obligation to give it; nor voluntarily to furnish troops, arms, ammunition, or anything of direct use in war. 2ndly, In whatever does not relate to war, a neutral and impartial nation must not refuse to one of the parties (on account of his present quarrel) what she grants to the other.[141]

[Sidenote: Qualified Neutrality.]

These rules do not apply to engagements by treaty, to which the Neutral may be bound previous to war; as for example, an engagement to furnish one of the belligerent parties with a limited succour in money, troops, ships, or munitions of war, or to open his ports to the armed vessels of his ally with his prizes.[142]

Neutrality, again, may be qualified by treaties (antecedent to war), to admit vessels of war, with their prizes, of one of the belligerent parties, into the neutral's ports, to the complete or limited exclusion of the other.

[Sidenote: Neutral Territory protected.]

The Rights of War can be exercised only within the territory of the belligerent powers, upon the high seas, or in a territory belonging to no one. To make use of neutral territory for the proximate purposes of war cannot be allowed, although it is to be understood that the prohibition does not extend to remote objects and uses, such as procuring provisions, and other innocent articles.[143]

The sanctity of a claim of territory is very high. When the fact is established, it overrules every other consideration; the property taken must be restored, notwithstanding that it belongs to the enemy; and if the captors should have erred wilfully, and not merely through ignorance, he would be subject to further punishment. It is however, a point on which foreign states are very likely to be misinformed and abused, by the interested representations of those who are anxious to catch at their protection. The claim of territory is, therefore, to be taken according to the letter of the law, and to be made out by clear and unimpeached evidence. The right of seizing the property of the enemy is a right which extends, generally speaking, universally, wherever that property is found. The protection of neutral territory is an exception only to the rule; it is not therefore to be considered disrespectful to any government that the fact, on which such claims are founded, should be accurately examined.[144]

The neutral territory is supposed to extend three English miles from the shore.[145]

[Sidenote: Property of Belligerents in Neutral Territory.]

But the general inviolability of neutral character goes further than merely the protection of neutral property. It protects the property of belligerents within the neutral territory. Thus, if the enemy be attacked, or any capture made under neutral protection, the neutral is bound to redress the injury, and effect restitution. As for example, in 1793, the English ship Grange was captured in Delaware Bay, by a French frigate, and upon due complaint, the American Government caused the British ship to be promptly restored. Similarly, in the case of the Anna, restoration was made of property captured by a British cruizer near the mouth of the Mississippi, and within the jurisdiction of the United States.[146]

An armed ship has no right to lie in a neutral harbour, in order to make it an habitual station for her captures, as that would be a continuous direct infringement on neutral trade with the enemy; but if she is accidentally in a neutral port, and sees an enemy coming, she may go out and fight, or take her, beyond the range of neutral ground.[147] Nor ought captors to station themselves at the mouth of a neutral river for exercising the rights of war from that river, much less in the very river itself.[148]

The doctrine is carried to the extent that no use of a neutral territory for the purposes of war is to be permitted; this does not include remote uses, such as procuring provisions and refreshments, and acts of that nature, which the law of nations universally tolerates; but that no proximate acts of war, in any manner, are to be allowed to originate on neutral grounds;—thus a ship has no right to station herself in neutral waters, and then to send out her boats on hostile enterprises beyond the boundary. This is a direct hostile use of the neutral territory, and many instances have occurred in which such an irregular use of neutral territory has been warmly resented. Nor can the neutral, in true consistency with his neutrality, permit such a course of war.[149]

[Sidenote: Vessels chased into a Neutral Port.]

Bynkershoek has maintained the anomalous principle, that vessels may be chased into a Neutral Territory, and there captured; but there is in reality no exception to the rule, that every voluntary entrance into a neutral territory, with hostile purposes, is absolutely unlawful.

But this restoration takes place only on the application of the neutral government whose territory has been thus violated, the neutrality alone being the ground of the invalidity of the capture.[150]

[Sidenote: Consent of Neutral State necessary.]

Though a belligerent vessel may not enter within neutral jurisdiction for hostile purposes, she may, consistently with a state of neutrality (unless prohibited by the neutral power), bring her prize into the neutral port and sell it there.

[Sidenote: Freedom of Neutral Commerce.]

A neutral has a right to pursue his accustomed commerce, and he may become the carrier of the enemy's goods, without being subject to confiscation of the ship, or of the neutral articles on board; though not without the risk of having the voyage interrupted by the seizure of the hostile property. If we find an enemy's effects on board a neutral ship, we seize them by right of war; but we are naturally bound to pay the freight to the master of the vessel, who is not to suffer by such seizure.[151]

The effects of neutrals found in an enemy's ship, are to be restored to the owners, against whom there is no right of confiscation,—but without allowance for detainder, decay, &c. Neutrals voluntarily expose themselves to these accidents by embarking their goods in a hostile ship.[152]

We have before mentioned that neutral ships do not afford protection to an enemy's property. It may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the Law of Nations.

When an enemy's ship, containing free goods, is taken, if the captor carries the goods to the port of destination, he is entitled to the freight. He stands in the place of the owner of the ship, and performs (by completing) the specific contract between the owner and charterer. But he is not entitled, if he does not proceed and perform the original voyage.[153] The specific contract is performed in the one case, and not in the other. But freight will be allowed to the captor, even though he does not carry the goods to the port of destination, if he carries them to his own country, and to the ports to which they would have been consigned, if not prevented by the regulations of the country of embarkation.[154]

Under certain circumstances the Captor is considered entitled to Freight, even though the goods are carried to his own country, and restored.

If the captor does anything to injure the property, or is guilty of misconduct, he may remain answerable for the effect of such misconduct or injury, in the way of set-off against him.[155]

No right of visitation and search, of capture, nor any other kind of belligerent right, can be exercised on board a public neutral vessel on the high seas. But private vessels form no part of neutral territory, and when within the limits of another state, are not exempt from local jurisdiction.[156]

The right to take enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. This rule has been steadily maintained in Great Britain, though in France and other countries it has been fluctuating. For the first time, England has voluntarily abandoned this right in the present war.

If a neutral vessel, having enemy's goods on board, is taken, and there is nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage. The captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods by right of war; and although the whole freight has not been earned by the completion of the voyage, yet as the captor, by his act of seizure, has prevented its completion, his seizure operates to the same effect as an actual delivery of the goods to the consignee, and subjects him to the payment of the full freight.[157] In such case, however, the neutral master must have acted bona fide, and with strictly neutral conduct.

[Sidenote: This Rule Changed by Convention.]

This Rule is often Changed by Convention; and it is generally stipulated that "free ships shall make free goods." The converse, though also sometimes the subject of treaty, does not of necessity hold, enemy's ships do not make enemy's goods. Goods of neutrals, found on enemy's ships, are bound to be restored.[158]

A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel; who has no right, according to modern practice, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen.[159]

[Sidenote: Neutral Goods on Armed Hostile Vessels.]

In America, Neutral Goods laden on an Armed[160] Belligerent Vessel are still protected, but in England it is different. "If the neutral," says Sir Wm. Scott,

"puts his goods on board a ship of force, which will be defended by force, he betrays an intention to resist visitation and search, and so far adheres to the belligerent, and withdraws himself from his protection of neutrality."[161]

[Sidenote: The Sale and Purchase of Vessels by Neutrals.]

The Purchase of Ships from the enemy, is a liberty that has not been denied to neutral merchants, though by the regulation of France, it is entirely forbidden. The rule that this country has been content to apply is, that property so transferred, must be bona fide and absolutely transferred; there must be a sale divesting the enemy of all further interest in it; and that any thing tending to continue his interest, vitiates a contract of this description altogether.[162]

Russia is reported to have several vessels of war in different parts of the world; some of these vessels have been sold, and others are said to be in the process of sale. I shall cite what Sir Wm. Scott says, on a case nearly similar.

"There have been many cases of enemy merchant vessels driven into ports out of which they could not escape, and there sold, in which after much discussion, and some hesitation of opinion, the validity of the purchase has been sustained. But whether the purchase of a vessel, built for war, and employed as such, and rendered incapable of acting as a ship of war, by the arms of the other belligerent, and driven into a neutral port for shelter; whether the purchase of such a ship can be allowed, which shall enable the enemy so far to rescue himself from the disadvantage into which he has fallen, as to have the value restored to him by a neutral purchaser, is a question on which I shall wait for the authority of a superior court, before I admit the validity of such a transfer."[163]

It has been said that the sale must be absolute and unconditional; so that a sale under a condition to re-convey at the end of the war, is invalid.[164] Similarly, where the seller is bound by his own government under a penalty not to sell, except upon a condition of restitution at the end of the war, and the purchaser undertook to exonerate the seller, the sale was held invalid.[165]


Contraband of War.

[Sidenote: Contraband of War.]

The general freedom of neutral commerce is subject to certain restrictions with respect to neutral commerce. Among these is the trade with the enemy in certain articles, called Contraband of War. These are generally warlike stores, and articles which are directly auxiliary to warlike purposes. Writers on this subject have made distinctions between those things useful only for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace.

All seem to agree in excluding the first class from neutral trade; and, in general, admitting the second. The chief difference is about the third class. The last kind of articles—for example, money, provisions, ships, and naval stores, according to Grotius, are sometimes lawful articles of neutral trade, and sometimes not; and the question depends upon circumstances. This is perhaps the truest ground of decision, as we shall see in subsequent illustrations.[166]

Thus, these articles become contraband, ipso facto, if carried to a besieged town, camp, or port. So in a naval war, ships and materials for ships, are contraband, although timber and cordage may be used for other purposes, besides fitting out ships of war; and so horses and saddles are not of necessity warlike stores, except when comparing the quality, manufacture, or quantity attempted to be imported into the hostile state, with the circumstances and condition of the war, it appears (if not to be impossible) to be in the highest degree unlikely, that they should be designed for any other purposes besides the purposes of war.[167]

[Sidenote: Provisions, when Contraband.]

Common Provisions are not Contraband in general prize law, except in the single case of being sent to a beseiged or blockaded place.[168]

It is a modern practice, in order to remove all possible doubt as to what goods are contraband, for nations at war to enumerate them particularly in treaties or compacts with neutral states; and such treaties leave the neutral, with which they are made, at liberty to supply the enemy with all goods that are not enumerated in them. These treaties do not operate as a law; but like other treaties, are binding only between the nations that are parties to them.[169]

[Sidenote: Lord Stowell's Opinion on Contraband of War.]

The Opinions of our great English authority, Lord Stowell, on this subject, are contained in two judgments, of which the following is the substance:—

"In 1673, many unwarrantable rules were laid down by public authority respecting Contraband. It was expressly asserted by a person of great knowledge and experience in the English Admiralty, that by its practice corn, wine, and oil, were liable to be deemed contraband. In much later times, many sorts of provisions, such as butter, salted fish, and rice, have been condemned as Contraband. The modern established rule was, that generally they are not contraband, but may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it; among the causes which tend to prevent provisions from being treated as contraband, one is that they are of the growth of the country which exports them.

"Another circumstance, to which some indulgence, by the practice of nations, is shown, is where the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it, are directly contraband. Hemp is more favourably considered than cordage; and wheat is not considered so noxious a commodity as any of the final preparations of it for human use. But the most important destination is, whether the articles are destined for the ordinary uses of life, or for military uses. The nature and quality of the port to which the articles are going, is a test of the matter of fact on which the distinction is to be applied. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ship of war may be constructed in that port. On the contrary, if the great predominant character of a port is that of a port of naval equipment, it shall be contended that the articles were going for military use, although, merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article, ancipitis usus, it is not an injurious rule which deduces both ways the final use from immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful."[170]

In a later case he seems to have modified his opinion with respect to undoubted naval stores, either so by nature, or intended as such for the occasion. He says—

"The character of the port is immaterial, since naval stores, if they are to be considered as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of military equipment. The consequences of the supply may be nearly the same in either case. If sent to a mercantile port, they may be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment."[171]

[Sidenote: Controversy between England and America on Contraband Provisions.]

The doctrine of the English Admiralty Court, as to provisions becoming contraband, was adopted by the Government in the instructions given to their cruisers, on the 8th June, 1793, directing them to stop all vessels laden wholly, or in part, with corn, flour, or meal, bound for France, and to send them into a British port to be purchased by Government; or to be released on condition that the master should. give security to dispose of his cargo in the ports of some country in amity with his Britannic Majesty. This was resisted by the Neutral Powers, Sweden, Denmark, and especially the United States.

This order was justified upon the ground, that by the modern law of nations, all provisions are to be considered as contraband, and as such liable to confiscation, wherever depriving an enemy of these supplies is one of the means intended to be employed for reducing him to terms. The actual situation of France, (it was said,) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the various powers engaged in the war; and the reasonings of the text writers applying to all cases of this sort were more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of commencing and supporting hostilities against almost all European Governments; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who had declared war, and were then carrying it on against Great Britain.

This reasoning was resisted by the neutral powers—Sweden, Denmark, and especially the United States. The American Government insisted, that when two nations go to war, other nations who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and ordinary vocations; to carry the produce of their industry for exchange to all countries, belligerent or neutral, (as usual;) to go and come freely without injury or molestation; in short, that the war, (amongst other) should be for neutral purposes, as if it did not exist; the only exceptions being trade in implements of war, or to a place blockaded by its enemy. That there were sufficient treaties to decide what were implements of war. Corn, flour, and meal, were not of the class of contraband.

The result of this controversy was a treaty with the United States in 1794. It confined contraband to military and naval stores; and with respect to provisions not generally contraband, it was agreed,

"That whenever such articles became contraband by the Law of Nations, and should for that reason be seized, the same should not be confiscated, but the owners thereof should be speedily and completely indemnified; and the captors, or in their default, the Government under whose authority they act, should pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention."

The instructions of June, 1793, had been revoked previously to the signature of this treaty; but before its ratification, the British Government issued, in April, 1795, an order in council, instructing its cruizers to stop and detain all vessels laden wholly, or in part, with corn, flour, meal, and other provisions, and bound to any port in France, and to send them to such ports as might be most convenient, in order that such corn, &c., might be purchased on behalf of Government.

This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, constituted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.

A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.

It was, however, urged on the part of the United States, that the 18th article of the Treaty of 1794, manifestly intended to leave the question where it was before, namely, that when the law of nations, existing at the time the case arises, pronounces the articles contraband, they may for that reason be seized; when otherwise, not so. Each party was thus left free to decide what was contraband in its own courts of the law of nations, leaving any false appeal to that law to the usual remedy of reprisals and war.[172]

Since the ratification of this treaty, we have a decision of Lord Stowell, in 1799, on this very subject, in the case of the Haabet, which, however, arose on a question of insurance.

"The right of taking possession of provisions is no peculiar claim of this country; it belongs generally to belligerent nations: the ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely. A century has now elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of pre-emption; that is, to a right of purchase, upon a reasonable compensation, to the individual whose property is thus diverted. This claim on the part of the belligerent cannot go beyond cargoes avowedly bound to the enemy's ports, or suspected on just grounds to have a concealed destination of that kind. The neutral can only expect a reasonable compensation. He cannot look to the price he would obtain in the enemy's port. An enemy, distressed by famine, may be driven by his necessities to pay a famine price; but it does not follow that the belligerent, in the exercise of his rights of war, is to pay the price of distress."[173]

"It is a mitigated exercise of war, on which any purchase is made; and no rule has established that such a purchase shall be regulated exactly on the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a reasonable indemnification, and a fair profit, that is due, reference being had to the price originally paid by the exporter, and the expenses he has incurred."

[Sidenote: Neutral Vessels Transporting Enemy's Forces.]

Transporting the Enemy's Forces, subjects a Neutral Vessel to confiscation, if captured by the opposite belligerent. Sir Wm. Scott says, in the leading case on this subject—

"That a vessel hired, by the enemy, for the conveyance of military persons is to be considered as a transport, subject to condemnation, has been in a recent case, held by this Court, and on other occasions.[174] What is the number of military persons that shall constitute such a case it may be difficult to define. In the former cases there were many, in the present they are fewer in number; number alone is an insignificant circumstance in the considerations on which the principles of law on this subject are built; since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To send out one veteran general of France to take command of the forces at Batavia might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three,[175] and there are besides two other persons who were going to be employed in civil capacities in the Government of Batavia. *** It appears to me, on principle, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, and at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with hostile operations.[176] The fact of the vessel having been pressed into the enemy's service does not exempt her. The master cannot aver that he was an involuntary agent."[177]

[Sidenote: Neutral Ships Carrying Enemy's Despatches.]

Carrying the Despatches of the Enemy is also a ground of condemnation.

"In the transmission of Despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent, in the world. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character—as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being greater than other contraband, some other penalty has to be affixed. The confiscation of the noxious article would be ridiculous when applied to Despatches. There would be no freight dependent on their transportation. The vehicle (i.e. the ship) in which they are carried must, therefore, be forfeited."[178]

[Sidenote: Ambassadors excepted.]

The Despatches of an Ambassador or other Public Minister of the Enemy, resident in a neutral country, are an exception to this rule, being the despatches of persons who are in a peculiar manner the favourite object of the Law of Nations, residing in the neutral country for the purpose of preserving peace and the relations of amity between that state and their own government.

The ambassador of the enemy may be stopped on his passage, but when he has arrived in the neutral country, he becomes a sort of middleman, and is entitled to peculiar privileges.[179]

[Sidenote: Penalty for Contraband Trade.]

Under the present Law of Nations, a Contraband Cargo cannot affect the ship; the carrying of contraband articles is attended only with loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with some malignant and aggravating circumstances.[180]

[Sidenote: Additional Penalties.]

The aggravation of fraud justifies additional Penalties; thus, the carriage of contraband with a false destination, will work a condemnation of the ship as well as the cargo; the false destination being intended to defeat the right of pre-emption.[181] Generally, false papers will extend the taint of contraband to the vessel.

It is also an established rule, that the transfer of contraband by a neutral, from one port of a country to another, where it is required for the purposes of war, is subject to be treated in the same manner as an original importation into the country itself.[182]

[Sidenote: Return Voyage Free.]

Generally, the proceeds of the Return Voyage cannot be taken. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in actual prosecution of such a voyage, the penalty is not now generally held to attach.[183]


Blockades. Right of Search. Convoys.

[Sidenote: Blockades.]

We now pass on to the subject of Blockade, which is the next exception to the general freedom of neutral commerce in time of war.

A blockade is a high act of Sovran authority; it cannot be assumed or exercised by a commander, without special authority, provided his Government is sufficiently near at hand to superintend and direct the course of operations; but a commander on a distant station is supposed to carry with him such a portion of the Sovran authority as may enable him to act with energy against the commerce of the enemy, as against the enemy himself.[184]

Again, referring to Sir Wm. Scott's celebrated judgments, we find him saying,

"That to constitute a violation of a state of blockade, three things must be proved: first, the existence of the blockade; secondly, the knowledge of it, in the party supposed to have offended; and thirdly, some act of violation, either by going in, or coming out with a cargo, laden after the commencement of the blockade."

[Sidenote: First Rule of Blockade.]

I. There is no rule of law more established than this; that the Breach of a Blockade subjects the property so employed to confiscation. Every man knows it; the subjects of all states know it.

A lawful maritime blockade requires the actual presence of a sufficient force stationed at the entrance of the port, sufficiently near to prevent communication.

The blockade is to be considered legally existing, although the winds may occasionally blow off the blockading squadron. It is an accidental change which must take place in every blockade; but the blockade is not therefore suspended.

This axiom is laid down in all books of authority; and the law considers an attempt to take advantage of such an accidental removal as an attempt to break the blockade, and a mere fraud.[185]

When a blockading squadron is driven off by a superior force, the blockade is effectually raised, and it must be renewed by fresh notification, before foreign nations can be affected by an obligation to observe it as a blockade. The mere appearance of another squadron will not renew it, but it must be restored by the measures required for the original imposition of a blockade.[186]

[Sidenote: Second Rule of Blockade.]

It is necessary that the evidence of a blockade should be clear and decisive. A blockade may exist without a public declaration; although a declaration, unsupported by fact, will not be sufficient to establish it. In the War of 1798, the West India Islands were declared under blockade by Admiral Jervis; but the Lords of the Supreme Court held, that as the fact did not support the declaration, a blockade could not be deemed legally to exist. But the fact, on the contrary, duly notified on the spot, is of itself sufficient; for public notifications between governments are meant for the information of individuals; but if the individual is personally informed, that purpose is better obtained than by a public declaration.[187]

Where the vessel sails from a country lying near enough to the blockaded port to have constant information of the blockade, no notice is necessary of its continuance or relaxation; but when the country is at a distance beyond constant information, they may lawfully send their vessels on conjecture that the blockade is broken up, after it has existed a long time.[188] And this is important, as it must be remembered that even the intention to evade blockade is a fraudulent breach of it, and sailing towards the port is an overt act of that intent.[189]

There are two kinds of Blockade. 1. Simple Blockade, i.e. Blockade in Fact; and 2nd., Blockade in Fact, accompanied by a Notification. The first expires by the breaking up intentionally of the blockading squadron. The second, prima facie, does not expire until the repeal of the notification, but it is the duty of the belligerent country directly the blockade ceases, de facto, to revoke its proclamation. And it would appear that a notified blockade would only expire, in fact, after some unnecessary and long neglect to publish this revocation; otherwise neutral nations are bound until such publication.[190]

It has from time to time been stipulated, in treaties between belligerent and neutral countries, (as in the case of the Treaty between Great Britain and the United States, of 1794,) that vessels of the neutral country should not be considered as having notice of a blockade, until they have been duly and respectfully warned off; and it would only be on a second attempt to enter port that they would be liable to be seized. Under such a treaty a neutral vessel might lawfully sail for a blockaded port, knowing it to be blockaded.[191]

[Sidenote: Third Rule of Blockade.]

An act of Violation is essential to a Breach of Blockade; such as, either going in or coming out of the port with a cargo, laden after the commencement of the blockade: or being found so near to the blockaded port as to show, beyond a doubt, that the vessel was endeavouring to run into it: or where the intention is expressly avowed by the papers found on board.[192]

The time of shipment is very material; for although it may be hard to refuse a Neutral, liberty to retire with a cargo already laden, and by that act already become neutral property,—yet, after the commencement of a blockade, a neutral cannot be allowed to interpose in any way to assist the exportation of the property of the enemy. After the commencement of a blockade, a Neutral is no longer at liberty to make any purchase in that port.[193]

A Maritime Blockade is not in law violated by bringing or sending goods to the port through the internal canal navigation or land carriage of the country; and thus such goods are not liable to confiscation on ground of the blockade.

[Sidenote: Right of Search.]

On the great question of the Right of Search, the International Law has been summed up by Lord Stowell, in the case of the Maria, where the exercise of the right was attempted to be resisted, by the interposition of a convoy of Swedish ships of war.[194]

First, the right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is the incontestible right of the lawfully commissioned cruizers of a belligerent nation.

Secondly, that the authority of the Sovran of the neutral country, being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commissioned belligerent cruizer. It cannot be maintained, that if a Swedish commissioned cruizer, during the wars of his own country, has a right, by the Laws of Nations, to visit and examine neutral ships, the King of England, (being Neutral to Sweden,) is authorized by law to obstruct the exercise of that right with respect to the merchants' ships of his country.

Thirdly, that the penalty for the violent contravention of this right, is the confiscation of the property withheld from visitation and search.

The judgment of condemnation, pronounced in this case, was followed by the Treaty of Armed Neutrality entered into by the Baltic Powers to resist the Right of Search, in 1800, which league was dissolved by the death of the Emperor Paul, and the points in controversy between those Powers and Great Britain were finally adjusted by the Convention of 5th of June, 1805.[195]

[Sidenote: Convoys.]

It now remains to say a few words on the subject of Convoy. Convoy is a ship or ships of war appointed by the Government, or by the Commander-in-Chief on a particular station, for the guard of merchant vessels bound to their destination. A warranty that the vessel shall sail with convoy, is very common in Policies of Insurance, and if not complied with, the Insurance becomes absolutely void.

This warranty to sail with convoy, does not mean that the vessel shall depart with convoy immediately from the lading port, but only from the place of rendezvous appointed for vessels bound from that port, and must be strictly and impartially maintained by force, to the uniform universal exclusion of all vessels not privileged by law.[196]

From many ports, and among others from the port of London, no convoy ever sails. It has therefore been held sufficient for a vessel bound from London to sail with convoy from the Downs, and even from Spithead, when there was no convoy appointed from the Downs. Neither does it require the vessel to sail with convoy bound to the precise place of her destination; but if the vessel sail with the only convoy appointed for vessels going to her place of destination, it is sufficient. It sometimes happens that the force first appointed, is to accompany the ships only for a part of their voyage, and to be succeeded by another; at other times a small force is detached from the main body to bring up to a particular point; if a vessel sail under the protection of a vessel thus appointed or detached, the warranty is satisfied.

But this warranty requires not only that the vessel shall sail under the protection of the convoy, but also that she shall continue during its course under the same protection, unless prevented from so doing by tempest or other unavoidable accident, in which case, the master and owners will be excused, if the master does all that is in his power to keep with the convoy.

The merchantman must, before sailing, obtain or endeavour to obtain, the sailing orders issued by the convoying squadron. The value of a convoy appointed by Government arises in a great degree from its taking the ships under control, as well as under protection; but this control cannot be exercised except by means of sailing orders. Otherwise, the master could not learn the rendezvous in case of dispersion by a storm, or obey signals in case of attack.

The obligation to sail with convoy does not depend merely on special agreement; but, by act of parliament, a merchant cannot sail without a convoy, on a foreign voyage, unless previously licensed to do so.[197]


[Sidenote: Armed Neutralities.]

It is not improbable the course of events in the present war may make it not uninteresting to my readers to have some short account of the origin and meaning of Armed Neutralities, especially as the principles on which they were founded may again be open to discussion. The right to take enemy's property on board neutral vessels has, in the present war, been waived by the Queen, in a declaration, dated Buckingham Palace, March 29th 1854. This is however tempered by a reservation of the right to search for contraband. Up to the present time the right to take enemy's goods on board a neutral vessel has in this country been steadily maintained; though in France it has been fluctuating; the interests of another commercial power became the origin of the extraordinary confederacies termed Armed Neutralities. At an early period it was an object of interest with Holland, a great commercial and navigating country, whose permanent policy was essentially pacific, to obtain a relaxation of the severe rules which had previously been observed in maritime warfare. The States General of the United Provinces having complained of the provisions in the French Ordinance of 1538, a treaty of commerce was concluded between France and the Republic in 1646, by which the law, as far as respected the capture and confiscation of neutral vessels for carrying enemy's property, was suspended; but it was found impossible to obtain, at that time, any relaxation as to the liability to capture of enemy's property in neutral vessels.

This latter concession, however, the United Provinces obtained from France by the treaty of alliance of 1662, and the commercial treaty signed at the same time with the peace, at Nimiguen, in 1671; confirmed by the treaty of Ryswick, in 1697. The maxim that free ships make free goods was coupled in these treaties with its correlative maxim, enemy's ships make enemy's goods.

The same concession was obtained by Holland from England in 1668 and 1674, as the price of an alliance between the two countries against the ambitious designs of Louis XIV.

In the subsequent war of 1756, a controversy arose between England and Holland, in which it was said, on the one hand, that England had violated the rights of neutral commerce; and on the other, that Holland had not fulfilled the guarantees under which those privileges had been granted.

Afterwards, when the American Revolution gave rise to a war between France and Great Britain, the latter power, instead of following the example of her enemy, (who had issued an ordinance prohibiting the seizure of neutral vessels, even when bound to or from enemy ports, unless carrying contraband,) issued an order in council, (March, 1780,) suspending the special stipulations respecting commerce and navigation contained in the Treaty of 1674.

This was the crisis of many complaints made by the neutral powers against Great Britain; and, in 1780, the Empress of Russia proclaimed the principles of the Baltic Code of Neutrality, and declared she would maintain them by force of arms.

This system of armed neutrality contained the following principles.

1. That commerce with the ports and roads of the enemy is free to neutral powers.

2. That the ship covers the cargo.

3. That those merchandizes only be considered as contraband, which are declared to be such by treaties with the belligerent powers, or with one of them.

4. That no place shall be considered as blockaded, till it is surrounded in such a manner by hostile ships that no person can enter it without manifest danger.

5. That these principles shall serve as a basis for decisions concerning the legality of prizes.

The principal powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, Naples, and also the United States, acceded to the Russian principles of neutrality.

The Court of London answered this declaration by appealing to "the principles generally acknowledged as the Law of Nations, being the only law between powers where no treaties subsist;" and to

"the tenor of its different engagements with other powers, where those engagements had altered the primitive law by neutral stipulations, according to the will and convenience of the contracting parties."

England, being thus opposed to all the maritime world, was at this time obliged to smother her resentment; only simply expostulating with Russia. But the want of the consent of a power of such decided maritime superiority as that of Great Britain, was an insuperable obstacle to the success of the Baltic Conventional Law of Neutrality; and it was abandoned in 1793 by the naval powers of Europe, as not sanctioned by the existing law of nations, in every case in which the doctrines of that code did not rest upon positive compact.

During the protracted wars of the French Revolution, all the belligerent powers began by discarding in practice, not only the principles of the armed neutrality, but even the generally received maxims of international law by which neutral commerce in time of war had been previously regulated. France, on her part, revived the severity of her ancient prize code; decreeing not only the capture and condemnation of the goods of her enemies found on board neutral vessels, but even of the vessels themselves laden with goods of British growth, produce, and manufacture.

In 1801, principally in consequence of the doctrines of the British Admiralty Courts with regard to the right of search, great efforts were made by the Baltic powers to recall and enforce the doctrines of the armed neutrality of 1780. This attempt is generally known as the Armed Neutrality of 1800, and was met, promptly overpowered, and the confederacy finally dissolved, by the naval power of England. Russia gave up the point, and by her convention with England of the 17th of June, 1801, expressly agreed, that enemy's property was not to be protected on board of neutral ships.[198] This settlement was ended by the death of the Emperor Paul.


NOTE A.—The Law of Reprisals.[199]

Reprisals by commission, or letters of marque and reprisal, granted to one or more injured persons, in the name and authority of the Sovereign, constitutes a case of "partial, or special reprisals," and is considered to be compatible with a state of peace, and was formerly permitted by the Law of Nations; though it may be doubted if such a rule would hold good now.[200] General reprisals upon the persons and property of the subjects of another nation are equivalent to open war. It is often the first step which is taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending state.

A stoppage or seizure (in other words, an embargo), must not be confounded with complete reprisals. When ships are seized for the purpose of obtaining satisfaction for a particular injury, or security against a possible event, that seizure is only an embargo. The vessels are preserved as long as there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and the reprisals are accomplished. In fact, that which was embargo becomes reprisals by the act of confiscation.[201]

In the words of Lord Stowell:

"Upon property so detained the declaration of war is said to have a retroactive effect, and to render it liable to be considered as the property of enemies taken in time of war. The property is seized provisionally—an act hostile enough in the mere execution, but equivocal as to its effects, and liable to be varied by subsequent events, and by the conduct of the government, the property of whose subjects is so detained. Where the first seizure is equivocal, if the matter in dispute terminates in reconciliation, the seizure is converted into a mere civil embargo. This would be the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses a hostile character upon the original seizure. It is declared to be embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus by which it was done, that it was done hostili animo, and is to be considered a hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restitution of such property taken before a formal declaration of hostilities."[202]

The modern rule seems to be, that tangible property, belonging to an enemy, ought not to be immediately confiscated. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not of itself confiscate the property of an enemy.

Chancellor Kent expressly terms this species of hostility—a reprisal.[203] And Lord Mansfield says, that though foreign ports or harbours are not the high sea any more than the shore, yet numberless captures made there have been condemned as prize,[204] i.e. can be the subject of reprisal.

NOTE B.—War Bill Act.

During the last war, the War Bill Act, 34 Geo. 3. c. 9, was passed as a measure of retaliation. It was passed in order to prevent the effect intended to be produced by an order of the French Government, compelling all merchants, bankers, and others, possessed of money, funded property, and effects, in different parts Europe, to declare all such property, that it might be taken by violence, and applied to the purposes of the war then carried on by the government of France against the greater part of Europe.

The principal sections relating to bills, prohibited any British subject, from and after March 1, 1794, from wilfully and knowingly in any manner paying or satisfying any bill of exchange, note, draught, obligation, or order for money, in part or in whole, which, since January 1, 1794, had been or at any time during the said war should be drawn, accepted, or indorsed, or in any manner sent from any part of the dominions of France, &c.; every person so offending to forfeit double the value, and the payment not to be effectual against any person who might otherwise have demanded the same; but the demands of all persons to remain, notwithstanding such payment, and notwithstanding such bills shall have been delivered up.

NOTE C.—Rule of 1756.

During the war of 1756, the French Government, finding the trade with their colonies cut off by the maritime superiority of Great Britain, relaxed the monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licences or passes, granted for this particular purpose, excluding at the same time, all other neutrals from the same trade. Many of their vessels were captured by the British cruizers.

The policy under which they were captured is called the "Rule of 1756;" and as, in the present war, its justice and propriety has already begun to be doubted, it may not be uninteresting to read the reasons upon which it was founded.

1. They were considered as part of the French navigation, having adopted this otherwise exclusive commerce, and acting in the character of French enemy in identifying themselves with that interest, in direct opposition to the belligerent interests and purposes of Great Britain.

2. Inasmuch as they were only carriers for the French, they were to be regarded as French transports, carrying national assistance to the enemy, and therefore to be condemned on the same principle as vessels carrying troops or despatches.

3. That the property they carried being from one part of the French empire to the other, was so completely identified with French interests as to take a hostile character.

4. When war comes it is necessary to shut some of the avenues of commerce, otherwise the belligerent rights could not be protected.

5. That the neutral ought not to have through and by means of the war, which is not his affair, that he has not in time of peace; and by natural justice he is only entitled to his accustomed trade. That any inconveniences he may suffer are quite balanced by the enlargement of his commerce; the trade of the belligerents is usually interrupted to a great degree, and falls into the lap of the neutral.[205]

6. That it is a direct assistance to the enemy, and an injury to the belligerent interests of the other country, to carry on for the enemy the commerce that she has lost by the pressure of the war,—rendering the efforts of the successful power nugatory.

NOTE D.—Articles that have been declared Contraband at various times.

Gunpowder, arms, military equipments, and other things peculiarly adapted to military purposes.

Sail cloths, masts, anchors, pitch, tar, and hemp, universally contraband, even when destined to ports not of military equipment.

Cheeses, fit for naval use; such as Dutch cheeses, when exclusively used in French ships of war.

Rosin, tallow, and ship biscuits, if destined to ports of military or naval equipment.

Similarly, of Wines.

And ship timber, when so destined.

Ships of war, or ships adapted for such service, going to a port of the enemy for sale.

Copper in sheets, certified by government dockyard officers as fit for the sheathing of ships.

Brimstone, destined to a port of warlike equipment.

NOTE E.—The Late Declarations.

The first manifesto or declaration of war issued by the Queen, so far follows the ancient form, that it gives a justification of the war, but differs from it in the omission of a general command to all her subjects to commit hostilities on the enemy. By this command (in the ancient form), the subjects were in general ordered, not only to break off all intercourse with the enemy, but also to attack him. Custom interpreted this general order. It authorized, and even obliged every subject, of whatever rank, to secure the person and things belonging to the enemy when they fell into his hands; but it did not invite the subjects to undertake any offensive expedition without a commission or particular order. The present manifesto simply proclaims that the Queen of England has taken up arms against Russia, that is, has declared "a state of war." The omission of an injunction to break off intercourse, and to exercise hostility, does not relieve the subject from his duty in that respect; for war may commence without any manifesto, and any official recognition of the "state of war" casts upon the subject his full duties under that condition of things. The ancient form has been judiciously allowed to drop, leading, as it might have done, to misconception on the part of her majesty's lieges.

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